3,200,000 Shares1 Common Stock ($0.001 par value) Underwriting Agreement
Prospect
Capital Corporation
3,200,000 Shares1
Common
Stock
($0.001
par value)
April
22, 2009
To
the Representatives
named
in Schedule I
hereto
of the several
Underwriters
named in
Schedule
II hereto
Ladies
and Gentlemen:
Prospect
Capital Corporation, a corporation organized under the laws of Maryland
(the “Company”), proposes
to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for
whom you (the “Representatives”) are
acting as representatives, the number of shares of common stock, $0.001 par
value (“Common
Stock”), of the Company set forth in Schedule I hereto (said shares to be
issued and sold by the Company being hereinafter called the “Underwritten
Securities”). The Company also proposes to grant to the
Underwriters an option to purchase up to the number of additional shares of
Common Stock set forth in Schedule I hereto to cover over-allotments, if any
(the “Option
Securities”; the Option Securities, together with the Underwritten
Securities, being hereinafter called the “Securities”). To
the extent there are no additional Underwriters listed on Schedule II other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Certain terms used herein are defined
in Section 21 hereof.
The
Company understands that the Underwriters propose to make a public offering of
the Securities as soon as the Underwriters deem advisable after this Agreement
has been executed and delivered.
The
Company has entered into an investment advisory and management agreement, dated
as of June 24, 2004, as renewed on June 6, 2008 by the Board (the “Investment Advisory
Agreement”), with Prospect Capital Management LLC, a Delaware limited
liability company registered as an investment adviser (the “Adviser”) under the
Advisers Act. The Company has entered into an administration
agreement, dated as of June 24, 2004, as renewed on June 6, 2008 by the Board
(the “Administration
Agreement”), with Prospect Administration, LLC, a Delaware limited
liability company (the “Administrator”).
The
Company has filed, pursuant to the 1933 Act, with the Commission a registration
statement on Form N-2 (File No. 333-143819), which registers the offer and sale
of certain securities to be issued from time to time by the Company, including
the Securities. The Company filed a Form N-54A “Notification of
Election to be Subject to Sections 55 through 65 of the 1940 Act Filed Pursuant
to
1
|
Plus
an option to purchase from the Company, up to 480,000 additional
Securities to cover
over-allotments.
|
Section
54(a) of the 1940 Act” (File No. 814-00659) with the Commission on April 16,
2004, under the 1940 Act.
The
registration statement as amended, including the exhibits and schedules thereto,
at the time it became effective (or is deemed effective pursuant to Rule 430A or
Rule 430C under the 1933 Act), including the information, if any, omitted from
the registration statement pursuant to Rule 430A (the “Rule 430A
Information”), any registration statement filed pursuant to Rule 462(b)
under the 1933 Act, and any post-effective amendment thereto, is hereinafter
referred to as the “Registration Statement.” The prospectus included
in the Registration Statement at the time it became effective is hereinafter
referred to as the “Base Prospectus.” The Base Prospectus and any
prospectus or prospectus supplement that omitted the Rule 430A Information that
was used prior to the execution and delivery of this Agreement and filed
pursuant to Rule 497(a) under the 1933 Act, including in each case any statement
of additional information incorporated therein by reference, is herein called a
“Preliminary Prospectus.”
The
Company has prepared and will file with the Commission in accordance with Rule
497 under the 1933 Act, a prospectus supplement (the “Prospectus
Supplement”) supplementing the Base Prospectus in connection with the
offer and sale of the Securities. The Base Prospectus and Prospectus
Supplement filed with the Commission pursuant to Rule 497 under the 1933 Act
(including the information, if any, deemed to be a part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A or Rule 430C under
the 0000 Xxx) are hereinafter referred to collectively as the
“Prospectus.” If the Company has filed an abbreviated registration
statement to register additional Securities pursuant to Rule 462(b) under
the 1933 Act (the “Rule 462 Registration
Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration
Statement.
The
Preliminary Prospectus, together with the information set forth in Annex A
hereto to be orally conveyed, when taken together as a whole is hereinafter
referred to as the “Disclosure Package.”
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “disclosed,” “included,” “filed as part of” or
“stated” in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are or are deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement,
Disclosure Package or the Prospectus, as the case may be. All
references in this Agreement to the Registration Statement, Disclosure Package,
the Prospectus or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System (“XXXXX”).
(i) The
Company meets the requirements for use of Form N-2 under the 1933
Act. The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act,
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and
no proceedings for any such purpose, have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
(ii) At
the respective times the Registration Statement, and any post-effective
amendment thereto, became effective and at the Closing Date, as hereinafter
defined (and, if any Option Shares are purchased, at the Date of Delivery), the
Registration Statement, and all amendments and supplements thereto complied and
will comply in all material respects with the requirements of the 1933 Act and
the rules and regulations promulgated thereunder, and did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Date (and, if any Option Shares are purchased, at the
Date of Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with information
furnished to the Company by or on behalf of any Underwriter for use in the
Registration Statement or Prospectus it being understood and agreed that the
only such information furnished to the Company in writing by the Underwriters
consists of the information described in Section 9(b) below.
