MEDIATECH INVESTMENT CORP. _________ Shares Common Stock ($.01 par value per Share) UNDERWRITING AGREEMENT
_________
Shares
Common
Stock
($.01
par
value per Share)
___________,
2007
FINAL
DRAFT
___________,
2007
UBS
SECURITIES LLC,
as
Representative of the
several
underwriters named in Schedule A
c/o
UBS
SECURITIES LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
MediaTech
Investment Corp., a Maryland corporation (the “Company”),
proposes to issue and sell to the underwriters named in Schedule
A
annexed
hereto (the “Underwriters”),
for
whom UBS Securities LLC is acting as representative, an aggregate of
_________ shares of common stock, $.01 par value per share (the
“Common
Stock”),
of
the Company, consisting of _________ shares (the “Firm
Shares”)
and at
the option of the Underwriters solely for the purpose of covering
over-allotments, an additional _______ shares (the “Additional
Shares”
and
together with the Firm Shares, the “Shares”)
of
Common Stock to be issued and sold by the Company. The Shares are described
in
the Prospectus, which is referred to below.
The
Company hereby acknowledges that, in connection with the proposed offering
of
the Shares, it has requested UBS Financial Services Inc. (“UBS-FinSvc”)
to
administer a directed share program (the “Directed
Share Program”)
under
which up to __________ Firm Shares, or ____% of the Firm Shares to be
purchased by the Underwriters (the “Reserved
Shares”),
shall
be reserved for sale by UBS-FinSvc at the initial public offering price to
the
Company’s officers, directors, employees and consultants and other persons
having a relationship with the Company as designated by the Company (the
“Directed
Share Participants”)
as
part of the distribution of the Shares by the Underwriters, subject to the
terms
of this Agreement, the applicable rules, regulations and interpretations of
the
Financial Industry Regulatory Authority (“FINRA”)
and
all other applicable laws, rules and regulations. The number of Shares available
for sale to the general public will be reduced to the extent that Directed
Share
Participants purchase Reserved Shares. The Underwriters may offer any Reserved
Shares not purchased by Directed Share Participants to the general public on
the
same basis as the other Shares being issued and sold hereunder. The Company
has
supplied UBS-FinSvc with the names, addresses and telephone numbers of the
individuals or other entities which the Company has designated to be
participants in the Directed Share Program. It is understood that any number
of
those so designated to participate in the Directed Share Program may decline
to
do so.
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”),
with
the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form N-2 (File No. 333-143279) (the “registration
statement”),
including a prospectus relating to the Shares. Amendments to such registration
statement, if necessary or appropriate, have been similarly prepared and filed
with the Commission in accordance with the Act. Such registration statement,
as
so amended, has become effective under the Act.
FINAL
DRAFT
Except
where the context otherwise requires, “Registration
Statement,”
as
used herein, means the registration statement, including the exhibits and
schedules thereto, at the time it become effective (the “Effective Time”),
including the information, if any, deemed to be a part of the registration
statement at the time of the Effective Time pursuant to Rule 430A and
Rule 497 under the Act.
The
Company has furnished to UBS Securities LLC, for use by the Underwriters and
by
dealers in connection with the offering of the Shares, copies of one or more
preliminary prospectuses, relating to the Shares. Except where the context
otherwise requires, “Pre-Pricing
Prospectus,”
as
used herein, the preliminary prospectus, dated as of _______________, 2007,
included in the Registration Statement at the Effective Time.
Except
where the context otherwise requires, “Prospectus,”
as
used herein, means the prospectus, dated as of _______________, 2007, filed
by
the Company with the Commission pursuant to Rule 497 under the Act on or
before the second business day after the date hereof (or such earlier time
as
may be required under the Act), or, if no such filing is required, the final
prospectus included in the Registration Statement at the time it became
effective under the Act, in each case in the form furnished by the Company
to
UBS Securities LLC for use by the Underwriters and by dealers in connection
with
the offering of the Shares.
As
used
in this Agreement, “business
day”
shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on
which banking institutions in New York are generally authorized or obligated
by
law or executive order to close. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case
refer to this Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term “or,” as used herein,
is not exclusive.
The
Company has prepared and filed, in accordance with Section 12 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the “Exchange
Act”),
a
registration statement (the “Exchange
Act Registration Statement”)
on
Form 8-A (File No. [____]) under the Exchange Act to register, under
Section 12(b) of the Exchange Act, the class of securities consisting of
the Common Stock.
The
Company has entered into an investment advisory agreement, dated as of
_______________, 2007 (the “Investment
Advisory Agreement”)
and an
administration agreement dated _______________, 2007 (the “Administration
Agreement”),
each
with MediaTech Investment Management, LLC, a Delaware limited liability company
registered as an investment adviser (the “Adviser”)
under
the Investment Advisers Act of 1940, as amended, and the rules and regulations
thereunder (collectively, the “Advisers
Act”).
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FINAL
DRAFT
The
Company, the Advisor and the Underwriters agree as follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule
A
attached
hereto, subject to adjustment in accordance with Section 9 hereof, in each
case at a purchase price of $_______ per Share. The Company is advised by UBS
Securities LLC that the Underwriters intend (i) to make a public offering of
their respective portions of the Firm Shares as soon after the effectiveness
of
this Agreement as in the judgment of UBS Securities LLC is advisable and
(ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. UBS Securities LLC may from time to time increase or decrease the
public offering price after the initial public offering to such extent as it
may
determine.
In
addition, the Company hereby grants to the several Underwriters the option
(the
“Over-Allotment
Option”)
to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of Firm Shares to be purchased by each of them,
all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at
the
same purchase price per share to be paid by the Underwriters to the Company
for
the Firm Shares. The Over-Allotment Option may be exercised by UBS Securities
LLC on behalf of the several Underwriters at any time and from time to time
on
or before the thirtieth day following the date of the Prospectus, by written
notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the Over-Allotment Option is being exercised
and
the date and time when the Additional Shares are to be delivered (any such
date
and time being herein referred to as an “additional
time of purchase”);
provided,
however,
that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the second business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule
A
hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as UBS Securities LLC may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 9 hereof.
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Shares shall be made to the Company by
Federal Funds wire transfer against delivery of the certificates for the Firm
Shares to UBS Securities LLC through the facilities of The Depository Trust
Company (“DTC”)
for
the respective accounts of the Underwriters. Such payment and delivery shall
be
made at 10:00 a.m., New York City time, on __________, 200_ (unless another
time shall be agreed to by UBS Securities LLC and the Company or unless
postponed in accordance with the provisions of Section 9 hereof). The time
at which such payment and delivery are to be made is hereinafter sometimes
called “the
time of purchase.”
Electronic transfer of the Firm Shares shall be made to UBS Securities LLC
at
the time of purchase in such names and in such denominations as UBS Securities
LLC shall specify.
-3-
FINAL
DRAFT
Payment
of the purchase price for the Additional Shares shall be made at the additional
time of purchase in the same manner and at the same office as the payment for
the Firm Shares. Electronic transfer of the Additional Shares shall be made
to
UBS Securities LLC at the additional time of purchase in such names and in
such
denominations as UBS Securities LLC shall specify.
Deliveries
of the documents described in Section 7
hereof
with respect to the purchase of the Shares shall be made at the offices of
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP at 000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxx 000, Xxxxxxxxxx, X.X. 00000, at 9:00 a.m., New York City time, on the
date
of the closing of the purchase of the Firm Shares or the Additional Shares,
as
the case may be.
3. Representations
and Warranties of the Company and the Adviser.
