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EXHIBIT 2.h.1
FORM OF
XXXXXXXX CAPITAL CORPORATION
Common Stock
($.01 Par Value)
____________
UNDERWRITING AGREEMENT
November __, 1996
EVEREN SECURITIES, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
XXXXXX XXXXXX & COMPANY, INC.
XXXXXXX & COMPANY, INC.
XXXXXX XXXXXXXX & COMPANY, INCORPORATED
FIRST OF MICHIGAN CORPORATION
NATCITY INVESTMENTS, INC.
as Representatives of the
several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxx Capital Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell pursuant to the terms of this Agreement an aggregate
of 10,000,000 shares (the "Firm Shares") of the Company's common stock, $.01
par value ("Common Stock"), to you and to the other underwriters named in
Schedule I (collectively, the "Underwriters"), for whom you are acting as
representatives (the "Representatives"). The Company has also agreed to grant
to you and the other Underwriters an option (the "Option") to purchase up to an
additional 1,500,000 shares of Common Stock (the "Option Shares"), for purposes
of covering over-allotments in the sale of the Firm Shares, on the terms and
for the purposes set forth in Section 1(b). The Firm Shares and the Option
Shares are hereinafter collectively referred to as the "Shares."
The Company and Xxxxxxxx Capital Management, Ltd. ("Investment
Adviser") confirm as follows their respective agreements with the
Representatives and the several other Underwriters:
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1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the respective representations,
warranties and agreements of the Company, Investment Adviser, and the
Underwriters herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to each
Underwriter named below and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the respective number of Firm
Shares set forth opposite its name on Schedule I, all at the purchase
price of $10.00 for each Firm Share.
(b) Subject to all the terms and conditions of this
Agreement, the Company grants the Option to the several Underwriters
to purchase, severally and not jointly, up to 1,500,000 Option Shares
from the Company at the same price per share as the Underwriters shall
pay for the Firm Shares. The Option may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters and
may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of this Agreement upon
written or telegraphic notice (the "Option Shares Notice") by the
Representatives to the Company no later than 12:00 noon, Chicago time,
at least two and no more than five business days before the date
specified for closing in the Option Shares Notice (the "Option Closing
Date") setting forth the aggregate number of Option Shares to be
purchased and the time and date for such purchase. On the Option
Closing Date, the Company will issue and sell to the Underwriters the
number of Option Shares set forth in the Option Shares Notice, and
each Underwriter will purchase such percentage of the Option Shares as
is equal to the percentage of Firm Shares that such Underwriter is
purchasing, as adjusted by the Representatives in such manner as they
deem advisable to avoid fractional shares.
(c) The Investment Adviser hereby agrees to make the
payment to the Underwriters with respect to the Firm Shares or the
Option Shares, as the case may be, as required by Section 2 hereof.
(d) The Investment Adviser hereby agrees to make the
payment to EVEREN Securities, Inc. of a fee for structuring and
financial advisory services of $500,000 as set forth in Section 2
hereof.
2. DELIVERY AND PAYMENT. Delivery of the Firm Shares shall be
made by the Company to the Representatives for the accounts of the Underwriters
against payment of the purchase price by wire transfer of immediately available
funds to the order of the Company, at the offices of Jenner & Block, Xxx XXX
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 a.m., Chicago time, on the
third business day following the date of this Agreement, or at such time on
such other date, not later than seven business days after the date of this
Agreement, as may be agreed upon by the Company and the Representatives (such
date is hereinafter referred to as the "Closing Date").
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To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and
shall be registered in such names and in such denominations as the
Representatives may direct by notice in writing to the Company at least two
full business days prior to the Closing Date or the Option Closing Date, as the
case may be. For the purpose of expediting the checking and packaging of
certificates for the Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and Option Shares by the Company to
the respective Underwriters shall be borne by the Company. The Company will
pay and save each Underwriter and any subsequent holder of the Shares harmless
from any and all liabilities with respect to or resulting from any failure or
delay in paying Federal and state stamp and other transfer taxes, if any, which
may be payable or determined to be payable in connection with the original
issuance or sale to such Underwriter of the Firm Shares and Option Shares.
Simultaneous with delivery to the Underwriters of and payment by the
Underwriters for (i) Firm Shares on the Closing Date and (ii) Option Shares on
any Option Closing Date, the Investment Adviser will pay to the Underwriters an
amount equal to seven percent (7%) of the aggregate purchase price for the
Shares to be purchased by the Underwriters on such date, payable in immediately
available funds, by wire transfer to the order of EVEREN Securities, Inc.
Simultaneous with delivery to the Underwriters of and payment by the
Underwriters for the Firm Shares on the Closing Date, the Investment Adviser
will pay to EVEREN Securities, Inc. $500,000 in immediately available funds, in
consideration for its structuring and financial advisory services rendered.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND INVESTMENT
ADVISER. Each of the Company and Investment Adviser severally represents,
warrants and covenants to each Underwriter that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on
Form N-2 (No. 333-10785) and a related preliminary prospectus for the
registration of the Shares under the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the
Commission under the 1933 Act and the Investment Company Act of 1940
(the "1940 Act") (the "Rules and Regulations") and has filed such
amendments to such registration statement on Form N-2, if any, and
such amended or supplemented preliminary prospectuses as may have been
required to the date hereof. The Company will prepare and file such
additional
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amendments to the registration statement and such amended or
supplemented prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including, in each case, the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of the
Rules and Regulations), as from time to time amended or supplemented
pursuant to the 1933 Act (or otherwise), are hereinafter referred to
as the "Registration Statement" and the "Prospectus," respectively,
except that if any prospectus or amendment or supplement thereto shall
be provided to the Underwriters by the Company for use in connection
with the offering of the Shares which differs from the Prospectus on
file at the Commission at the time the Registration Statement becomes
effective (whether or not such prospectus or amendment or supplement
thereto is required to be filed by the Company pursuant to Rule 497(b)
or Rule 497(h) of the Rules and Regulations), the term "Prospectus"
shall refer to such revised prospectus as so amended or supplemented
from and after the time it is first provided to the Underwriters for
such use.
