EXHIBIT (h)
UNDERWRITING AGREEMENT
Exhibit (h)
ROYCE VALUE TRUST, INC.
% CUMULATIVE PREFERRED STOCK
Liquidation Preference $25.00 per share
UNDERWRITING AGREEMENT
----------------------
New York, New York
October , 2003
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Royce Value Trust, Inc., a Maryland corporation
(the "Fund") and Royce & Associates, LLC, a Delaware limited liability company
(the "Adviser") address you as underwriters and as the representatives (the
"Representatives") of each of the several underwriters named on Schedule I
hereto (herein collectively called "Underwriters"). The Fund proposes to sell to
the Underwriters _____ shares (the "Securities") of its % Cumulative
Preferred Stock, par value $.001 per share and liquidation preference $25.00 per
share (the "Cumulative Preferred Stock"). Unless otherwise stated, the term
"you" as used herein means each of Citigroup Global Markets Inc. and UBS
Securities LLC individually on its own behalf and on behalf of the other
Underwriters. Certain terms used herein are defined in Section 18 hereof. The
Securities will be authorized by, and subject to the terms and conditions of,
the Articles Supplementary to be adopted in connection with the issuance of the
Securities (the "Articles Supplementary").
The Fund and the Adviser wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Securities by the Underwriters.
The Fund has entered into (i) an Investment Advisory Agreement with
the Adviser, dated as of October 1, 2001; (ii) a Custodian Agreement with State
Street Bank and Trust Company ("State Street") dated as of October 20, 1986, as
amended to date; and (iii) a Registrar, Transfer Agency and Paying Agency
Agreement with State Street, dated as of August
21, 1996, as amended to date; and such agreements are herein referred to as the
"Advisory Agreement," the "Custodian Agreement" and the "Transfer Agency
Agreement," respectively. Collectively, the Advisory Agreement, the Custodian
Agreement and the Transfer Agency Agreement are herein referred to as the "Fund
Agreements."
1. Representations and Warranties of the Fund and the Adviser.
The Fund and the Adviser, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-107578 and 811-04875) on Form N-2,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), for registration
under the 1933 Act and the 1940 Act of the offering and sale of the
Securities. The Fund may have filed one or more amendments thereto,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), each of which
has previously been furnished to you. The Fund will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement (including the form of final prospectus (including the statement
of additional information incorporated by reference therein)) or (2) after
the Effective Date of such registration statement, a final prospectus
(including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of
clause (2), the Fund has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Acts and the Rules and Regulations to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such final
prospectus (including the statement of additional information incorporated
by reference therein), shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Fund has advised
you, prior to the Execution Time, will be included or made therein. The
Fund has furnished the Underwriters with copies of such Registration
Statement, each amendment to such Registration Statement filed with the
Commission and each Preliminary Prospectus.
(b) Each Preliminary Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 497, complied when so filed
in all material respects with the provisions of the Acts and the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(c) The Registration Statement in the form in which it became
or becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, the Prospectus and
any supplement thereto when filed with the
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Commission under Rule 497 and the 1940 Act Notification when originally
filed with the Commission and any amendment or supplement thereto when
filed with the Commission, complied or will comply in all material respects
with the provisions of the Acts and the Rules and Regulations and did not
or will not at any such times contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions
from the registration statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Fund in writing by or on behalf of any Underwriter through you expressly
for use therein.
(d) The Securities have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and nonassessable
and free of any preemptive or similar rights and will conform to the
description thereof in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them).
(e) The Fund's capitalization and adjusted capitalization as of
June 30, 2003 is as set forth in the Prospectus; all outstanding shares of
the Fund's Common Stock, the 7.30% Preferred and the 7.80% Preferred have
been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights, and conform to the
description thereof in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them).
(f) The Fund is a corporation duly organized and validly
existing in good standing under the laws of the State of Maryland with full
corporate power and authority to own, lease and operate its property or
assets and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
property or assets or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the condition (financial
or other), business, prospects, property, net assets or results of
operations of the Fund, or on the ability of the Fund to perform its
obligations under this Agreement or any of the Fund Agreements. The Fund
has no subsidiaries.
(g) There are no legal or governmental proceedings pending or,
to the knowledge of the Fund, threatened, against the Fund, or to which the
Fund or any of its property or assets is subject, that are required to be
described in the Registration Statement or the Prospectus (and any
amendment or supplement to either of them) but are not described as
required, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus (and any amendment or supplement to either of
them) or to be filed as an exhibit to the Registration Statement that are
not described or filed as required by the Acts or the Rules and
Regulations.