(iii) The
Disclosure Package as of the Applicable Time does not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package based upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by any Underwriter or its representative expressly for use
therein, it being understood and agreed that the only such information furnished
by the Underwriters to the Company consists of the information described in
Section 9(b) below.
(iv) The
Prospectus when filed, and as of the date of the Prospectus Supplement, complied
in all material respects with the 1933 Act, and if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the 1933 Act), will be substantially identical to the copy thereof
delivered to the Underwriters for use in connection with this
offering.
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be
included in the Registration Statement. The consolidated selected
financial data included in the Prospectus and the Disclosure Package presents
fairly in all material respects the information shown therein and has been
compiled on a basis consistent with the consolidated financial statements
included or incorporated by reference in the Registration
Statement. All disclosures contained in the Registration Statement,
the Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the
Commission) comply with Regulation G under the Exchange Act and Item 10 of
Regulation S-K of the 1933 Act Regulations, to the extent
applicable.
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qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the aggregate,
result in a Material Adverse Change. All of the issued and
outstanding capital stock of each subsidiary that is a corporation has been duly
authorized and validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
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granted
thereunder, set forth in the Prospectus and the Disclosure Package accurately
and fairly presents the information required to be shown with respect to such
plans, arrangements, options and rights. The Securities to be
purchased by the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued, fully paid and
non-assessable.
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of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”);
(ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
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Material
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company by or on behalf of any Underwriter
expressly for use therein).
-8-
under
which they were made, not misleading. The Company has filed all
reports required to be filed pursuant to the 1933 Act, the 1940 Act and the
Exchange Act.
(ff) Any
certificate signed by any officer of the Company or the Adviser and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or the Adviser (as applicable), to
each Underwriter as to the matters covered thereby.
The
Adviser and the Administrator, jointly and severally, represent and warrant to
each Underwriter as of the date hereof, as of the Applicable Time, the Closing
Date referred to in Section 4 hereof, and as of each Date of Delivery (if
any) referred to in Section 3(b) hereof, and agree with each
Underwriter as follows:
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reasonably
be expected to result in an Adviser Material Adverse Effect or an Administrator
Material Adverse Effect, as applicable, nor will such action result in any
violation of the provisions of the limited liability company operating agreement
of the Adviser or Administrator, respectively; nor will such action result in
any violation of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Adviser, the Administrator, or any of
their respective assets, properties or operations except for such violations
that would not reasonably be expected to result in an Adviser Material Adverse
Effect or an Administrator Material Adverse Effect, as applicable.
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unfavorable
decision, ruling or finding, would reasonably be expected to result in an
Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as
applicable.
(b) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to the number of Option
Securities set forth in Schedule II hereto at the same purchase price per share
as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time on or before the 30th day
after the date of the Prospectus Supplement upon written notice by the
Representatives to the Company setting forth the number of Option Securities as
to which the several Underwriters are exercising the option and the time and
date of payment and delivery of such Option Securities. Any such time
and date of delivery (a “Date of
Delivery”) shall be determined by the Underwriters, but shall not be
later than seven (7) full Business Days and no earlier than three
(3) full Business Days after the exercise of said option, nor in any event
prior to the Closing Date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
If
the option provided for in Section 3(b) hereof is exercised after the third
Business Day immediately preceding the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to Xxx-Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx (USA) LLC at 000 Xxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, Xxx Xxxx,
00000, on the date specified by the Representatives (which shall be within three
Business Days after exercise of said option) for the respective accounts of
the several Underwriters, against
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payment
by the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 7 hereof.
(a) The
Company, subject to Section 6(a)(ii), will comply with the requirements of Rule
497, and will notify the Underwriters as soon as practicable, and, in the cases
of Sections 6(a)(ii)-(iv), confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 497 and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 497
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement pursuant to Section 8(d) of the
1933 Act, and, if any such stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) The
Company will give the Underwriters notice of its intention to file or prepare
any amendment to the Registration Statement, or any supplement or revision to
either the Base Prospectus included in the Registration Statement at the time a
post-effective amendment thereto most recently became effective or to the
Prospectus Supplement, and will furnish the Underwriters with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Underwriters or counsel for the Underwriters shall reasonably
object.
(c) If,
at any time prior to the filing of the Prospectus Supplement, any event occurs
as a result of which the Disclosure Package 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
or the circumstances then prevailing not misleading, the Company will
(i) notify promptly the Representatives so that any use of the Disclosure
Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and
(iii) supply any amendment or supplement to you in such quantities as you
may reasonably request.
