Exhibit 2(h)(l)
FIRST AMERICAN MINNESOTA MUNICIPAL INCOME FUND II, INC.
[__________] SHARES*
COMMON STOCK
PURCHASE AGREEMENT
[__________], 2002
U.S. BANCORP XXXXX XXXXXXX INC.
As Representative of the several
Underwriters named in Schedule I hereto
U.S. Bancorp Center
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
First American Minnesota Municipal Income Fund II, Inc., a Minnesota
corporation (the "Company"), proposes to issue and sell [________] shares of its
authorized but unissued Common Stock, par value $0.01 per share (such Common
Stock of the Company being herein called the "Common Stock"). The shares of
Common Stock to be issued and sold by the Company and purchased by the several
Underwriters named in Schedule I hereto (the "Underwriters") are herein
collectively called the "Underwritten Stock". The Company also proposes to grant
to the Underwriters an option to purchase up to [________] additional shares of
Common Stock (herein called the "Option Stock" and with the Underwritten Stock
herein collectively called the "Stock"). The Common Stock is more fully
described in the Registration Statement and the Prospectus hereinafter
mentioned. U.S. Bancorp Asset Management, Inc., a Delaware corporation (the
"Investment Adviser"), will be the Company's investment adviser.
The Company and the Investment Adviser hereby confirm the agreements
made with respect to the purchase of the Stock by the several Underwriters, for
whom you are acting as representative (the "Representative").
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has filed with
the Securities and Exchange Commission (the "Commission") a notification of
registration of the Company as an investment company under the Investment
Company Act of 1940 (the
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* Plus an option to purchase up to [________] additional shares to cover
over-allotments.
"Investment Company Act") on Form N-8A (the "Notification"). The Company has
also filed, in accordance with the Securities Act of 1933, as amended (the
"Securities Act"), the Investment Company Act and the published rules and
regulations adopted by the Commission under the Securities Act (the "Securities
Act Rules"), and the Investment Company Act (the "Investment Company Act
Rules"), with the Commission a registration statement on Form N-2 (File Nos.
333-[______] and 811-[______]), including the related preliminary prospectus and
preliminary statement of additional information, relating to the Stock. The
Company has furnished you with copies of such registration statement and of all
amendments thereto, if any, heretofore filed by the Company with the Commission
and of each preliminary prospectus and preliminary statement of additional
information filed by the Company with the Commission or used by the Company. The
Company will not, on or prior to any Closing Date, as hereinafter defined, file
any amendment to the registration statement or make any supplement thereto to
which you shall reasonably object in writing after being furnished with a copy
thereof.
The term "Preliminary Prospectus" means any preliminary prospectus (as
referred to in Rule 430 or 430A of the Securities Act Rules) and preliminary
statement of additional information included at any time as a part of the
registration statement. If such registration statement has not become effective,
a further amendment (the "Final Amendment") to such registration statement,
including the forms of final prospectus and final statement of additional
information, necessary to permit such registration statement to become effective
will promptly be filed by the Company with the Commission. If such registration
statement has become effective, a final prospectus and final statement of
additional information (the "Rule 430A Prospectus") containing information
permitted to be omitted at the time of effectiveness by Rule 430A of the
Securities Act Rules will promptly be filed by the Company with the Commission
in accordance with Rule 497(h) of the Securities Act Rules. The registration
statement as amended at the time it becomes or became effective (the "Effective
Date"), including financial statements and all exhibits and any information
deemed to be included by Rule 430A, is called the "Registration Statement". The
term "Prospectus" means the prospectus and statement of additional information
as first filed with the Commission pursuant to Rule 497 of the Securities Act
Rules or, if no such filing is required, the forms of final prospectus and final
statement of additional information included in the Registration Statement at
the Effective Date.
The Company understands that the Underwriters propose to make a public
offering of the Stock, as described in the Prospectus, as soon after the
Effective Date (or, if later, after the date this Agreement is executed) as you
deem advisable. The Company confirms that the Underwriters and dealers have been
authorized to distribute each Preliminary Prospectus and are authorized to
distribute the Prospectus and any amendments or supplements thereto.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE INVESTMENT
ADVISER. (a) Each of the Company and the Investment Adviser hereby jointly and
severally represents and warrants to, and agrees with, the several Underwriters
as follows:
(i) On the Effective Date and the date the Prospectus is first
filed with the Commission pursuant to Rule 497 (if required), when any
post-effective amendment to the Registration Statement (except any
post-effective amendment required by Rule 8b-16 of the Investment
Company Act which is filed with the Commission after the later of one
year from the date of this Agreement or the date on which the
distribution of the
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Stock is completed) becomes effective or any amendment or supplement to
the Prospectus is filed with the Commission and at each Closing Date,
the Registration Statement, the Prospectus and any such amendment or
supplement and the Notification did or will comply in all material
respects with the requirements of the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act
Rules. On the Effective Date and when any post-effective amendment to
the Registration Statement (except any post-effective amendment
required by Rule 8b-16 of the Investment Company Act which is filed
with the Commission after the later of one year from the date of this
Agreement or the date on which the distribution of the Stock is
completed) becomes effective, no part of the Registration Statement,
the Prospectus or any such amendment or supplement did or will contain
any untrue statement of a material fact or omit to state a material
fact required to be stated in it or necessary to make the statements in
it not misleading. At the Effective Date, the date the Prospectus or
any amendment or supplement to the Prospectus is filed with the
Commission and at each Closing Date, the Prospectus did not or will not
contain any untrue statement of a material fact and did not or will not
omit to state a material fact necessary to make the statements in it,
in light of the circumstances under which they were made, not
misleading. The foregoing representations do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to the Underwriters furnished in writing to the Company by
you, or by any Underwriter through you, expressly for use in the
Registration Statement, Prospectus, amendment or supplement.