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(h) The Fund is not in violation of its articles of
incorporation, as amended and supplemented to date, including the Articles
Supplementary relating to the 7.30% Preferred and the Articles
Supplementary relating to the 7.80% Preferred (collectively, the "Charter")
or bylaws (the "Bylaws"), or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Fund or of any decree of
the Commission, any state securities commission, any national securities
exchange, any arbitrator, any court or governmental agency, body or
official having jurisdiction over the Fund, or in default in any material
respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
property or assets may be bound.
(i) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (A) requires any consent,
approval, authorization or other order of or registration or filing with,
the Commission, any state securities commission, any national securities
exchange, any arbitrator, any court, regulatory body, administrative agency
or other governmental body, agency or official (except for the registration
of the Securities under the 1933 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
applicable state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by you and the required rating
agency confirmation), (B) violates or will violate or conflicts or will
conflict with any provision of the Charter or bylaws of the Fund or any
statute, law, regulation or judgment, injunction, order or decree
applicable to the Fund or any of its property or assets or (C) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, any agreement, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its property or assets may be
bound, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant to the terms
of any agreement or instrument to which it is a party or by which it may be
bound or to which any of its property or assets is subject. The Fund is not
subject to any order of any court or of any arbitrator, governmental
authority or administrative agency.
(j) Xxxx, Xxxxxx & Xxxxx, who have audited the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Fund within the meaning of the 1933 Act and the 1933 Act
Rules and Regulations.
(k) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them), present fairly the financial position, results of operations and
changes in financial position of the Fund on the basis stated or
incorporated by reference in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements
and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the
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other financial and statistical information and data included in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them) are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Fund.
(l) The execution and delivery of, and the performance by the
Fund of its obligations under, this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund, and this Agreement and the
Fund Agreements have been duly executed and delivered by the Fund and
constitute the valid and legally binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution hereunder and thereunder may be
limited under federal or state securities laws.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
to either of them), the Fund has not incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Fund, and there has not been
any change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Fund, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or other),
business, prospects, property, net assets or results of operations of the
Fund taken as a whole, whether or not arising in the ordinary course of
business.
(n) The Fund has not distributed and, prior to the later to
occur of the Closing Date and the completion of the distribution of the
Securities will not distribute, any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or other materials,
if any, permitted by the Acts or the Rules and Regulations.
(o) The Fund has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its property and assets and to conduct its business in the
manner described in the Prospectus (and any supplement thereto), subject to
such qualifications as may be set forth in the Prospectus; the Fund has
fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the Fund under any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus (and any supplement thereto); and, except as described in the
Prospectus (and any supplement thereto), none of such permits contains any
restriction that is materially burdensome to the Fund.
(p) The Fund maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with general or specific authorization from the
Fund's officers and with the applicable requirements of the 1940 Act, the
1940 Act Rules and Regulations and the Code; (ii)
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transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain accountability for assets and to maintain compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (iii) access to assets is permitted only in accordance
with general or specific authorization from the Fund's officers; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(q) To the Fund's knowledge, neither the Fund nor any employee
or agent of the Fund has made any payment of funds of the Fund or received
or retained any funds in violation of any law, rule or regulation, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(r) The Fund has filed all tax returns required to be filed,
which returns are complete and correct, and the Fund is not in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto; and the statements in the Prospectus
under the headings "Taxation", "Description of Cumulative Preferred Stock"
and "Description of Capital Stock" fairly summarize the matters therein
described.
(s) No holder of any security of the Fund has any right to
require registration of shares of Cumulative Preferred Stock or any other
security of the Fund because of the filing of the registration statement or
consummation of the transactions contemplated by this Agreement.
(t) The Fund, subject to the registration statement having been
declared effective and the filing of the Prospectus under Rule 497, has
taken all required action under the Acts and the Rules and Regulations to
make the public offering and consummate the sale of the Securities as
contemplated by this Agreement.
(u) The conduct by the Fund of its business (as described in
the Prospectus) does not require it to be the owner, possessor or licensee
of any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(v) The Fund is registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification has
been duly filed with the Commission and, at the time of filing thereof and
any amendment or supplement thereto, conformed in all material respects
with all applicable provisions of the 1940 Act and the Rules and
Regulations. The Fund is, and at all times through the completion of the
transactions contemplated hereby will be, in compliance in all material
respects with the terms and conditions of the Acts. No person is serving or
acting as an officer, director or investment adviser of the Fund except in
accordance with the provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act, and the Advisers Act Rules and Regulations;
the Fund has not received any notice from the Commission pursuant to
Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or
the Registration Statement.
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(w) Except as stated in this Agreement and in the Prospectus
(and any supplement thereto), the Fund has not taken, nor will it take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price
of any securities issued by the Fund to facilitate the sale or resale of
the Securities, and the Fund is not aware of any such action taken or to be
taken by any affiliates of the Fund.