(b) A Notification of Election to be subject to Sections
54-65 of the 1940 Act on Form N-54A (the "Election") has been prepared
in conformity with Section 54(a) of the 1940 Act and has been filed by
the Company with the Commission under the 1940 Act.
(c) At the time the Registration Statement becomes
effective (the "Effective Date"), at the date the Prospectus is first
filed with the Commission pursuant to Rule 497(c) (if required), at
all times subsequent thereto up to and including the Closing Date and,
if later, the Option Closing Date and when any post-effective
amendment to the Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the
Commission, the Registration Statement and the Prospectus (as amended
or as supplemented if the Company shall have filed with the Commission
any amendment or supplement thereto): (i) did or will comply in all
material respects with all applicable provisions of the 1933 Act, the
1940 Act and the Rules and Regulations; (ii) did or will contain all
statements required to be stated therein in accordance with the 1933
Act, the 1940 Act and the Rules and Regulations; (iii) the
Registration Statement 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 in order to make the statements
therein not misleading, and the Prospectus 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, in light of the circumstances under which they
were made, not misleading. The foregoing representations and
warranties in this Section 3(c) do not apply to any statements or
omissions made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company by the
Representatives specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto. The
Company acknowledges that the statements set forth under the heading
"Underwriting" in the Prospectus constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Representatives specifically for inclusion in the Registration
Statement.
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(d) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland.
The Company has all requisite corporate power and authority to own or
lease all the assets owned or leased by it and to conduct its business
as described in the Registration Statement and the Prospectus. The
Company is, and at the Closing Date will be, duly licensed or
qualified to do business as a foreign corporation and in good standing
in all jurisdictions in which such qualification is required except
where the failure to so qualify would not have a material adverse
effect on the Company. The Company has no subsidiaries. Complete and
correct copies of the Articles of Incorporation and of the bylaws of
the Company and all amendments thereto have been delivered to the
Representatives, and no changes therein will be made subsequent to the
date hereof and prior to the Closing Date or, if later, the Option
Closing Date.
(e) The authorized, issued and outstanding shares of
Common Stock have been, and the Shares to be issued and sold by the
Company against payment pursuant to this Agreement of the
consideration set forth herein by the Underwriters, and the shares of
Common Stock issuable in accordance with the terms of the Company's
Dividend Reinvestment and Cash Purchase Plan as described in the
Prospectus, will be, duly authorized, validly issued, fully paid and
nonassessable and will not be subject to any preemptive or similar
right. The description of the Shares of Common Stock and the
description of the Dividend Reinvestment and Cash Purchase Plan in the
Registration Statement and the Prospectus are, and at the Closing Date
will be, complete and accurate in all respects.
(f) The financial statements included in the Registration
Statement present fairly the financial condition of the Company as of
the date thereof and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. No
other financial statements or schedules of the Company are required by
the 1933 Act, 1940 Act or the Rules and Regulations to be included in
the Registration Statement or the Prospectus. Ernst & Young (the
"Accountants"), who have reported on the financial statements, are
independent accountants with respect to the Company as required by the
1933 Act, the 1940 Act and the Rules and Regulations.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Date, except as set forth in or contemplated
by the Registration Statement and the Prospectus, (i) there has not
been and will not have been any material adverse change in the
capitalization of the Company, or in the business, properties,
business prospects, condition (financial or otherwise) or results of
operations of the Company, arising for any reason whatsoever, (ii) the
Company has not incurred nor will it incur any material liabilities or
obligations, direct or contingent, nor has it entered into nor will it
enter into any material transactions other than pursuant to this
Agreement and the transactions referred to herein and (iii) the
Company has not and will not have paid or declared any dividends or
other distributions of any kind on its shares of Common Stock.
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(h) The Company is a closed-end, non-diversified
investment company which has elected to be treated as a business
development company under the 1940 Act.
(i) There are no actions, suits or proceedings pending
or, to the knowledge of the Company, threatened against or affecting
the Company or any of its officers in their capacity as such, before
or by any federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign,
wherein an unfavorable ruling, decision or finding might materially
and adversely affect the Company or its business, properties, business
prospects, condition (financial or otherwise) or results of
operations.
(j) The Company has, and at the Closing Date will have,
(i) all governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to carry on its business as
contemplated in the Prospectus, (ii) complied in all respects with all
laws, regulations and orders applicable to it or its business and
(iii) performed all its obligations required to be performed by it,
and is not, and at the Closing Date will not be, in default, under any
contract or other instrument to which it is a party or by which its
property is bound or affected except for any failures to possess,
comply or perform or defaults as would not individually or in the
aggregate materially adversely affect the business, properties,
business prospects, condition (financial or otherwise) or results of
operations of the Company. To the best knowledge of the Company, no
other party under any contract or other instrument to which it is a
party is in default in any material respect thereunder. The Company
is not, nor at the Closing Date will be, in violation of any provision
of its agreement and articles of incorporation or bylaws.