(ii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota and is duly qualified as a foreign corporation and in good
standing in each jurisdiction in which its ownership or leasing of
property requires such qualification and in which the failure to
qualify would have a material adverse effect on its business or
operations. The Company has full corporate power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement.
(iii) The authorized capital stock of the Company is as
described in the Registration Statement and the Prospectus. The capital
stock of the Company conforms in all material respects to the
description of it in the Prospectus. Proper corporate proceedings have
been taken validly to authorize the outstanding shares of such capital
stock (including the Stock being issued). All the outstanding shares of
such capital stock (including the Stock, when issued, delivered and
paid for as provided in this Agreement) have been duly and validly
issued and are fully paid and nonassessable, and no holder of the Stock
will be subject to personal liability by reason of being such a holder.
The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive or other similar rights.
(iv) The Registration Statement and the Prospectus comply as
to form in all material respects with the requirements of the
Securities Act, the Investment Company Act, the Securities Act Rules
and the Investment Company Act Rules.
(v) This Agreement has been duly authorized, executed and
delivered by the Company, and includes the provisions (if any) required
by, and includes no
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provisions inconsistent with, any applicable provisions of the
Investment Company Act and the Investment Company Act Rules. The
Company complies with the condition set forth in Section 10(b)(2) of
the Investment Company Act for the use as a principal underwriter of
securities issued by it a person of which a director, officer or
employee of it is an interested person (as defined in the Investment
Company Act). Assuming the due authorization, execution and delivery by
the other parties hereto, this Agreement constitutes the valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws, and except to the extent enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
(vi) Each of the Advisory Agreement (as defined in the
Prospectus), the Administration Agreement (as so defined), the Custody
Agreement (as so defined) and the Transfer Agency Agreement (as so
defined) (1) has been duly and validly authorized, executed and
delivered by the Company, (2) includes the provisions (if any) required
by, and includes no provisions inconsistent with, any applicable
provisions of the Investment Company Act and the Investment Company Act
Rules and (3) constitutes the legal, valid and binding obligation of
the Company enforceable in accordance with its terms, except to the
extent enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) [and to termination
under the Investment Company Act].
(vii) None of (1) the execution and delivery of this
Agreement, the Advisory Agreement, the Administration Agreement, the
Custody Agreement or the Transfer Agency Agreement by the Company, (2)
the issue and sale by the Company of the Stock sold by the Company as
contemplated by this Agreement or (3) the consummation by the Company
of the other transactions contemplated by such agreements conflicts
with, or results in a breach of, the Articles of Incorporation or
By-laws of the Company or any agreement or instrument to which the
Company is a party or by which the Company is bound, any law or
regulation or any order or regulation of any court, governmental
instrumentality or arbitrator.
(viii) The Company is not currently in breach of, or in
default under, any agreement or instrument to which it is party or by
which it or its property is bound or affected.
(ix) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of
the Registration Statement.
(x) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the
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transactions contemplated by this Agreement, the Advisory Agreement,
the Administration Agreement, the Custody Agreement or the Transfer
Agency Agreement, except such as have been obtained under the
Securities Act, the Investment Company Act, the Commodities Exchange
Act, the Securities Act Rules and the Investment Company Act Rules and
such as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Stock by the
Underwriter.
(xi) The Stock will, on the First Closing Date (as herein
defined), be duly authorized for listing, subject to official notice of
issuance, on the American Stock Exchange.
(xii) The Company is duly registered with the Commission under
the Investment Company Act as a closed-end, non-diversified management
investment company, and all required action has been taken by the
Company under the Securities Act and the Investment Company Act to make
the public offering and consummate the sale of the Stock provided in
this Agreement.
(xiii) Ernst & Young LLP, whose report appears in the
Prospectus, are independent public accountants with respect to the
Company, as required by the Securities Act, the Securities Act Rules,
the Investment Company Act and the Investment Company Rules.
(xiv) The statement of assets and liabilities of the Company
included in the Registration Statement and the Prospectus presents
fairly the financial position of the Company as at the date indicated
and said statement has been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis.
(xv) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, of the Company or the Investment
Adviser, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Company which are
material to the Company other than those in the ordinary course of
business and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xvi) Each of the Company and the Investment Adviser owns or
possesses or has obtained all material governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry
on its respective business as contemplated in the Prospectus.