(d) 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 the
Prospectus Supplement 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
at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Prospectus Supplement to comply with the 1933 Act or the
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Exchange
Act or the respective rules thereunder, including in connection with use or
delivery of the Prospectus Supplement, the Company promptly will (i) notify
the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
6, an amendment or supplement or new registration statement which will correct
such statement or omission or effect such compliance, (iii) use its best
efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any
disruption in use of the Prospectus Supplement and (iv) supply any
supplemented Prospectus Supplement to you in such quantities as you may
reasonably request.
(e) As
soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, 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 Supplement and any supplement thereto
as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to the
offering.
(g) The
Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such states and 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 Company 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.
(h) The
Company will use the net proceeds received by it from the sale of the Securities
in the manner specified in the Prospectus and the Disclosure Package under “Use
of Proceeds.”
(i) The
Company, during the period when the Prospectus is required to be delivered under
the 1933 Act or the Exchange Act, will file all documents required to be filed
with the Commission pursuant to the 1940 Act and the Exchange Act within the
time periods required by the 1940 Act and the Exchange Act and the rules and
regulations of the Commission thereunder, respectively.
(j) The
Company will use its best efforts to maintain its qualification as a regulated
investment company under Subchapter M of the Code.
(k) The
Company will not, without the prior written consent of Xxx-Xxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx (USA) LLC and SunTrust Xxxxxxxx Xxxxxxxx, 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 Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company) 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 shares of Common Stock or any securities convertible into, or exercisable,
or exchangeable for, shares of Common Stock; or publicly announce an intention
to effect any such transaction, until the Business Day set forth on Schedule I
hereto, provided, however, that the Company may
issue and sell, if applicable, Common Stock pursuant to any employee stock
option plan, stock ownership plan or
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dividend
reinvestment plan of the Company in effect at the Applicable Time and the
Company may issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Applicable
Time. Notwithstanding the foregoing, if (x) during the period
that begins on the date that is 15 calendar days plus three business days before
the last day of the 30-day lock-up period and ends on the last day of the 30-day
lock-up period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (y) prior to the
expiration of the 30-day lock-up period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the 30-day lock-up period, then the 30-day lock-up period will be extended until
the expiration of the date that is 15 calendar days plus three business days
after the date on which the issuance of the earnings release or the material
news or material event occurs, unless the Company obtains a written waiver from
the Representatives. The Company will provide the Representatives and
any co-managers and each individual subject to the 30-day lock-up period
pursuant to the lockup letters described in Section 7(l) with prior notice
of any such announcement that gives rise to an extension of the 30-day lock-up
period.
(l) The
Company 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 Company to facilitate the sale or resale of the
Securities.
(m) The
Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus and the Prospectus
Supplement, and each amendment or supplement to any of them; (ii) 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 and the Prospectus
Supplement, 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; (iii) 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; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the NASDAQ; (vi) any registration or
qualification 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); (vii) any filings required to be made with the FINRA
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the transportation and other
expenses incurred by or on behalf of the Company’s officers and other employees
in connection with presentations to prospective purchasers of the Securities;
(ix) the fees and expenses of the Company’s accountants and the fees and
expenses of counsel (including local and special counsel) for the Company; and
(x) all other costs and expenses incident to the performance by the Company
of its obligations hereunder.
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(a) The
Registration Statement, has become effective and on the Closing Date no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act, no stop order pursuant to Section 8(d) of the
1933 Act shall have been issued, and no proceedings with respect to either shall
have been initiated or, to the Company’s knowledge, threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with Rule
497 (or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A).
(b) The
Company’s General Counsel shall have furnished to the Representatives his
opinion, dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit B thereto.
(c) The
Company shall have requested, and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Company, shall have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit C thereto.
(d) The
Company shall have requested, and Xxxxxxx LLP, Maryland counsel for the
Company, shall have furnished to the Representatives their opinion, dated
the Closing Date and addressed to the Representatives, substantially in the form
set forth in Exhibit D thereto.
(e) The
Representatives shall have received from Xxxxxxxx Chance US LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to
the Representatives, with respect to the issuance and sale of the Securities,
the Registration Statement, the Disclosure Package, the Prospectus Supplement
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The
Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Prospectus Supplement and
any supplements or amendments thereto, as well as each electronic road show used
in connection with the offering of the Securities, and this Agreement and
that:
(i) the
representations and warranties of the Company 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 Company has complied with 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 or any
notice objecting to its use has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened;
and
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(iii) since
the date of the most recent financial statements included in the Disclosure
Package and the Prospectus Supplement (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 Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus Supplement (exclusive of any supplement
thereto).
