Exhibit (h)(1)
Xxxxx Xxxxx Enhanced Equity Income Fund
[ ] Common Shares of Beneficial Interest
Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
[ ], 2004
UNDERWRITING AGREEMENT
[ ], 2004
UBS Securities LLC
[Underwriters]
as Representatives
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxx Xxxxx Enhanced Equity Income Fund, a voluntary association with
transferable shares organized and existing under and by virtue of the laws of
The Commonwealth of Massachusetts (commonly referred to as a Massachusetts
business trust) (the "Fund"), proposes to issue and sell to the underwriters
named in Schedule A annexed hereto (the "Underwriters") an aggregate of [ ]
common shares of beneficial interest (the "Firm Shares"), par value $0.01 per
share (the "Common Shares"), of the Fund. In addition, solely for the purpose of
covering over-allotments, the Fund proposes to grant to the Underwriters the
option to purchase from the Fund up to an additional [ ] Common Shares (the
"Additional Shares"). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "Shares." The Shares are described in
the Prospectus which is defined below.
The Fund has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Securities Act"), and with the provisions of the
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder (collectively called the "Investment Company Act"), with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form N-2 (File Nos. 333-118180 and 811-21614), including a prospectus and a
statement of additional information, relating to the Shares. The Fund has
furnished to the Representatives, for use by the Underwriters and by dealers,
copies of one or more preliminary prospectuses (including a preliminary
statement of additional information) (each thereof, including such preliminary
statement of additional information, being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective (the
"Effective Date"), including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 497 under the
Securities Act and deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act is herein called
the "Registration Statement," and the prospectus (including the statement of
additional information), in the form filed by the Fund with the Commission
pursuant to Rule 497
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under the Securities Act or, if no such filing is required, the form of final
prospectus (including the form of final statement of additional information)
included in the Registration Statement at the time it became effective, is
herein called the "Prospectus." In addition, the Fund has filed a Notification
of Registration on Form N-8A (the "Notification") pursuant to Section 8 of the
Investment Company Act. UBS Securities LLC ("UBS Securities" or the "Managing
Representative") will act as managing representative for the Underwriters.
Xxxxx Xxxxx Management, a Massachusetts business trust ("Xxxxx
Xxxxx" or the "Investment Adviser") will act as the Fund's investment adviser
pursuant to an Investment Advisory Agreement by and between the Fund and the
Investment Adviser, dated as of [ ], 2004 (the "Investment Advisory
Agreement"). Rampart Investment Management Company (the "Sub-Adviser" and
together with the Investment Adviser the "Advisers") will act as the Fund's
investment sub-adviser pursuant to an Investment Sub-Advisory Agreement among
the Fund, the Investment Adviser and the Sub-Adviser, dated as of [ ], 2004
(the "Sub-Advisory Agreement"). Investors Bank & Trust Company will act as the
custodian (the "Custodian") of the Fund's cash and portfolio assets pursuant to
a Custodian Agreement, dated as of [ ], 2004 (the "Custodian Agreement").
PFPC Inc. will act as the Fund's transfer agent, registrar, and dividend
disbursing agent (the "Transfer Agent") pursuant to a Transfer Agency Services
Agreement, dated as of [ ], 2004 (the "Transfer Agency Agreement"). Xxxxx
Xxxxx will act as the administrator of the Fund pursuant to an Administration
Agreement, dated as of [ ], 2004 (the "Administration Agreement"). The
Investment Adviser and UBS Securities LLC have entered into a Shareholder
Servicing Agreement dated [ ], 2004 (the "Shareholder Servicing Agreement").
The Investment Adviser has also entered into an Additional Compensation
Agreement with [ ], dated [ ], 2004 (the "Additional Compensation
Agreement"). In addition, the Fund has adopted a dividend reinvestment plan (the
"Dividend Reinvestment Plan") pursuant to which holders of Shares may have their
dividends automatically reinvested in additional Common Shares of the Fund if so
elected.
The Fund, the Investment Adviser, the Sub-Adviser and the
Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Fund agrees
to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Fund the aggregate
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto in each case at a purchase price of $19.10 per
Share. The Fund is advised that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon
after the effective date of the Registration Statement as is advisable and
(ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. The Underwriters may from time to time increase or decrease
the public offering price after the initial public offering to such extent
as they may determine.
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In addition, the Fund hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth,
the Underwriters shall have the right to purchase, severally and not
jointly, from the Fund, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection
with the offering of the Firm Shares, at the same purchase price per Share
to be paid by the Underwriters to the Fund for the Firm Shares. This
option may be exercised by the Representatives on behalf of the several
Underwriters at any time and from time to time on or before the
forty-fifth day following the date hereof, by written notice to the Fund.
Such notice shall set forth the aggregate number of Additional Shares as
to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein
referred to as the "Additional Time of Purchase"); provided, however, that
the Additional Time of Purchase shall not be earlier than the Time of
Purchase (as defined below) nor earlier than the second business day after
the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter shall be the number which
bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter on Schedule A hereto bears to the total number of Firm
Shares (subject, in each case, to such adjustment as the Representatives
may determine to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm Shares
shall be made by the Underwriters to the Fund by Federal Funds wire
transfer, against delivery of the certificates for the Firm Shares to the
Representatives through the facilities of the Depository Trust Company for
the respective accounts of the Underwriters. Such payment and delivery
shall be made at a time mutually agreed upon by the parties on the third
business day following the date of this Underwriting Agreement (unless
another date shall be agreed to by the Representatives and the Fund). The
time at which such payment and delivery are actually made is hereinafter
sometimes called the Time of Purchase. Certificates for the Firm Shares
shall be delivered to the Representatives in definitive form in such names
and in such denominations as the Representatives shall specify on the
second business day preceding the Time of Purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by the
Representatives, the Fund agrees to make such certificates available to
the Representatives for such purpose at least one full business day
preceding the Time of Purchase.
Payment of the purchase price for the Additional Shares shall be
made at the Additional Time of Purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to the Representatives in definitive form in
such names and in such denominations as the Representatives shall specify
no later than the second business day preceding the Additional Time of
Purchase. For the purpose of
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expediting the checking of the certificates for the Additional Shares by
the Representatives, the Fund agrees to make such certificates available
to the Representatives for such purpose at least one full business day
preceding the Additional Time of Purchase. The Time of Purchase and the
Additional Time of Purchase are sometimes referred to herein as the
Closing Dates.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND, THE INVESTMENT ADVISER AND THE
SUB-ADVISER. Each of the Fund, the Investment Adviser and the Sub-Adviser
jointly and severally represents and warrants to each Underwriter as
follows:
(a) On (i) the Effective Date and the date on which the Prospectus is
first filed with the Commission pursuant to Rule 497(b), (h) or (j)
under the Securities Act, as the case may be, (ii) the date on which
any post-effective amendment to the Registration Statement (except
any post-effective amendment which is filed with the Commission
after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) became or becomes effective or any amendment or
supplement to the Prospectus was or is filed with the Commission and
(iii) the Closing Dates, the Registration Statement, the Prospectus
and any such amendment or supplement thereto and the Notification
complied or will comply in all material respects with the
requirements of the Securities Act and the Investment Company Act,
as the case may be. On the Effective Date and on the date that any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) became or becomes effective, neither the Registration
Statement nor any such amendment 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 and, if applicable, the
date the Prospectus or any amendment or supplement to the Prospectus
was or is filed with the Commission and at the Closing Dates, the
Prospectus did not or will not, as the case may be, 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, in light of the circumstances under which they were made, not
misleading. The foregoing representations in this Section 3(a) do
not apply to statements or omissions relating to the Underwriters
made in reliance on and in conformity with information furnished in
writing to the Fund by the Underwriters expressly for use in the
Registration Statement, the Prospectus, or any amendments or
supplements thereto, as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is validly existing a business trust
under the laws of the Commonwealth of Massachusetts, with full power
and authority to conduct all the activities conducted by it, to own
or lease all assets owned or leased by it and to conduct its
business as described in the
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Registration Statement and Prospectus, and 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 requires such qualification, except where the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Fund, and the Fund owns, possesses or
has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations,
whether foreign or domestic, necessary to carry on its business as
contemplated in the Prospectus. The Fund has no subsidiaries.