Each of
the Company and the Adviser represents and warrants to and agrees with each
of
the Underwriters that:
(a) the
Registration Statement has been declared effective by the Commission or, with
respect to any registration statement to be filed to register the offer and
sale
of Shares pursuant to Rule 462(b) under the Act (“Rule 462(b)
Registration Statement”),
will
be filed with the Commission and become effective under the Act no later than
10:00 p.m., New York City time, on the date of determination of the public
offering price for the Shares; no stop order of the Commission preventing or
suspending the use of the Pre-Pricing Prospectus or the Prospectus or the
effectiveness of the Registration Statement, has been issued, and no proceedings
for such purpose have been instituted or, to the Company’s knowledge, are
contemplated by the Commission; the Exchange Act Registration Statement has
become effective as provided in Section 12 of the Act;
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase and each
additional time of purchase, if any, will comply, in all material respects,
with
the requirements of the Act; the conditions to the use of Form N-2 in connection
with the offering and sale of the Shares as contemplated hereby have been
satisfied; the Registration Statement did not, when it became effective, does
not and will not, as amended or supplemented, at the time of purchase and each
additional time of purchase, if any, 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; the Pre-Pricing Prospectus
complied in all material respects with the requirements of the Act and did
not,
as of ____ p.m. on the date hereof (the “Applicable
Time”),
contain an untrue statement of a material fact or 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 Prospectus will
comply, as of its date and at the time of purchase and each additional time
of
purchase, if any, in all material respects, with the requirements of the Act
(including, without limitation, Section 10(a) of the Act) and will not, as
of its date and at the time of purchase and any additional time of purchase,
if
any, include an untrue statement of a material fact or 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 Company has not
distributed and will not distribute, prior to the later of the time of purchase,
the final additional time of purchase (if applicable) and the completion of
the
Underwriters' distribution of the Shares, any offering material in connection
with the public offering and sale of the Shares other than a Pre-Pricing
Prospectus, the Prospectus, the Registration Statement, or any material
complying with Rule 482 under the Act;
-4-
FINAL
DRAFT
(c) (i) prior
to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Pre-Pricing
Prospectus; the Company has not, directly or indirectly, used or referred to
any
“free writing prospectus,” as that term is defined under Rule 405 under the
Act, other than as permitted under the Act.
(ii) none
of
the Company, the Adviser or any of their respective affiliates has solicited
or
will solicit any offer to buy any shares of Common Stock, and none of them
has
offered or will offer to sell any shares of Common Stock by means of any form
of
general solicitation or general advertising (within the meaning of
Regulation D under the Act) in connection with any private placement of
Common Stock occurring concurrent with or immediately prior to the offering
hereunder (“Private
Placement”);
the
Company and the Adviser have solicited and will solicit offers to buy shares
of
Common Stock in connection with any Private Placement only from, and has offered
and will offer, sell or deliver such shares only to, Accredited Investors
(within the meaning of Regulation D); the Company will sell shares of
Common Stock in a Private Placement only to persons that have provided to the
Company a fully completed and executed subscription agreement in a form
reasonably acceptable to UBS Securities LLC.
(d) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth under the heading “Actual” in the section of the
Pre-Pricing Prospectus and the Prospectus entitled “Capitalization,” and, as of
the time of purchase and any additional time of purchase, as the case may be,
the Company shall have an authorized and outstanding capitalization as set
forth
under the heading “As Adjusted” in the section of the Prospectus entitled
“Capitalization” (subject, in the case of the time of purchase and in the event
that the time of purchase and the additional time of purchase occur
concurrently, to the issuance of the Additional Shares, and subject, in the
case
of the additional time of purchase, to the issuance of the Additional Shares);
all of the issued and outstanding shares of capital stock, including the Common
Stock, of the Company have been duly authorized and validly issued and are
fully
paid and non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right; the Shares are duly listed,
and
admitted and authorized for trading, subject to official notice of issuance
and
evidence of satisfactory distribution, on the NASDAQ Global Market (the
“NASDAQ”);
(e) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Maryland, with full corporate
power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pre-Pricing Prospectus and
the
Prospectus, to execute and deliver this Agreement and to issue, sell and deliver
the Shares as contemplated herein;
-5-
FINAL
DRAFT
(f) the
Company is duly qualified to do business as a foreign corporation 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 be so qualified and in good standing would not, individually or
in
the aggregate, (i) have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of the
Company or (ii) prevent or materially interfere with the issuance and sale
of the Shares contemplated hereby (the occurrence of any such effect or any
such
prevention or interference or any such result described in the foregoing clauses
(i) and (ii) being herein referred to as a “Material
Adverse Effect”);
(g) the
Company has no subsidiaries as such term is defined under the Act;
(h) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefore as provided herein, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights;
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement,
the
Pre-Pricing Prospectus and the Prospectus; and the certificates for the Shares
are in due and proper form;
(j) this
Agreement, the Investment Advisory Agreement and the Administration Agreement
each have been duly authorized, executed and delivered by the
Company;
(k) the
Company is not in breach or violation of or in default under (nor has any event
occurred which, with notice, lapse of time or both, would result in any breach
or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness
under) (A) its
charter, bylaws, certificate of formation, limited liability company operating
agreement or other organizational documents of the Company or the Advisor,
as
applicable,
or (B)
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or (C) any license, lease, contract or other agreement
or instrument to which it is a party or by which it or any of its properties
may
be bound or affected, or (D) any federal, state, local or foreign law,
regulation or rule, or (E) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NASDAQ,
or (F)
any decree, judgment or order applicable to it or any of its properties except,
with respect to clauses (B) and (C) to the extent that such contravention
would not have a Material Adverse Effect;
-6-
FINAL
DRAFT
(l)
the
execution, delivery and performance of this Agreement, the issuance and sale
of
the Shares, the use of the proceeds of the sale as described in the Prospectus,
and the consummation of the transactions contemplated hereby will not conflict
with, result in any breach or violation of or constitute a default under (nor
constitute any event which, with notice, lapse of time or both, would result
in
any breach or violation of, constitute a default under or give the holder of
any
indebtedness (or a person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge or encumbrance
on any property or assets of the Company pursuant to) (A) the charter, bylaws,
certificate of formation, limited liability company operating agreement or
other
organizational documents of the Company or the Adviser, as applicable, or (B)
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or (C) any license, lease, contract or other agreement
or instrument to which the Company is a party or by which any of them or any
of
its properties may be bound or affected, or (D) any federal, state, local or
foreign law, regulation or rule, or (E) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the rules and regulations of the NASDAQ), or
(F)
any decree, judgment or order applicable to the Company or any of its
properties, except, with respect to clauses (B) and (C), to the extent that
such
contravention would not have a Material Adverse Effect on the ability of the
Company to consummate the offering or any transaction contemplated by this
Agreement;
(m) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
NASDAQ, except with respect to approval of listing of the Shares), or approval
of the stockholders of the Company (except with respect to stockholder approval
of the Investment Advisers Agreement), is required in connection with the
issuance and sale of the Shares, the use of the proceeds of the sale as
described in the Prospectus, or the consummation by the Company of the
transactions contemplated hereby, other than (i) registration of the Shares
under the Act, which
has
been effected (or, with respect to any 462(b) Registration Statement, will
be
effected in accordance herewith), (ii) the Exchange Act Registration Statement,
(iii) election to be regulated under the 1940 Act, (iv) registration under
the
Investment Advisers Act of 1940; (v) filings with the commission pursuant to
Rule 497 under the Act, (vi) any necessary qualification under the securities
or
blue sky laws of the various jurisdictions in which the Shares are being offered
by the Underwriters or (vii) under the Conduct Rules of FINRA;
(n) except
as
described in the Registration Statement (excluding the exhibits thereto), the
Pre-Pricing Prospectus and the Prospectus, (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to it any shares
of Common Stock or shares of any other capital stock or other equity interests
of the Company, (ii) no person has any preemptive rights, resale rights, rights
of first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock of or other equity interests in the Company
and (iii) no person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Shares;
no
person has the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital stock
of
or other equity interests in the Company, or to include any such shares or
interests in the Registration Statement or the offering contemplated
thereby;
-7-
FINAL
DRAFT
(o) the
Company has all necessary licenses, authorizations, consents and approvals
and
has made all necessary filings required under any applicable law, regulation
or
rule, and has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct its business; the Company
is
not in violation of, or in default under, and has not received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign
law,
regulation or rule or any decree, order or judgment applicable to the Company,
except where such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect;
(p) there
are
no legal or governmental actions, suits, claims, investigations or proceedings
pending or, to the Company’s knowledge, threatened or contemplated to which the
Company is or would be a party or of which any of its properties is or would
be
subject at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, or
before or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ), except any
such action, suit, claim, investigation or proceeding which, if resolved
adversely to the Company, would not, individually or in the aggregate, have
a
Material Adverse Effect;
(q) Ernst
& Young, LLP, whose report on the consolidated financial statements of the
Company is included in the Registration Statement and the Prospectus, are and,
during the periods covered by their reports included in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, were independent
registered public accountants as required by the Act and the rules and
regulations of the Public Company Accounting Oversight Board;
(r) the
financial statements included in the Registration Statement, the Pre-Pricing
Prospectus and the Prospectus, together with the related notes and schedules,
present fairly in all material respects the consolidated financial position
of
the Company as of the dates indicated and the consolidated results of
operations, cash flows and changes in stockholders’ equity of the Company for
the periods specified and have been prepared in compliance with the requirements
