Prospect Capital Corporation 4,500,000 Shares1 Common Stock ($0.001 par value) Underwriting Agreement
Prospect
Capital Corporation
4,500,000
Shares1
Common
Stock
($0.001
par value)
June
30, 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 17, 2009 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 17, 2009 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 675,000 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”).
1. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters, and the Adviser and the
Administrator, jointly and severally, represent and warrant to and agree with
each of the Underwriters, as of the date hereof, 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, as follows:
(a) Compliance with Registration
Requirements.
(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.
(b) Independent
Accountant. BDO Xxxxxxx, LLP, who has expressed its opinion
with respect to certain of the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules
filed with the Commission as a part of the Registration Statement and included
in the Prospectus and the Disclosure Package, is an independent registered
public accounting firm as required by the 1933 Act and Exchange
Act.
(c) Preparation of the Financial
Statements. The financial statements filed with the Commission
as a part of the Registration Statement and included in the Prospectus and the
Disclosure Package present fairly the consolidated financial position of the
Company as of and at the dates indicated and the results of its operations and
cash flows for the periods specified. Such financial statements have
been prepared in conformity with accounting principles generally accepted in the
United States (“GAAP”) applied on a
consistent basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. No other financial statements or
supporting schedules are required to
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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.
(d) Internal Control Over
Financial Reporting. The Company maintains a system of
internal control over financial reporting sufficient to provide reasonable
assurances that financial reporting is reliable and financial statements for
external purposes are prepared in accordance with GAAP and includes policies and
procedures that (i) pertain to the maintenance of records that in
reasonable detail accurately and fairly reflect the transactions and
dispositions of the assets of the Company; (ii) provide reasonable
assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with GAAP, and that receipts and expenditures
of the Company are being made only in accordance with applicable law and the
authorizations of management and directors of the Company; and
(iii) provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the Company’s assets that
could have a material effect on the financial statements.
(e) Disclosure
Controls. The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under
the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including material
information pertaining to the Company’s operations and assets managed by the
Adviser, is made known to the Company’s Chief Executive Officer and Chief
Financial Officer by others within the Company and the Adviser, and such
disclosure controls and procedures are effective to perform the functions for
which they were established.
(f) No Material Adverse
Change. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, subsequent to the respective dates as of which
information is given in the Disclosure Package and the
Prospectus: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a material
adverse change, in the condition, financial or otherwise, or in the earnings,
net asset value, prospects, business or operations, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change or effect, where the
context so requires is called a “Material Adverse Change” or a “Material Adverse
Effect”); (ii) the Company and its subsidiaries, considered as one entity,
have not incurred any material liability or obligation, indirect, direct or
contingent, not in the ordinary course of business or entered into any material
transaction or agreement not in the ordinary course of business; and
(iii) except for regular quarterly dividends on the Common Stock in amounts
per share consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
(g) Good Standing of the Company
and its Subsidiaries. The Company and each subsidiary that is
a corporation have been duly incorporated and are validly existing as
corporations in good standing under the laws of the jurisdiction of their
incorporation and have the corporate power and authority to own, lease and
operate their properties and to conduct their business as described in the
Prospectus and the Disclosure Package and, in the case of the Company, to enter
into and perform its obligations under this Agreement. Each of the
Company and each subsidiary that is a corporation is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such
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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.
(h) Subsidiaries of the
Company. The Company does not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or other entity other than (i) 100% of the equity interests in
Gas Solutions Holdings, Inc. (“Gas Solutions
Holdings”), Prospect Capital Funding, LLC and Change Clean Energy
Holdings, Inc., and (ii) those corporations or other entities described in
the Disclosure Package and the Prospectus under the caption “Portfolio
Companies” (each a “Portfolio Company”
and collectively, the “Portfolio
Companies”). Except as otherwise disclosed in the Disclosure
Package and the Prospectus, the Company does not control (as such term is
defined in Section 2(a)(9) of the 0000 Xxx) any of the Portfolio
Companies. Except as otherwise disclosed in the Disclosure Package
and the Prospectus, the Company is not required, in accordance with Article 6 of
Regulation S-X under the 1933 Act, to consolidate the financial statements of
any corporation, association or other entity with the Company’s financial
statements other than Gas Solutions Holdings.