(c) The capitalization of the Fund is as set forth in the Registration
Statement and the Prospectus. The Common Shares conform in all
material respects to the description of them in the Prospectus. All
the outstanding Common Shares have been duly authorized and are
validly issued, fully paid and nonassessable (except as described in
the Registration Statement). The Shares to be issued and delivered
to and paid for by the Underwriters in accordance with this
Underwriting Agreement against payment therefor as provided by this
Underwriting Agreement have been duly authorized and when issued and
delivered to the Underwriters will have been validly issued and will
be fully paid and nonassessable (except as described in the
Registration Statement). No person is entitled to any preemptive or
other similar rights with respect to the Shares.
(d) The Fund is duly registered with the Commission under the Investment
Company Act as a diversified, closed-end management investment
company, and, subject to the filing of any final amendment to the
Registration Statement (a "Final Amendment"), if not already filed,
all action under the Securities Act and the Investment Company Act,
as the case may be, necessary to make the public offering and
consummate the sale of the Shares as provided in this Underwriting
Agreement has or will have been taken by the Fund.
(e) The Fund has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the
Sub-Advisory Agreement, the Custodian Agreement, the Transfer Agency
Agreement, the Administration Agreement, and the Dividend
Reinvestment Plan (collectively, the "Fund Agreements") and to
perform all of the terms and provisions hereof and thereof to be
carried out by it and (i) each Fund Agreement has been duly and
validly authorized, executed and delivered by or on behalf of the
Fund, (ii) each Fund Agreement does not violate in any material
respect any of the applicable provisions of the Investment Company
Act or the Investment Advisers Act of 1940, as amended, and the
rules and regulations thereunder (collectively called the "Advisers
Act"), as the case may be, and (iii) 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 in accordance with its terms, (A)
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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 (B) except as rights to
indemnity thereunder may be limited by federal or state securities
laws.
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares as
contemplated by this Underwriting Agreement and (iii) the
performance by the Fund of its obligations under any of the Fund
Agreements or consummation by the Fund of the other transactions
contemplated by the Fund Agreements conflicts with or will conflict
with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Fund or any agreement or instrument to
which the Fund is a party or by which the Fund is bound, or any law,
rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to the Fund, other than
state securities or "blue sky" laws applicable in connection with
the purchase and distribution of the Shares by the Underwriters
pursuant to this Underwriting Agreement.
(g) The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which
it or its property is bound or affected.
(h) No person has any right to the registration of any securities of the
Fund because of the filing of the registration statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association,
whether foreign or domestic, 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 Fund Agreements, except such as (i) have been obtained under
the Securities Act, the Investment Company Act, or the Advisers Act,
and (ii) may be required by the New York Stock Exchange or under
state securities or "blue sky" laws, in connection with the purchase
and distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(j) The Shares are duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange and the Fund's
Registration Statement on Form 8-A, under the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"), has become effective.
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(k) Deloitte & Touche LLP, whose report appears in the Prospectus, are
independent public auditors with respect to the Fund as required by
the Securities Act and the Investment Company Act.
(l) The statement of assets and liabilities included in the Registration
Statement and the Prospectus presents fairly in all material
respects, in accordance with generally accepted accounting
principles in the United States applied on a consistent basis, the
financial position of the Fund as of the date indicated.
(m) The Fund will maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets
through an asset reconciliation procedure or otherwise at reasonable
intervals and appropriate action is taken with respect to any
differences.
(n) Since the date as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein,
(i) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business of the Fund,
whether or not arising in the ordinary course of business, (ii)
there have been no transactions entered into by the Fund other than
those in the ordinary course of its business and (iii) there has
been no dividend or distribution of any kind declared, paid or made
on any class of its capital shares.
(o) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or,
to the knowledge of the Fund, threatened against or affecting the
Fund, which (i) might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Fund or might materially adversely affect the
properties or assets of the Fund or (ii) is of a character required
to be described in the Registration Statement or the Prospectus; and
there are no contracts, franchises or other documents that are of a
character required to be described in, or that are required to be
filed as exhibits to, the Registration Statement that have not been
described or filed as required.
(p) Except for stabilization transactions conducted by the Underwriters,
and except for tender offers, Share repurchases and the issuance or
purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan
effected following the date on which the distribution of the Shares
is completed in
8
accordance with the policies of the Fund as set forth in the
Prospectus, the Fund has not taken and will not take, directly or
indirectly, any action designed or which might be reasonably
expected to cause or result in, or which will constitute,
stabilization or manipulation of the price of the Common Shares in
violation of applicable federal securities laws.
(q) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the
requirements of Subchapter M of the Internal Revenue Code of 1986,
as amended (the "Code").
(r) To the knowledge of the Fund after due inquiry, no advertising,
sales literature or other promotional materials (excluding road show
slides or road show tapes) were authorized or prepared by or on
behalf of the Fund, the Investment Adviser or the Sub-Adviser or any
representative thereof for use in connection with the public
offering or sale of the Shares other than the definitive client
brochure and the broker selling memo which were filed with the NASD
on [ ], 2004, a draft prospecting letter which was filed with
the NASD on [ ], 2004, a draft of a prospecting letter made
available on a password-protected Internet web site maintained by
the Investment Adviser and a road show tape made available for
broker use on an Intranet web site maintained by the Investment
Adviser (collectively, the "sales materials"); the sales materials
and any road show slides or road show tapes complied and comply in
all material respects with the applicable requirements of the
Securities Act and the rules and interpretations of the NASD; and no
broker kits, road show slides, road show tapes or sales materials
authorized or prepared by the Fund or authorized or prepared on
behalf of the Fund by the Investment Adviser or the Sub-Adviser or
any representative thereof for use in connection with the public
offering or sale of the Shares contained or contains any untrue
statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
In addition, any certificate signed by any officer of the Fund and
delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Share shall be deemed to be a
representation and warranty by the Fund as to matters covered thereby, to
each Underwriter
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT ADVISER AND THE
SUB-ADVISER. Each of the Investment Adviser and the Sub-Adviser represents
to each Underwriter as follows:
(a) Such Adviser has been duly formed, is validly existing as a business
trust under the laws of the Commonwealth of Massachusetts, in the
case of the Investment Adviser, or as a corporation under the laws
of the Commonwealth of Massachusetts, in the case of the
Sub-Adviser, with full
9
power and authority to conduct all of the activities conducted by
it, to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and
Prospectus, and such Adviser is duly licensed and qualified to do
business and in good standing in each jurisdiction in which it is
required to be so qualified, except to the extent that failure to be
so qualified or be in good standing would not have a material
adverse affect on the such Adviser's ability to provide services to
the Fund; and such Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations, whether foreign or
domestic, necessary to carry on its business as contemplated in the
Registration Statement and the Prospectus.
(b) Such Adviser is (i) duly registered as an investment adviser under
the Advisers Act and (ii) not prohibited by the Advisers Act or the
Investment Company Act from acting as the investment adviser for the
Fund as contemplated by the Investment Advisory Agreement, the
Sub-Advisory Agreement, the Registration Statement and the
Prospectus.