(k) The Company has full power and authority to enter
into this Agreement. This Agreement and the Investment Advisory
Agreement referred to in the Registration Statement (the "Investment
Advisory Agreement") have been duly authorized, executed and delivered
by the Company, constitute valid and binding agreements of the
Company, are enforceable against the Company in accordance with the
terms thereof, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting enforcement of
creditors' rights generally and to general equitable principles, and
comply with all applicable provisions of the 1940 Act. The
performance of this Agreement and the Investment Advisory Agreement,
and the consummation of the transactions contemplated thereby, will
not result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company pursuant to the
terms or provisions of, or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result
in the acceleration of any obligation under, the Articles of
Incorporation or Bylaws of the Company, any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture,
note agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument to which the Company is a party or by
which the Company or any of its properties is bound or affected, or
violate or conflict with any judgment, ruling, decree, order, statute,
rule or regulation of any
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court or other governmental agency or body applicable to the business
or properties of the Company.
(l) No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency or
body is required for the consummation by the Company of the
transactions on its part herein contemplated, except such as may be
required under the 1933 Act, the 1940 Act or the Rules and Regulations
and such as may be required under state securities or Blue Sky laws or
the bylaws and rules of the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the purchase and
distribution by the Underwriters of the Shares.
(m) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required, and the descriptions of
any such documents in the Prospectus conform in all material respects
to the provisions of such documents. All such contracts to which the
Company is a party have been duly authorized, executed and delivered
by the Company, constitute valid and binding agreements of the Company
and are enforceable against the Company in accordance with the terms
thereof, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting enforcement of creditors' rights
generally and to general equitable principles.
(n) Neither the Company nor any of its directors,
officers or controlling persons has taken, directly or indirectly, any
action designed, or which might reasonably be expected, to cause or
result, under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(o) The Company owns no trademarks, service marks or
trade names. The Company has not received any notice of infringement
of or conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the conduct of the
business, operations, financial condition or income of the Company.
(p) The Shares have been duly authorized for listing,
subject to official notice of issuance, on the Nasdaq National Market
System.
(q) No advertisements have been prepared by the Company
or Investment Adviser for use in the public offering of the Shares.
4. REPRESENTATIONS AND WARRANTIES OF INVESTMENT ADVISER.
Investment Adviser represents and warrants to each Underwriter as follows:
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(a) Investment Adviser has been duly incorporated as a
corporation under the laws of the State of Delaware with corporate
power and authority to conduct its business as described in the
Prospectus.
(b) Investment Adviser is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), and is not prohibited by the Advisers
Act or the 1940 Act, or the rules and regulations under such acts,
from acting under the Investment Advisory Agreement for the Company as
contemplated by the Prospectus.
(c) This Agreement and the Investment Advisory Agreement
have been duly authorized, executed and delivered by Investment
Adviser and constitute valid and binding obligations of Investment
Adviser enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights and to general equity
principles; and neither the execution and delivery of this Agreement
or the Investment Advisory Agreement, nor the performance by
Investment Adviser of its obligations hereunder and thereunder will
conflict with, or result in a breach of, any of the terms and
provisions of, or constitute, with or without giving notice of lapse
of time or both, a default under, any agreement or instrument to which
Investment Adviser is a party or by which it is bound, or any law,
order, rule or regulation applicable to it of any jurisdiction, court,
federal or state regulatory body, administrative agency or other
governmental body, stock exchange or securities association having
jurisdiction over the Investment Adviser or its properties or
operations.
(d) Investment Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in this Agreement and the Prospectus.
(e) The description of Investment Adviser in the
Registration Statement and the Prospectus, including the information
set forth in "Prior Experience of the Principals of the Investment
Adviser," does not contain any untrue statement of a material fact or
omit to state any fact required to be stated therein or necessary to
make the statements therein not misleading.
5. CERTIFICATES AS REPRESENTATIONS. Any certificate signed by
any officer of the Company or Investment Adviser and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or Investment Adviser, as the case
may be, to the Underwriters as to the matters covered thereby.
6. AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters as follows:
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(a) The Company will not, either prior to the Effective
Date or thereafter during such period as the Prospectus is required by
law to be delivered in connection with sales of the Shares by an
Underwriter or dealer, file any amendment or supplement to the
Registration Statement or the Prospectus, whether pursuant to the 1933
Act, 1940 Act or otherwise, unless a copy thereof shall first have
been submitted to the Representatives within a reasonable period of
time prior to the filing thereof and the Representatives shall not
have objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective, and will notify the
Representatives promptly, and will confirm such advice in writing, (i)
when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (ii) of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof,
(iv) of the happening of any event during the period mentioned in the
second sentence of Section 6(e) that in the judgment of the Company
makes any statement made in the Registration Statement or the
Prospectus untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are
made, not misleading and (v) of receipt by the Company or any
representative or attorney of the Company of any other communication
from the Commission relating to the Company, the Registration
Statement, any preliminary prospectus or statement of additional
information or the Prospectus. If at any time the Commission shall
issue any order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment.
(c) The Company will furnish to the Representatives,
without charge, signed copies of the Notification of Election on Form
N-54A, the Registration Statement as originally filed and of each
amendment thereto, including financial statements, and all exhibits
thereto and will furnish to the Representatives, without charge, for
transmittal to each of the other Underwriters, a conformed copy of the
Registration Statement and each amendment thereto, including financial
statements but without exhibits.