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company or the Investment Adviser,
threatened, against or affecting, the Company or the Investment
Adviser. which might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Company
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or the Investment Adviser; and there are no material contracts or
documents of the Company which are required to be filed as exhibits to
the Registration Statement by the Securities Act, the Investment
Company Act or by the Securities Act Rules and the Investment Company
Act Rules which have not been so filed.
(xviii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization and with the investment policies and
restrictions of the Company and the applicable requirements of the
Investment Company Act and the Investment Company Act Rules; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles in the United States applied on a consistent basis and to
maintain accountability for assets and to maintain compliance with the
books and records requirements under the Investment Company Act and the
Investment Company Act Rules; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D)
the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(xix) [Except as stated in this Agreement and in the
Prospectus (and any amendment or supplement thereto), neither the
Company nor the Investment Adviser has taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any securities issued by the Company to
facilitate the sale or resale of the Stock, and neither the Company nor
the Investment Adviser is aware of any such action taken or to be taken
by any of their respective affiliates who are not underwriters or
dealers participating in the offering of the Stock.]
(xx) All advertising, sales literature or other promotional
material (including "prospectus wrappers") intended for public
distribution and authorized in writing by or prepared by the Company or
the Investment Adviser for use in connection with the offering and sale
of the Stock (collectively, "Sales Material") complied and complies in
all material respects with the applicable requirements of the
Securities Act, the Investment Company Act, the Securities Act Rules,
the Investment Company Act Rules and the rules and interpretations of
the National Association of Securities Dealers, Inc. (the "NASD") and
no such Sales Material, when read together with the Prospectus,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. No advertising, sales
literature or other promotional material (including "broker kits",
"road show slides" and "road show scripts") not intended for public
distribution and authorized in writing by or prepared by the Company or
the Investment Adviser for use in connection with the offering and sale
of the Stock was or is, when read together with the Prospectus,
materially false or misleading.
(b) The Investment Adviser also represents to the several Underwriters
as follows:
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(i) The Investment Adviser has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, is duly qualified as a foreign corporation and
in good standing in each other jurisdiction in which its ownership or
leasing of property or its conduct of business requires such
qualification and in which the failure to qualify would have a material
adverse effect on the business or operations of the Investment Adviser
and has full corporate power and authority to conduct its business as
described in the Registration Statement.
(ii) The Investment Adviser is duly registered with the
Commission under the Investment Advisers Act of 1940 (the "Advisers
Act") as an investment adviser and is not prohibited under the Advisers
Act, the Investment Company Act, the published rules and regulations
adopted by the Commission under the Advisers Act (the "Advisers Act
Rules") or the Investment Company Act Rules from acting as investment
adviser for the Company or otherwise under the Advisory Agreement as
contemplated by the Prospectus.
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Investment Adviser, includes the
provisions (if any) required by, and includes no provisions
inconsistent with, any applicable provisions of the Investment Company
Act and the Investment Company Act Rules, and, assuming the due
authorization, execution and delivery by the other parties hereto,
constitutes the valid and legally binding agreement of the Investment
Adviser, enforceable against the Investment Adviser in accordance with
its terms, except as rights to indemnity or contribution hereunder may
be limited by federal or state securities laws, and except to the
extent enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(iv) Each of the Advisory Agreement and the Administration
Agreement has been duly and validly authorized, executed and delivered
by the Investment Adviser, includes the provisions (if any) required
by, and includes no provisions inconsistent with, any applicable
provisions of the Investment Company Act, and the Investment Company
Act Rules, and constitutes a legal, valid and binding obligation of the
Investment Adviser enforceable in accordance with its terms, except to
the extent enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) [and to termination
under the Investment Company Act].
(v) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association is
required for the consummation by the Investment Adviser of the
transactions contemplated by this Agreement or the Advisory Agreement.
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(vi) Neither the execution and delivery of this Agreement or
the Advisory Agreement nor the consummation by the Investment Adviser
of the transactions contemplated by this Agreement or the Advisory
Agreement conflicts with, or results in a breach of, the Certificate of
Incorporation or By-laws of the Investment Adviser or any agreement or
instrument to which the Investment Adviser is a party or by which the
Investment Adviser is bound, any law, rule, regulation or any order of
any court, governmental instrumentality, securities exchange or
association or arbitrator.
(vii) The description of the Investment Adviser in the
Prospectus complies with the requirements of the Securities Act, the
Investment Company Act and the Advisers Act and does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated in it or necessary in order to make the
statements in it not misleading.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS. (a) On the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Company agrees to issue and sell [________] shares of the
Underwritten Stock to the several Underwriters, and each Underwriter agrees to
purchase from the Company such number of shares of Underwritten Stock. The
initial public offering price of the Underwritten Stock shall be $15.00 per
share. The purchase price at which all shares of Underwritten Stock shall be
sold by the Company and purchased by the Underwriters shall be $[_____] per
share. In making this Agreement, each Underwriter is contracting severally and
not jointly; except as provided in paragraph (c) of this Section 3 and in
Section 9 hereof, the agreement of each Underwriter is to purchase only the
respective number of shares of Underwritten Stock specified in Schedule I.