(c) Such Adviser has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the
Sub-Advisory Agreement, the Administration Agreement, the
Shareholder Servicing Agreement, and the Additional Compensation
Agreement, to which such Adviser is a party (collectively, the
"Adviser Agreements"), and to carry out all the terms and provisions
hereof and thereof to be carried out by it; and each Adviser
Agreement has been duly and validly authorized, executed and
delivered by such Adviser; none of the Adviser Agreements violate in
any material respect any of the applicable provisions of the
Investment Company Act or the Advisers Act; and assuming due
authorization, execution and delivery by the other parties thereto,
each Adviser Agreement constitutes a legal, valid and binding
obligation of such Adviser, enforceable in accordance with its
terms, (i) 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 (ii)
except as rights to indemnity thereunder may be limited by federal
or state securities laws.
(d) Neither (i) the execution and delivery by such Adviser of any
Adviser Agreement nor (ii) the consummation by such 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 Declaration of Trust, in
the case of the Investment Adviser, or Articles of Incorporation, in
the case of the Sub-Adviser, or By-Laws of such Adviser or any
agreement or instrument to which such Adviser is a party or by which
such Adviser is bound, or any law, rule or regulation, or order of
any court, governmental instrumentality, securities exchange or
10
association or arbitrator, whether foreign or domestic, applicable
to such Adviser.
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association,
whether foreign or domestic, is required for the consummation of the
transactions contemplated in, or the performance by such Adviser of
its obligations under, any Adviser Agreement, as the case may be,
except such as (i) have been obtained under the Securities Act, the
Investment Company Act, or the Advisers Act, and (ii) may be
required by the New York Stock Exchange or under state securities or
"blue sky" laws, in connection with the purchase and distribution of
the Shares by the Underwriters pursuant to this Underwriting
Agreement.
(f) The description of such Adviser and its business and the statements
attributable to such Adviser in the Registration Statement and the
Prospectus comply with the requirements of the Securities Act and
the Investment Company Act and do not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading.
(g) Except as disclosed, there is no action, suit or proceeding before
or by any court, commission, regulatory body, administrative agency
or other governmental agency or body, foreign or domestic, now
pending or, to the knowledge of such Adviser, threatened against or
affecting such Adviser of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably be
expected to result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects of
such Adviser or the ability of such Adviser to fulfill its
respective obligations under any Adviser Agreement.
(h) Except for stabilization activities conducted by the Underwriters
and except for tender offers, Share repurchases and the issuance or
purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan
effected following the date on which the distribution of the Shares
is completed in accordance with the policies of the Fund as set
forth in the Prospectus, such Adviser has not taken and will not
take, directly or indirectly, any action designed, or which might
reasonably be expected to cause or result in, or which will
constitute, stabilization or manipulation of the price of the Common
Shares in violation of applicable federal securities laws.
In the event that the Fund or such Adviser makes available any
promotional materials (other than the sales materials) intended for
use only by qualified broker-dealers and registered representatives
thereof by means of an Internet web site or similar electronic
means, such Adviser will install and maintain pre-qualification and
password-protection or similar procedures which will effectively
prohibit access to such
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promotional materials by persons other than qualified broker-dealers
and registered representatives thereof.
In addition, any certificate signed by any officer of the Investment
Adviser or the Sub-Adviser and delivered to the Underwriters or counsel
for the Underwriters in connection with the offering of the Shares shall
be deemed to be a representation and warranty by the Investment Adviser or
the Sub-Adviser, as applicable, as to matters covered thereby, to each
Underwriter.
5. AGREEMENTS OF THE PARTIES.
(a) If the registration statement relating to the Shares has not yet
become effective, the Fund will promptly file a Final Amendment, if
not previously filed, with the Commission, and will use its best
efforts to cause such registration statement to become effective
and, as soon as the Fund is advised, will advise the Managing
Representative when the Registration Statement or any amendment
thereto has become effective. If the Registration Statement has
become effective and the Prospectus contained therein omits certain
information at the time of effectiveness pursuant to Rule 430A under
the Securities Act, the Fund will file a 430A Prospectus pursuant to
Rule 497(h) under the Securities Act as promptly as practicable, but
no later than the second business day following the earlier of the
date of the determination of the offering price of the Shares or the
date the Prospectus is first used after the Effective Date. If the
Registration Statement has become effective and the Prospectus
contained therein does not so omit such information, the Fund will
file a Prospectus pursuant to Rule 497(b) or a certification
pursuant to Rule 497(j) under the Securities Act as promptly as
practicable, but no later than the fifth business day following the
date of the later of the Effective Date or the commencement of the
public offering of the Shares after the Effective Date. In either
case, the Fund will provide the Managing Representative satisfactory
evidence of the filing. The Fund will not file with the Commission
any Prospectus or any other amendment (except any post-effective
amendment which is filed with the Commission after the later of (x)
one year from the date of this Underwriting Agreement or (y) the
date on which distribution of the Shares is completed) or supplement
to the Registration Statement or the Prospectus unless a copy has
first been submitted to the Managing Representative a reasonable
time before its filing and the Managing Representative has not
objected to it in writing within a reasonable time after receiving
the copy.
(b) For the period of three years from the date hereof, the Fund will
advise the Managing Representative promptly (i) of the issuance by
the Commission of any order in respect of the Fund, the Investment
Adviser or the Sub-Adviser, which relates to the Fund, or which
relates to any material arrangements or proposed material
arrangements involving the Fund, the Investment Adviser or the
Sub-Adviser, (ii) of the initiation or threatening
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of any proceedings for, or receipt by the Fund of any notice with
respect to, any suspension of the qualification of the Shares for
sale in any jurisdiction or the issuance of any order by the
Commission suspending the effectiveness of the Registration
Statement, (iii) of receipt by the Fund, or any representative or
attorney of the Fund, of any other communication from the Commission
relating in any material way to the Fund, the Registration
Statement, the Notification, any Preliminary Prospectus, the
Prospectus or to the transactions contemplated by this Underwriting
Agreement and (iv) the issuance by any court, regulatory body,
administrative agency or other governmental agency or body, whether
foreign or domestic, of any order, ruling or decree, or the threat
to initiate any proceedings with respect thereto, regarding the
Fund, which relates in any material way to the Fund or any material
arrangements or proposed material arrangements involving the Fund.
The Fund will make every reasonable effort to prevent the issuance
of any order suspending the effectiveness of the Registration
Statement and, if any such order is issued, to obtain its lifting as
soon as possible.
(c) If not delivered prior to the date of this Underwriting Agreement,
the Fund will deliver to the Managing Representative, without
charge, a signed copy of the Registration Statement and the
Notification and of any amendments (except any post-effective
amendment which is filed with the Commission after the later of (x)
one year from the date of this Underwriting Agreement or (y) the
date on which the distribution of the Shares is completed) to either
the Registration Statement or the Notification (including all
exhibits filed with any such document) and as many conformed copies
of the Registration Statement and any amendments thereto (except any
post-effective amendment which is filed with the Commission after
the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is
completed) (excluding exhibits) as the Managing Representative may
reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver,
without charge, to the Representatives, the Underwriters and any
dealers, at such office or offices as the Representatives may
designate, as many copies of the Prospectus as the Representatives
may reasonably request, 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 under which they were made, 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 or
the Investment Company Act, the Fund promptly will prepare, submit
to the Managing Representative, file with the Commission and
deliver, without charge, to the Underwriters and to dealers (whose
names and addresses the Managing Representative will furnish to the
Fund) to whom Shares may
13
have been sold by the Underwriters, and to other dealers on request,
amendments or supplements to the Prospectus so that the statements
in such Prospectus, as so amended or supplemented, will not, in
light of the circumstances under which they were made, be misleading
in any material respect and will comply with the Securities Act and
the Investment Company Act. 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 6 hereof.