(d) The Company will comply with all the provisions of
any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to
time, the Company will deliver to each of the Underwriters, without
charge, as many copies of the Prospectus or any amendment or
supplement thereto as the Representatives may reasonably request. The
Company consents to the use of the Prospectus or any amendment or
supplement thereto in accordance with the provisions of the 1933 Act
and with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the several Underwriters
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and by all dealers to whom the Shares may be sold, both in connection
with the offering or sale of the Shares and for any period of time
thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any
event shall occur that in the judgment of the Company or counsel to
the Underwriters should be set forth in the Prospectus in order to
make any statement therein, in the light of the circumstances under
which it was made, not misleading, or if it is necessary to supplement
or amend the Prospectus to comply with law, the Company will forthwith
prepare and duly file with the Commission an appropriate supplement or
amendment thereto, and will deliver to each of the Underwriters,
without charge, such number of copies thereof as the Representatives
may reasonably request.
(f) Prior to any public offering of the Shares by the
Underwriters, the Company will cooperate with the Representatives and
counsel to the Underwriters in connection with the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives may
request; 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 which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the
Effective Date, the Company will furnish to the Representatives and
each other Underwriter who may so request a copy of such financial
statements and other periodic and special reports as the Company may
from time to time distribute generally to the holders of any class of
its shares of Common Stock, and will furnish to the Representatives
and each other Underwriter who may so request a copy of each annual or
other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders
of its securities as soon as may be practicable but in no event later
than the last day of the fifteenth full calendar month following the
calendar quarter in which the Effective Date falls, an earnings
statement (which need not be audited but shall be in reasonable
detail) for a period of 12 months ended commencing after the Effective
Date, and satisfying the provisions of Section 11(a) of the 1933 Act
(including Rule 158 of the Rules and Regulations).
(i) The Company will not at any time, directly or
indirectly, take any action designed, or which might reasonably be
expected, to cause or result in, or which will constitute,
stabilization of the price of the Shares of Common Stock to facilitate
the sale or resale of any of the Shares.
(j) If, at the time that the Registration Statement
becomes effective, any information shall have been omitted therefrom
in reliance upon Rule 430A of the Rules and Regulations, then
immediately following the execution of this Agreement, the Company
will prepare, and file or transmit for filing with the Commission in
accordance
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with such Rule 430A and Rule 497(h) of the Rules and Regulations
copies of an amended Prospectus or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including an
amended Prospectus) containing all information so omitted.
(k) Until the date 120 days after the date of the
Prospectus, the Company will not, without the prior written consent of
EVEREN Securities Inc., offer, sell, or issue or enter into any
agreement to sell or issue, any shares or securities convertible into
or exercisable or exchangeable for, or warrants, options or rights to
purchase or acquire, shares of the Company other than pursuant to this
Agreement, the Company's Dividend Reinvestment Plan or the 1996 Stock
Option Plan or the Disinterested Director Option Plan, as contemplated
in the Prospectus.
(l) The Company will use its best efforts to effect the
listing of the Shares on the Nasdaq National Market System.
7. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including,
but not limited to, expenses relating to (i) the printing and filing of the
registration statement as originally filed and of each amendment thereto, (ii)
the printing of this Agreement, the Agreement Among Underwriters, any Dealer
Agreements and any Underwriters' Questionnaire, (iii) the preparation, issuance
and delivery of the certificates for the Shares to the Underwriters, (iv) the
fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Shares under securities laws in accordance with the
provisions of Section 6(f) of this Agreement, including filing fees and any
fees or disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, (vi) the
printing and delivery to the Underwriters of copies of the registration
statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of the Blue Sky
Survey, (viii) the fees and expenses incurred with respect to the filing with
the National Association of Securities Dealers, Inc. and (ix) the fees and
expenses incurred with respect to the listing of the Shares on the National
Market System.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 8 or by the Company in accordance with the
provisions of Section 11, the Company or Investment Adviser shall reimburse the
Underwriters for all of their out-of-pocket expenses, including fees and
disbursements of counsel for the Underwriters. In the event the transactions
contemplated hereunder are not consummated, Investment Adviser agrees to pay
all of the costs and expenses set forth in the first paragraph of this Section
7 which the Company would have paid if such transactions were consummated.
8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of each Underwriter hereunder are subject to the following
conditions:
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(a) Notification that the Registration Statement has
become effective shall be received by the Representatives not later
than 3:30 p.m., Chicago time, on the date of this Agreement or at such
later date and time as shall be consented to in writing by the
Representatives. If the Company has elected to rely upon Rule 430A of
the Rules and Regulations, the price of the Shares and any
price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 497(h) of
the Rules and Regulations within the prescribed time period, and prior
to the Closing Date the Company shall have provided evidence
satisfactory to the Underwriters of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or threatened by the Commission, (ii) no
order suspending the effectiveness of the Registration Statement or
the qualification or registration of the Shares under the securities
or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending before or threatened or
contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part
of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or
such authorities and (iv) after the date hereof no amendment or
supplement to the Registration Statement or the Prospectus shall have
been filed unless a copy thereof was first submitted to the
Representatives and the Representatives did not promptly object
thereto in good faith, and the Representatives shall have received
certificates, dated the Closing Date (and with respect to the Option
Shares, the Option Closing Date) and signed by the Chief Executive
Officer and Chief Financial Officer of the Company and the President
of the Company (who may, as to proceedings threatened, rely upon the
best of their information and belief), to the effect of clauses (i),
(ii) and (iii).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
not have been a material adverse change in the business, business
prospects, management, properties, condition (financial or otherwise)
or results of operations of the Company, taken as a whole, whether or
not arising from transactions in the ordinary course of business, in
each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
have been no litigation or other proceeding instituted against the
Company, the Investment Adviser or any of their officers or directors
in their capacities as such, before or by any federal, state or local
court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or
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finding would materially and adversely affect the business, business
prospects, management, properties, condition (financial or otherwise)
or results of operations of the Company.