(g) The
Company shall have requested and caused BDO Xxxxxxx, LLP to have furnished to
the Representatives, at the Applicable Time and at the Closing Date, letters,
(which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Applicable Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the 1933
Act and the Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder and that they have performed a review of
the unaudited interim financial information of the Company for the three-month
period ended December 31, 2008, and as at December 31, 2008, in accordance with
Statement on Auditing Standards No. 100, and stating in effect
that:
(i) in
their opinion the audited financial statements and financial statement schedules
and pro forma financial
statements included or incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus Supplement and reported on by them
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on
the basis of a reading of the latest unaudited financial statements made
available by the Company and its subsidiaries; their limited review, in
accordance with standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the three-month period
ended December 31, 2008, and as at December 31, 2008 included in the
Registration Statement, the Preliminary Prospectus and the Prospectus
Supplement; carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and audit, nominating and corporate governance
committees of the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and events
subsequent to June 30, 2008, nothing came to their attention which caused them
to believe that:
(1) any
unaudited financial statements included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus Supplement
do not comply as to form with applicable accounting requirements of the 1933 Act
and with the related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by reference in
quarterly reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus
Supplement;
(2) with
respect to the period subsequent to December 31, 2008, there were any changes,
at a specified date not more than five days prior to the date of the letter, in
the credit facility payable or payable for securities purchased or decreases in
the net
-17-
assets as
compared with the amounts shown on the December 31, 2008 consolidated statement
of assets and liabilities included in the Registration Statement, the
Preliminary Prospectus and the Prospectus Supplement, or for the period from
January 1, 2009 to such specified date there were any decreases, as compared
with the corresponding period in the preceding quarter in total investment
income, net investment income or earnings per common share of the Company and
its subsidiaries, except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the
information included in the Registration Statement, the Preliminary Prospectus
and Prospectus Supplement in response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial Information), Item 402
(Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure requirements
of Regulation S-K; and
(iii) they
have performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company and its subsidiaries)
set forth in the Registration Statement, the Preliminary Prospectus and the
Prospectus Supplement and in Exhibit 12 to the Registration Statement, including
the information set forth under the caption “Selected Condensed Financial Data”
in the Preliminary Prospectus and the Prospectus
Supplement.
References
to the Prospectus Supplement in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent
to the Applicable Time or, if earlier, the dates as of which information is
given in the Registration Statement (after giving effect to any amendment
thereof on or prior to the Applicable Time and to any amendment pursuant to Rule
462(d)) and the Prospectus Supplement (after giving effect to any amendment or
supplement thereto on or prior to the Applicable Time or providing Rule 430A
Information), 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 Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the
Prospectus Supplement (after giving effect to any amendment or supplement
thereto on or prior to the Applicable Time or providing Rule 430A Information)
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 (after giving effect to any amendment thereof on or prior to the
Applicable Time and to any amendment pursuant to Rule 462(d)), the Disclosure
Package and the Prospectus Supplement (after giving effect to any amendment or
supplement thereto on or prior to the Applicable Time or providing Rule 430A
Information).
(i) Prior
to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may
reasonably request.
(j) On
the Closing Date, the Underwriters shall have received from BDO Xxxxxxx, LLP a
letter, dated as of Closing Date, to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 7(g) of this
Agreement.
(k) The
FINRA has confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
-18-
(l) On
or before the date hereof, the Company shall have procured for the benefit of
the Underwriters lock-up agreements, in the form of Exhibit A attached hereto,
from all of the Company’s officers and directors, the Adviser and all of the
officers and directors of the Adviser.
(m) In
the event that the Underwriters exercise their option provided in Section
3(b) hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company, the Adviser and the Administrator
contained herein and the statements in any certificates furnished by the
Company, the Adviser and the Administrator hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i) Certificates,
dated such Date of Delivery, of a duly authorized officer of the Company, the
Adviser and the Administrator and of the chief financial or chief accounting
officer of the Company, the Adviser and the Administrator confirming that the
information contained in the certificate delivered by each of them at the
Closing Date pursuant to Section 7(f) hereof remains true and correct as of
such Date of Delivery.
(ii) The
opinions of the Company’s General Counsel, Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP and Xxxxxxx LLP, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinions required by Section 7(b), 7(c) and
7(d) hereof.
(iii) The
opinion of Xxxxxxxx Chance US LLP, counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
7(e) hereof.
(iv) A
letter from BDO Xxxxxxx, LLP in form and substance satisfactory to the
Underwriters and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Underwriters pursuant to Section
7(g) hereof.
(n) On
the Closing Date and at each Date of Delivery, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company in
connection with issuance and sale of the Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(o) If
any condition specified in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities, on a Date of Delivery which is after the
Closing Date, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Underwriters by notice to
the Company at any time at or prior to Closing Date or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 2, 9
and 14 shall survive any such termination and remain in full force and
effect.