(e) The Fund will make generally available to holders of the Fund's
securities, 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 falls, an earnings statement, if
applicable, satisfying the provisions of the last paragraph of
Section 11(a) of the Securities Act and, at the option of the Fund,
Rule 158 under the Securities Act.
(f) If the transactions contemplated by this Underwriting Agreement are
consummated, the Fund shall pay all costs and expenses incident to
the performance of the obligations of the Fund under this
Underwriting Agreement (to the extent such expenses do not, in the
aggregate, exceed $0.04 per Share), including but not limited to
costs and expenses of or relating to (i) the preparation, printing
and filing of the Registration Statement and exhibits to it, each
Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto, (ii) the issuance of the Shares and the
preparation and delivery of certificates for the Shares, (iii) the
registration or qualification of the Shares for offer and sale under
the securities or "blue sky" laws of the jurisdictions referred to
in the foregoing paragraph, including the fees and disbursements of
counsel for the Underwriters in that connection, and the preparation
and printing of any preliminary and supplemental "blue sky"
memoranda, (iv) the furnishing (including costs of design,
production, shipping and mailing) to the Underwriters and dealers of
copies of each Preliminary Prospectus relating to the Shares, the
sales materials, the Prospectus, and all amendments or supplements
to the Prospectus, and of the other documents required by this
Section to be so furnished, (v) the filing requirements of the NASD,
in connection with its review of the financing, including filing
fees and the disbursements of counsel for the Underwriters in that
connection, (vi) all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the Underwriters, (vii) the
listing of the Shares on the New York Stock Exchange and (viii) the
transfer agent for the Shares. To the extent the foregoing costs and
expenses incident to the performance of the obligations of the Fund
under this Underwriting Agreement exceed, in the aggregate, $0.04
per Share, Xxxxx Xxxxx or an affiliate will pay all such excess
costs and expenses. The Fund, the Investment Adviser and the
Sub-Adviser may otherwise agree among themselves as to the payment
of the foregoing expenses, whether or not the transactions
contemplated by this Underwriting Agreement are consummated,
provided, however,
14
that in no event shall the Underwriters be obligated to pay any of
the foregoing expenses.
(g) If the transactions contemplated by this Underwriting Agreement are
not consummated, except as otherwise provided herein, no party will
be under any liability to any other party, except that (i) if this
Underwriting Agreement is terminated by (x) the Fund, the Investment
Adviser or the Sub-Adviser pursuant to any of the provisions hereof
or (y) by the Representatives or the Underwriters because of any
inability, failure or refusal on the part of the Fund, the
Investment Adviser or the Sub-Adviser to comply with any material
terms or because any of the conditions in Section 6 are not
satisfied, the Investment Adviser or the Sub-Adviser or such
Adviser's affiliates and the Fund, jointly and severally, will
reimburse the Underwriters for all out-of-pocket expenses (including
the reasonable fees, disbursements and other charges of their
counsel) reasonably incurred by them in connection with the proposed
purchase and sale of the Shares and (ii) no Underwriter who has
failed or refused to purchase the Shares agreed to be purchased by
it under this Underwriting Agreement, in breach of its obligations
pursuant to this Underwriting Agreement, will be relieved of
liability to the Fund, the Investment Adviser, the Sub-Adviser and
the other Underwriters for damages occasioned by its default.
(h) Without the prior written consent of the Managing Representative,
the Fund will not offer, sell or register with the Commission, or
announce an offering of, any equity securities of the Fund, within
180 days after the Effective Date, except for the Shares as
described in the Prospectus and any issuances of Common Shares
pursuant to the Dividend Reinvestment Plan and except in connection
with any offering of preferred shares of beneficial interest as
contemplated by the Prospectus.
(i) The Fund will use its best efforts to list the Shares on the New
York Stock Exchange prior to the date the Shares are issued and
comply with the rules and regulations of such exchange.
(j) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the
investment objective and policies of the Fund as described in the
Prospectus.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the
date of this Underwriting Agreement, and on each of the Closing Dates, of
the representations of the Fund, the Investment Adviser and the
Sub-Adviser in this Underwriting Agreement, to the accuracy and
completeness of all material statements made by the Fund, the Investment
Adviser or the Sub-Adviser or any of their respective officers in any
certificate delivered to the Managing Representative or its counsel
pursuant to this Underwriting Agreement, to performance by the Fund, the
15
Investment Adviser and the Sub-Adviser of their respective obligations
under this Underwriting Agreement and to each of the following additional
conditions:
(a) The Registration Statement must have become effective by 5:30 p.m.,
New York City time, on the date of this Underwriting Agreement or
such later date and time as the Managing Representative consents to
in writing. The Prospectus must have been filed in accordance with
Rule 497(b) or (h) or a certificate must have been filed in
accordance with Rule 497(j), as the case may be, under the
Securities Act.
(b) No order suspending the effectiveness of the Registration Statement
may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters,
threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) must be
complied with or waived to the reasonable satisfaction of the
Managing Representative.
(c) Since the dates as of which information is given in the Registration
Statement and the Prospectus, (i) there must not have been any
material change in the Common Shares or liabilities of the Fund
except as set forth in or contemplated by the Prospectus; (ii) there
must not have been any material adverse change in the general
affairs, prospects, management, business, financial condition or
results of operations of the Fund, the Investment Adviser or the
Sub-Adviser whether or not arising from transactions in the ordinary
course of business as set forth in or contemplated by the Prospectus
which in the judgment of the Managing Representative would
materially adversely affect the market for the Shares; (iii) the
Fund must not have sustained any material loss or interference with
its business from any court or from legislative or other
governmental action, order or decree, whether foreign or domestic,
or from any other occurrence not described in the Registration
Statement and Prospectus; and (iv) there must not have occurred any
event that makes untrue or incorrect in any material respect any
statement or information contained in the Registration Statement or
Prospectus or that is not reflected in the Registration Statement or
Prospectus but should be reflected therein in order to make the
statements or information therein (in the case of the Prospectus, in
light of the circumstances in which they were made) not misleading
in any material respect; if, in the judgment of the Managing
Representative, any such development referred to in clause (i),
(ii), (iii), or (iv) of this paragraph (c) makes it impracticable or
inadvisable to consummate the sale and delivery of the Shares
pursuant to this Underwriting Agreement by the Underwriters, at the
initial public offering price of the Shares.
(d) The Managing Representative must have received on each Closing Date
a certificate, dated such date, of the President or a Vice-President
and the
16
chief financial or accounting officer of each of the Fund, the
Investment Adviser and the Sub-Adviser certifying (in their capacity
as such officers and, with respect to clauses (ii), (iii) and (vi)
below, on behalf of the Fund and such Adviser, as the case may be)
that (i) the signers have carefully examined the Registration
Statement, the Prospectus, and this Underwriting Agreement, (ii) the
representations of the Fund (with respect to the certificates from
such Fund officers), the representations of the Investment Adviser
(with respect to the certificates from such officers of the
Investment Adviser) and the representations of the Sub-Adviser (with
respect to the certificates from such officers of the Sub-Adviser)
in this Underwriting Agreement are accurate on and as of the date of
the certificate, (iii) there has not been any material adverse
change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund (with
respect to the certificates from such Fund officers), the Investment
Adviser (with respect to the certificates from such officers of the
Investment Adviser) or the Sub-Adviser (with respect to the
certificates from such officers of the Sub-Adviser), which change
would materially and adversely affect the ability of the Fund, the
Investment Adviser or the Sub-Adviser, as the case may be, to
fulfill its obligations under this Underwriting Agreement, the
Investment Advisory Agreement (with respect to the certificates from
such officers of the Investment Adviser) or the Sub-Advisory
Agreement, whether or not arising from transactions in the ordinary
course of business, (iv) with respect to the Fund only, to the
knowledge of such officers after reasonable investigation, no order
suspending the effectiveness of the Registration Statement,
prohibiting the sale of any of the Shares or otherwise having a
material adverse effect on the Fund has been issued and no
proceedings for any such purpose are pending before or threatened by
the Commission or any other regulatory body, whether foreign or
domestic, (v) to the knowledge of the officers of each of the
Investment Adviser and the Sub-Adviser, after reasonable
investigation, no order having a material adverse effect on the
ability of such Adviser to fulfill its obligations under this
Underwriting Agreement, the Shareholder Servicing Agreement, the
Additional Compensation Agreement, the Investment Advisory Agreement
or the Sub-Advisory Agreement (with respect to the certificates from
such officers of the Investment Adviser) and this Underwriting
Agreement or the Sub-Advisory Agreement, (with respect to the
certificates from such officers of the Sub-Adviser), as the case may
be, has been issued and no proceedings for any such purpose are
pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, and (vi) each of the
Fund (with respect to the certificates from such Fund officers), the
Investment Adviser (with respect to the certificates from such
officers of the Investment Adviser) and the Sub-Adviser (with
respect to the certificates from such officers of the Sub-Adviser)
has performed all of its respective agreements that this
17
Underwriting Agreement requires it to perform by such Closing Date
(to the extent not waived in writing by the Managing
Representative).