(e) Each of the representations and warranties of the
Company and Investment Adviser contained herein shall be true and
correct in all material respects at the Closing Date and, with respect
to the Option Shares, at the Option Closing Date, as if made at the
Closing Date and, with respect to the Option Shares, at the Option
Closing Date, and all covenants and agreements herein contained to be
performed on the part of the Company and Investment Adviser and all
conditions herein contained to be fulfilled or complied with by the
Company and Investment Adviser at or prior to the Closing Date and,
with respect to the Option Shares, at or prior to the Option Closing
Date, shall have been duly performed, fulfilled or complied with.
(f) The Representatives shall have received an opinion,
dated the Closing Date and, with respect to the Option Shares, the
Option Closing Date, in form and substance reasonably satisfactory to
counsel for the Underwriters, from Jenner & Block, counsel to the
Company, to the effect set forth in Exhibit A.
(g) The Representatives shall have received an opinion,
dated the Closing Date and, with respect to the Option Shares, the
Option Closing Date, in form and substance reasonably satisfactory to
counsel for the Underwriters from Jenner & Block, counsel to
Investment Adviser, to the effect set forth in Exhibit B.
(h) The Representatives shall have received an opinion,
dated the Closing Date and, with respect to the Option Shares, the
Option Closing Date, from Vedder, Price, Xxxxxxx & Kammholz, counsel
to the Underwriters, with respect to the Registration Statement, the
Prospectus and this Agreement, which opinion shall be reasonably
satisfactory in all respects to the Representatives.
(i) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Representatives
a letter, dated the date of its delivery, addressed to the
Representatives and in form and substance reasonably satisfactory to
the Representatives, confirming that they are independent accountants
with respect to the Company as required by the 1933 Act and the Rules
and Regulations and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement. At the Closing Date and, as to the Option Shares, the
Option Closing Date, the Accountants shall have furnished to the
Representatives a letter, dated the date of its delivery, which shall
confirm, on the basis of a review in accordance with agreed upon
procedures described therein, that nothing has come to their attention
during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days
prior to the date of delivery that would require any change in their
letter dated the date hereof if it were required to be dated and
delivered at the Closing Date or the Option Closing Date.
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(j) At the Closing Date and, as to the Option Shares, the
Option Closing Date, there shall be furnished to the Representatives a
certificate, dated the date of its delivery, signed by both the Chief
Executive Officer and Chief Financial Officer and the President of the
Company, in form and substance reasonably satisfactory to the
Representatives, certifying to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus and (A)
as of the date of such certificate, such documents are true
and correct in all material respects, and the Registration
Statement does not omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein not untrue or misleading and the Prospectus does not
omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not untrue or
misleading and (B) since the Effective Date no event has
occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein not untrue or misleading in any material respect, in
light of the circumstances under which they were made,
(ii) Each of the representations and warranties of
the Company contained in this Agreement were, when originally
made, and are, as of the date of such certificate, true and
correct in all material respects.
(iii) Each of the covenants required herein to be
performed by the Company on or prior to the date of such
certificate has been duly, timely and fully performed, and
each condition herein required to be complied with by the
Company on or prior to the date of such certificate, has been
duly, timely and fully complied with.
(k) At the Closing Date and, as to the Option Shares, the
Option Closing Date, there shall be furnished to the Representatives a
certificate of the Investment Adviser, dated as of the date of its
delivery, signed by the president or a vice president of Investment
Adviser, to the effect that the representations and warranties of
Investment Adviser contained in Sections 3 and 4 were, when originally
made, and are, at the time such certificate is dated, true and correct
in all material respects.
(l) The Shares shall be qualified for sale in such states
as the Representatives may reasonably request, and each such
qualification shall be in effect and not subject to any stop order or
other proceeding on the Closing Date or the Option Closing Date, as
the case may be.
(m) Prior to the Closing Date, the Shares shall have been
duly authorized for listing by the Nasdaq National Market System upon
official notice of issuance.
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(n) The Company and Investment Adviser shall have
furnished to the Representatives such certificates, in addition to
those specifically mentioned herein, as the Representatives may have
reasonably requested as to the accuracy and completeness at the
Closing Date and the Option Closing Date of any statement in the
Registration Statement or the Prospectus, as to the accuracy at the
Closing Date and the Option Closing Date of the representations and
warranties of the Company and Investment Adviser herein, as to the
performance by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to the
obligations hereunder of the Representatives.
(o) At the Closing Date and the Option Closing Date,
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 Shares as
herein contemplated and related proceedings, 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 and Investment Adviser in connection
with the organization and registration of the Company under the 1940
Act and the issuance and sale of the Shares as herein contemplated
shall be reasonably satisfactory in all material respects in form and
substance to the Representatives and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section 7.
9. INDEMNIFICATION.
(a) Each of the Company and Investment Adviser, jointly
and severally, will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each
person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any and
all losses, claims, liabilities, expenses and damages (including any
and all investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) to which they, or any of
them, may become subject under the 1933 Act, the 1940 Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement
or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus
(including the information deemed to be a part of the Registration
Statement pursuant to Rule 430A(b) of the Rules and Regulations, if
applicable), or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to
make the
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statements in the Registration Statement not misleading or necessary
to make the statements in the Prospectus, in light of the
circumstances under which they were made, not misleading; provided,
that the Company and Investment Adviser will not be liable to the
extent that such loss, claim, liability, expense or damage arises from
the sale of the Shares in the public offering to any person by an
Underwriter and is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity
with information relating to any Underwriter furnished in writing to
the Company by the Representatives on behalf of any Underwriter
expressly for inclusion in the Registration Statement, any preliminary
prospectus or the Prospectus; and provided further, that the foregoing
indemnification with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares if a
copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
such is required by law, at or prior to the written confirmation of
the sale of such Shares to such person and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability. The Company acknowledges that
the statements set forth under the heading "Underwriting" in any
preliminary prospectus and the Prospectus constitute the only
information relating to any Underwriter furnished in writing to the
Company by the Representatives on behalf of the Underwriters expressly
for inclusion in the Registration Statement, any preliminary
prospectus or the Prospectus. This indemnity agreement will be in
addition to any liability that the Company or Investment Adviser might
otherwise have.