(x) The Fund has filed in a reasonably timely manner each
document or report required to be filed by it pursuant to the Exchange Act
and Exchange Act Rules and Regulations; each such document or report at the
time it was filed conformed to the requirements of the Exchange Act and the
Exchange Act Rules and Regulations; and none of such documents or reports
contained an untrue statement of any material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(y) Each of the Fund Agreements and the Fund's and the
Adviser's obligations under this Agreement and each of the Fund Agreements
comply in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act and the Advisers
Act Rules and Regulations.
(z) The Fund will use its reasonable best efforts to cause the
Cumulative Preferred Stock, on or prior to the Closing Date, to be assigned
a rating of "Aaa" by the Rating Agency.
(aa) At all times since its inception, as required by Subchapter
M of the Code, the Fund has complied with the requirements to qualify as a
regulated investment company under the Code.
(bb) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no director
of the Fund is an "interested person" (as defined in the 0000 Xxx) of the
Fund or an "affiliated person" (as defined in the 0000 Xxx) of any
Underwriter.
(cc) The Fund will use its reasonable best efforts to cause the
Cumulative Preferred Stock to be listed, subject to notice of issuance, on
the NYSE within 30 days of the effectiveness of the Registration Statement
and to comply with the rules and regulations of such exchange.
(dd) The Fund intends to direct the investment of the proceeds
of the offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(ee) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic form,
authorized in writing by or prepared by the Fund or the Adviser for use in
connection with the offering and sale of the Securities (collectively,
"sales material"), if any, complied and comply in all material respects
with the applicable requirements of the 1933 Act, the 1933 Act Rules and
Regulations and the
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rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were or will be so filed prior to the
Closing. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ff) The Fund's directors and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the 1940
Act Rules and Regulations are in full force and effect; the Fund is in
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Fund under any such policy or
fidelity bond as to which any insurance company is denying liability or
defending under a reservation of rights clause; the Fund has not been
refused any insurance coverage sought or applied for; and the Fund has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Fund, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(gg) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any affiliate of Citigroup Global Markets Inc. and (ii)
does not intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of Citigroup
Global Markets Inc.
(hh) There is and has been no failure on the part of the Fund
and any of the Fund's directors or officers, in their capacities as such,
to comply in all material respects with any provision of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Xxxxxxxx-Xxxxx Act"), including Sections 302 and 906
related to certifications.
(ii) The operations of the Fund are and have been conducted at
all times in compliance in all material respects with any applicable
financial recordkeeping and reporting requirements of The Bank Secrecy Act
of 1970, as amended (including amendments pursuant to the International
Money Laundering Abatement and Anti-Terrorist Financing Act of 2001), the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the "Money Laundering Laws") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Fund with respect to the Money Laundering Laws is pending or,
to the knowledge of the Fund, threatened.
(jj) Neither the Fund nor, to the knowledge of the Fund, any
director, officer, agent, employee or affiliate of the Fund is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department
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("OFAC"); and the Fund will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds
to any other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(kk) Neither the Fund nor, to the knowledge of the Fund, any
director, officer, agent, employee or affiliate of the Fund is aware of or
has taken any action, directly or indirectly, that would result in a
violation by such persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise
to give, or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Fund, and, to the knowledge of
the Fund, its affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
Any certificate signed by any officer of the Fund and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Fund, as to matters covered thereby, to each Underwriter.
2. Representations and Warranties of the Adviser. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser is a limited liability company duly formed and
validly existing in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
property or assets and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
to either of them), and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its property or assets or the conduct of its business requires
such registration or qualification, except where the failure to so register
or to qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, property, net assets or results
of operations of the Adviser, or on the ability of the Adviser to perform
its obligations under this Agreement and the Investment Advisory Agreement.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the
1940 Act Rules and Regulations from acting under the Investment Advisory
Agreement for the Fund as contemplated by the Prospectus (or any supplement
thereto). There does not exist any proceeding or, to the Adviser's
knowledge, any facts or circumstances the existence of which could
reasonably lead to any proceeding, which might adversely affect the
registration of the Adviser with the Commission.
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(c) There are no legal or governmental proceedings pending or,
to the knowledge of the Adviser, threatened against the Adviser, or to
which the Adviser or any of its property or assets is subject, that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement to either of them) but are not described as
required or that may reasonably be expected to involve a prospective
material adverse change, in the condition (financial or other), business,
prospects, property, net assets or results of operations of the Adviser or
on the ability of the Adviser to perform its obligations under this
Agreement and the Investment Advisory Agreement.