(b) On the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company hereby grants an option
to the several Underwriters to purchase up to [________] shares in the aggregate
of the Option Stock from the Company, which shall be authorized but unissued
shares of Common Stock, at the same purchase price per share as the Underwriters
shall pay for the Underwritten Stock. Such option may be exercised only to cover
over-allotments in the sale of the Underwritten Stock by the Underwriters. Such
option may be exercised in whole or in part at any time (but not more than once)
within [30] days after the date of this Agreement upon written notice by you to
the Company setting forth the aggregate number of shares of the Option Stock as
to which the several Underwriters are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the time and place at which such certificates are to be delivered, such time
(which, unless otherwise determined by you and the Company, shall not be earlier
than four nor later than seven full business days after the exercise of such
option) being herein called the "Second Closing Date".
(c) It is understood that you, individually and not as Representative
of the several Underwriters, may (but shall not be obligated to) make payment to
the Company on behalf of any Underwriter for the Stock to be purchased by such
Underwriter. Any such payment by you shall not relieve any such Underwriter of
any of its obligations hereunder. Nothing herein contained shall constitute any
of the Underwriters an unincorporated association or partner with the Company.
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4. OFFERING BY THE UNDERWRITERS. (a) The terms of the initial public
offering by the several Underwriters of the Stock to be purchased by the several
Underwriters shall be as set forth in the Prospectus. The Underwriters may from
time to time decrease the public offering price and increase or decrease the
concessions and discounts to dealers as it may determine.
(b) The information set forth under "Underwriting" in any Preliminary
Prospectus or in the Prospectus relating to the Stock proposed to be filed by
the Company (insofar as such information relates to the Underwriters)
constitutes information furnished by you, or by any Underwriter through you, to
the Company for inclusion therein, and each Underwriter represents and warrants
to the Company that the statements made therein are correct in all material
respects.
5. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of certificates for
the shares of the Underwritten Stock, and payment therefor, shall be made to you
for the accounts of the several Underwriters at the offices of U.S. Bancorp
Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, at 9:00 a.m., Central time, on the third full business day
after the date of this Agreement, or at such time on such other day, not later
than seven full business days after such third business day, as shall be agreed
upon in writing by you and the Company. The date and hour of such delivery and
payment are herein called the First Closing Date. Payment for the Underwritten
Stock purchased from the Company shall be made to the Company or its order by
wire transfer of same day funds to a bank account designated by the Company.
Such payment shall be made upon delivery of certificates for such Underwritten
Stock to you for the accounts of the several Underwriters against receipt
therefor signed by you. Upon exercise of the option as provided in Section 3(c)
hereof, the Company will deliver certificates for the Option Stock being
purchased to you on the Second Closing Date against payment of the purchase
price therefor by wire transfer of same day funds to a bank account designated
by the Company. The certificates for the Underwritten Stock and the Option
Stock, respectively, shall be registered in such name or names and shall be in
such denominations as you, at least two business days before the First Closing
Date and the Second Closing Date, respectively, may request, and will be made
available to the Underwriter for inspection, checking and packaging at the
offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, not less than one full business day prior to
the First Closing Date and the Second Closing Date, respectively. If you so
elect, delivery of the Underwritten Stock or the Option Stock may be made by
credit through full fast transfer to the accounts at The Depository Trust
Company designated by you.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with the several Underwriters as follows:
(a) If the Registration Statement has not yet become effective, the
Company will promptly file the Final Amendment with the Commission, will use its
best efforts to cause the Registration Statement to become effective and, as
soon as the Company is advised, will advise you when the Registration Statement
or any amendment thereto has become effective. If the Registration Statement has
become effective, the Company will file the 430A Prospectus as promptly as
practicable, but no later than the second business day following the date of
this Agreement, and will provide you satisfactory evidence of the filing. The
Company will not file
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any prospectus or any other amendment (except any post-effective amendment
required by Rule 8b-16 of the Investment Company Act which is filed with the
Commission after the later of one year from the date of this Agreement or the
date on which the distribution of the Stock is completed) or supplement to the
Registration Statement or Prospectus unless a copy has first been submitted to
you within a reasonable time before its filing and you have not reasonably
objected to it within a reasonable time after receiving the copy.
(b) The Company will advise you, promptly after it shall receive notice
or obtain knowledge thereof, (1) of the issuance by the Commission of any order
in respect of the Company, or in respect of the Investment Adviser which relates
to the Company, (2) of the initiation or threatening of any proceedings for, or
receipt by the Company of any notice with respect to, the suspension of the
qualification of the Stock for sale in any jurisdiction or the issuance of any
stop order by the Commission suspending the effectiveness of the Registration
Statement and (3) of receipt by the Company or any representative or attorney of
the Company of any other communication from the Commission relating to the
Company, the Registration Statement, the Notification, any Preliminary
Prospectus, the Prospectus or to the transactions contemplated by this
Agreement. The Company will make every reasonable effort to prevent the issuance
of a stop order suspending the effectiveness of the Registration Statement and,
if any such stop order is issued, to obtain its lifting as soon as possible.