of the Act and in conformity with U.S. generally accepted accounting principles
applied on a consistent basis during the periods involved; the other financial
data contained in the Registration Statement, the Pre-Pricing Prospectus and
the
Prospectus are fairly presented in all material respects and prepared on a
basis
consistent with the financial statements; there are no financial statements
(historical or pro forma) that are required to be included in the Registration
Statement or the Prospectus that are not included as required; the Company
does
not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not described in the Registration
Statement (excluding the exhibits thereto) and the Prospectus; and all
disclosures contained in the Registration Statement and the Prospectus regarding
“non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Item 10 of Regulation S-K under
the
Act;
-8-
FINAL
DRAFT
(s) subsequent
to the date of the Pre-Pricing Prospectus and the Prospectus (excluding any
amendments or supplements thereto made after the execution of this Agreement),
there has not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company, (ii)
any transaction which is material to the Company, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet obligations),
incurred by the Company which is material to the Company, (iv) any change in
the
capital stock or material change in outstanding indebtedness of the Company
or
(v) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company, in each case other than as contemplated in the
Pre-Pricing Prospectus and the Prospectus;
(t) the
Company has elected to be regulated as a “business development company”
(“BDC”)
under
the Investment Company Act of 1940, as amended (the “Investment
Company Act”),
and
has not withdrawn such election, and the Commission has not ordered that such
election be withdrawn nor to the Company’s knowledge have proceedings to
effectuate such withdrawal been initiated or threatened by the
Commission;
(u) the
terms of the Investment Advisory Agreement, including compensation terms, comply
in all material respects with all applicable provisions of the Investment
Company Act and the Advisers Act and the applicable published rules and
regulations thereunder;
(v) the
approval by each of the board of directors and the sole initial stockholder
of
the Company of the Investment Advisory Agreement has been made in accordance
with the requirements of Section 15 of the Investment Company Act
applicable to companies that have elected to be regulated as business
development companies under the Investment Company Act;
(w) except
as
disclosed in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, (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 Investment Company Act and the Advisers Act and the applicable published
rules and regulations thereunder, and (ii) to the knowledge of the Company,
no
director of the Company is an “affiliated person” (as defined in the Investment
Company Act) of any of the Underwriters;
(x) the
Company’s current business operations and investments and contemplated business
operations and investments are in compliance in all material respects with
the
provisions of the Investment Company Act and the rules and regulations of the
Commission thereunder (as set forth in the Code of Federal Regulations
(“CFR”))
applicable to business development companies and, after giving effect to the
issuance and sale of the Firm Shares and the Optional Shares, will be in
compliance in all material respects with such provisions and rules and
regulations (as set forth in the CFR);
(y) the
provisions of the corporate charter and Bylaws of the Company and the investment
objective, policies and restrictions described in, the Pre-Pricing Prospectus
and the Prospectus are not inconsistent with the requirements of the Investment
Company Act and the rules and regulations of the Commission thereunder (as
set
forth in the CFR) applicable to a BDC;
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FINAL
DRAFT
(z) the
Company does not currently own or lease any real or personal
property;
(aa) the
Company owns, or has obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents, trademarks, (both
registered and unregistered), tradenames, service names, copyrights, trade
secrets and other proprietary information described in the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus as being owned or
licensed by it or which are necessary for the conduct of its business as
currently conducted or as proposed to be conducted (collectively, “Intellectual
Property”),
except
where the failure to own, license or have such rights would not, individually
or
in the aggregate, have a Material Adverse Effect; except as disclosed in the
Registration Statement or the Pre-Pricing Prospectus, the Company has not
received notice and is not otherwise aware of any infringement of, or conflict
with, asserted rights of third parties with respect to any Intellectual Property
or of any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling
or
finding) or invalidity or inadequacy, would have a Material Adverse
Effect;
(bb)
the
Company is not engaged in any unfair labor practice; except for matters which
would not, individually or in the aggregate, have a Material Adverse Effect,
(i) there is (A) no unfair labor practice complaint pending or, to the
Company’s knowledge, threatened against the Company before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out of
or
under collective bargaining agreements is pending or, to the Company’s
knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage
pending or, to the Company’s knowledge, threatened against the Company and (C)
no union representation dispute currently existing concerning the employees
of
the Company, (ii) to the Company’s knowledge, no union organizing
activities are currently taking place concerning the employees of the Company
and (iii) there has been no violation of any federal, state, local or
foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 (“ERISA”)
or the
rules and regulations promulgated thereunder concerning the employees of the
Company;
(cc) the
Company and its properties, assets and operations are in compliance with, and
the Company holds all permits, authorizations and approvals required under,
Environmental Laws (as defined below), except to the extent that failure to
so
comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are
no
past, present or, to the Company’s knowledge, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions, omissions
or
plans that could reasonably be expected to give rise to any material costs
or
liabilities to the Company under, or to interfere with or prevent compliance
by
the Company with, Environmental Laws; except as would not, individually or
in
the aggregate, have a Material Adverse Effect, the Company (i) is not the
subject of any investigation, (ii) has not received any notice or claim, (iii)
is not a party to or affected by any pending or, to the Company’s knowledge,
threatened action, suit or proceeding, (iv) is not bound by any judgment, decree
or order or (v) has not entered into any agreement, in each case relating to
any
alleged violation of any Environmental Law or any actual or alleged release
or
threatened release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental
Law”
means
any federal, state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous
Materials”
means
any material (including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
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(dd) all
tax
returns required to be filed by the Company have been timely filed, and all
taxes and other assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from the Company has been timely
paid, other than those being contested in good faith and for which adequate
reserves have been provided;
(ee) the
Company maintains insurance covering its properties, operations, personnel
and
businesses as the Company reasonably deems adequate; such insurance insures
against such losses and risks to an extent which is adequate in accordance
with
customary industry practice to protect the Company and its business; all such
insurance is fully in force on the date hereof and will be fully in force at
the
time of purchase and any additional time of purchase;
(ff) the
Company has not sent or received any communication regarding termination of,
or
intent not to renew, any of the contracts or agreements referred to or described
in the Pre-Pricing Prospectus, and the Prospectus, or referred to or described
in, or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Company or, to the
Company’s knowledge, any other party to any such contract or
agreement;
(gg) the
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(hh) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rules 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rules 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 its consolidated subsidiaries, is made known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; and the
Company has taken all necessary actions to ensure that, upon and at all times
after the effectiveness of the Registration Statement, the Company and its
officers and directors, in their capacities as such, will be in compliance
in
all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx
Act
of 2002 (the “Xxxxxxxx-Xxxxx
Act”)
and
the rules and regulations promulgated thereunder;
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(ii) all
statistical or market-related data included in the Registration Statement,
the
Pre-Pricing Prospectus and the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources to the
extent required;
(jj) neither
the Company nor, to the knowledge of the Company, any director, officer,
employee or affiliate of the Company is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of
the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “Foreign
Corrupt Practices Act”);
(kk) the
operations of the Company are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the USA
PATRIOT Act, as amended, the money laundering statutes of all jurisdictions,
the
rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money
Laundering Laws”);
and
no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator or non-governmental authority involving
the
Company with respect to the Money Laundering Laws is pending or, to the
Company’s knowledge, threatened;
(ll) the
Company is not a lender (other than for trade payables) to nor owns any equity
interests in any entity, including, without limitation, the entities listed
in
the Initial Investment Portfolio (as defined in the Prospectus) in the
Pre-Pricing Prospectus and the Prospectus, that is subject to sanctions
administered by the Office of Foreign Assets Control of the U.S. Department
of
Treasury (“OFAC”);
(mm)
neither
the Company nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company is currently subject to any U.S. sanctions
administered by OFAC; and the Company will not directly or indirectly use the
proceeds of the offering of the Shares contemplated hereby, or lend, contribute
or otherwise make available such proceeds to any joint venture partner or other
person or entity for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC;
(nn)
the
Company does not do business with the government of Cuba within the meaning
of
Section 517.075, Florida Statutes;
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(oo)
the
issuance and sale of the Shares as contemplated hereby will not cause any holder
of any shares of capital stock, securities convertible into or exchangeable
or
exercisable for capital stock or options, warrants or other rights to purchase
capital stock or any other securities of the Company to have any right to
acquire any shares of preferred stock of the Company;
(pp)
except
pursuant to this Agreement, the Company has not incurred any liability for
any
finder’s or broker’s fee or agent’s commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby or by the Registration Statement;
(qq)
neither
the Company nor any of its directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(rr)
to
the
Company’s knowledge, there are no affiliations or associations between (i) any
member of FINRA and (ii) the Company or any of the Company’s officers, directors
or 5% or greater security holders or any beneficial owner of the Company’s
unregistered equity securities that were acquired at any time on or after the
one hundred eightieth (180th)
day
immediately preceding the date the Registration Statement was initially filed
with the Commission, except as disclosed in the Registration Statement
(excluding the exhibits thereto), the Pre-Pricing Prospectus and the
Prospectus;
(ss)
the
statements set forth in the Pre-Pricing Prospectus and the Prospectus under
the
caption “Description of Securities,” insofar as they purport to constitute a
summary of the terms of the Common Stock, under the captions “Material U.S.