(b) Each Underwriter severally will indemnify and hold
harmless the Company, Investment Adviser, each person, if any, who
controls the Company or Investment Adviser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director
of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity
from the Company and Investment Adviser to each Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out
of or are based on any untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the
Company by the Representatives on behalf of such Underwriter expressly
for use in the Registration Statement, any preliminary prospectus or
the Prospectus. The Company and Investment Adviser acknowledge that
the statements set forth under the heading "Underwriting" in any
preliminary prospectus and the Prospectus constitute the only
information relating to any Underwriter furnished in writing to the
Company by the Representatives on behalf of the Underwriters expressly
for inclusion in the Registration Statement, any preliminary
prospectus or the Prospectus. This indemnity will be in addition to
any liability that each Underwriter might otherwise have.
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(c) Any party that proposes to assert the right to be
indemnified under this Section 9 will, promptly after receipt of
notice of commencement of any action against such party in respect of
which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve
it from any liability that it may have to any indemnified party under
this Section unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate
in and, to the extent that it elects by delivering written notice to
the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense
of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of
its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party
will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in the foregoing paragraphs of this Section 9 is applicable in
accordance with its terms but for any reason except as set forth
therein is held to be unavailable from the Company, Investment Adviser
or the Underwriters, the
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Company, Investment Adviser and the Underwriters will contribute to
the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company or Investment Adviser from
persons other than the Underwriters, such as persons who control the
Company or Investment Adviser within the meaning of the 1933 Act,
officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to
which the Company or Investment Adviser and any one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover of
the Prospectus bears to the public offering price appearing on the
cover, and the Company and Investment Adviser are responsible for the
balance. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing
sentence but also the relative fault of the Company and Investment
Adviser, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to
such offering. Such relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by the Company, Investment Adviser or the
Representatives on behalf of the Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, Investment Adviser and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section
9(e) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred
to above in this Section 9(e) shall be deemed to include, for purposes
of this Section 9(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 9(e), no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts and other compensation
received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 9(e) are several
in proportion to their respective underwriting obligations and not
joint. For purposes of this Section 9(e), any person who controls a
party to this Agreement within the meaning of the Act, except, as to
each other, Investment Adviser and EVEREN Securities, Inc., will have
the same rights to contribution as that party, and each officer of the
Company who signed the Registration Statement will have the same
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rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made under
this Section 9(e), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not
relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have under this Section 9(e). No
party will be liable for contribution with respect to any action or
claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained
in this Section 9 and the representations and warranties of the
Company and Investment Adviser contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the Underwriters, (ii)
acceptance of any of the Shares and payment therefor, or (iii) any
termination of this Agreement.
10. TERMINATION. The obligations of the several Underwriters
under this Agreement may be terminated at any time prior to the Closing Date
(or, with respect to the Option Shares, on or prior to the Option Closing
Date), by notice to the Company from the Representatives, without liability on
the part of any Underwriter to the Company, if, prior to delivery and payment
for the Shares (or the Option Shares, as the case may be), in the sole judgment
of the Representatives, (i) trading in any of the equity securities of the
Company shall have been suspended by the Commission, by an exchange that lists
the Shares or by the National Association of Securities Dealers Automated
Quotation Market System, (ii) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum or maximum
prices shall have been generally established on such exchange, or additional
material governmental restrictions, not in force on the date of this Agreement,
shall have been imposed upon trading in securities generally by such exchange
or by order of the commission or any court or other governmental authority,
(iii) a general banking moratorium shall have been declared by either federal
or New York State authorities or (iv) any material adverse change in the
financial or securities markets in the United States or in political, financial
economic conditions in the United States or any outbreak or material escalation
of hostilities or other calamity or crisis shall have occurred, the effect of
which is such as to make it, in the sole judgment of the Representatives,
impracticable to market the Shares.
11. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Shares which it
or they have agreed to purchase hereunder, and the aggregate number of Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of Firm
Shares, the other Underwriters shall be obligated, severally, to purchase the
Firm Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase, in the proportions which the number of Firm Shares
which they have respectively agreed to purchase pursuant to Section 1 bears to
the aggregate number of Firm Shares which all such non-defaulting Underwriters
have so agreed to purchase, or in such other proportions
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as the Representatives may specify; provided that in no event shall the maximum
number of Firm Shares which any Underwriter has become obligated to purchase
pursuant to Section 1 be increased pursuant to this Section 11 by more than
one-ninth of such number of Firm Shares without the prior written consent of
such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase any Firm Shares and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
exceeds one-tenth of the aggregate number of the Firm Shares and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Firm Shares are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company for the purchase or sale of any Shares under this Agreement. In
any such case either the Representatives or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken pursuant to this Section 11 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
12. MISCELLANEOUS. Notice given pursuant to any of the provisions
of this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Company, at the office of the Company, 00000
Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx; (b) if to Investment Adviser, 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxx; or (c) if to the
Underwriters, to the Representatives at the offices of EVEREN Securities, Inc.,
00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel. Any
such notice shall be effective only upon receipt. Any notice under Section 10
or 11 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company and Investment Adviser and of the controlling
persons, directors and officers referred to in Section 9, their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Shares from any of the several Underwriters.