(i) Portfolio
Companies. The Company has duly authorized, executed and
delivered any agreements pursuant to which it made the investments described in
the Disclosure Package and the Prospectus under the caption “Portfolio
Companies” (each a “Portfolio Company
Agreement”). Except as otherwise disclosed in the Disclosure
Package and the Prospectus, and to the Company’s knowledge, each Portfolio
Company is current, in all material respects, with all its obligations under the
applicable Portfolio Company Agreements, no event of default (or a default which
with the giving of notice or the passage of time would become an event of
default) has occurred under such agreements, except to the extent that any
such failure to be current in its obligations and any such default would not
reasonably be expected to result in a Material Adverse Change.
(j) BDC Election; Regulated
Investment Company. The Company has elected to be regulated as
a business development company under the 1940 Act and has filed with the
Commission, pursuant to Section 54(a) of the 1940 Act, a duly completed and
executed Form N-54A (the “Company BDC
Election”); the Company has not filed with the Commission any notice of
withdrawal of the BDC Election pursuant to Section 54(c) of the 1940 Act;
the Company’s BDC Election remains in full force and effect, and, to the
Company’s knowledge, no order of suspension or revocation of such election under
the 1940 Act has been issued or proceedings therefore initiated or threatened by
the Commission. The operations of the Company are in compliance in
all material respects with the provisions of the 1940 Act, including the
provisions applicable to business development companies and the rules and
regulations of the Commission thereunder, including the provisions applicable to
business development companies.
(k) Authorization and
Description of Common Stock. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus and
the Disclosure Package as of the date thereof under the caption “Capitalization”
and “Selected Condensed Financial Data.” The Common Stock (including
the Securities) conform in all material respects to the description thereof
contained in the Prospectus and the Disclosure Package. All issued
and outstanding shares of Common Stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable, and have been offered
and sold or exchanged by the Company in compliance with all applicable laws
(including, without limitation, federal and state securities
laws). None of the outstanding Common Stock of the Company was issued
in violation of the preemptive or other similar rights of any security holder of
the Company. No shares of preferred stock of the Company have been
designated, offered, sold or issued and none of such shares of preferred stock
are currently outstanding. The
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description
of the Company’s stock option, stock bonus and other stock plans or
arrangements, if any, and the options or other rights 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.
(l) Non-Contravention of
Existing Instruments; No Further Authorizations or Approvals
Required. Neither the Company nor any subsidiary is in
violation of or default under its (i) charter, articles or certificate of
incorporation, by-laws, or similar organizational documents; (ii) under any
indenture, mortgage, loan or credit agreement, note, contract, franchise, lease
or other instrument, including any Portfolio Company Agreement, the Investment
Advisory Agreement and the Administration Agreement, to which the Company or any
of its subsidiaries is a party or bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except for such violations or defaults as would not,
individually or in the aggregate, have a Material Adverse Effect. The
Company’s execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Prospectus and the Disclosure
Package (i) have been duly authorized by all necessary corporate action,
have been effected in accordance with Sections 15(c) and 63 of the
1940 Act and will not result in any violation of the provisions of the charter,
articles or certificate of incorporation or by-laws of the Company or similar
organizational documents of any subsidiary, (ii) will not conflict with or
constitute a breach 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 or any of its subsidiaries pursuant to, or require the consent of any
other party to, any existing instrument, except for such conflicts, breaches,
defaults, liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Effect and (iii) will not result in
any violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for
the Company’s execution, delivery and performance of this Agreement or
consummation of the transactions contemplated hereby and by the Prospectus and
the Disclosure Package, except such as have already been obtained or made under
the 1933 Act and the 1940 Act and such as may be required under any applicable
state securities or blue sky laws or from the Financial Industry Regulatory
Authority, Inc. (the “FINRA”), formerly the
National Association of Securities Dealers, Inc.