(c) The Company furnish to the Underwriters and counsel for the
Underwriters three signed copies of the Registration Statement and the
Notification and any amendments (except any post-effective amendment required by
Rule 8b-16 of the Investment Company Act which is filed with the Commission
after the later of one year from the date of this Agreement or the date on which
the distribution of the Stock is completed) to either of them (including all
exhibits filed with any such document) and as many conformed copies of the
Registration Statement and of any amendments and supplements (except any
post-effective amendment required by Rule 8b-16 of the Investment Company Act
which is filed with the Commission after the later of one year from the date of
this Agreement or the date on which the distribution of the Stock is completed)
to such documents as you may from time to time reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Company will furnish to the
Underwriters and any dealers who may so request in writing, as many copies of
the Prospectus as may from time to time be reasonably requested, and, if any
event occurs during such period as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in light of
the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading in any material respect, or if during such period it is necessary to
amend or supplement the Prospectus to comply with the Securities Act, the
Investment Company Act, the Securities Act Rules or the Investment Company Act
Rules, the Company will promptly prepare, submit to you, file with the
Commission and furnish to the Underwriters and to any dealers (whose names and
addresses you will furnish to the Company) to whom Stock may have been sold by
you, and to other dealers upon request, amendments or supplements to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not, in light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading in any material respect
and will comply with the Securities Act, the Investment Company Act, the
Securities Act Rules and the
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Investment Company Act Rules. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a waiver of any
of the conditions in Section 11.
(e) The Company will make generally available to the Company's security
holders, as soon as practicable, but in any event not later than 15 months after
the end of the Company's current fiscal quarter, an earnings statement of the
Company, which need not be audited, satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Securities Act Rules, and will advise
you in writing when such statement has been so made available.
(f) The Company will take such actions, if any, as you reasonably
request in order to qualify the Stock for offer and sale under the securities or
"blue sky" laws of such jurisdictions as you reasonably designate.
(g) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is prevented from becoming effective under the
provisions of Section 9(a) hereof or is terminated, will pay or cause to be paid
(1) all expenses (including transfer taxes allocated to the respective
transferees) incurred in connection with the delivery to the Underwriters of the
Stock, (2) all expenses and fees (including, without limitation, fees and
expenses of the Company's accountants and counsel but, except as otherwise
provided below, not including fees of the Underwriters' counsel) in connection
with the preparation, printing, filing, delivery and shipping of the
Registration Statement (including all amendments, schedules and exhibits
thereto), the Stock, each Preliminary Prospectus, the Prospectus and any
amendment thereof or supplement thereto, and the printing, delivery and shipping
of this Agreement and other underwriting documents, including Blue Sky Memoranda
(covering the states and other applicable jurisdictions), (3) all filing fees
and fees and disbursements of the Underwriters' counsel incurred in connection
with the qualification of the Stock for offering and sale by the Underwriters or
by dealers under the securities or blue sky laws of the states and other
jurisdictions which you shall designate or are necessary to distribute the
Stock, (4) the fees and expenses of any transfer agent or registrar, (5) the
filing fees incident to any required review by the NASD of the terms and sale of
the Stock, (6) listing fees, if any, and (7) all other costs and expenses
incident to the performance of its obligations hereunder that are not otherwise
specifically provided for herein. If the sale of the Stock provided for herein
is not consummated by reason of action by the Company pursuant to Section 9(a)
hereof which prevents this Agreement from becoming effective, or by reason of
any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the several Underwriters for all
out-of-pocket disbursements (including fees and disbursements of counsel)
incurred by the Underwriters in connection with their investigation, preparing
to market and marketing the Stock or in contemplation of performing their
obligations hereunder. The Company shall not in any event be liable to any of
the Underwriters for loss of anticipated profits from the transactions covered
by this Agreement.
(h) Without your prior written consent, the Company will not offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of,
11
directly or indirectly, or register with the Commission, or announce an offering
of, any equity securities of the Company, within 180 days after the Effective
Date, except for the Stock and as otherwise contemplated in the Prospectus with
respect to the offering of shares of preferred stock of the Company.
(i) The Company will use its best efforts to obtain the approval of the
Stock for listing on the American Stock Exchange.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Company and the
Investment Adviser, jointly and severally, agrees to indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities Act,
the Exchange Act, the Investment Company Act, the Advisers Act or other Federal
or state statutory law or regulation or the common law or otherwise (including
in settlement of any litigation if such settlement is effected with the written
consent of the Company and the Investment Adviser), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including the information deemed
to be a part of the Registration Statement at the time of effectiveness pursuant
to Rule 430A of the Securities Act Rules, if applicable, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or in any
materials or information provided to investors by, or with the approval of, the
Company or the Investment Adviser in connection with the marketing or the
offering of the Stock ("Sales Material"), including any roadshow or investor
presentations made to investors by the Company or the Investment Adviser
(whether in person or electronically) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with the investigating or defending against such
loss, claim, damage, liability or action; provided, however, that the Company
and the Investment Adviser shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any such amendment or supplement, or in any Sales Material, in
reliance upon and in conformity with written information furnished to the
Company by you, or by any Underwriter through you, specifically for use in the
preparation thereof.