(e) The Managing Representative must have received on each Closing Date
the opinions dated such Closing Date substantially in the form of
Schedules B, C, and D to this Underwriting Agreement from the
counsel identified in each such Schedules.
(f) The Managing Representative must have received on each Closing Date
from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and its affiliated
entities an opinion dated such Closing Date with respect to the
Fund, the Shares, the Registration Statement and the Prospectus,
this Underwriting Agreement and the form and sufficiency of all
proceedings taken in connection with the sale and delivery of the
Shares. Such opinion and proceedings shall fulfill the requirements
of this Section 6(f) only if such opinion and proceedings are
satisfactory in all respects to the Managing Representative. The
Fund, the Investment Adviser and the Sub-Adviser must have furnished
to such counsel such documents as counsel may reasonably request for
the purpose of enabling them to render such opinion.
(g) The Managing Representative must have received on the date this
Underwriting Agreement is signed and delivered by you a signed
letter, dated such date, substantially in the form of Schedule E to
this Underwriting Agreement from the firm of accountants designated
in such Schedule. The Managing Representative also must have
received on each Closing Date a signed letter from such accountants,
dated as of 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 five business days before the date of this
Underwriting 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.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in
form and scope reasonably satisfactory to counsel for the Underwriters,
provided that any such documents, forms of which are annexed hereto, shall
be deemed satisfactory to such counsel if substantially in such form.
7. TERMINATION. This Underwriting Agreement may be terminated by the Managing
Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration Statement
and the time when any of the Shares are first generally offered
pursuant to this
18
Underwriting Agreement by the Managing Representative to dealers by
letter or telegram;
(b) at or before any Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of any Shares is
rendered impracticable or inadvisable because (i) trading in the
equity securities of the Fund is suspended by the Commission or by
the principal exchange that lists the Shares, (ii) trading in
securities generally on the New York Stock Exchange, the New York
Stock Exchange or the Nasdaq Stock Market shall have been suspended
or limited or minimum or maximum prices shall have been generally
established on such exchange or over-the-counter market, (iii)
additional material governmental restrictions, not in force on the
date of this Underwriting Agreement, have been imposed upon trading
in securities or trading has been suspended on any U.S. securities
exchange, (iv) a general banking moratorium has been established by
U.S. federal or New York authorities or (v) any material adverse
change in the financial or securities markets in the United States
or in political, financial or economic conditions in the United
States or any outbreak or material escalation of hostilities or
declaration by the United States of a national emergency or war or
other calamity, terrorist activity or crisis shall have occurred the
effect of any of which is such as to make it, in the sole judgment
of the Managing Representative, impracticable or inadvisable to
market the Shares on the terms and in the manner contemplated by the
Prospectus; or
(c) at or before any Closing Date, if any of the conditions specified in
Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
8. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on any Closing Date the Shares agreed
to be purchased on such Closing Date by such Underwriter or Underwriters,
the Managing Representative may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Managing
Representative deems advisable, or one or more of the remaining
Underwriters may agree to purchase such Shares in such proportions as may
be approved by the Managing Representative, in each case upon the terms
set forth in this Underwriting Agreement. If no such arrangements have
been made within 36 hours after such Closing Date, and
(a) the number of Shares to be purchased by the defaulting Underwriters
on such Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of
the nondefaulting Underwriters will be obligated to purchase such
Shares on the terms set forth in this Underwriting Agreement in
proportion to their respective obligations under this Underwriting
Agreement, or
19
(b) the number of Shares to be purchased by the defaulting Underwriters
on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the Fund will be entitled
to an additional period of 24 hours within which to find one or more
substitute underwriters reasonably satisfactory to the Managing
Representative to purchase such Shares on the terms set forth in
this Underwriting Agreement.
Upon the occurrence of the circumstances described in the foregoing
paragraph (b), either the Managing Representative or the Fund will have
the right to postpone the applicable Closing Date for not more than five
business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
the Prospectus) may be effected by the Managing Representative and the
Fund. If the number of Shares to be purchased on such Closing Date by such
defaulting Underwriter or Underwriters exceeds 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, and none of
the nondefaulting Underwriters or the Fund makes arrangements pursuant to
this Section within the period stated for the purchase of the Shares that
the defaulting Underwriters agreed to purchase, this Underwriting
Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Fund, the Investment Adviser, or the
Sub-Adviser except as provided in Sections 5(g) and 9 hereof. Any action
taken under this Section will not affect the liability of any defaulting
Underwriter to the Fund, the Investment Adviser or the Sub-Adviser or to
any nondefaulting Underwriters arising out of such default. A substitute
underwriter will become an Underwriter for all purposes of this
Underwriting Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Fund, the Investment Adviser and the Sub-Adviser,
jointly and severally, agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any
person who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and their
successors and assigns of all of the foregoing persons from and
against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any
such Underwriter or any such person may incur under the Securities
Act, the Exchange Act, the Investment Company Act, the Advisers Act,
the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Fund) or in a
Prospectus (the term "Prospectus" for the purpose of this Section 9
being deemed to include any Preliminary Prospectus, the sales
materials, the
20
Prospectus and the Prospectus as amended or supplemented by the
Fund), or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in either
such Registration Statement or Prospectus or necessary to make the
statements made therein (with respect to the Prospectus, in light of
the circumstances under which they were made) not misleading, except
insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter
to the Fund, the Investment Adviser or the Sub-Adviser expressly for
use with reference to any Underwriter in such Registration Statement
or such Prospectus or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information (with respect
to the Prospectus, in light of the circumstances under which they
were made) not misleading, provided, however, that the indemnity
agreement contained in this subsection (a) with respect to any
Preliminary Prospectus or amended Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting
any such loss, damage, expense, liability or claim purchased the
Shares which is the subject thereof if the Prospectus corrected any
such alleged untrue statement or omission and if such Underwriter
failed to send or give a copy of the Prospectus to such person at or
prior to the written confirmation of the sale of such Shares to such
person, unless the failure is the result of noncompliance by the
Fund with Section 5(d) hereof.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Fund, the Investment
Adviser or the Sub-Adviser pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Fund, the
Investment Adviser or the Sub-Adviser in writing of the institution
of such Proceeding and the Fund, the Investment Adviser or the
Sub-Adviser shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify the Fund, the Investment
Adviser or the Sub-Adviser shall not relieve the Fund, the
Investment Adviser or the Sub-Adviser from any liability which the
Fund, the Investment Adviser or the Sub-Adviser may have to any
Underwriter or any such person or otherwise. Such Underwriter or
such person shall have the right to employ its or their own counsel
in any such case, but the reasonable fees and expenses of such
counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been
authorized in writing by the Fund, the Investment Adviser or the
Sub-Adviser, as the case may be, in connection with the
21
defense of such Proceeding or the Fund, the Investment Adviser or
the Sub-Adviser shall not have, within a reasonable period of time
in light of the circumstances, employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses available
to it or them, which are different from, additional to or in
conflict with those available to the Fund, the Investment Adviser or
the Sub-Adviser (in which case the Fund, the Investment Adviser or
the Sub-Adviser shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties), in
any of which events such reasonable fees and expenses shall be borne
by the Fund, the Investment Adviser or the Sub-Adviser and paid as
incurred (it being understood, however, that the Fund, the
Investment Adviser or the Sub-Adviser shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in
the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). Neither the Fund, the Investment
Adviser nor the Sub-Adviser shall be liable for any settlement of