Federal Income Tax Considerations” and “Regulation as a Business Development
Company,” insofar as they purport to describe the provisions of the laws
referred to therein, and under the captions “Business - Initial Investment
Portfolio - Initial Portfolio” and “Investment Adviser,” insofar as they purport
to describe the provisions of the documents referred to therein, are accurate
and complete in all material respects;
(tt) the
Company has not, directly or indirectly, extended or maintained credit, arranged
for the extension of credit, or renewed any extension of credit in the form
of a
personal loan to or for any officer or director of the Company that are or
would
be in violation of Section 402 of the Xxxxxxxx-Xxxxx Act of 2004;
(uu)
the
Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up
Agreement”),
the
form set forth as Exhibit C
hereto,
of each of the individuals listed in Schedule B
hereto;
[(vv)
the
Registration Statement, the Pre-Pricing Prospectus and the Prospectus comply,
and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of any foreign jurisdiction in which the
Pre-Pricing Prospectus or the Prospectus is distributed in connection with
the
Directed Share Program; and no approval, authorization, consent or order of
or
filing with any governmental or regulatory commission, board, body, authority
or
agency, other than those heretofore obtained, is required in connection with
the
offering of the Reserved Shares in any jurisdiction where the Reserved Shares
are being offered;]
and
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(ww) the
Company has not offered, or caused the Underwriters to offer, Shares to any
person pursuant to the Directed Share Program with the intent to influence
unlawfully (i) a customer or supplier of the Company to alter the customer’s or
supplier’s level or type of business with the Company, or (ii) a trade
journalist or publication to write or publish favorable information about the
Company or any of its products or services.
In
addition, any certificate signed by any officer of the Company and delivered
to
the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
4. Representations
and Warranties of the Adviser.
The
Adviser represents and warrants to the Underwriters that:
(a) the
Adviser has been duly organized and is validly existing as a limited liability
company under the laws of the State of Delaware, with full power and authority
to conduct all of the activities conducted by it, to own, lease or operate
its
properties and conduct its business as described in the Registration Statement,
the Pre-Pricing Prospectus and the Prospectus and to execute and deliver this
Agreement;
(b) the
Adviser is duly qualified to do business and 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 be so
qualified and in good standing would not, individually or in the aggregate,
result in a material adverse effect on the business, financial condition,
capitalization or regulatory status of the Adviser, or otherwise reasonably
be
expected to prevent such entity from carrying out its obligations under the
Investment Advisory Agreement or the Administration Agreement, as applicable
(collectively, an “Adviser
Material Adverse Effect”);
(c) the
Adviser is (i) duly registered as an Adviser under the Advisers Act, and (ii)
not prohibited by the Advisers Act or the Investment Company Act from acting
as
the Adviser for the Company as contemplated by the Investment Advisory
Agreement, the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, and 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) there
are
no actions, suits, claims, investigations or proceedings pending or, to the
knowledge of the Adviser, threatened to which the Adviser or any of its officers
or members are or would be a party or of which any of its properties are or
would be subject at law or in equity, or before or by any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or
agency;
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FINAL
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(e) the
Adviser is not in breach or violation of, or in default under (nor has any
event
occurred which with notice, lapse of time, or both would result in any breach
or
violation of, constitute a default under or give the holder of any indebtedness
(or person acting on such holder’s behalf), the right to require the repurchase,
redemption or repayment of all or part of such indebtedness under) (i) its
certificate of formation or limited liability company operating agreement,
or
(ii) any material agreement to which it is a party or by which any of its
properties may be bound of affected, or (iii) under any federal, state, local
or
foreign law, regulation or rule or any decree, judgment or order applicable
to
the Adviser or its properties;
(f) this
Agreement, the Investment Advisory Agreement and the Administration Agreement
have been duly and validly authorized, executed and delivered by the Adviser;
this Agreement, the Investment Advisory Agreement and the Administration
Agreement do not violate any of the applicable provisions of the Investment
Company Act or the Advisers Act;
(g) the
Adviser has the financial, human and other resources available to it necessary
for the performance of its services and obligations as contemplated in the
Pre-Pricing Prospectus, the Prospectus and the Registration Statement and under
this Agreement, the Investment Advisory Agreement and the Administration
Agreement;
(h) neither
(i) the execution and delivery by the Adviser of this Agreement, the Advisory
Agreement or the Administration Agreement nor (ii) the consummation by the
Adviser of the transactions contemplated by, or the performance of its
obligations herein or therein will conflict with, result in any breach or
violation of or constitute a default under (or constitute any event which,
with
notice, lapse of time or both, would reasonably be expected to result in any
breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge or encumbrance
on any property or assets of the Adviser pursuant to) (A) the organizational
documents of the Adviser, (B) any material agreement to which it is a party
or
by which any of its properties may be bound or affected, or (C) any federal,
state, local or foreign law, regulation or rule, or (D) any rule or regulation
of any self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NASDAQ), or (E) any decree,
judgment or order applicable to the Adviser except, with respect to clauses
(B)
and (C), to the extent that such contravention would not have an Advisor
Material Adverse Effect;
(i) no
approval,
authorization, consent or order of or filing with any federal, state, local
or
foreign governmental or regulatory commission, board, body, authority or agency,
or of or with any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ) is required
for
the consummation of the transactions contemplated in, or the performance by
the
Adviser of its obligations under this Agreement or the Investment Advisory
Agreement and Administration Agreement, except (i) such as have been
obtained under the Act, the Investment Company Act, or the Advisers Act and
(ii)
such as may be required under state securities or blue sky laws;
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(j) the
description of the Adviser and its business and the statements attributable
to
the Adviser in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus comply with the requirements of the Act and the Investment Company
Act and do not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading;
(k) subsequent
to the date of the Pre-Pricing Prospectus and the Prospectus, there has not
been
any material adverse change, or any development involving a prospective material
adverse change, in the business, financial condition, capitalization or
regulatory status of the Adviser, or that would otherwise prevent the Adviser
from carrying out its respective obligations under the Investment Advisory
Agreement or the Administration Agreement, as appropriate;
(l) [the
Adviser is not aware that (i) any executive, key employee or significant group
of employees of the Company or the Adviser, as applicable, plans to terminate
employment with the Company or the Adviser or (ii) any such executive or key
employee is subject to any noncompete, 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 have a Material Adverse Effect
or
an Adviser Material Adverse Effect;]
(m) except
for stabilization activities conducted by the Underwriters and the issuance
or
purchase of Shares pursuant to the Company's Dividend Reinvestment Plan effected
following the date on which the distribution of the Shares is completed in
accordance with the policies of the Company as set forth in the Prospectus,
the
Adviser has not taken and will not take, directly or indirectly, any action
designed, or which might reasonably be expected to cause or result in, or which
will constitute, stabilization or manipulation of the price of the shares of
Common Stock in violation of applicable federal securities laws.