(m) Intellectual Property
Rights. The Company and its subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets and other similar rights (collectively,
“Intellectual Property
Rights”) reasonably necessary to conduct their businesses as
described in the Prospectus and the Disclosure Package; and the expected
expiration of any of such Intellectual Property Rights would not result in a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement or conflict, if the
subject of an unfavorable decision, would result in a Material Adverse
Effect. To the Company’s knowledge, none of the technology employed
by the Company has been obtained or is being used by the Company in violation of
any contractual obligation binding on the Company or any of its officers,
directors or employees or otherwise in violation of the rights of any
persons.
(n) Compliance with
Environmental Law. To the knowledge of the Company, the
Advisor and the Administrator, the Company, its subsidiaries and each controlled
Portfolio Company (i) are in
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compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection 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.
(o) All Necessary Permits,
etc. The Company and each subsidiary possess such valid and
current certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and the Company has not received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Effect.
(p) Investment Advisory
Agreement. (i) The terms of the Investment Advisory
Agreement, including compensation terms, comply in all material respects with
all applicable provisions of the 1940 Act and the Advisers Act and
(ii) the approvals by the board of directors and the stockholders of the
Company of the Investment Advisory Agreement have been made in accordance with
the requirements of Section 15 of the 1940 Act applicable to companies that have
elected to be regulated as business development companies under the 1940
Act.
(q) Absence of
Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against the Company, which is required to be disclosed in the
Registration Statement, the Prospectus or the Disclosure Package (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder. The aggregate of all pending legal or governmental
proceedings to which the Company is a party or of which any of its property or
assets is the subject which are not described in the Registration Statement, the
Prospectus or the Disclosure Package, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(r) Accuracy of
Exhibits. There are no contracts or documents that are
required to be described in the Registration Statement, the Prospectus or the
Disclosure Package or to be filed as exhibits thereto by the 1933 Act, the 1940
Act or by the rules and regulations thereunder that have not been so described
and filed as required. Notwithstanding the foregoing, as of the date
hereof, the Company has not filed certain contracts and documents as exhibits to
the Registration Statement, although all such exhibits will be filed by
post-effective amendment pursuant to Rule 462(d) under the 1933 Act within
twenty-four (24) hours of the execution of this Agreement.
(s) Advertisements. Any
advertising, sales literature or other promotional material (including
“prospectus wrappers,” “broker kits,” “road show slides” and “road show scripts”
and “electronic road show presentations”) authorized in writing by or
prepared by the Company used in connection with the public offering of the
Securities (collectively, “Sales
Material”) does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made not misleading. Moreover, all Sales Material complied and will
comply in all material respects with the applicable requirements of the 1933 Act
and the 1940 Act and the rules and interpretations of the FINRA
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(except
that this representation and warranty does not apply to statements in or
omissions from the Sales 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).
(t) Subchapter
M. During the past fiscal year, the Company has been organized
and operated, and is currently organized and operates, in compliance in all
material respects with the requirements to be taxed as a regulated investment
company under Subchapter M of the Internal Revenue Code of 1986, as amended
(“Subchapter M of the Code” and the “Code,” respectively). The
Company intends to direct the investment of the proceeds of the offering
described in the Registration Statement in such a manner as to comply with the
requirements of Subchapter M of the Code.
(u) Tax Law
Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid all taxes required to be paid by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of
them. The Company has made adequate charges, accruals and reserves in
the applicable financial statements referred to in the Prospectus and the
Disclosure Package in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax liability of the Company or
any of its subsidiaries has not been finally determined. The Company
is not aware of any tax deficiency that has been or might be asserted or
threatened against the Company or any subsidiary that could result in a Material
Adverse Effect.
(v) Distribution of Offering
Materials. The Company has not distributed and will not
distribute any offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Prospectus, the Disclosure
Package or other materials, if any, permitted by the 1933 Act or the 1940
Act.
(w) Registration
Rights. There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933
Act.
(x) Nasdaq Global
Market. The Securities are registered pursuant to Section
12(b) or 12(g) of the Exchange Act and have been approved for
quotation on the Nasdaq Global Market (“NASDAQ”) upon
notice of issuance, and the Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Common Shares under
the Exchange Act or delisting the Common Shares from the NASDAQ, nor has the
Company received any notification that the Commission or the FINRA is
contemplating terminating such registration or listing. The Company
has continued to satisfy, in all material respects, all requirements for listing
the Securities for trading on the NASDAQ.