any Proceeding effected without its written consent but if settled
with the written consent of the Fund, the Investment Adviser or the
Sub-Adviser, the Fund, the Investment Adviser or the Sub-Adviser, as
the case may be, agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party
for reasonable fees and expenses of counsel as contemplated by the
second sentence of this paragraph, then the indemnifying party
agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement and (iii)
such indemnified party shall have given the indemnifying party at
least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding
and does not include an admission of fault, culpability or a failure
to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Fund, the Investment Adviser and the Sub-Adviser, and
each of their respective shareholders, partners, managers, members,
trustees, directors and officers, and any person who controls the
Fund, the Investment
22
Adviser or the Sub-Adviser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons from and against any
loss, damage, expense, liability or claim (including the reasonable
cost of investigation), which, jointly or severally, the Fund, the
Investment Adviser or the Sub-Adviser or any such person may incur
under the Securities Act, the Exchange Act, the Investment Company
Act, the Advisers Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter to the Fund, the
Investment Adviser or the Sub-Adviser expressly for use with
reference to such Underwriter in the Registration Statement (or in
the Registration Statement as amended by any post-effective
amendment thereof by the Fund) or in a Prospectus, or arises out of
or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be
stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading (with respect to
the Prospectus, in light of the circumstances under which they were
made).
If any Proceeding is brought against the Fund, the Investment
Adviser, the Sub-Adviser or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Fund, the Investment Adviser, the
Sub-Adviser or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter
shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that
the omission to so notify such Underwriter shall not relieve such
Underwriter from any liability which such Underwriter may have to
the Fund, the Investment Adviser, the Sub-Adviser or any such person
or otherwise. The Fund, the Investment Adviser, the Sub-Adviser or
such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the
expense of the Fund, the Investment Adviser, the Sub-Adviser or such
person, as the case may be, unless the employment of such counsel
shall have been authorized in writing by such Underwriter in
connection with the defense of such Proceeding or such Underwriter
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or
them, which are different from or additional to or in conflict with
those available to such Underwriter (in which case such Underwriter
shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may
employ counsel and participate in the defense thereof but
23
the fees and expenses of such counsel shall be at the expense of
such Underwriter), in any of which events such fees and expenses
shall be borne by such Underwriter and paid as incurred (it being
understood, however, that such Underwriter shall not be liable for
the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be
liable for any settlement of any such Proceeding effected without
the written consent of such Underwriter but if settled with the
written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Fund, the Investment Adviser, the
Sub-Adviser and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that
it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into
more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least
30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf
of such indemnified party.
(c) If the indemnification provided for in this Section 9 is unavailable
to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Fund, the Investment Adviser and the
Sub-Adviser on the one hand and the Underwriters on the other hand
from the offering of the Shares 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 relative
benefits referred to in clause (i) above but also the relative fault
of the Fund, the Investment Adviser and the Sub-Adviser on the one
hand and of the Underwriters on the other in connection with
24
the statements or omissions, which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the
Fund, the Investment Adviser and the Sub-Adviser on the one hand and
the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting
expenses) received by the Fund and the total underwriting discounts
and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Fund,
the Investment Adviser and the Sub-Adviser on the one hand and of
the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates
to information supplied by the Fund, the Investment Adviser or 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. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any
Proceeding.
(d) The Fund, the Investment Adviser, the Sub-Adviser and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 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 that does not
take account of the equitable considerations referred to in
subsection (c) above. Notwithstanding the provisions of this Section
9, no Underwriter shall be required to contribute any amount in
excess of the fees and commissions received by such Underwriter. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
9 and the covenants, warranties and representations of the Fund
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, or by or on behalf
of the Fund, the Investment Adviser or the Sub-Adviser, its
shareholders, partners, advisers, members, trustees, directors or
officers
25
or any person who controls the Fund, the Investment Adviser or the
Sub-Adviser within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The
Fund, the Investment Adviser, the Sub-Adviser and each Underwriter
agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Fund, the Investment
Adviser or the Sub-Adviser, against any of the Fund's, the Adviser's
or the Sub-Adviser's shareholders, partners, managers, members,
trustees, directors or officers in connection with the issuance and
sale of the Shares, or in connection with the Registration Statement
or Prospectus.
(f) The Fund, the Investment Adviser and the Sub-Adviser each
acknowledge that the statements with respect to (1) the public
offering of the Shares as set forth on the cover page of and (2)
stabilization and selling concessions and reallowances of selling
concessions and payment of fees to Underwriters that meet certain
minimum sales thresholds under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing to
the Fund by the Underwriters expressly for use in such document. The
Underwriters severally confirm that these statements are correct in
all material respects and were so furnished by or on behalf of the
Underwriters severally for use in the Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no party
shall be entitled to indemnification or contribution under this
Underwriting Agreement against any loss, claim, liability, expense
or damage arising by reason of such person's willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties in
the performance of its duties hereunder. The parties hereto
acknowledge that the foregoing provision shall be applicable solely
as to matters arising under Section 17(i) of the Investment Company
Act, and shall not be construed to impose any duties or obligations
upon any such parties under this Agreement other than as
specifically set forth herein (it being understood that the
Underwriters have no duty hereunder to the Fund to perform any due
diligence investigation).
10. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department, if to the Fund or the Investment Adviser, shall be
sufficient in all respects if delivered or sent to the Fund or the
Investment Adviser, as the case may be, at the offices of the Fund and the
Investment Adviser at Xxxxx Xxxxx Management, 000 Xxxxx Xxxxxx, Xxxxxx, XX
00000, and, if to the Sub-Adviser, shall be sufficient in all respects if
delivered or sent to Rampart Investment Management Company, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000.
26
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of
New York. The Section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and
the Fund and UBS Securities each consent to the jurisdiction of such
courts and personal service with respect thereto. The Fund and UBS
Securities hereby consent to personal jurisdiction, service and venue in
any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against UBS Securities or any
indemnified party. Each of UBS Securities, the Fund (on its behalf and, to
the extent permitted by applicable law, on behalf of its stockholders and
affiliates), the Investment Adviser (on its behalf and, to the extent
permitted by applicable law, on behalf of its unitholders and affiliates)
and the Sub-Adviser (on its behalf and, to the extent permitted by
applicable law, on behalf of its shareholders and affiliates) waives all
right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. Each of the Fund, the Investment Adviser and
the Sub-Adviser agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Fund, the Investment Adviser and the Sub-Adviser, as
the case may be, and may be enforced in any other courts in the
jurisdiction of which the Fund, the Investment Adviser and the
Sub-Adviser, as the case may be, is or may be subject, by suit upon such
judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters, the Fund, the Investment
Adviser and the Sub-Adviser and to the extent provided in Section 9 hereof
the controlling persons, shareholders, partners, members, trustees,
managers, directors and officers referred to in such section, and their
respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Fund, the Investment Adviser, the Sub-Adviser and any
27
successor or assign of any substantial portion of the Fund's, the
Investment Adviser's, the Sub-Adviser's, or any of the Underwriters'
respective businesses and/or assets.