(d) Neither the execution, delivery or performance of this
Agreement or the Investment Advisory Agreement by the Adviser, nor the
consummation by the Adviser of the transactions contemplated hereby or
thereby (i) requires the Adviser to obtain any consent, approval,
authorization or other order of or registration with, the Commission, any
state securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official, (ii) violates or will violate or
conflicts or will conflict with any provision of the certificate of
formation or by-laws or other organizational documents of the Adviser or
any statute, law, regulation or judgment, injunction, order or decree
applicable to the Adviser or any of its property or assets or (iii)
conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, any agreement, indenture, lease or other instrument
to which the Adviser is a party or by which it or any of its property or
assets may be bound, or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Adviser
pursuant to the terms of any agreement or instrument to which it is a party
or by which it may be bound or to which any of the property or assets of
the Adviser is subject. The Adviser is not subject to any order of any
court or of any arbitrator, governmental authority or administrative
agency.
(e) The execution and delivery of, and the performance by the
Adviser of its obligations under, this Agreement and the Investment
Advisory Agreement have been duly and validly authorized by the Adviser,
and this Agreement and the Investment Advisory Agreement have been duly
executed and delivered by the Adviser and each constitutes the valid and
legally binding agreement of the Adviser, enforceable against the Adviser
in accordance with its terms except as rights to indemnity and contribution
hereunder may be limited under federal or state securities laws.
(f) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus (or any supplement thereto) and under this
Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration
Statement and the Prospectus (and any amendment or supplement to either of
them) complied and comply in all material respects with the provisions the
Acts, the Advisers Act, the Rules and Regulations, and the Advisers Act
Rules and Regulations and such description did not, as of the effective
date of the Registration Statement and the date hereof, and will not, as of
the Closing Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
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(h) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
to either of them), the Adviser has not incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Fund, and there
has not been any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, prospects,
property, net assets or results of operations of the Adviser, whether or
not arising in the ordinary course of business, or which, in each case,
could have a material adverse effect on the ability of the Adviser to
perform its obligations under this Agreement and the Investment Advisory
Agreement..
(i) The Adviser has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its property and assets and to conduct its business in the
manner described in the Prospectus (and any supplement thereto); the
Adviser has fulfilled and performed all its material obligations with
respect to such permits, and to the Adviser's knowledge no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the Adviser under any such permit; and, except
as described in the Prospectus (and any supplement thereto), none of such
permits contains any restriction that is materially burdensome to the
Adviser
(j) Except as stated in this Agreement and in the Prospectus
(and any supplement thereto), the Adviser has not taken, nor will it take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in, stabilization or manipulation of the price
of any securities issued by the Fund to facilitate the sale or resale of
the Securities, and the Adviser is not aware of any such action taken or to
be taken by any affiliates of the Adviser.
(k) Xxxxxxx X. Xxxxx is the validly appointed President of the
Adviser.
(l) In the event that the Fund or the Adviser makes available
any promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site or
similar electronic means, the Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
(m) This Agreement and the Investment Advisory Agreement comply
in all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act
Rules and Regulations.
3. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase
11
price of $_____ per share, the number of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
4. Delivery and Payment. Delivery of and payment for the
Underwritten Securities shall be made at 10:00 AM, New York City time, on
______, ___, 2003 or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives
and the Fund or as provided in Section 10 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date"). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Fund by wire transfer payable in same-day funds to an account specified
by the Fund. Delivery of the Underwritten Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Fund will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Fund has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required
under Rule 497, the Fund will cause the Prospectus, properly completed, and
any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to Rule 497 within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Fund will promptly advise the
Representatives (1) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Prospectus,
and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 497 or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Fund of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding
12
for such purpose. The Fund will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such qualification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, any event occurs
as a result of which, in the judgment of the Fund or in the reasonable
opinion of counsel for the Underwriters, the Prospectus as then
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the 1933 Act, the 1940 Act and the Rules and
Regulations, the Fund promptly will (1) notify the Representatives of any
such event; (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 6, an amendment or supplement
which will correct such statement or omission or effect such compliance;
and (3) supply any supplemented Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Fund will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Fund which will satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(d) The Fund will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the 1933 Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request.
(e) The Fund will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided
that in no event shall the Fund be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Fund or any affiliate of the Fund or any person in
privity with the Fund, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act) any other senior security of the
Fund or any securities convertible into, or exercisable, or exchangeable
for, any senior security of the Fund; or
13
publicly announce an intention to effect any such transaction for a period
of 180 days following the Execution Time.
(g) The Fund will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause
the Fund's directors and officers, in their capacities as such, to comply
with such laws, rules and regulations, including, without limitation, the
provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Fund and the Adviser will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Fund to facilitate the sale or resale of the Securities.