(y) No Price Stabilization or
Manipulation. The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Common
Shares.
(z) Compliance with the Exchange
Act; Reports Filed. The documents filed by the Company with
the Commission under the Exchange Act, including all such documents incorporated
by reference in the Registration Statement, complied, and will comply in all
material respects, with the requirements of the Exchange Act, and, when read
together with the other information in the Disclosure Package and the
Prospectus, at the time the Registration Statement and any amendments thereto
became effective (or are deemed effective) and at the Applicable Time, the
Closing Date or on any Date of Delivery, as the case may be, did not and will
not contain an untrue statement of a material fact or omit to state a material
fact
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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. The
Company has filed all reports required to be filed pursuant to the 1933 Act, the
1940 Act and the Exchange Act.
(aa) Interested
Persons. Except as disclosed in the Registration Statement,
the Prospectus and the Disclosure Package (i) no person is serving or
acting as an officer, director or investment adviser of the Company, except in
accordance with the provisions of the 1940 Act and the Advisers Act, and
(ii) to the knowledge of the Company, no director of the Company is an
“interested person” (as defined in the 0000 Xxx) of the Company or an
“affiliated person” (as defined in the 0000 Xxx) of any of the Underwriters
except as otherwise disclosed in the Registration Statement.
(bb) No Unlawful Contributions or
Other Payments. Neither the Company nor any of its
subsidiaries nor, to the Company’s knowledge, any employee or agent of the
Company or any subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation
of any law or of the character required to be disclosed in the Prospectus and
the Disclosure Package.
(cc) No Outstanding Loans or
Other Indebtedness. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees or indebtedness by the Company to or for the
benefit of any of the officers or directors of the Company or any of the members
of any of them, except as disclosed in the Prospectus and the Disclosure
Package.
(dd) Compliance with
Laws. The Company has not been advised, and has no knowledge,
that it and each of its subsidiaries are not conducting business in compliance
with all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, except where failure to be so in compliance would not
result, individually or in the aggregate, in a Material Adverse
Effect.
(ee) Compliance with the
Xxxxxxxx-Xxxxx Act of 2002. The Company has complied in all
material respects with Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and has
made the evaluations of the Company’s disclosure controls and procedures
required under Rule 13a-15 under 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.
2. Representations and
Warranties of the Adviser and the Administrator.
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:
(a) No Material Adverse Change
in Business. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus and the
Disclosure Package, except as otherwise stated therein, there has been no
material adverse change in the financial condition, or in the earnings, business
affairs, operations or regulatory status of the Adviser or the Administrator or
any of their respective subsidiaries, whether or not arising in the ordinary
course of business, that would reasonably be expected to result in a Material
Adverse Effect, or would otherwise reasonably be expected to prevent the Adviser
or the Administrator from carrying out its obligations under the Investment
Advisory Agreement (an “Adviser Material Adverse
Change” or an “Adviser Material Adverse
Effect,”
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9 -
where
the context so requires) or the Administration Agreement (an “Administrator Material
Adverse Change” or an “Administrator Material
Adverse Effect,” where the context so requires).
(b) Good
Standing. Each of the Adviser and the Administrator (and each
of their subsidiaries) has been duly organized and is validly existing and
in good standing under the laws of the State of Delaware, with full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and the Disclosure Package and to enter into and
perform its obligations under this Agreement; the Adviser has full power and
authority to execute and deliver and perform its obligations under the
Investment Advisory Agreement; the Administrator has full power and authority to
execute and deliver the Administration Agreement; and each of the Adviser and
the Administrator is duly qualified to do business as a foreign entity and is in
good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to qualify or be in good standing would not otherwise
reasonably be expected to result in an Adviser Material Adverse Effect or an
Administrator Material Adverse Effect, as applicable.
(c) Registration Under Advisers
Act. The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the Advisers
Act or the 1940 Act from acting under the Investment Advisory Agreement for the
Company as contemplated by the Prospectus and the Disclosure
Package. There does not exist any proceeding or, to the Adviser’s
knowledge, any facts or circumstances the existence of which could lead to any
proceeding, which might adversely affect the registration of the Adviser with
the Commission.