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
-19-
canceled
at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the
Company 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 Xxxxxxxx Chance US LLP, counsel for the Underwriters, at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing Date.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the 1933 Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company 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 Company
acknowledges that the statements set forth in (i) the last paragraph of the
cover page regarding delivery of the Securities, (ii) the list of Underwriters
and their respective participation in the sale of the Securities, (iii) the
sentences related to concessions and reallowances and (iv) the paragraph related
to stabilization, syndicate covering transactions and penalty bids in the
Disclosure Package and the Prospectus Supplement constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Disclosure Package or the Prospectus Supplement.
-20-
(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 it 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);
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
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) 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, (iii) the
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 (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of
this Section 9 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company 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 the same) (collectively “Losses”) to
which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand 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 Company 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 Company on the one hand 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 Company 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
Supplement. 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
-21-
Company
on the one hand 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 Company and the
Underwriters agree that it would not be just and equitable if contribution 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 Company within the meaning of either the 1933 Act
or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
11. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment
(i) trading in the Company’s Common Stock shall have been suspended by the
Commission or the NASDAQ or trading in securities generally on the New York
Stock Exchange or the NASDAQ shall have been suspended or limited or minimum
prices shall have been established on either of such exchanges, 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 any Preliminary Prospectus or the Prospectus Supplement
(exclusive of any amendment or supplement thereto).
-22-
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
(i) the Xxx-Xxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC General Counsel
(fax no.: (000) 000-0000) and confirmed to the General Counsel,
Xxx-Xxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC at 000 Xxxxx Xxxxxx, 0xx xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel and
(ii) SunTrust Xxxxxxxx Xxxxxxxx, Inc., 000 Xxxxxxxxx Xx., XX, Xxxxxxx,
Xxxxxxx 00000 or, if sent to the Company or the Adviser, will be mailed,
delivered or telefaxed to it at (000) 000-0000 and confirmed to it at
Prospect Capital Corporation, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention Xxxxxx Xxxxxxx.
17. 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.
-23-
“1933 Act” shall mean
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“1940 Act” shall mean
the Investment Company Act of 1940, as amended, and the rules and regulations
promulgated thereunder.
“Advisors Act” shall
mean the Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder.
“Applicable Time”
shall mean the time of sale of the applicable Securities.
“Board” shall mean the
Board of Directors of the Company.
“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.
“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 becomes effective.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Rule
158”, “Rule 430A”, “Rule 430C”, “Rule 436” and “Rule 492” refer to such rules
under the 1933 Act.
-24-
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 Company, the
Adviser, the Administrator and the several Underwriters.
Very
truly yours,
|
||
Prospect
Capital Corporation
|
||
By:
|
||
Name:
|
||
Title:
|
||
Prospect
Capital Management LLC
|
||
By:
|
||
Name:
|
||
Title:
|
||
Prospect
Capital Administration LLC
|
||
By:
|
||
Name:
|
||
Title:
|
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the date specified in
Schedule
I hereto.
Xxx-Xxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC
By:
|
||
Name:
Title:
|
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
|
By:
|
||
Name:
|
||
Title:
|
For
themselves and the other
several
Underwriters, if any,
named
in Schedule II
to
the foregoing Agreement.
SCHEDULE
I
Underwriting
Agreement dated April 22, 2009
Registration
Statement No. 333-143819
Representatives: Xxx-Xxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC and SunTrust Xxxxxxxx Xxxxxxxx,
Inc.
Title,
Purchase Price and Description of Securities:
Title: Common
Stock
Number
of Underwritten Securities to be sold by the
Company: 3,2000,000
Number
of Option Securities to be sold by the Company: 480,000
Price
per Share to Public: $7.75
Price
per Share to the Underwriters: $7.38
Closing
Date, Time and Location: April 27, 2009 at 10:00 a.m. at Xxxxxxxx
Xxxxxx XX XXX, Xxx Xxxx, Xxx Xxxx 00000.
Type
of Offering: Non-Delayed
Date
referred to in Section 6(k) after which the Company may offer or sell
securities issued by the Company without the consent of the
Representatives: 30 days after the date hereof
Modification
of items to be covered by the letter from BDO Xxxxxxx, LLP delivered pursuant to
Section 7(g) at the Applicable Time: None
Sch.