In addition to its obligations under this Section 7(a), the Company and
the Investment Adviser agree that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in the Section 7(a), they will reimburse each Underwriter on a monthly
basis for all reasonable legal fees or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's or the Investment Adviser's
obligation to reimburse the Underwriters for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, the Underwriter that received
12
such payment shall promptly return it to the party or parties that made such
payment, together with interest, compounded daily, determined on the basis of
the prime rate (or other commercial lending rate for borrowers of the highest
credit standing) announced from time to time by _______ (the "Prime Rate"). Any
such reimbursement payments which are not made to an Underwriter within 30 days
of a request for reimbursement shall bear interest at the Prime Rate from the
date of such request. This indemnity agreement shall be in addition to any
liabilities which the Company or the Investment Adviser may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Investment Adviser against any losses, claims, damages or liabilities to
which the Company or the Investment Adviser may become subject, under the
Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act
or other Federal or state statutory law or regulation or the common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof, and will reimburse the Company
and the Investment Adviser for any legal or other expenses reasonably incurred
by the Company or the Investment Adviser in connection with investigating or
defending against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve the indemnifying party from any liability that it may have to an
indemnified party except to the extent such indemnifying party has been
materially prejudiced by such failure. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that is shall wish, jointly with any other indemnifying
person similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party's election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that if, in the sole judgment of the
Representative, it is advisable for the Underwriters to be represented as a
group by separate counsel, the Representative shall have the right to employ a
single counsel to represent the Representative and all Underwriters who may be
subject to liability arising from any claim in respect of which indemnity may be
sought by the Underwriters under subsection (a) of this Section 7, in which
event the reasonable fees and expenses of such separate counsel shall be
13
borne by the indemnifying party or parties and reimbursed to the Underwriters as
incurred (in accordance with the provisions of the second paragraph of
subsection (a) above). An indemnifying party shall not be obligated under any
settlement agreement relating to any action under this Section 7 to which it has
not agreed in writing.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Investment Adviser on the one hand and the Underwriters
on the other hand from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relatively benefits
referred to in clause (i) above but also to the relative fault of the Company
and the Investment Adviser on the one hand and the Underwriters on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Investment
Adviser on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Stock (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission of a material fact relates to information supplied by the Company and
the Investment Adviser on the one hand or the Underwriters on the other hand and
the parties' relevant intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company, the
Investment Adviser and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this subsection (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company and the Investment Adviser under
this Section 7 shall be in addition to any liability which the Company or the
Investment Adviser may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters under
this Section 7 shall be in addition to any liability that the respective
14
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company (including any person who, with his
or her consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company or
the Investment Adviser within the meaning of the Securities Act.
(f) The Underwriters severally confirm and the Company and the
Investment Adviser acknowledge that the statements with respect to the public
offering of the Stock by the Underwriters set forth on the cover page of, and
the concession and reallowance figures appearing under the caption
"Underwriting" in, the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company and the Investment
Adviser contained herein or in certificates delivered pursuant hereto, and the
agreements of the several Underwriters, the Company and the Investment Adviser
contained in Section 7 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof, or the Company or the Investment Adviser or
any of their respective officers, directors or controlling persons and shall
survive delivery of, and payment for, the Stock to and by the Underwriters
hereunder.
9. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Underwritten Stock agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Underwritten Stock in accordance
with the terms hereof, and the amount of Underwritten Stock not purchased does
not aggregate more than 10% of the total amount of Underwritten Stock set forth
in Schedule I hereto, the remaining Underwriters shall be obligated to take up
and pay for (in proportion to their respective underwriting obligations
hereunder as set forth in Schedule I hereto except as may otherwise be
determined by you) the Underwritten Stock that the withdrawing or defaulting
Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Underwritten Stock agreed by such Underwriter or Underwriters
to be purchased hereunder, upon tender of such Underwritten Stock in accordance
with the terms hereof, and the amount of Underwritten Stock not purchased
aggregates more than 10% of the total amount of Underwritten Stock set forth in
Schedule I hereto, and arrangements satisfactory to you for the purchase of such
Underwritten Stock by other persons are not made within 36 hours thereafter,
this Agreement shall terminate. In the event of any such termination the Company
shall not be under any liability to any Underwriter (except to the extent
provided in Section 6(g) and Section 7 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of Underwritten Stock
agreed by such Underwriter to be purchased hereunder) be under any liability to
the Company (except to the extent provided in Section 7 hereof).