(n) the
Adviser maintains a system of internal controls sufficient to provide reasonable
assurance that (i) transactions effectuated by it under the Investment Advisory
Agreement are executed in accordance with its management’s general or specific
authorization and (ii) access to the Company’s assets is permitted only in
accordance with its management’s general or specific authorization;
and
(o) the
Adviser maintains and will cause any sub-administrator to maintain a system
of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions for which it has bookkeeping and record keeping
responsibility for under the Administration Agreement are recorded as necessary
to permit preparation of the Company’s financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
the
Company’s assets and (ii) the recorded accountability for such assets is
compared with existing assets at reasonable intervals and appropriate action
is
taken with respect to any differences.
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(p) neither
the Adviser nor, to the knowledge of the Adviser, any director, officer,
employee or affiliate of the Adviser is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of
the
Foreign Corrupt Practices Act;
(q) the
operations of the Adviser are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Money
Laundering Laws; and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator or non-governmental
authority involving the Adviser with respect to the Money Laundering Laws is
pending or, to the Adviser’s knowledge, threatened;
(r) the
Adviser is not a lender (other than for trade payables) to and does not own
any
equity interests in any entity, including, without limitation, the entities
listed on the Schedule of Investments contained in the Pre-Pricing Prospectus
and the Prospectus that is subject to sanctions administered by OFAC;
(s) neither
the Adviser nor, to the knowledge of the Adviser, any director, officer, agent,
employee or affiliate of the Adviser is currently subject to any U.S. sanctions
administered by OFAC; and
(t) the
Adviser does not do business with the government of Cuba within the meaning
of
Section 517.075, Florida Statutes.
In
addition, any certificate signed by any officer of the Adviser and delivered
to
the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the
Adviser, as to matters covered thereby, to each Underwriter.
5. Certain
Covenants of the Company and the Adviser.
Each of
the Company and the Adviser hereby jointly and severally agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky
laws of such states or other jurisdictions as UBS Securities LLC may designate
and to maintain such qualifications in effect so long as UBS Securities LLC
may
request for the distribution of the Shares; provided,
however,
that
the Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such jurisdiction
(except a limited consent to service of process with respect to the offering
and
sale of the Shares); and to promptly advise UBS Securities LLC of the receipt
by
the Company of any notification with respect to the suspension of the
qualification of the Shares for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to
make
available to the Underwriters in New York City, as soon as reasonably
practicable after this Agreement becomes effective, and thereafter from time
to
time to furnish to the Underwriters, as many copies of the Prospectus (or of
the
Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated by
the
Act; in case any Underwriter is required to deliver, in connection with the
sale
of the Shares, a prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act, the Company will prepare, at its expense,
promptly upon request such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
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(c) if,
at
the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission
and become effective before the Shares may be sold, the Company will use its
best efforts to cause such post-effective amendment or such Registration
Statement to be filed and become effective as soon as possible, and the Company
will advise UBS Securities LLC promptly and, if requested by UBS Securities
LLC,
will confirm such advice in writing, (i) when such post-effective amendment
or
such Registration Statement has become effective, and (ii) if Rule 430A
under the Act is used, when the Prospectus is filed with the Commission pursuant
to Rule 497(h) under the Act (which the Company agrees to file in a timely
manner in accordance with such Rule);
(d) to
advise
UBS Securities LLC promptly, and, if requested, confirming such advice in
writing, of any request by the Commission for amendments or supplements to
the
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the entry
of
a stop order, suspending the effectiveness of the Registration Statement and,
if
the Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal
of such order as soon as possible; to advise UBS Securities LLC promptly of
any
proposal to amend or supplement the Registration Statement or the Prospectus,
and to provide UBS Securities LLC and Underwriters’ counsel copies of any such
documents for review and comment a reasonable amount of time prior to any
proposed filing and to file no such amendment or supplement to which UBS
Securities LLC shall reasonably object in writing;
(e) subject
to Section 5(d)
hereof,
to file promptly all reports and documents and any preliminary or definitive
proxy or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act for so long as a prospectus
is required by the Act to be delivered in connection with any sale of Shares;
and to provide UBS Securities LLC, for its review and comment, with a copy
of
such reports and statements and other documents to be filed by the Company
pursuant to Section 13 or 15(d) of the Exchange Act during such period a
reasonable amount of time prior to any proposed filing, and to file no such
report, statement or document to which UBS Securities LLC shall have objected
in
writing; and to promptly notify UBS Securities LLC of such filing;
(f) if
necessary or appropriate, to file a registration statement pursuant to, and
in
accordance with, Rule 462(b) under the Act and pay the applicable fees in
accordance with the Act;
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(g) to
advise
the Underwriters promptly of the happening of any event within the period during
which a prospectus is required by the Act to be delivered in connection with
any
sale of Shares, which event could require the making of any change in the
Prospectus then being used so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they are made, not misleading, and to advise the Underwriters promptly if,
during such period, it shall become necessary to amend or supplement the
Prospectus to cause the Prospectus to comply with the requirements of the Act,
and, in each such case, during such time, subject to Section 5(d)
hereof,
to prepare and furnish, at the Company’s expense, to the Underwriters promptly
such amendments or supplements to such Prospectus as may be necessary to reflect
any such change;
(h) to
make
generally available to its security holders, and to deliver to UBS Securities
LLC, an earnings statement of the Company (which will satisfy the provisions
of
Section 11(a) of the Act) covering a period of twelve (12) months beginning
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act) as soon as is reasonably practicable after the
termination of such twelve-month period but in any case not later than
__________, 2008;
(i) to
furnish to UBS Securities LLC four (4) copies of the Registration Statement,
as
initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto);
(j) to
furnish to UBS Securities LLC as early as practicable prior to the time of
purchase and any additional time of purchase, as the case may be, but not later
than two (2) business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any, of
the
Company which have been read by the Company’s independent registered public
accountants, as stated in their letter to be furnished pursuant to
Section 7(b)
hereof;
(k) to
apply
the net proceeds from the sale of the Shares in the manner set forth under
the
caption “Use of proceeds” in the Pre-Pricing Prospectus and the
Prospectus;
[(l) to
pay
all costs, expenses, fees and taxes in connection with (i) the preparation
and
filing of the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of the Pre-Pricing Prospectus and Prospectus to the
Underwriters and to dealers (including costs of mailing and shipment), (ii)
the
registration, issue, sale and delivery of the Shares including any stock or
transfer taxes and stamp or similar duties payable upon the sale, issuance
or
delivery of the Shares to the Underwriters, (iii) the producing, word processing
and/or printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any powers of attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the qualification of
the
Shares for offering and sale under state or foreign laws and the determination
of their eligibility for investment under state or foreign law (including the
reasonable legal fees and filing fees and other disbursements of counsel for
the
Underwriters) and the printing and furnishing of copies of any blue sky surveys
or legal investment surveys to the Underwriters and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of the Shares
for quotation on the NASDAQ, (vi) any filing for review of the public offering
of the Shares by FINRA, including the reasonable legal fees and filing fees
and
other disbursements of counsel to the Underwriters relating to FINRA matters,
(vii) the fees and disbursements of any transfer agent or registrar for the
Shares, and (viii) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares to prospective investors and the Underwriters’
sales forces, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Company and any
such
consultants, and the cost of any aircraft chartered in connection with the
road
show, (ix) the costs and expenses of qualifying the Shares for inclusion in
the book entry settlement system of the DTC, (x) the preparation and filing
of the Exchange Act Registration Statement, including any amendments thereto,
(xi) the offer and sale of the Reserved Shares, including all costs and
expenses of UBS-FinSve and the Underwriters, including the reasonable fees
and