(i) The Fund agrees to pay the costs and expenses relating to
the following matters: (A) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus and the 1940 Act Notification and each amendment or
supplement to any of them; (B) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each Preliminary
Prospectus, the Prospectus, any sales material and all amendments or
supplements to any of them, as may, in each case, be reasonably requested
for use in connection with the offering and sale of the Securities; (C) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (D) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum, dealer agreements and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the
Securities; (E) the registration of the Securities under the 1933 Act and
the listing of the Securities on the NYSE; (F) any registration or
qualification, if necessary, of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (G) any filings required
to be made with the NASD (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such filings); (H) the
transportation and other expenses incurred by or on behalf of Fund
representatives in connection with presentations to prospective purchasers
of the Securities; (I) the fees and expenses of the Fund's accountants and
the fees and expenses of counsel (including local and special counsel) for
the Fund; (J) the fees payable to the Rating Agency; and (K) all other
costs and expenses incident to the performance by the Fund of its
obligations hereunder, but not including the fees, expenses, and costs of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Underwriters, except as
provided in Sections 6(i)(D) and (G) and in Section 8 of this Agreement
(j) The Fund will direct the investment of the net proceeds of
the offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as described
in the Prospectus.
14
(k) The Fund will use its best efforts to cause the Cumulative
Preferred Stock to be listed, subject to notice of issuance, on the NYSE
within 30 days of effectiveness of the Registration Statement and to comply
with the rules and regulations of such exchange.
(l) The Fund will use its best efforts to cause the Cumulative
Preferred Stock, on or prior to the Closing Date, to be assigned a rating
of "Aaa" by the Rating Agency.
(m) The Fund will comply with the requirements of Subchapter M
of the Code to qualify as a regulated investment company under the Code.
(n) The Fund and the Adviser will use their reasonable best
efforts to perform all of the agreements required of them by this Agreement
and discharge all conditions of theirs to closing as set forth in this
Agreement.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the
part of the Fund and the Adviser contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 4 hereof, to the
accuracy of the statements of the Fund made in any certificates pursuant to the
provisions hereof, to the performance by the Fund or the Adviser of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
PM New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such date;
if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 497, the Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule 497; and no
stop order suspending the effectiveness of the Registration Statement shall
have been issued by the Commission and no proceedings for that purpose
shall have been instituted or threatened by the Commission.
(b) The Fund shall have requested and caused Sidley Xxxxxx
Xxxxx & Xxxx LLP, special counsel for the Fund, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Fund is qualified to do business and is in good
standing as a foreign corporation in the State of New York, and, to
such counsel's knowledge, owns, possesses or has obtained and
currently maintains, all material governmental licenses, permits,
consents, orders, approvals and other authorizations under the
Federal laws of the United States and the laws of the State of New
York necessary to carry on its business as contemplated by the
Prospectus;
15
(ii) the Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable;
(iii) this Agreement has been duly authorized, executed
and delivered by the Fund and complies with the provisions of the
1940 Act and the 1940 Act Rules and Regulations applicable to the
Fund;
(iv) each of the Fund Agreements has been duly
authorized, executed and delivered by the Fund, each complies as to
form in all material respects with all applicable provisions of the
1940 Act and the 1940 Act Rules and Regulations;
(v) the Registration Statement is effective under the
1933 Act and the 1933 Act Rules and Regulations and, to such
counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act or the
1933 Act Rules and Regulations or proceedings therefor initiated or
threatened by the Commission;
(vi) at the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements, accompanying notes, and other financial or statistical
information contained or incorporated by reference therein, as to
which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Acts and the Rules
and Regulations;
(vii) to such counsel's knowledge, (A) there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments of the Fund required to be described or referred
to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed as
exhibits thereto, (B) the descriptions thereof are correct in all
material respects, (C) references thereto are correct and (D) no
default exists in the due performance or observance by the Fund of
any material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed as an exhibit to
the Registration Statement;
(viii) no consent, approval, authorization or order of any
court or governmental authority or agency is required in connection
with the performance by the Fund of its obligations under this
Agreement, except for (A) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by you, (B) the required rating
agency confirmation (as to which such counsel need express no
opinion), (C) such as have been made or obtained under the 1933 Act,
and (D) such as may have been obtained under Maryland law; and to
such counsel's knowledge, the execution and delivery of this
Agreement and the consummation of the transactions contemplated
herein will not conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien,
charge or encumbrance
16
upon any property or assets of the Fund pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Fund is a party or by which it may be bound or to which
any of the property or assets of the Fund is subject, nor will such
action result in any violation of the provisions of the Charter or
the bylaws of the Fund, or, to such counsel's knowledge, any Federal
or New York law or administrative regulation, or administrative or
court decree;
(ix) the Fund is registered with the Commission under the
1940 Act and the 1940 Act Rules and Regulations as a closed-end,
diversified management investment company, and all required action
has been taken by the Fund under the Acts and the Rules and
Regulations to make the public offering and consummate the sale of
the Securities pursuant to this Agreement; the provisions of the
Charter and the bylaws of the Fund comply as to form in all material
respects with the requirements of the 1940 Act and the 1940 Act
Rules and Regulations; and, to such counsel's knowledge, no order of
suspension or revocation of such registration under the 1940 Act and
the 1940 Act Rules and Regulations, has been issued or proceedings
therefor initiated or threatened by the Commission;
(x) the information in the Prospectus under the caption
"Taxation", to the extent that it constitutes matters of Federal
income tax law or legal conclusions relating to Federal income tax
matters, has been reviewed by them and is correct in all material
respects; and
(xi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Fund or its property of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus.
