STOCK PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (the "Agreement")
is
entered into as of the [ ] day of [ ] between The Xxxxxxx MLP Total Return
Fund,
a statutory trust organized and existing under the laws of Delaware (the
"Trust"),
and [
] (the "Buyer").
INTRODUCTION
In
consideration of the mutual representations, warranties, covenants, agreements
and conditions contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. Purchase
and Sale.
1.1 Purchase
and Sale. At
the
Closing, as defined in Section 1.3 below, the Buyer shall purchase from the
Trust, and the Trust shall sell to the Buyer, [
]
common shares of beneficial interest, par value $0.001, representing undivided
beneficial interests in the Trust (the "Shares")
at a
price per Share of $[ ] for an aggregate purchase price of $[ ] (the
"Purchase
Price").
1.2 Closing.
The
closing of the purchase and sale of the Shares hereunder (the "Closing")
shall
be held at [ ] P.M. on [ ], or at such other time upon which the parties
shall agree (the "Closing
Date").
The
Closing shall be effective upon the receipt by the parties of the agreements,
documents, instruments and consideration described in Section 1.3.
1.3 Deliveries
at Closing.
At the
Closing, (a) the Buyer shall deliver to the Trust the Purchase Price by wire
of
immediately available funds to an account at a U.S. bank in accordance with
wire
instructions provided by the Trust prior to the Closing; and (b) the Seller
shall deliver to Buyers receipt for the Purchase Price.
2. Representations
and Warranties.
2.1 Buyers'
Representations and Warranties.
The
Buyer represents and warrants to the Trust:
2.1.1 Authority;
Enforceability.
The
Buyer has all requisite power and authority to enter into this Agreement and
to
consummate the transactions contemplated hereby. The execution and delivery
by
such Buyer of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary actions on the
part of such Buyer. This Agreement has been duly executed and delivered by
the
Buyer and constitutes a valid and binding obligation of the Buyer enforceable
in
accordance with its terms, except that such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, or other similar laws relating
to enforcement of creditors’ rights generally and (ii) general equitable
principles.
2.1.2 Restrictions.
The
Buyer
is purchasing the Shares for investment purposes only and does not intend to
re-sell the Shares.
2.2 Trust's
Representations and Warranties.
The
Trust represents and warrants to Buyers as follows:
2.2.1 Authority;
Enforceability.
The
Trust has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Trust of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate actions on the part of the Trust. This Agreement has been duly
executed and delivered by the Trust and constitutes a valid and binding
obligation of the Trust enforceable in accordance with its terms, except that
such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, or other similar laws relating to enforcement of creditors’
rights generally and (ii) general equitable principles.
3. Survival
of Representations and Warranties. All representations, warranties,
agreements and covenants contained
in this Agreement shall survive the Closing.
4. Miscellaneous.
4.1 Entire
Agreement.
This
Agreement represents the entire agreement among the parties with respect to
the
transactions contemplated herein and supersedes all prior agreements, written
or
oral, with respect thereto. This Agreement may be amended only by an instrument
that is executed and authorized by each party affected by such
amendment.
4.2 Expenses.
Without
limiting Section 4.6, each Buyer and Seller will each pay its own respective
expenses, including attorneys’ fees, in connection with the negotiation of this
Agreement, the performance of its obligations hereunder, and the consummation
of
the transactions contemplated by this Agreement.
4.3 Successors
and Assigns.
This
Agreement and all of the provisions hereof will be binding upon and inure to
the
benefit of the parties hereto and their respective successors and permitted
assigns; provided,
however,
that
neither this Agreement nor any of the rights, interests or obligations hereunder
may be assigned by any party without the prior written consent of each other
party.
4.4 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Texas, without giving effect to the choice of law principles
thereof.
4.5 Nonwaiver.
The
failure of any party to insist upon strict adherence to any one or more of
the
covenants and restrictions in this Agreement, on one or more occasion, shall
not
be construed as a waiver, nor deprive such party of the right to require strict
compliance thereafter with the same. All waivers must be in writing and signed
by the waiving party.
4.6 Attorneys’
Fees and Expenses.
In any
suit or action brought to enforce this Agreement, or to obtain an adjudication,
declaratory or otherwise, of rights hereunder, the losing party shall pay to
the
prevailing party reasonable attorneys’ fees and all other costs and expenses
that may be incurred by the prevailing party in such action. The foregoing
shall
be in addition to, and shall not limit, any other rights that the non-breaching
party may have against the breaching party at law or in equity.
4.7 Notices.
Any
notice required or permitted to be given under the terms of this Agreement
shall
be sent by certified or registered mail (return receipt requested) or delivered
personally or by courier (including a recognized overnight delivery service)
or
by facsimile and shall be effective five days after being placed in the mail,
if
mailed by regular U.S. mail, or upon receipt, if delivered personally or by
courier (including a recognized overnight delivery service) or by facsimile,
in
each case addressed to a party. The addresses for such communications shall
be:
If
to the
Trust:
The
Xxxxxxx MLP Total Return Fund
0000
Xxx
Xxxx Xxxxxx
Dallas,
TSX 75219
Attn:
[
]
Facsimile:
[ ]
If
to
Buyers:
[Buyer's
Name]
[Buyer's
Address
Attn:
[
]
Facsimile:
[ ]
Each
party shall provide notice to the other of any changes in address.
4.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be an original, but all of which shall constitute
one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart. Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
4.9 Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or entity or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may
be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances shall not be affected
by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or
the
application thereof, in any other jurisdiction.
4.10 Construction.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any person, or which such
person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such person, whether or not
expressly specified in such provision. The construction of this Agreement shall
not be affected by which party drafted this Agreement.
4.11 Headings.
The
headings of the sections and subsections hereof are provided for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
4.12 Further
Assurances.
In
connection with this Agreement and the transactions contemplated herein, the
parties to this Agreement shall execute and deliver any additional documents
and
instruments and perform any additional acts that may be necessary or appropriate
to effectuate and perform the provisions of this Agreement and such
transactions.
(the
remainder of this page has been intentionally left blank)
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first mentioned above.
|
THE
XXXXXXX MLP TOTAL RETURN FUND
By:
Name:
Title:
|
|
[BUYER]
By:
________________________________
Name:
Title:
|
Aggregate
purchase price $[
]