disbursement of counsel for the Underwriters, and (xii) the performance of
the Company’s other obligations hereunder;
it is
understood, however, that, except as provided in paragraphs (iv) and (vi) to
this Section 5(l)
and
Section 10
hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, stock transfer taxes on resale of any of the Shares
by
them, and any advertising expenses connection with any offers they may
make;]
-19-
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(m) beginning
on the date hereof and ending on, and including, the date that is one hundred
eighty (180) days after the date of the Prospectus (the “Lock-Up
Period”),
without the prior written consent of UBS Securities LLC, not to (i) issue,
sell,
offer to sell, contract or agree to sell, hypothecate, pledge, grant any option
to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, 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 and the rules and regulations of the Commission promulgated
thereunder, with respect to, any Common Stock or any other securities of the
Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock or warrants
or
other rights to purchase the foregoing, or (ii) file or cause to become
effective a registration statement under the Act relating to the offer and
sale
of any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (iii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences
of
ownership of Common Stock or any securities convertible into or exercisable
or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities, whether any such transaction is to be settled
by
delivery of Common Stock or such other securities, in cash or otherwise or
(iv) publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii), except, in each case, for (A) the registration of
the
offer and sale of the Shares as contemplated by this Agreement and, (B)
issuances of Common Stock as contemplated in the Registration Statement
(excluding the exhibits thereto); provided,
however,
that if
(a) during the period that begins on the date that is fifteen (15) calendar
days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this
Section 5(m)
shall
continue to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs;
-20-
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(n) not,
at
any time at or after the execution of this Agreement, to offer or sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any
“prospectus” (within the meaning of the Act) in connection with the offer or
sale of the Shares, in each case other than the Prospectus;
(o) the
Company will not take, directly or indirectly, any action designed, or which
will constitute, or has constituted, or might reasonably be expected to cause
or
result in the stabilization or manipulation of the price of any security of
the
Company to facilitate the sale or resale of the Shares; and
(p) to
use
its best efforts to cause the Common Stock to be listed on the NASDAQ and to
maintain such listing;
(q) to
maintain a custodian and a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Common Stock;
(r) to
use
its commercially reasonable efforts to maintain its status as a BDC under the
Investment Company Act; provided,
however,
the
Company may cease to be, or withdraw its election as a BDC under the Investment
Company Act, with the approval of its board of directors and a vote of its
stockholders as required by Section 58 of the Investment Company Act, or a
successor provision;
(s) to
operate in a manner so as to enable the Company to qualify as a regulated
investment company under the Code for each taxable year during which it elects
to be treated as a BDC under the Investment Company Act; provided,
however,
that at
the discretion of the Company’s board of directors, it may elect to not be so
treated; and
(t) to
cause
each Directed Share Participant to execute a Lock-Up Agreement and otherwise
to
cause the Reserved Shares to be restricted from sale, transfer, assignment,
pledge or hypothecation to such extent as may be required by FINRA and its
rules, and to direct the transfer agent to place stop transfer restrictions
upon
such Reserved Shares during the Lock-Up Period or any such longer period of
time
as may be required by FINRA and its rules; and to comply with all applicable
securities and other laws, rules and regulations in each jurisdiction in which
the Reserved Shares are offered in connection with the Directed Share
Program.
[6. Reimbursement
of Underwriters’ Expenses.
If the
Shares are not delivered for any reason other than the termination of this
Agreement pursuant to the fifth paragraph of Section 9
hereof
or the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 5(l)
hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.]
-21-
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7. Conditions
of Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the representations and warranties on the part of the Company on the date
hereof, at the time of purchase and, if applicable, at the additional time
of
purchase, the performance by the Company of its obligations hereunder and to
the
following additional conditions precedent:
(a) The
Company shall furnish to UBS Securities LLC at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Xxxxxxxxxx Xxxxxx
& Xxxxxxx LLP, counsel for the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may
be, with executed copies for each of the other Underwriters, and in form and
substance satisfactory to UBS Securities LLC, substantially in the form set
forth in Exhibit
A
hereto.
(b) UBS
Securities LLC shall have received from Ernst & Young LLP letters dated,
respectively, the date of the Pre-Pricing Prospectus, the date of this
Agreement, the time of purchase and, if applicable, the additional time of
purchase, and addressed to the Underwriters (with executed copies for each
of
the Underwriters) in the forms approved by UBS Securities LLC.
(c) UBS
Securities LLC shall have received at the time of purchase and, if applicable,
at the additional time of purchase, the favorable opinion of Xxxxxx Xxxxxxx
Xxxxx & Xxxxxxxxxxx LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, in form and
substance reasonably satisfactory to UBS Securities LLC.
(d) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which UBS Securities LLC shall have objected
in writing.
(e) The
Registration Statement, the Exchange Act Registration Statement and any
registration statement required to be filed, prior to the sale of the Shares,
under the Act pursuant to Rule 462(b) shall have been filed and shall have
become effective under the Act. The Prospectus shall have been filed with the
Commission pursuant to Rule 497(h) under the Act at or before 5:30 p.m.,
New York City time, on the second full business day after the date of this
Agreement (or such earlier time as may be required under the Act).
(f) Prior
to
the time of purchase, and, if applicable, the additional time of purchase,
(i)
no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under
Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all
amendments thereto shall 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; and (iii) neither the Prospectus, nor
the
Pre-Pricing Prospectus, nor any amendment or supplement thereto, shall 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,
in
the light of the circumstances under which they are made, not
misleading.
-22-
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(g) Each
of
the Company and the Adviser will, at the time of purchase and, if applicable,
at
the additional time of purchase, deliver to UBS Securities LLC a certificate
of
its Chief Executive Officer and its Chief Financial Officer dated the time
of
purchase or the additional time of purchase, as the case may be, in the form
attached as Exhibit
B-1
and
Exhibit B-2
hereto,
respectively.
(h) The
Company shall have furnished or caused to be furnished to UBS Securities LLC
at
such Time of Delivery certificates from appropriate officials evidencing the
good standing of the Company in Maryland.
(i) The
Shares shall have been approved for listing on the NASDAQ Global Market, subject
only to notice of issuance and evidence of satisfactory distribution at or
prior
to the time of purchase or the additional time of purchase, as the case may
be.
(j) UBS
Securities LLC shall have received each of the signed Lock-Up Agreements
referred to in Section 3(uu)
hereof,
and each such Lock-Up Agreement shall be in full force and effect at the time
of
purchase and the additional time of purchase, as the case may be.
(k) Provided
that the Underwriters will have used their best efforts to receive a “no
objections” statement from FINRA, FINRA shall not have raised any objection with
respect to the fairness or reasonableness of the underwriting, or other
arrangements of the transactions, contemplated hereby.
8. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of UBS Securities LLC, if (a)
since
the time of execution of this Agreement or the earlier respective dates as
of
which information is given in the Pre-Pricing Prospectus and the Prospectus
there has been any material adverse change or any development involving a
prospective material adverse change in the business, properties, management,
financial condition or results of operations of the Company, which would, in
the
sole judgment of UBS Securities LLC, make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms
and
in the manner contemplated in the Prospectus, or (b) since
the time of execution of this Agreement, there shall have occurred: (i) a
suspension or material limitation in trading in securities generally on the
NYSE, the American Stock Exchange or the NASDAQ; (ii) a
suspension or material limitation in trading in the Company’s securities on the
NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either federal
or New York State authorities or a material disruption in commercial banking
or
securities settlement or clearance services in the United States; (iv) an
outbreak or escalation of hostilities or acts of terrorism involving the United
States or a declaration by the United States of a national emergency or war;
or
(v) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv)
or
(v),
in the
sole judgment of UBS Securities LLC, makes it impracticable or inadvisable
to
proceed with the public offering or the delivery of the Shares on the terms
and
in the manner contemplated in the Prospectus.