(d) Absence of
Proceedings. There is no action, suit or proceeding or, to the
knowledge of the Adviser or the Administrator, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Adviser or the Administrator, threatened,
against or affecting either the Adviser or the Administrator, which is required
to be disclosed in the Registration Statement (other than as disclosed therein),
or which would reasonably be expected to result in an Adviser Material Adverse
Effect, or which would reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement, the
Investment Advisory Agreement or the Administration Agreement; the aggregate of
all pending legal or governmental proceedings to which the Adviser or the
Administrator is a party or of which any of its respective property or assets is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to their business, would not reasonably
be expected to result in an Adviser Material Adverse Effect.
(e) Absence of Defaults and
Conflicts. Neither the Adviser nor the Administrator is in
violation of its certificate of formation or limited liability company operating
agreement or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Adviser or the Administrator is a party or by which it
or any of them may be bound, or to which any of the property or assets of the
Adviser or the Administrator is subject, or in violation of any law, statute,
rule, regulation, judgment, order or decree except for such violations or
defaults that would not reasonably be expected to result in an Adviser Material
Adverse Effect or an Administrator Material Adverse Effect, as applicable; and
the execution, delivery and performance of this Agreement, the Investment
Advisory Agreement and the Administration Agreement and the consummation of the
transactions contemplated herein and therein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus and the
Disclosure Package under the caption “Use of Proceeds”) and compliance by
the Adviser with its obligations hereunder and under the Investment Advisory
Agreement and by the Administrator with its obligations hereunder and under the
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10 -
Administration
Agreement do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Adviser or the Administrator
pursuant to such Agreement except for such violations or defaults that would not
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.
(f) Authorization of
Agreements. This Agreement has been duly authorized, executed
and delivered by the Adviser and the Administrator; the Investment Advisory
Agreement has been duly authorized, executed and delivered by the Adviser; and
the Administration Agreement has been duly authorized, executed and delivered by
the Administrator; the Investment Advisory Agreement and the Administration
Agreement constitute valid and legally binding agreements of the Adviser and the
Administrator, respectively, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers) or similar laws affecting creditors’
rights generally and (ii) rights to indemnification and contribution may be
limited to equitable principles of general applicability or by state or federal
securities laws or the policies underlying such law.
(g) Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Adviser or the Administrator of its obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, the Investment
Advisory Agreement, the Administration Agreement, the Disclosure Package or the
Prospectus (including the use of the proceeds from the sale of the Securities as
described in the Prospectus and the Disclosure Package under the caption “Use of
Proceeds”), except (i) such as have been already obtained under the 1933
Act, the 1940 Act or the rules and regulations promulgated thereunder,
(ii) such as may be required under state securities laws, (iii) the
filing of the Notification of Election under the 1940 Act, which has been
effected and (iv) such as have been obtained under the laws and regulations
of jurisdictions outside the United States in which the Securities are
offered.
(h) Description of the Adviser
and the Administrator. The description of the Adviser and the
Administrator contained in the Prospectus and the Disclosure Package does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
(i) Possession of Licenses and
Permits. Each of the Adviser and the Administrator possesses
such Governmental Licenses issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, except where the failure so to possess would not reasonably be
expected to, singly or in the aggregate, result in an Adviser Material Adverse
Effect or an Administrator Material Adverse Effect, as applicable; each of the
Adviser and Administrator is in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in an Adviser Material Adverse Effect or an
Administrator Material Adverse Effect, as applicable; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such
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11 -
Governmental
Licenses to be in full force and effect would not, singly or in the aggregate,
result in an Adviser Material Adverse Effect or an Administrator Material
Adverse Effect, as applicable; and neither the Adviser nor the Administrator has
received any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if the subject
of an 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.
(j) Employment
Status. The Adviser is not aware that (i) any executive,
key employee or significant group of employees of the Company, if any, the
Adviser or the Administrator, as applicable, plans to terminate employment with
the Company, the Adviser or the Administrator or (ii) any such executive or
key employee is subject to any non-compete, nondisclosure, confidentiality,
employment, consulting or similar agreement that would be violated by the
present or proposed business activities of the Company or the Adviser except
where such termination or violation would not reasonably be expected to have an
Adviser Material Adverse Effect.