In rendering such opinion, Sidley Xxxxxx Xxxxx & Xxxx LLP shall
additionally state that nothing has come to their attention that has caused
them to believe that the Registration Statement or any amendment thereto,
at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus or any supplement thereto, as of the time it was first
provided to the Underwriters or as of the Closing Date, included an untrue
statement of a material fact or omitted 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, except that such counsel need
not express any belief with respect to the financial statements,
accompanying notes, and other financial and statistical information
contained or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement to either of the
foregoing). In addition, Sidley Xxxxxx Xxxxx & Xxxx LLP (A) may state that
they express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the laws of the State of Maryland and the
Federal laws of the United States of America, (B) may rely as to matters
involving the laws of the State of Maryland upon the opinion of Xxxxxxx,
Baetjer and Xxxxxx, LLP referred to in paragraph (c) of
17
this Section 7 and (C) may rely, as to matters of fact, upon the
representations and warranties made by the Fund and the Adviser herein and
on certificates and written statements of officers and employees of and
accountants for the Fund and the Adviser and of public officials. Except as
otherwise specifically provided herein, when giving their opinions to their
"knowledge", Sidley Xxxxxx Xxxxx & Xxxx LLP have relied solely upon an
inquiry of the attorneys of that firm who have worked on matters for the
Fund, on certificates or written statements of officers of the Fund and,
where appropriate, a review of the Registration Statement, Prospectus,
exhibits to the Registration Statement, the Charter and bylaws of the Fund
and a review of the minute books of the Fund and have made no other
investigation or inquiry.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx, LLP, special Maryland counsel to the Fund, dated the Closing Date
and addressed to you, to the effect that:
(i) the Fund is a corporation duly incorporated and
existing under and by virtue of the laws of the State of Maryland
and is in good standing with the SDAT;
(ii) the Fund has the corporate power to own, lease and
operate its property or assets and to conduct its business in all
material respects as described in the Registration Statement and in
the Prospectus;
(iii) the authorized capital stock of the Fund conforms as
to legal matters in all material respects to the description thereof
in the Prospectus under the captions "Description of Cumulative
Preferred Stock" and "Description of Capital Stock";
(iv) the sale and issuance of Securities have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-
assessable, and the issuance of the Securities will not be subject
to preemptive or other similar rights pursuant to the Charter or
Bylaws of the Fund or the Maryland General Corporation Law.
(v) the Fund has the corporate power to enter into the
Fund Agreements; the execution and delivery of the Fund Agreements
have been duly authorized by the Fund; each of the Fund Agreements
has been duly executed and, so far as it is known to such counsel,
delivered by the Fund;
(vi) so far as is known to such counsel, the execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or
constitute a breach of the Charter or the Bylaws of the Fund, or any
Maryland law or regulation, or, so far as is known to such counsel,
any order of any Maryland governmental authority (other than any
law, regulation or order in connection with the securities laws of
the State of Maryland, as to which no opinion is hereby expressed);
and
18
(vii) insofar as statements in the Prospectus purport to
summarize certain provisions of Maryland law or regulations or legal
or governmental proceedings, of the State of Maryland, if any, such
statements are accurate in all material respects.
In rendering such opinion, Xxxxxxx LLP may rely, as to matters of
fact, upon the representations and warranties made by the Fund and the
Adviser herein and on certificates and written statements of officers and
employees of and accountants for the Fund and the Adviser and of public
officials. Except as otherwise specifically provided herein, when giving
their opinions to their "knowledge", Xxxxxxx LLP have relied solely upon an
inquiry of the attorneys of that firm who have worked on matters for the
Fund, on certificates or written statements of officers of the Fund and,
where appropriate, a review of the Registration Statement, Prospectus,
exhibits to the Registration Statement, the Charter and bylaws of the Fund
and have made no other investigation or inquiry.