-23-
FINAL
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If
UBS
Securities LLC elects to terminate this Agreement as provided in this
Section 8,
the
Company and each other Underwriter shall be notified promptly in
writing.
If
the
sale to the Underwriters of the Shares, as contemplated by this Agreement,
is
not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall
not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 5(l), 6
and
10
hereof),
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 10
hereof)
or to one another hereunder.
9. Increase
in Underwriters’ Commitments.
Subject
to Sections 7
and
8
hereof,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a failure of
a
condition set forth in Section 7 hereof
or
a reason sufficient to justify the termination of this Agreement under the
provisions of Section 8
hereof)
and if the number of Firm Shares which all Underwriters so defaulting shall
have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Firm Shares, the non-defaulting Underwriters (including the Underwriters,
if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1
hereof)
the number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non-defaulting Underwriters in such amount or amounts as UBS
Securities LLC may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Shares shall be taken up
and
paid for by all non-defaulting Underwriters pro rata in proportion to the
aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule
A.
Without
relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm
Shares hereunder unless all of the Firm Shares are purchased by the Underwriters
(or by substituted Underwriters selected by UBS Securities LLC with the approval
of the Company or selected by the Company with the approval of UBS Securities
LLC).
If
a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or UBS Securities LLC shall have the right
to
postpone the time of purchase for a period not exceeding five business days
in
order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
-24-
FINAL
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The
term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 9
with
like effect as if such substituted Underwriter had originally been named in
Schedule
A
hereto.
If
the
aggregate number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Firm Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability
on the part of the Company to any Underwriter and without any liability on
the
part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. Indemnity
and Contribution.
(a) Each
of
the Company and the Adviser agrees jointly and severally to indemnify, defend
and hold harmless each Underwriter, its partners, directors and officers, and
any person who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act (the “Control
Person”),
and
the successors and assigns of all of the foregoing persons, from and against
any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter, any such
Control Person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out
of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
except insofar as any such loss, damage, expense, liability or claim arises
out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning an
Underwriter furnished in writing by or on behalf of such Underwriter to the
Company expressly for use in, the Registration Statement or arises out of or
is
based upon any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material
fact
was not contained in such information and which material fact was required
to be
stated in such Registration Statement or was necessary to make such information
not misleading; (ii) any
untrue statement or alleged untrue statement of a material fact included in
any
Prospectus (the term Prospectus for the purpose of this
Section 10
being
deemed to include the Pre-Pricing Prospectus, the Prospectus and any amendments
or supplements to the foregoing), or arises out of or is based upon any omission
or alleged omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except, with respect to such Prospectus, insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning an Underwriter furnished
in
writing by or on behalf of such Underwriter to the Company expressly for use
in,
such Prospectus or arises
out of or is based upon any omission or alleged omission to state a material
fact in such Prospectus in connection with such information, which material
fact
was not contained in such information and which material fact was necessary
in
order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading;
or
(iii) the
Directed Share Program, except, with respect to this clause (iii), insofar
as
such loss, damage, expense, liability or claim is finally judicially determined
to have resulted from the gross negligence or willful misconduct of the
Underwriters in conducting the Directed Share Program.
-25-
FINAL
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Without
limitation of and in addition to its obligations under the other paragraphs
of
this Section 10,
each of
the Company and the Adviser agrees jointly and severally to indemnify, defend
and hold harmless UBS-FinSvc and its partners, directors and officers, and
any
person who controls UBS-FinSvc within the meaning of Section 15 of the Act
or
Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, UBS-FinSvc or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim (1) arises out of or is based upon (a) any of the matters
referred to in clauses (i) through (iii) of the first paragraph of this
Section 10(a),
or (b)
any untrue statement or alleged untrue statement of a material fact contained
in
any material prepared by or on behalf or with the consent of the Company for
distribution to Directed Share Participants in connection with the Directed
Share Program or caused by any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (2) is or was caused by the failure of any Directed
Share Participant to pay for and accept delivery of Reserved Shares that the
Directed Share Participant has agreed to purchase; or (3) otherwise arises
out
of or is based upon the Directed Share Program, provided,
however,
that
the Company and the Adviser shall not be responsible under this clause (3)
for
any loss, damage, expense, liability or claim that is finally judicially
determined to have resulted from the gross negligence or willful misconduct
of
UBS-FinSvc in conducting the Directed Share Program. Section 10(d)
shall
apply equally to any Proceeding (as defined below) brought against UBS-FinSvc
or
any such person in respect of which indemnity may be sought against the Company
or the Adviser pursuant to the immediately preceding sentence, except that
the
Company and the Adviser shall be liable for the expenses of one separate counsel
(in addition to any local counsel) for UBS-FinSvc and any such person, separate
and in addition to counsel for the persons who may seek indemnification pursuant
to the first paragraph of this Section 10(a),
in any
such Proceeding.
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
the Adviser, their respective directors and officers and any Control Person
of
the Company or the Adviser, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company, the Adviser or any such Control Person may incur under
the Act, the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter to the Company, directly or
indirectly, expressly for use in, the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by
the
Company), or arises out of or is based upon any omission or alleged omission
to
state a material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and
which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter to the Company, directly or
indirectly, expressly for use in, a Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Prospectus in connection with such information, which material fact was not
contained in such information and which material fact was necessary in order
to
make the statements in such information, in the light of the circumstances
under
which they were made, not misleading.
-26-
FINAL
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(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against a person (an “indemnified
party”)
in
respect of which indemnity may be sought against the Company, the Adviser,
an
Underwriter (as applicable, the “indemnifying
party”)
pursuant to subsection (a)
or
(b),
respectively, of this Section 10,
such
indemnified party shall promptly notify such indemnifying party in writing
of
the institution of such Proceeding and such indemnifying party shall assume
the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have
to
any indemnified party or otherwise. The indemnified party or parties shall
have
the right to employ its or their own counsel in any such case, but the fees
and
expenses of such counsel shall be at the expense of such indemnified party
or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying party
(in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties),
in
any of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one separate counsel
(in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The indemnifying party shall not be liable
for
any settlement of any Proceeding effected without its written consent but,
if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss
or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this Section 10(c),
then
the indemnifying party agrees that it shall be liable for any settlement of
any
Proceeding effected without its written consent if (i) such
settlement is entered into more than sixty (60) business days after receipt
by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement, and
(iii) such
indemnified party shall have given the indemnifying party at least thirty (30)
days’ prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault or culpability or a failure to act by or on behalf of such indemnified
party.
-27-
FINAL
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(d) If
the
indemnification provided for in this Section 10
is
unavailable to an indemnified party under subsections (a)
and
(b)
of this
Section 10
or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in
such proportion as is appropriate to reflect the relative benefits received
by
the Company and the Adviser on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if
the allocation provided by clause (i)
above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i)
above
but also the relative fault of the Company and the Adviser on the one hand
and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, damages, expenses, liabilities or claims, as
well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Adviser on the one hand and the Underwriters on the
other
shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Adviser, and the total
underwriting discounts and commissions received by the Underwriters, bear to
the
aggregate public offering price of the Shares. The relative fault of the Company
and the Adviser on the one hand and of the Underwriters on the other shall
be
determined by reference to, among other things, whether the untrue statement
or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company and the Adviser or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any
Proceeding.
(e) The
Company, the Adviser and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 10
were
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
account of the equitable considerations referred to in subsection (d)
above.
Notwithstanding the provisions of this Section 10,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount
of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this
Section 10
are
several in proportion to their respective underwriting commitments and not
joint.