3. Purchase and
Sale. 1) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the number of Underwritten Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
(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; provided, however, that the purchase
price per share for any Option Securities shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Underwritten Securities but not payable on the Option
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.
4. Delivery and
Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section
3(b) hereof shall have been exercised on or before the third Business Day
immediately preceding the Closing Date) shall be made on the date and at
the time specified in Schedule I hereto 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 Company 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 Company by wire transfer payable in
same-day funds to an account specified by
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12 -
the
Company. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
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 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.
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 Supplement.
6. Agreements. The
Company agrees with the several Underwriters that:
(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
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13 -
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 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, Xxxxxxxxxxx & Co. Inc. and RBC Capital Markets
Corporation, offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or
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14 -
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, if applicable, sell Common Stock pursuant to any employee stock
option plan, stock ownership plan or 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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15 -
7. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Applicable
Time, the Closing Date and any settlement date pursuant to Section 4 hereof, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(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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16 -
(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 March 31, 2009, and as at March 31, 2009, 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 March 31, 2009, and as at March 31, 2009 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 March 31, 2009, 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 assets as
-
17 -
compared
with the amounts shown on the March 31, 2009 consolidated statement of
assets and liabilities included in the Registration Statement, the Preliminary
Prospectus and the Prospectus Supplement, or for the period from April 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.
-
18 -
(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.
(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
-
19 -
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 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.
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 Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
Xxx-Xxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC on demand for all 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. 2) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the 1933 Act, the Exchange Act or the 1940 Act against any
and all losses, claims, damages or liabilities, joint or several, 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, or
in the Disclosure Package, the Prospectus Supplement, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, 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; provided, however, that the Company
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
Company 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 Company may otherwise have.
(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).
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 amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II 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 the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. 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 Supplement 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
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
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).
12. Representations and
Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company 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 Company or any of the officers,
directors,
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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,
(ii) Xxxxxxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000 and (iii) RBC Capital Markets Corporation, Three World
Financial Center, 000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 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.
14. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 9 hereof, and no other person
will have any right or obligation hereunder.
15. No fiduciary
duty. The Company hereby acknowledges that (a) the
purchase and sale of the Securities pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other,
(b) the Underwriters are acting as principals and not as agents or
fiduciaries of the Company and (c) the Company’s engagement of the
Underwriters in connection with the offering and the process leading up to the
offering is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have rendered advisory services of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
16. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with
respect to the subject matter hereof.
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.
18. Waiver of Jury
Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19. 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.
20. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
21. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
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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.
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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
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:
|
||
|
Xxxxxxxxxxx
& Co. Inc.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
RBC
Capital Markets Corporation
|
||
|
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 June 30, 2009
Registration
Statement No. 333-143819
Representatives: Xxx-Xxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx (USA) LLC, Xxxxxxxxxxx & Co. Inc and RBC
Capital Markets Corporation
Title,
Purchase Price and Description of Securities:
Title: Common
Stock
Number
of Underwritten Securities to be sold by the
Company: 4,500,000
Number
of Option Securities to be sold by the Company: 675,000
Price
per Share to Public: $9.00
Price
per Share to the Underwriters: $8.55
Closing
Date, Time and Location: July 7, 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
|
1,125,000
|
168,750
|
||
|
Xxxxxxxxxxx
& Co. Inc.
|
1,125,000
|
168,750
|
||
|
RBC
Capital Markets Corporation
|
1,125,000
|
168,750
|
||
|
BB&T
Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx,
LLC
|
675,000
|
101,250
|
||
|
Ladenburg
Xxxxxxxx & Co. Inc.
|
225,000
|
33,750
|
||
|
Maxim
Group LLC
|
225,000
|
33,750
|
||
|
Total
|
4,500,000
|
675,000
|
Sch.II-1
ANNEX
A
|
Number
of Underwritten Securities to be sold by the Company:
|
4,500,000
|
|
Number
of Option Securities to be sold by the Company:
|
675,000
|
|
Price
per Share to Public:
|
$9.00
|
|
Price
per Share to the Underwriters:
|
$8.55
|
1