I-1
SCHEDULE
II
Underwriters
|
Number
of
Underwritten
Securities
to be
Purchased
|
Number
of Option
Securities
to be
Purchased
|
||
Xxx-Xxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC
|
1,625,000
|
312,000
|
||
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
875,000
|
168,000
|
||
Ladenburg
Xxxxxxxx
|
700,000
|
—
|
||
Total
|
3,200,000
|
480,000
|
Sch.II-1
ANNEX
A
Number
of Underwritten Securities to be sold by the Company:
|
3,200,000
|
Number
of Option Securities to be sold by the Company:
|
480,000
|
Price
per Share to Public:
|
$7.75
|
Price
per Share to the Underwriters:
|
$7.38
|
A-1
EXHIBIT
A
Prospect Capital
Corporation
Public Offering of Common
Stock
April
[ ], 2009
Xxx-Xxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
As
Representatives of the several Underwriters
x/x
|
Xxx-Xxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (XXX) LLC
|
000
Xxxxx Xxxxxx, 0xx Xxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
c/o
|
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
000
Xxxxxxxxx Xx., XX
|
|
Xxxxxxx,
XX 00000
|
Ladies
and Gentlemen:
The
undersigned is an owner of record or beneficially of certain shares of common
stock (“Common Stock”) of Prospect Capital Corporation, a Maryland corporation
(the “Company”) or securities convertible into or exchangeable or exercisable
for shares of Common Stock (collectively, the “Securities”). The Company
proposes to carry out a public offering of Common Stock (the “Offering”) for
which you will act as the underwriters. The undersigned recognizes that the
Offering will be of benefit to the undersigned and will benefit the Company by,
among other things, raising additional capital for its operations. The
undersigned acknowledges that each of you and the other underwriters are relying
on the representations and agreements of the undersigned contained in this
letter agreement (this “Agreement”) in carrying out the Offering and in entering
into underwriting arrangements with the Company with respect to the
Offering.
In
consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not (and will cause any spouse or immediate family member of
the spouse or the undersigned living in the undersigned’s household and any
trustee of any trust that holds Securities for the benefit of the undersigned or
such spouse or family member not to), without the prior written consent of
Xxx-Xxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC and SunTrust Xxxxxxxx Xxxxxxxx,
Inc. (which consent may be withheld in their sole discretion), directly or
indirectly, sell, offer, contract or grant any option to sell (including without
limitation any short sale), loan, pledge, transfer, establish an open “put
equivalent position” within the meaning of Rule 16a-1(h) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise dispose of,
or grant any rights with respect to, any Common Stock, options or warrants to
acquire Common Stock, or Securities currently or hereafter owned either of
record or beneficially (as defined in Rules 13d-3 and 16a-1(a) under the
Exchange Act) by the undersigned (or such spouse or family member), or publicly
announce an intention to do any of the foregoing, for a period commencing on the
date hereof and continuing through the close of trading on the date 30 days
after the date hereof (the “Lock-up Period”). The foregoing restrictions have
been expressly agreed to by the undersigned so as to preclude the undersigned
(or such spouse, family member or trustee) from engaging in any hedging or other
transaction that is designed to or reasonably expected to lead to or result in a
disposition of Securities during the Lock-up Period, even if such Securities
would be disposed of by someone other than such holder. Such prohibited hedging
or other transactions would include, without
A-1
limitation,
any short sale (whether or not against the box) or any purchase, sale or grant
of any right (including, without limitation, any put or call option) with
respect to any Securities.
The
foregoing shall not apply to bona fide gifts or transfers to trusts (without
consideration) for the benefit of the undersigned, any spouse, immediate family
member or a charitable, educational or religious institution by the undersigned,
provided that the donee(s) agree in writing prior to such disposition to be
bound by the restrictions set forth herein and to the extent any interest in the
Securities is retained by the undersigned (or such spouse or family member), the
Securities shall remain subject to the restrictions contained in this
Agreement.
Notwithstanding
the foregoing, if (1) during the period that begins on the date that is 15
calendar days plus three business days before the last day of the Lock-up Period
and ends on the last day of the Lock-up Period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the Lock-up Period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the Lock-up Period, then the Lock-up Period will be extended until the
expiration of the date that is 15 calendar days plus three business days after
the date on which the issuance of the earnings release or the material news or
material event occurs, unless the Company obtains a written waiver from the
Representatives.
The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of
Securities held by the undersigned or such spouse or family member as described
herein except in compliance with this Agreement.
This
agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the
undersigned.
Yours
very truly,
|
||
Name:
|
||
Title:
|
A-2
EXHIBIT
B
Opinion
of the General Counsel of the Company
(i) To
such counsel’s knowledge, no holders of securities of the Company have
contractual rights to require the registration under the 1933 Act of resales of
such securities;
(ii) Except
as disclosed in the Registration Statement and the Prospectus Supplement, as of
the date of the Prospectus, to such counsel’s knowledge, there were no options,
warrants or other rights to purchase or acquire any shares of capital stock of
the Company;
(iii) To
such counsel’s knowledge, there are no U.S. federal or New York State legal or
governmental proceedings pending or threatened to which the Adviser or the
Administrator is a party or to which the properties of the Adviser or the
Administrator are subject that are required under the 1933 Act to be described
in the Registration Statement and the Prospectus and are not so described, or
which seek to restrain, enjoin or prevent the consummation of the issuance or
sale of the Securities to be sold under the Underwriting Agreement;
(iv) To
such counsel’s knowledge, (i) there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated to which the
Company or its directors or officers is or would be a party or to which any of
their respective properties is or would be subject at law or in equity, before
or by any federal or New York State governmental or regulatory commission,
board, body, authority or agency which are required to be described in the
Registration Statement or the Prospectus but are not so described, and
(ii) there are no indentures, contracts, leases, mortgages, deeds of trust,
note agreements, loans or other agreements or instruments of a character
required to be described in the Prospectus or filed as an exhibit to the
Registration Statement, which are not so described or filed, as required by the
1933 Act and the rules and regulations thereunder; and
(v) Neither
the execution and delivery by the Company of the Underwriting Agreement nor the
issuance and sale of the Securities to the Underwriters, conflict with or
constitute a breach or violation of, or default under or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company, pursuant to any of the agreements listed on Schedule A to such
counsel’s opinion (except for such conflicts, breaches, defaults, liens, charges
or encumbrances that would not result in a Material Adverse Effect), nor, to the
knowledge of such counsel, will such action result in any judgment, order, writ
or decree, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company, or any of its properties, assets
or operations.