16. DISCLAIMER OF LIABILITY OF TRUSTEES AND BENEFICIARIES. A copy of the
Agreement and Declaration of Trust of each of the Fund and Xxxxx Xxxxx is
on file with the Secretary of State of The Commonwealth of Massachusetts,
and notice hereby is given that this Underwriting Agreement is executed on
behalf of the Fund and Xxxxx Xxxxx, respectively, by an officer or Trustee
of the Fund or Xxxxx Xxxxx, as the case may be, in his or her capacity as
an officer or Trustee of the Fund or Xxxxx Xxxxx, as the case may be, and
not individually and that the obligations under or arising out of this
Underwriting Agreement are not binding upon any of the Trustees, officers
or shareholders individually but are binding only upon the assets and
properties of the Fund or Xxxxx Xxxxx, as the case may be.
28
If the foregoing correctly sets forth the understanding among the Fund,
the Investment Adviser, the Sub-Adviser and the Underwriters, please so indicate
in the space provided below, whereupon this letter and your acceptance shall
constitute a binding agreement among the Fund, the Investment Adviser, the
Sub-Adviser and the Underwriters, severally.
Very truly yours,
XXXXX XXXXX ENHANCED EQUITY INCOME FUND
_________________________________________
By:
Title:
XXXXX XXXXX MANAGEMENT
_________________________________________
By:
Title:
RAMPART INVESTMENT MANAGEMENT COMPANY
_________________________________________
By:
Title:
29
Accepted and agreed to as of the date first above
written, on behalf of themselves and the other several
Underwriters named in Schedule A
UBS Securities LLC
__________________________________
By:
Title:
__________________________________
By:
Title:
30
SCHEDULE A
UBS Securities LLC
Schedule A-1
SCHEDULE B
FORM OF OPINION OF
XXXXXXXXXXX & XXXXXXXX LLP REGARDING THE FUND
1. The Registration Statement and all post-effective amendments, 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. Any filing of
the Prospectus or any supplements thereto required under Rule 497 of the
Securities Act Rules prior to the date hereof have been made in the manner and
within the time required by such rule.
2. The Fund has been duly formed and is validly existing as a
Massachusetts business trust under the laws of the Commonwealth of
Massachusetts, with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be owned) or leased (or
to be leased) by it and to conduct its business as described in the Registration
Statement and Prospectus, and 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 requires such qualification,
and the Fund owns, possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its business
as contemplated in the Prospectus. The Fund has no subsidiaries.
3. The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial Interest of
the Fund conform in all respects to the description of them in the Prospectus.
All the outstanding Shares of Beneficial Interest have been duly authorized and
are validly issued, fully paid and nonassessable (except as described in the
Registration Statement). The Shares to be issued and delivered to and paid for
by the Underwriters in accordance with the Underwriting Agreement against
payment therefor as provided by the Underwriting Agreement have been duly
authorized and when issued and delivered to the Underwriters will have been
validly issued and will be fully paid and nonassessable (except as described in
the Registration Statement). No person is entitled to any preemptive or other
similar rights with respect to the Shares.
4. The Fund is duly registered with the Commission under the
Investment Company Act as a diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make the public offering and consummate the sale of the Shares as
provided in the Underwriting Agreement has or will have been taken by the Fund.
5. The Fund has full power and authority to enter into each of the
Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory
Agreement, the Custodian Agreement, the Administration Agreement, and the
Transfer Agency Agreement (collectively, the "Fund Agreements") and to perform
all of the terms
Schedule B-1
and provisions thereof to be carried out by it and (A) each Fund Agreement has
been duly and validly authorized, executed and delivered by the Fund, (B) each
Fund Agreement complies in all material respects with all applicable provisions
of the Investment Company Act, the Advisers Act , the Investment Company Act
Rules and the Advisers Act Rules, 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 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) as rights to indemnity
thereunder may be limited by federal or state securities laws.
6. None of (A) the execution and delivery by the Fund of the Fund
Agreements, (B) the issue and sale by the Fund of the Shares as contemplated by
the Underwriting Agreement and (C) the performance by the Fund of its
obligations under the Fund Agreements or consummation by the Fund of the other
transactions contemplated by the Fund Agreements conflicts with or will conflict
with, or results or will result in a breach of, the Declaration of Trust or the
By-laws of the Fund or any agreement or instrument to which the Fund is a party
or by which the Fund is bound, or any law, rule or regulation, or order of any
court, governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the Fund, except that we
express no opinion as to the securities or "blue sky" laws applicable in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to the Underwriting Agreement.
7. The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which it or its
property is bound or affected.
8. No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association, whether
foreign or domestic, 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 Fund Agreements, except such as (A) have been obtained
under the Securities Act, the Investment Company Act, the Advisers Act, the
Securities Act Rules, the Investment Company Act Rules and the Advisers Act
Rules and (B) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
9. The Shares have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance, and the Fund's Registration
Statement on Form 8-A under the 1934 Act is effective.
Schedule B-2
10. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting the Fund, which is required to be disclosed in the
Prospectus that is not disclosed in the Prospectus, and there are no contracts,
franchises or other documents that are of a character required to be described
in, or that are required to be filed as exhibits to, the Registration Statement
that have not been described or filed as required.
11. The Fund does not require any tax or other rulings to enable it
to qualify as a regulated investment company under Subchapter M of the Code.
12. Each of the section in the Prospectus entitled
"Distributions--Federal Income Tax Matters" and the section in the Statement of
Additional Information entitled "Taxes" is a fair 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 Shares.
13. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, complied as to form in all material respects
to the requirements of the Securities Act, the Investment Company Act and the
rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of the Fund.
In connection with the registration of the Shares, we have advised
the Fund as to the requirements of the Securities Act, the Investment Company
Act and the applicable rules and regulations of the Commission thereunder and
have rendered other legal advice and assistance to the Fund in the course of its
preparation of the Registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and reviews of certain corporate records,
documents and proceedings. We also participated in conferences with
representatives of the Fund and its accountants at which the contents of the
Registration Statement and Prospectus and related matters were discussed. With
your permission, we have not undertaken, except as otherwise indicated herein,
to determine independently, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any 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
Prospectus, as of its date and as of the date hereof, 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
Schedule B-3
therein, in the light of the circumstances under which they were made, not
misleading or that any amendment or supplement to the Prospectus, as of its
respective date, and as of the date hereof, contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements in the Prospectus, in the light of the circumstances under
which they were made, not misleading (except the financial statements, schedules
and other financial data included therein, as to which we express no view).
Schedule B-4
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING XXXXX XXXXX MANAGEMENT
1. Xxxxx Xxxxx has been duly formed and is validly existing as a
Massachusetts business trust under the laws of its jurisdiction of incorporation
with full power and authority to conduct all of the activities conducted by it,
to own or lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and Prospectus, and Xxxxx
Xxxxx is duly licensed and qualified and in good standing in each other
jurisdiction in which it is required to be so qualified and Xxxxx Xxxxx owns,
possesses or has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary for Xxxxx Xxxxx to carry on its business as contemplated
in the Registration Statement and the Prospectus.
2. Xxxxx Xxxxx is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the Investment Company
Act, the Advisers Act Rules or the Investment Company Act Rules from acting as
investment adviser for the Fund as contemplated by the Investment Advisory
Agreement, the Registration Statement and the Prospectus.