With respect to any obligation of the Company and Investment Adviser
hereunder to make any payment, to indemnify for any liability or to reimburse
for any expense, notwithstanding the fact that such obligation is a joint and
several obligation of the Company and Investment Adviser, the Underwriters (or
any other person to whom such payment, indemnification or reimbursement is
owed) shall pursue the Company with respect thereto prior to pursuing
Investment Adviser.
Any action required or permitted to be taken by the Representatives
under this Agreement may be taken by them jointly or by EVEREN Securities, Inc.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois applicable to contracts made and to be
performed entirely within such State.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
* * *
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Investment Adviser and the several Underwriters.
Very truly yours,
XXXXXXXX CAPITAL CORPORATION
By:____________________________________
Title:
XXXXXXXX CAPITAL MANAGEMENT, LTD.
By:____________________________________
Title:
Confirmed as of the date first above written:
EVEREN SECURITIES, INC.
XXXXXXXX & COMPANY SECURITIES, INC.
XXXXXX XXXXXX & COMPANY, INC.
XXXXXXX & COMPANY, INC.
XXXXXX XXXXXXXX & COMPANY, INCORPORATED
FIRST OF MICHIGAN CORPORATION
NATCITY INVESTMENTS, INC.
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
By: EVEREN Securities, Inc.
By:_______________________________________
Authorized Signatory
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SCHEDULE I
UNDERWRITERS
Number of
Firm Shares
Name To be Purchased
---- ---------------
EVEREN Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . .
XXXXXXXX & COMPANY SECURITIES, INC.
XXXXXX XXXXXX & COMPANY, INC.
XXXXXXX & COMPANY, INC.
XXXXXX XXXXXXXX & COMPANY, INCORPORATED
FIRST OF MICHIGAN CORPORATION
NATCITY INVESTMENTS, INC.
__________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000,000
==========
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EXHIBIT A
Form of Opinion of
Counsel to the Company
1. The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Maryland and is
duly qualified to do business and is in good standing as a foreign corporation
in Ohio. The Company has full power and authority to own or lease its
properties and to conduct its business as described in the Registration
Statement and the Prospectus and, to such counsel's knowledge, has all
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to carry on its business as contemplated in the
Prospectus, except as specifically described therein.
2. The Shares of Common Stock have been duly authorized and are
validly issued, fully paid and nonassessable and are free from any preemptive
or similar right. The Shares have been duly authorized and, when they are
issued or sold to and paid for by the Underwriters in accordance with the
terms of the Agreement, will be validly issued, fully paid and nonassessable
and will not be subject to any preemptive or similar right.
3. No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency is required in connection
with the performance by the Company of its obligations under the Agreement,
except such as have been obtained under the 1933 Act and the 1940 Act and such
as may be required under state securities laws, or by the bylaws and rules of
the NASD.
4. The Shares conform as to legal matters in all material
respects to the description thereof in the Registration Statement and the
Prospectus. The form of certificate used to evidence the Shares is in proper
form and complies with all applicable requirements of Maryland law.
5. At the time the Registration Statement became effective, the
Registration Statement complied in all material respects as to form with the
requirements of the 1933 Act and the 1940 Act (except that such counsel
expresses no opinion as to financial statements, schedules and other financial
and statistical data contained in the Registration Statement or the Prospectus).
6. The Registration Statement has been declared effective under
the 1933 Act and, to the knowledge of such counsel, no order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or is threatened, pending or contemplated
under the 1933 Act.
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7. The Company has the requisite corporate power and authority to
enter into the Agreement, and the Agreement has been duly authorized, executed
and delivered by the Company, is a valid and binding agreement of the Company
and, except for the indemnification and contribution provisions of the
Agreement, as to which such counsel expresses no opinion, is enforceable
against the Company in accordance with the terms thereof subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
enforcement of creditors' rights generally and to general equitable principles.
8. The Investment Advisory Agreement has been duly authorized,
executed and delivered by the Company; the Investment Advisory Agreement
complies in all material respects with applicable provisions of the 1940 Act.
9. The statements set forth in the Prospectus under the caption
"The Investment Advisory Agreement", insofar as they purport to summarize
certain provisions of the Investment Advisory Agreement, are accurate summaries
of such provisions.
10. The execution and delivery of the Agreement and the Investment
Advisory Agreement by the Company, the consummation by the Company of the
transactions therein contemplated and the compliance by the Company with the
terms of such agreements do not and will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to the terms or provisions of, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default or result in the acceleration of any obligation under, the
Articles of Incorporation or Bylaws of the Company, or, to such counsel's
knowledge, any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument known to us which is material
to the Company and to which the Company is a party or by which it or any of its
properties is bound or affected, or violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or other
governmental agency applicable to the business or properties of the Company.
11. The Company is a closed-end, non-diversified investment
company which has elected to be treated as a business development company
under the 1940 Act, and all required action has been taken by the Company
under the 1933 Act and the 1940 Act to make the public offering and consummate
the sale of the Shares pursuant to this Agreement. The provisions of the
Articles of Incorporation and the Bylaws of the Company comply as to form in
all material respects with the requirements of the 1940 Act. A Notification of
Election to be subject to Sections 54-65 of the 1940 Act on Form N-54A has been
filed by the Company with the Commission under the 1940 Act, and such Form
N-54A complies as to form in all material respects with the requirements of
Section 54(a) of the 1940 Act.