B-1
EXHIBIT
C
Opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
(i) The
Company is duly qualified to do business as a foreign corporation and is in good
standing under the laws of the State of New York;
(ii) The
statements in the Prospectus under the heading “Regulation” and in the
Registration Statement under Item 30, insofar as such statements purport to
summarize legal matters, agreements or documents discussed therein, constitute
accurate summaries or descriptions thereof in all material respects. The
statements in the Prospectus under the heading “Material U.S. Federal Income Tax
Considerations,” to the extent that they constitute matters of U.S. federal
income tax law or legal conclusions with respect thereto, are accurate in all
material respects;
(iii) The
Registration Statement and the Prospectus Supplement, as of their respective
effective or issue dates (including without limitation each deemed effective
date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the
1933 Act and the rules regulations promulgated thereunder) (other than the
financial statements and supporting schedules included or incorporated by
reference therein or omitted therefrom, as to which such counsel need express no
opinion), comply as to form in all material respects with the requirements of
Form N-2, the applicable requirements of the 1933 Act and the 1940
Act;
(iv) Neither
the execution and delivery by the Company of the Underwriting Agreement nor the
issuance and sale of the Securities to the Underwriters will result in violation
of any applicable U.S. federal or New York State law, statute, rule or
regulation.
(v) No
consent, approval, authorization or filing with or order of any U.S. federal or
New York State court or governmental agency or body having jurisdiction over the
Company is required for the consummation by the Company of the transactions
contemplated by the Underwriting Agreement, except such as have been obtained
under the U.S. federal securities laws and the rules and regulations promulgated
thereunder, and except such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated in the Underwriting Agreement, as
to which such counsel does not express any opinion;
(vi) The
Company has duly elected to be treated under the 1940 Act as a business
development company and such election is effective. The provisions of
the Company’s amended and restated articles of incorporation and by-laws and the
investment objectives, policies and restrictions described in the Registration
Statement and the Prospectus Supplement are not inconsistent with the provisions
of the 1940 Act applicable to the Company as a “business development company”
thereunder;
(vii) The
terms of the Underwriting Agreement, the Investment Advisory Agreement and the
Administration Agreement comply in all material respects with, and such
agreements have been duly approved and the issuance and sale of the Securities
has been effected in accordance with all applicable provisions of the 1940 Act,
and, with respect to the Investment Advisory Agreement, the Advisers Act and the
rules and regulations promulgated thereunder, except that such counsel need not
express any opinion regarding the amount of fees provided for in such
agreements; and to the best of our knowledge after reasonably inquiry, the
Company 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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(viii) The
Adviser has been duly incorporated and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware with
requisite corporate power to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Prospectus and the
Adviser is duly qualified to do business as a foreign corporation and is in good
standing under the laws of the State of New York;
(ix) The
Administrator has been duly incorporated and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware with
requisite corporate power to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Prospectus and the
Administrator is duly qualified to do business as a foreign corporation and is
in good standing under the laws of the State of New York;
(x) The
Adviser is duly registered with the Commission as an investment adviser under
the Advisers Act and, to such counsel’s knowledge, is not prohibited by the
Advisers Act, the 1940 Act or the applicable rules and regulations thereunder
from acting under the Investment Advisory Agreement as an investment adviser to
the Company and, to such counsel’s knowledge, no order of suspension or
revocation of such registration under the Advisers Act has been issued and no
proceedings are pending or threatened, which could reasonably be expected to
adversely affect the registration of the Adviser with the
Commission;
(xi) Each
of the Underwriting Agreement and the Investment Advisory Agreement has been
duly authorized by all necessary corporate action on the part of the Adviser and
has been duly executed and delivered by the Adviser;
(xii) Each
of the Underwriting Agreement and the Administration Agreement has been duly
authorized by all necessary corporate action on the part of the Administrator
and has been duly executed and delivered by the Administrator; and
(xiii) To
such counsel’s knowledge, no consent, approval, authorization or filing with or
order of any court or governmental agency or body in the United States having
jurisdiction over the Adviser and the Administrator is required for the
consummation by the Adviser and the Administrator of the transactions
contemplated by the Underwriting Agreement, except such as have been obtained
under the 1933 Act and except such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in the Underwriting
Agreement and in the Prospectus, or under the by-laws, rules and regulations of
the FINRA.