3. Xxxxx Xxxxx has full power and authority to enter into each of
the Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory
Agreement, the Administration Agreement, the Additional Compensation Agreement,
and the Shareholder Servicing Agreement (collectively, the "Xxxxx Xxxxx
Agreements") and to carry out all the terms and provisions thereof to be carried
out by it, and each such agreement has been duly and validly authorized,
executed and delivered by Xxxxx Xxxxx; each Xxxxx Xxxxx Agreement complies in
all material respects with all provisions of the Investment Company Act, the
Advisers Act, the Investment Company Act Rules and the Advisers Act Rules; and
assuming due authorization, execution and delivery by the other parties thereto,
each Xxxxx Xxxxx Agreement constitutes a legal, valid and binding obligation of
Xxxxx Xxxxx, enforceable 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) as
rights to indemnity thereunder may be limited by federal or state securities
laws.
4. Neither (A) the execution and delivery by Xxxxx Xxxxx of any
Xxxxx Xxxxx Agreement nor (B) the consummation by Xxxxx Xxxxx of the
transactions contemplated by, or the performance of its obligations under any
Xxxxx Xxxxx Agreement conflicts or will conflict with, or results or will result
in a breach of, the Agreement and Declaration of Trust or By-Laws of Xxxxx Xxxxx
or any agreement or instrument to which Xxxxx Xxxxx is a party or by which Xxxxx
Xxxxx is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities
Schedule C-1
exchange or association or arbitrator, whether foreign or domestic, applicable
to Xxxxx Xxxxx.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by Xxxxx Xxxxx of its obligations under, any
Xxxxx Xxxxx Agreement, except such as have been obtained under the Investment
Company Act, the Advisers Act, the Securities Act, the Investment Company Act
Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of Xxxxx Xxxxx and its business, and the
statements attributable to Xxxxx Xxxxx, in the Registration Statement and the
Prospectus complies with the requirements of the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act Rules and
do not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
7. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting Xxxxx Xxxxx of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of Xxxxx Xxxxx or the ability of Xxxxx Xxxxx to
fulfill its respective obligations under any Xxxxx Xxxxx Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of Xxxxx
Xxxxx.
In connection with the registration of the Shares, we have advised
Xxxxx Xxxxx as to the requirements of the Securities Act, the Investment Company
Act and the applicable rules and regulations of the Commission thereunder and
have rendered other legal advice and assistance to Xxxxx Xxxxx in the course of
the preparation of the registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and reviews of certain corporate records,
documents and proceedings. We also participated in conferences with
representatives of the Fund and its accountants and Xxxxx Xxxxx at which the
contents of the registration and Prospectus and related matters were discussed.
Schedule C-2
With your permission, we have not undertaken, except as otherwise indicated
herein, to determine independently, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any 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
Prospectus, as of its date and as of the date hereof, 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 or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
Schedule C-3
SCHEDULE D
FORM OF OPINION OF [ ]
REGARDING RAMPART INVESTMENT MANAGEMENT COMPANY
1. Rampart Investment Management Company (the "Sub-Adviser") has
been duly formed and is validly existing as a Massachusetts corporation under
the laws of its jurisdiction of incorporation with full power and authority to
conduct all of the activities conducted by it, to own or lease all of the assets
owned or leased by it and to conduct its business as described in the
Registration Statement and Prospectus, and the Sub-Adviser is duly licensed and
qualified and in good standing in each other jurisdiction in which it is
required to be so qualified and the Sub-Adviser owns, possesses or has obtained
and currently maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic, necessary for
the Sub-Adviser to carry on its business as contemplated in the Registration
Statement and the Prospectus.
2. The Sub-Adviser is duly registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
3. The Sub-Adviser has full power and authority to enter into each
of the Underwriting Agreement and the Sub-Advisory Agreement (collectively, the
"Sub-Adviser Agreements") and to carry out all the terms and provisions thereof
to be carried out by it, and each such agreement has been duly and validly
authorized, executed and delivered by the Sub-Adviser; each Sub-Adviser
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each Sub-Adviser Agreement constitutes a legal,
valid and binding obligation of the Sub-Adviser, enforceable 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) as rights to indemnity thereunder may be limited by
federal or state securities laws.
4. 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 Articles of Incorporation or By-Laws of the Sub-Adviser or
any agreement or instrument to which the Sub-Adviser is a party or by which the
Sub-Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to the Sub-Adviser.
Schedule D-1
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Sub-Adviser of its obligations under,
any Sub-Adviser Agreement, except such as have been obtained under the
Investment Company Act, the Advisers Act, the Securities Act, the Investment
Company Act Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of the Sub-Adviser and its business, and the
statements attributable to the Sub-Adviser, in the Registration Statement and
the Prospectus complies with the requirements of the Securities Act, the
Investment Company Act, the Securities Act Rules and the Investment Company Act
Rules and do not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
7. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting the Sub-Adviser of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Sub-Adviser or the ability of the
Sub-Adviser to fulfill its respective obligations under any Sub-Adviser
Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of the
Sub-Adviser.
In connection with the registration of the Shares, we have advised
the Sub-Adviser as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the
Sub-Adviser in the course of the preparation of the registration Statement and
the Prospectus. Rendering such assistance involved, among other things,
discussions and inquiries concerning various legal and related subjects and
reviews of certain corporate records, documents and proceedings. We also
participated in conferences with representatives of the Fund and its accountants
and the Sub-Adviser at which the contents of the registration and Prospectus and
related matters were discussed. With your permission, we have not undertaken,
except as otherwise indicated herein, to determine independently, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements in the Registration Statement or
Schedule D-2
Prospectus. On the basis of the information which was developed in the course of
the performance of the services referred to above, no information has come to
our attention that would lead us to believe that the Registration Statement, at
the time it became effective, contained any 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 Prospectus, as of its
date and as of the date hereof, 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 or that any amendment or supplement to the Prospectus,
as of its respective date, and as of the date hereof, contained any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements in the Prospectus, in the light of the
circumstances under which they were made, not misleading (except the financial
statements, schedules and other financial data included therein, as to which we
express no view).
Schedule D-3
SCHEDULE E
FORM OF ACCOUNTANT'S LETTER
, 2004
The Board of Trustees of
Xxxxx Xxxxx Enhanced Equity Income Fund
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Xxxxx
Xxxxx Enhanced Equity Income Fund (the "Fund") as of [ ], 2004 included in
the Registration Statement on Form N-2 filed by the Fund under the Securities
Act of 1933 (the "Securities Act") (File No. 333-118180) and under the
Investment Company Act of 1940 (the "Investment Company Act") (File No.
811-21614); such statement and our report with respect to such statement are
included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Fund
within the meaning of the Securities Act and the applicable rules and
regulations thereunder.
2. In our opinion, the statement of assets and liabilities included
in the Registration Statement and audited by us complies as to form in all
respects with the applicable accounting requirements of the Securities Act, the
Investment Company Act and the respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of the
Board of Trustees of the Fund as set forth in the minute books at the offices of
the Fund, officials of the Fund having advised us that the minutes of all such
meetings through [ ], 2004, were set forth therein.
4. Fund officials have advised us that no financial statements as of
any date subsequent to [ ], 2004, are available. We have made inquiries of
certain officials of the Fund who have responsibility for financial and
accounting matters
Schedule E-1
regarding whether there was any change at [ ], 2004, in the capital shares
or net assets of the Fund as compared with amounts shown in the [ ], 2004,
statement of assets and liabilities included in the Registration Statement,
except for changes that the Registration Statement discloses have occurred or
may occur. On the basis of our inquiries and our reading of the minutes as
described in Paragraph 3, nothing came to our attention that caused us to
believe that there were any such changes.
The foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
Schedule E-2