15
If Underwritten Stock to which a default relates is to be purchased by
the non-defaulting Underwriters or by any other party or parties, the
Representative or the Company shall have the right to postpone the First Closing
Date for not more than seven business days in order that the necessary changes
in the Registration Statement, Prospectus and any other documents, as well as
any other arrangement, may be effected. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 9.
10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m., Central time,
on the first full business day following the effective time of the Registration
Statement, or at such earlier time after the effective time of the Registration
Statement as you in your discretion shall first release the Stock for sale to
the public; provided, that if the Registration Statement is effective at the
time this Agreement is executed, this Agreement shall become effective at such
time as you in your discretion shall first release the Stock for sale to the
public. For the purpose of this Section 10, the Stock shall be deemed to have
been released for sale to the public upon release by you of an electronic
communication authorizing the commencement of the offering of the Stock for sale
by the Underwriters or other securities dealers. By giving notice as hereinafter
specified before the time this Agreement becomes effective, you, as
Representative of the several Underwriters, or the Company, may prevent this
Agreement from becoming effective without liability of any party to any other
party, except that the provisions of Section 6(g) and Section 7 hereof shall at
all times be effective.
(b) You, as Representative of the several Underwriters, shall have the
right to terminate this Agreement by giving notice as hereinafter specified at
any time at or prior to the First Closing Date, and the option referred to in
Section 3(b), if exercised, may be canceled at any time prior to the Second
Closing Date , if (1) the Company shall have failed, refused or been unable, at
or prior to such Closing Date, to perform any agreement on its part to be
performed hereunder, (2) any other condition of the Underwriters' obligations
hereunder is not fulfilled, (3) trading on the Nasdaq National Market, the New
York Stock Exchange or the American Stock Exchange shall have been wholly
suspended, (4) minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices of securities shall have been required, on the Nasdaq
National Market, the New York Stock Exchange or the American Stock Exchange, by
such Exchange or by order of the Commission or any other governmental authority
having jurisdiction, (5) a banking moratorium shall have been declared by
federal or state authorities, or (6) there has occurred any material adverse
change in the financial markets in the United States or an outbreak of major
hostilities (or an escalation thereof) in which the United States is involved, a
declaration of war by Congress, any other substantial national or international
calamity or any other event or occurrence of a similar character shall have
occurred since the execution of this Agreement that, in your judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Stock. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 6(g) and Section
7 hereof shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section 10, the Company and the
Investment Adviser shall be notified promptly by you by telephone, confirmed by
letter. If the Company
16
elects to prevent this Agreement from becoming effective, you shall be notified
by the Company by telephone, confirmed by letter.
11. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriter to purchase and pay for the Underwritten Stock on the First
Closing Date and the Option Stock on the Second Closing Date shall be subject to
the accuracy of, and compliance with, all representations, warranties and
agreements of the Company and the Investment Adviser contained herein and the
performance by the Company and the Investment Adviser of all of their respective
obligations to be performed hereunder at or prior to such applicable Closing
Date and to the following further conditions:
(a) The Registration Statement must have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement or such later date
and time as you consent to in writing. If required, the Prospectus must have
been filed in accordance with Rule 497(b) or (h) of the Securities Act Rules.
(b) No stop order suspending the effectiveness of the Registration
Statement or any amendment thereof shall have been issued and no proceedings for
such purpose may be pending before or threatened by the Commission, and any
requests for additional information on the part of the Commission (to be
included in the Registration Statement or Prospectus or otherwise) must be
complied with to your reasonable satisfaction.
(c) You, as Representative of the several Underwriters, shall have
received from Sidley Xxxxxx Xxxxx & Xxxx, your counsel, an opinion addressed to
you and dated such Closing Date with respect to the Company, the Stock, the
Registration Statement and Prospectus, this Agreement and the form and
sufficiency of all proceedings taken in connection with the sale and delivery of
the Stock and other related matters as you reasonably may request. Such opinion
shall be satisfactory in all respects to you. The Company and the Investment
Adviser shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to render such opinion.
(d) You, as Representative of the several Underwriters, shall also have
received from Sidley Xxxxxx Xxxxx & Xxxx, your counsel, an opinion, addressed to
you and dated such Closing Date, substantially in the form of Appendix A to this
Agreement.
(e) You, as Representative of the several Underwriters, shall have
received from Xxxxxx & Whitney LLP, counsel for the Company, an opinion,
addressed to you and dated such Closing Date, substantially in the form of
Appendix B to this Agreement.
(f) Since the dates as of which information is given in the
Registration Statement and Prospectus, (1) there must not have been any material
change in the capital stock or liabilities of the Company and its subsidiaries,
(2) there must not have been any material adverse change in the general affairs,
prospects, management, business, financial condition or results of operations of
the Company, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Prospectus, (3) the
Company must not have sustained any material loss or interference with its
business from any court or legislative or other governmental action, order or
decree, or any other occurrence, not described
17
in the Prospectus, and (4) there must not have occurred any event that makes
untrue or incorrect in any material respect any statement or information
contained in the Prospectus or that is not reflected in the Prospectus but
should be reflected in it in order to make the statements or information in it
not misleading in any material respect, if, in your judgment, any such
development referred to in clause (1), (2), (3) or (4) makes it impractical or
inadvisable to offer or deliver the Stock on the terms and in the manner
contemplated in the Prospectus.