Such
counsel shall state that such counsel has, in connection with the preparation of
the Registration Statement and the Prospectus Supplement, participated in
conferences with representatives of the Company, the independent public
accountants for the Company, the Underwriters and Underwriters’ counsel at which
the contents of such documents and related matters were discussed, and such
counsel has reviewed certain corporate records, documents and
proceedings. Based upon the foregoing, nothing has come to such
counsel’s attention that would lead such counsel to believe that (i) the
Registration Statement (except for financial statements and schedules and other
financial and accounting data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need make no statement), at the time
such Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; or that the
Registration Statement (except for financial statements and schedules and other
financial and accounting data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need make no statement), at each
deemed effective date with respect to the Underwriters pursuant to Rule
430B(f)(2) of the regulations promulgated under the 1933
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Act,
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; (ii) as of the Applicable Time, the Disclosure Package
(except for financial statements and schedules and other financial and
accounting data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need make no statement) contained 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; or (iii) that the
Prospectus Supplement (except for financial statements and schedules and other
financial and accounting data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need make no statement), as of the
date of the Prospectus Supplement or as of the Closing Date, included or
includes 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.
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EXHIBIT
D
Opinion
of Xxxxxxx LLP, Maryland counsel for the Company
(i) The
Company 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 State
Department of Assessments and Taxation of Maryland. The Company has
the corporate power to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Registration Statement,
the Disclosure Package and the Prospectus under the caption
“Business”;
(ii) The
authorized, issued and outstanding capital stock of the Company was as set forth
in the General Disclosure Package and the Prospectus Supplement under the
caption “Capitalization” as of the date stated therein, and the shares of
capital stock of the Company issued and outstanding as of such date were duly
authorized, validly issued, fully paid and nonassessable, and were not subject
to preemptive rights or other similar rights under the Maryland General
Corporation Law (“MGCL”) or the charter or bylaws of the
Company;
(iii) The
sale and issuance of the Securities have been duly authorized and, when issued
and delivered in accordance with the terms of the Underwriting Agreement and the
Resolutions, will be validly issued, fully paid and nonassessable. The issuance
of the Securities is not subject to preemptive rights or other
similar rights under the MGCL or the charter or bylaws of the
Company;
(iv) The
statements in the General Disclosure Package and the Prospectus under the
headings “Risk Factors—Risks Relating to Our Securities—Provisions of the
Maryland General Corporation Law and our charter and bylaws could deter takeover
attempts and have an adverse impact on the price of our common stock” and
“Description of Our Capital Stock” and in the Registration Statement under Item
30, insofar as such statements purport to summarize certain provisions of
Maryland law or the charter or bylaws of the Company, are accurate in all
material respects;
(v) The
Company has the corporate power to execute and deliver the Underwriting
Agreement and to perform it obligations thereunder.
(vi) The
execution and delivery of each of the Underwriting Agreement, Investment
Advisory Agreement and the Administration Agreement have been duly authorized by
all necessary corporate action on the part of the Company and each of the
Underwriting Agreement, Investment Advisory Agreement and the Administration
Agreement has been duly executed and, so far as is known to such counsel,
delivered by the Company;
(vii) The
terms of the Common Stock conform as to legal matters in all material respects
to the description thereof in the Registration Statement, the General Disclosure
Package and the Prospectus under the heading “Description of Our Capital
Stock”;
(viii) Neither
the execution and delivery by the Company of the Underwriting Agreement nor the
issuance and sale of the Securities to the Underwriters, conflict with or
constitute a breach of the amended and restated articles of incorporation or
bylaws of the Company, or any Maryland law or regulation or, so far as known to
such counsel, any order or decree, of the State of Maryland applicable to the
Company (other than any law, regulation, order or decree in connection with the
securities laws of the State of Maryland, as to which no opinion is hereby
expressed);
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(ix) The
common stock certificate complies with the applicable requirements of the MGCL
and with any applicable requirement under the charter and bylaws of the Company;
and
(x) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental or regulatory authority of the State of Maryland
is required for the execution, delivery and performance by the Company of the
Underwriting Agreement, the compliance by the Company with the terms thereof, or
the issuance and sale of the Securities being delivered on the Closing Date,
except such as have been obtained or made, if any (other than any consent,
approval, authorization, order, registration or qualification in connection wit
the securities laws of the State of Maryland, as to which no opinion is
expressed hereby).
D-2