12. To such counsel's knowledge, there are no actions, suits or
proceedings pending or threatened against the Company or to which any property
of the Company is subject, before or by any federal or state court or other
governmental agency, wherein an unfavorable ruling,
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decision or finding might materially and adversely affect the Company, except
as set forth in or contemplated by the Registration Statement and the
Prospectus.
13. To such counsel's knowledge, the Company is not in violation
of its Articles of Amendment and Restatement of the Charter or Bylaws or in
default under any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument known to us
which is material to the Company and to which the Company is a party or by
which it or its properties is bound or affected, and the Company is not in
violation of any judgment, ruling, decree, order, statute, rule or regulation
of any court or other governmental agency known to such counsel and applicable
to the business or properties of the Company, where such violation or default
might have a material adverse effect on the Company.
14. The shares have been duly authorized for listing by Nasdaq
National Market System upon official notice of issuance.
In addition to the foregoing, such counsel shall state that while in
connection with their participation in the preparation of the Registration
Statement and the Prospectus, such counsel has not independently verified the
accuracy or completeness or fairness of the statements contained or
incorporated therein (except as addressed in the first sentence of paragraphs 4
and 9 above), and the limitations inherent in the examination made by such
counsel and the knowledge available to such counsel are such that they are
unable to assume and they do not assume any responsibility for such accuracy,
completeness or fairness (except as addressed in the first sentence of
paragraphs 4 and 9 above), on the basis of such counsel's review of the
Registration Statement, the Prospectus and the agreements included as exhibits
to the Registration Statement and such counsel's participation in conferences
in connection with the preparation of the Registration Statement and the
Prospectus, such counsel do not believe that the Registration Statement
(excluding the agreements included as exhibits to the Registration Statement)
and the agreements included as exhibits to the Registration Statement,
considered as a whole, as of the effective date of the Registration Statement,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such counsel do not believe that the Prospectus and
the agreements included as exhibits to the Registration Statement, considered
as a whole, on the date of the Prospectus or as of the Closing Date, contained
or contain any untrue statement of a material fact or omitted 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. Such counsel shall also state that they do not know of any
contract or other document of a character required to be filed as an exhibit to
the Registration Statement which is not filed as required.
Such opinion may be limited to matters governed by federal laws of the
United States, the General Corporation Law of the State of Maryland or the laws
of the State of Illinois.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, as to matters of fact, upon certificates of
officers of the Company and of
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government officials. Copies of all such certificates shall be furnished to
counsel to the Underwriters on the Closing Date.
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EXHIBIT B
Form of Opinion of Counsel to Investment Adviser
1. Investment Adviser has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to conduct its business as
described in the Registration Statement and the Prospectus.
2. Investment Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act or the 1940
Act, or the rules and regulations under such Acts, from acting under the
Investment Advisory Agreement for the Company as contemplated by the
Prospectus.
3. The Agreement and Investment Advisory Agreement have been duly
authorized, executed and delivered by Investment Adviser, and the Agreement and
the Investment Advisory Agreement each constitutes a valid and binding
obligation of Investment Adviser, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and to general equitable
principles; the execution and delivery of the Agreement and the Investment
Advisory Agreement by the Investment Adviser, the consummation by the
Investment Adviser of the transactions therein contemplated and the compliance
by the Investment Adviser with the terms of such agreements do not and will not
result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Investment Adviser or any of its subsidiaries pursuant
to the terms or provisions of, or result in a breach or violation of any of the
terms or provisions of, or constitute a default or result in the acceleration
of any obligation under, the Articles of Incorporation or Bylaws of the
Investment Adviser, or, to such counsel's knowledge, any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other agreement
or instrument known to us which is material to the Investment Adviser and to
which the Investment Adviser is a party or by which it or any of its properties
is bound or affected, or violate or conflict with any judgment, ruling, decree,
order, statute, rule or regulation of any court or other governmental agency
applicable to the business or properties of the Investment Adviser.
4. To such counsel's knowledge, there are no actions, suits or
proceedings pending or threatened against the Investment Adviser before or by
any federal or state court, or other governmental agency wherein an unfavorable
ruling, decision or finding might materially and adversely affect the
Investment Adviser except as set forth or contemplated in the Prospectus.
In addition to the foregoing, such counsel shall state that
while in connection with their participation in the preparation of the
Registration Statement and the Prospectus, such counsel has not independently
verified the accuracy or completeness or fairness of the statements contained
or incorporated therein and the limitations inherent in the examination made by
such counsel and the knowledge available to such counsel are such that they are
unable to assume and they do not assume any responsibility for such accuracy,
completeness or fairness on the basis
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of such counsel's review of the Registration Statement, the Prospectus and the
agreements included as exhibits to the Registration Statement and such
counsel's participation in conferences in connection with the preparation of
the Registration Statement and the Prospectus, such counsel do not believe that
the Registration Statement (excluding the agreements included as exhibits to
the Registration Statement) and the agreements included as exhibits to the
Registration Statement, considered as a whole, as of the effective date of the
Registration Statement, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and such counsel do not believe
that the Prospectus and the agreements included as exhibits to the Registration
Statement, considered as a whole, on the date of the Prospectus or as of the
Closing Date, contained or contain any untrue statement of a material fact or
omitted 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. Such counsel shall also state that they
do not know of any contract or other document of a character required to be
filed as an exhibit to the Registration Statement which is not filed as
required.
Such opinion may be limited to matters governed by federal laws of the
United States, the General Corporation Law of the State of Delaware or the laws
of the State of Illinois.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, as to matters of fact, upon certificates of
officers of the Company and of government officials. Copies of all such
certificates shall be furnished to counsel to the Underwriters on the Closing
Date.
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