(g) You, as Representative of the several Underwriters, must have
received on the date of this Agreement certificates, dated such date, of the
chief executive or operating officer and the chief financial or accounting
officer of each of the Company and the Investment Adviser certifying that (1)
such officers have carefully examined the Registration Statement, the Prospectus
and this Agreement, (2) the representations of the Company and the Investment
Adviser in this Agreement are accurate on and as of the date of the certificate,
(3) there has not been any material adverse change in the general affairs,
prospects, management, business, financial condition or results of operations of
the Company, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Prospectus, and (4) to
the knowledge of such officers, no actions to delay the effectiveness of the
Registration Statement, to prohibit the sale of the Stock or having or which may
have any material adverse effect on the Investment Adviser have been taken or
threatened by the Commission. You, as Representative of the several
Underwriters, must receive on each Closing Date certificates, dated such Closing
Date, of such officers certifying to the effect set forth in (1), (2), and (3)
above and that (1) to the knowledge of such officers, no stop order suspending
the effectiveness of the Registration Statement, prohibiting the sale of the
Stock or having a material adverse effect on the Investment Adviser has been
issued and no proceedings for any such purpose are pending before or threatened
by the Commission and (2) each of the Company and the Investment Adviser has
performed all agreements that this Agreement requires it to perform by such
Closing Date.
(h) You, as Representative of the several Underwriters, must receive by
1:00 p.m., Central time, on the date that this Agreement is signed and delivered
by you a signed letter, dated such date and addressed to the Underwriter,
substantially in the form of Appendix C to this Agreement from Ernst & Young
LLP. You, as Representative of the several Underwriters, must also receive on
each Closing Date a signed letter from such accountants, dated such Closing
Date, confirming on the basis of a review in accordance with the procedures set
forth in their earlier letter that nothing has come to their attention during
the period from a date not more than three business days before the date of this
Agreement, specified in the letter, to a date not more than five business days
before such Closing Date that would require any change in their letter referred
to in the foregoing sentence.
(i) The representations and warranties of the Company and the
Investment Adviser herein and the statements made by the Company or the
Investment Adviser or any of their respective officers in any certificate
delivered to you or counsel for the Underwriters pursuant to this Agreement
shall be true and correct in all material respects as of each Closing Date.
(j) You, as Representative of the several Underwriters, shall have been
furnished evidence in usual written or telegraphic form from the appropriate
authorities of the
18
several states, or other evidence satisfactory to you, of the qualifications
referred to in paragraph (f) of Section 6 hereof.
All the opinions, certificates, letters or other documents mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if you and Sidley Xxxxxx Xxxxx & Xxxx, counsel for
the several Underwriters, shall be satisfied that they comply in form.
12. CONDITIONS OF THE OBLIGATION OF THE COMPANY. The obligation of the
Company to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective not later than 5:00 p.m.,
Central time, on the date of this Agreement, and (b) no stop order suspending
the effectiveness thereof or any amendment thereof shall have been issued, and
no proceedings therefor shall be pending or threatened by the Commission at the
First Closing Date. In case any of the conditions specified in this Section 11
shall not be fulfilled, this Agreement may be terminated by the Company by
giving notice to you.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of the Company, each Underwriter and, with respect to the
provisions of Section 7 hereof, the several parties (in addition to the Company
and the several Underwriters) indemnified under the provisions of such Section
7, and their respective personal representatives, successors and assigns.
Nothing in this Agreement is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successors and assigns" as herein used shall not include any purchaser, as such
purchaser, of any of the Stock from any of the several Underwriters.
14. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing and shall be mailed or delivered (i) if to the
Underwriters, to the Representative c/o U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S.
Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; except that
notices given to an Underwriter pursuant to Section 7 hereof shall be sent to
such Underwriter at the address stated in the Underwriters' Questionnaire
furnished by such Underwriter in connection with this offering; (ii) if to the
Company, to: U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; and (iii) if to the Investment Adviser, to:
U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original and all such counterparts
shall together constitute one and the same instrument.
19
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement among the Company,
the Investment Adviser and the several Underwriters in accordance with its
terms.
Very truly yours,
FIRST AMERICAN MINNESOTA MUNICIPAL
INCOME FUND II, INC.
By
--------------------------------------------
Its [_________]
U.S. BANCORP ASSET MANAGEMENT, INC.
By
--------------------------------------------
Its [_________]
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Underwriters named in Schedule
I hereto.
U.S. BANCORP XXXXX XXXXXXX INC.
By
--------------------------------
Its Managing Director
20
SCHEDULE I
Number of shares of
Underwriter Underwritten Stock(1)
----------- ---------------------
--------------------
Total......................
====================
----------
(1) The Underwriters may purchase up to an additional ________ shares of
Option Stock, to the extent the option described in Section 3(b) of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