(d) You shall have received on the Closing Date an opinion of
Xxxx X. Xxxxxxx, Esq., General Counsel for the Adviser, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters,
to the effect that:
(i) the Adviser has been duly formed and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware, with corporate power and authority to
conduct its business as described in the Registration Statement and
in the Prospectus;
(ii) the Adviser is duly registered as an investment
adviser under the Advisers Act and the Advisers Act Rules and
Regulations and, subject to the matters covered by the no-action
letters of the Commission in Quest Advisory Corp.; Royce Value
Trust, Inc. (pub. avail. December 22, 1986) and Royce Value Trust,
Inc. (pub. avail. July 29, 1988) (collectively, the "No-Action
Letters"), is not prohibited by the Advisers Act, the Advisers Act
Rules and Regulations, the 1940 Act or the 1940 Act Rules and
Regulations, from acting under the Investment Advisory Agreement for
the Fund as contemplated by the Prospectus;
(iii) this Agreement and the Investment Advisory Agreement
each has been duly authorized, executed and delivered by the Adviser
and, subject to the matters covered by the No-Action Letters,
constitutes a valid and binding obligation of the Adviser,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally and to general
equitable principles (except as to those provisions relating to
indemnity or contribution for liabilities arising under such
agreement, as to which no opinion need be expressed); and, to his
knowledge, neither the execution and delivery of this Agreement or
the Investment Advisory Agreement nor the performance by the Adviser
of its obligations hereunder or thereunder will conflict with, or
result in a breach of, any of the terms and provisions of, or
constitute, with or without the giving of notice or the lapse of
time or both, a default under, any agreement or instrument to which
the Adviser is a party or by which the Adviser is bound, or, except
as set
19
forth in the No-Action Letters, any law, order, rule or regulation
applicable to the Adviser of any jurisdiction, court, Federal or
state regulatory body, administrative agency or other governmental
body, stock exchange or securities association having jurisdiction
over the Adviser or its property or assets or operations;
(iv) to such counsel's knowledge, the description of the
Adviser in the Registration Statement and in the Prospectus (and any
amendment or supplement to either of them) does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(v) to the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in the
Prospectus, there are no actions, suits or other legal or
governmental proceedings pending or threatened against the Adviser
or to which the Adviser or any of its property is subject which are
required to be described in the Prospectus; and
(vi) no material consent, approval, authorization or
order of or registration or filing with any court, regulatory body,
administrative or other governmental body, agency or official is
required on the part of the Adviser for the performance of this
Agreement or the Investment Advisory Agreement or for the
consummation by the Adviser of the transactions contemplated hereby
or thereby.
In rendering such opinion, such counsel (A) may state that he expresses
no opinion as to the laws of any jurisdiction other than the laws of the
State of New York, the laws of the State of Delaware and the federal laws
of the United States of America, (B) may rely, as to matters of fact, upon
the representations and warranties made by the Fund and the Adviser herein
and on certificates and written statements of officers and employees of and
accountants for the Fund and the Adviser and of public officials, and (C)
may state that he is a member of the Bar of the State of New York.
(e) The Representatives shall have received on the Closing Date
an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Underwriters,
dated the Closing Date and addressed to the Representatives, with respect
to such matters as the Underwriters may reasonably request.
(f) The Fund shall have furnished to the Representatives a
certificate of the Fund, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of each of the
Fund and the Adviser, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplements to the Prospectus, and this
Agreement and that:
(i) The representations and warranties of the Fund and the
Adviser in this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and the Fund and
the Adviser have complied with
20
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted by the Commission or, to the Fund's or the Adviser's
knowledge, threatened by the Commission; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund or the Adviser,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(g) The Fund shall have requested and caused Xxxx, Xxxxxx & Xxxxx, the
independent public accountants to the Fund, to have furnished to the
Representatives, at the Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance heretofore approved by the Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 7 or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Fund and the
Adviser, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto).
(i) The Fund shall have furnished to you a report showing compliance
with the asset coverage requirements of the 1940 Act and a Basic Maintenance
Report, each dated the Closing Date and in the form and substance satisfactory
to you. Each such report shall assume receipt of the net proceeds from the sale
of the Securities and the use of such net proceeds to redeem the 7.80% Preferred
and the 7.30% Preferred as contemplated by the Prospectus and may use portfolio
holdings and valuations as of the close of business of any day not more than six
business days preceding the Closing Date, provided, however, that the Fund
represents in such report that its total net assets as of the Closing Date have
not declined by 5% or more from such valuation date.
(j) The Fund shall have delivered and the Underwriters shall have
received evidence satisfactory to the Underwriters that the Cumulative Preferred
Stock is rated
21
"Aaa" by the Rating Agency as of the Closing Date, and there shall not have been
given any notice of any intended or potential downgrading, or any review for a
potential downgrading, in the rating according to the shares of the Cumulative
Preferred Stock by the Rating Agency.
(k) Prior to the Closing Date, the Fund and the Adviser shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Fund in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered
at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx X.
Xxxxxx, Esq., on the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the Adviser to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Fund will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
9. Indemnification and Contribution. (a) The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless each of the
Representatives and each other Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of the 1933 Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several (including reasonable
costs of investigation), to which they or any of them may become subject under
the 1933 Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Prospectus, any Preliminary Prospectus, any
sales material (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action;
22
provided, however, that the Fund will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Fund may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Fund and the Adviser, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Fund or the Advisers within the meaning of either the 1933 Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Fund and the
Advisers to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Fund by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Fund and the Adviser acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities and, under the
heading "Underwriting", (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below) and to control such action;
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (A) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (B) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (C) the
23
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (D) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Adviser and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Fund,
the Adviser and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Adviser and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Fund
and the Adviser on the one hand (treated jointly for this purpose as one person)
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Fund and the Adviser (treated jointly
for this purpose as one person) shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund and the Adviser on the one hand
(treated jointly for this purpose as one person) or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Fund, the Adviser and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of either the 1933 Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Fund or the Adviser within the meaning of either the 1933 Act or the Exchange
Act, each officer of the Fund and the Adviser who shall have signed the
Registration Statement and each director of the Fund and the Adviser shall have
the same rights to contribution as the Fund and the Adviser, subject in each
case to the applicable terms and conditions of this paragraph (d). The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to
24
the respective number of Securities set forth opposite their names in Schedule I
(or such numbers of Securities increased as set forth in Section 10 hereof) and
not joint.
(e) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or 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 from claimants on claims that are the
subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the Adviser set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Fund, the Adviser or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Adviser (control to be determined within the meaning of the 1933 Act
or the Exchange Act), (ii) acceptance of any Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Adviser or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Adviser shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate number of
Securities set forth opposite the names of all the remaining Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Inc. Master Agreement Among Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all of the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Fund.
In the event of a default by any Underwriter as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder. The
term "Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I
25
hereto who, with your approval and the approval of the Fund, purchases Firm
Securities which a defaulting Underwriter agreed, but failed or refused, to
purchase.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, without liability on the part of the
Underwriters to the Fund or the Adviser, by notice given to the Fund or the
Adviser prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Fund's Common Stock or Cumulative
Preferred Stock shall have been suspended by the Commission or the NYSE or
trading in securities generally on the NYSE shall have been suspended or limited
or minimum prices shall have been established on either of the exchanges, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Fund and the Adviser or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Fund or the
Adviser or any of the officers, directors, employees, agents or controlling
persons referred to in Section 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Fund or the Adviser, will be mailed,
delivered or telefaxed to Royce Value Trust, Inc. (fax no.: (000) 000-0000) and
confirmed to it at Royce Value Trust, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
26
17. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"1933 Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"1933 Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the 1933 Act.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"1940 Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of the
Fund as an investment company under the 1940 Act on Form N-8A, as the 1940
Act Notification may be amended from time to time.
"7.80% Preferred" shall mean the Fund's issued and outstanding 7.80%
Cumulative Preferred Stock, par value $.001 per share.
"7.30% Preferred" shall mean the Fund's issued and outstanding 7.30% Tax-
Advantaged Cumulative Preferred Stock, par value $.001 per share.
"Acts" shall mean, collectively, the 1933 Act and the 1940 Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as amended.
"Advisers Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the Advisers Act.
"Basic Maintenance Report" shall mean that report that is delivered to the
Rating Agency on or before the third Business Day after each Quarterly
Valuation Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
27
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the Exchange Act.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange, Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus (including
the statement of additional information incorporated by reference therein)
referred to in Section 1(a) above and any preliminary prospectus (including
the statement of additional information incorporated by reference therein)
included in the Registration Statement at the Effective Date that omits Rule
430A Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to the
Securities that is first filed pursuant to Rule 497 after the Execution Time
or, if no filing pursuant to Rule 497 is required, shall mean the form of
final prospectus (including the statement of additional information
incorporated by reference therein) relating to the Securities included in the
Registration Statement at the Effective Date.
"Quarterly Valuation Date" means the last Valuation Date of March, June,
September and December, commencing _________ __, 2003.
"Rating Agency" shall mean Xxxxx'x Investor Services, Inc.
"Registration Statement" shall mean the registration statement referred to
in Section 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the 1933 Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
28
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the 1933 Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the 1933 Act Rules and
Regulations and the 1940 Act Rules and Regulations.
"Valuation Date" means every Friday or, if such day is not a Business Day,
the immediately preceding Business Day.
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Fund, the Adviser and the several Underwriters.
Very truly yours,
ROYCE VALUE TRUST, INC.
By:
---------------------------------------
Name:
Title:
ROYCE & ASSOCIATES, LLC
By:
---------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
UBS Securities LLC
By: Citigroup Global Markets Inc.
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
30
SCHEDULE I
----------
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Citigroup Global Markets Inc.....................................
UBS Securities LLC ..............................................
----------
8,800,000
Total.......................................... ==========