-28-
FINAL
DRAFT
(f) The
indemnity and contribution agreements contained in this
Section 10
and the
covenants, warranties and representations of the Company and the Adviser
contained in this Agreement shall remain in full force and effect regardless
of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any Control Person (including each partner, officer
or
director of such person) of an Underwriter or by or on behalf of the Company
or
the Adviser, its directors or officers or any Control Person of the Company
or
the Adviser, and shall survive any termination of this Agreement or the issuance
and delivery of the Shares. The Company, the Adviser and each Underwriter agree
promptly to notify each other of the commencement of any Proceeding against
it
and, in the case of the Company or the Adviser, against any of the Company’s or
the Adviser’s officers or directors in connection with the issuance and sale of
the Shares, or in connection with the Registration Statement, the Pre-Pricing
Prospectus or the Prospectus.
(g) Notwithstanding
any other provision of this Section 10,
no
party shall be entitled to indemnification or contribution under this Agreement,
in violation of Section 17(i) of the Investment Company Act.
11. Information
Furnished by the Underwriters.
The
statements set forth in the last paragraph on the cover page of the Prospectus
and the statements set forth in paragraphs [__________]
under
the caption “Underwriting” in the Prospectus constitute the only information
furnished by or on behalf of the Underwriters, as such information is referred
to in Sections 3(b)
and
10
hereof.
12. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities
LLC,
000 Xxxx Xxxxxx, Xxx Xxxx Xxx Xxxx 00000-0000, Attention: Syndicate Department
and, if to the Company, shall be sufficient in all respects if delivered or
sent
to the Company at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000; Attention: Xxxxxx Xxxxxxxxx; Facsimile: (000) 000-0000. With
a
copy to (which shall not constitute notice): Xxxxxxxxxx Xxxxx & Xxxxxxx LLP,
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000; Attention:
Xxxxxxx X. Xxxx, Esq.; Facsimile: (000) 000-0000.
13. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts formed and to be
formed entirely within the State of New York, without regard to the conflicts
of
laws principles and rules thereof, to the extent such principles would require
or permit the application of the laws of another jurisdiction. The section
headings in this Agreement have been inserted as a matter of convenience of
reference and are not a part of this Agreement.
-29-
FINAL
DRAFT
14. Submission
to Jurisdiction.
Except
as set forth below, no Claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication
of such matters, and the Company consents to the jurisdiction of such courts
and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out
of
or in any way relating to this Agreement is brought by any third party against
any Underwriter or any indemnified party. Each Underwriter and the Company
(on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
in
any way arising out of or relating to this Agreement. The Company agrees that
a
final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts to the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
15. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit of the
Underwriters and the Company and to the extent provided in
Section 10
hereof
the controlling persons, partners, directors and officers referred to in such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from
any
of the Underwriters) shall acquire or have any right under or by virtue of
this
Agreement.
16. No
Fiduciary Relationship.
The
Company and the Investment Adviser hereby acknowledge that the Underwriters
are
acting solely as underwriters in connection with the purchase and sale of the
Company’s securities. The Company and the Investment Adviser further acknowledge
that the Underwriters are acting pursuant to a contractual relationship created
solely by this Agreement entered into on an arm’s length basis, and in no event
do the parties intend that the Underwriters act or be responsible as a fiduciary
to the Company or the Investment Adviser, or their respective managements,
stockholders or creditors, or any other person in connection with any activity
that the Underwriters may undertake or have undertaken in furtherance of the
purchase and sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company and the Investment Adviser, either in connection
with
the transactions contemplated by this Agreement or any matters leading up to
such transactions, and the Company and the Investment Adviser hereby confirm
their respective understanding and agreement to that effect. The Company, the
Adviser and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that
any opinions or views expressed by the Underwriters to the Company regarding
such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute
advice or recommendations to the Company. The Company and the Adviser hereby
waives and releases, to the fullest extent permitted by law, any claims that
the
Company or the Adviser may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary duty to the Company or the Adviser
in
connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions.
-30-
FINAL
DRAFT
17. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
18. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters and the Company and their
successors and assigns and any successor or assign of any substantial portion
of
the Company’s and any of the Underwriters’ respective businesses and/or
assets.
19. Miscellaneous.
UBS
Securities LLC, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency
of
UBS AG. Because UBS Securities LLC is a separately incorporated entity, it
is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS Securities LLC are not deposits,
are not insured by the Federal Deposit Insurance Corporation, are not guaranteed
by a branch or agency, and are not otherwise an obligation or responsibility
of
a branch or agency.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-31-
FINAL
DRAFT
If
the
foregoing correctly sets forth the understanding among the Company and the
several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding
agreement among the Company and the Underwriters, severally.
| Very truly yours, | ||
| MEDIATECH INVESTMENT CORP. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| MEDIATECH INVESTMENT MANAGEMENT, LLC | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
FINAL
DRAFT
Accepted
and agreed to as of the date first above written, on behalf of itself and the
other several Underwriters named in Schedule
A.
| UBS SECURITIES LLC | ||
| By: UBS SECURITIES LLC | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
FINAL
DRAFT
SCHEDULE
A
|
Underwriter
|
Number
of
Firm Shares |
|
UBS
Securities LLC……………………………………………...
|
|
|
JMP
Securities, LLC……………………………………………...
|
|
|
Bank
of Montreal Capital Markets Corp. ………………………..
|
|
|
Xxxxxx
Xxxxx Xxxxx, Inc.
………………………………………….
|
|
|
Maxim
Group, LLC………………………………………………
|
|
|
Stanford
Group Company………………………………………...
|
|
|
Total…………………………………………………………..
|
FINAL
DRAFT
SCHEDULE
B
FINAL
DRAFT
EXHIBIT
A
X-0
XXXXX
XXXXX
XXXXXXX
X-0
OFFICERS’
CERTIFICATE
Xxxx
Xxxxxxxxxx, Chief Executive Officer and President and Xxxxxx Xxxxxxxxx, Chief
Financial Officer and Chief Compliance Officer of MediaTech Investment Corp.,
a
Maryland corporation (the “Company”), on behalf of the Company, pursuant to
Section 7(g)
of the
Underwriting Agreement, dated ___________, 20__ (the “Underwriting Agreement”)
among the Company, MediaTech Investment Management, LLC, and, on behalf of
the
several Underwriters named therein, UBS Securities LLC, each hereby certifies
solely in his capacity as an officer of the Company that, to the best of his
knowledge, after reasonable investigation:
|
1.
|
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
|
2.
|
The
Company has performed all of its obligations under the Underwriting
Agreement as are required to be performed at or before the date
hereof.
|
|
3.
|
The
conditions set forth in Section 7(f)
of
the Underwriting Agreement have been
met.
|
|
4.
|
Between
the time of execution of the Underwriting Agreement and the date
hereof,
no Pre-Pricing Prospectus, Prospectus or amendment or supplement
to the
Registration Statement or the Prospectus, including documents deemed
to be
incorporated by reference therein, were filed to which the Underwriters
objected in writing; and all requests for additional information
on the
part of the Commission have been complied with to the Underwriters’
satisfaction.
|
|
5.
|
Between
the time of execution of the Underwriting Agreement and the date
hereof,
no Material Adverse Effect has occurred which would make it impracticable
or inadvisable to proceed with the public offering or the delivery
of the
Shares on the terms and in the manner contemplated in the Registration
Statement, the Pre-Pricing Prospectus and the
Prospectus.
|
|
6.
|
The
financial statements and other financial information included in
the
Registration Statement, the Pre-Pricing Prospectus and the Prospectus
fairly present in all material respects the financial condition,
results
of operations, and cash flows of the Company as of, and for, the
periods
presented in the Registration Statement the Pre-Pricing Prospectus
and the
Prospectus.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
B-1-1
FINAL
DRAFT
IN
WITNESS WHEREOF,
the
undersigned have hereunto set their hands.
| Dated: __________, 2007 | |||
|
By:
|
|||
|
Name: Xxxx Xxxxxxxxxx |
|||
|
Title: Chief
Executive Officer and President
|
|
By:
|
|||
|
Name: Xxxxxx Xxxxxxxxx |
|||
|
Title: Chief
Financial Officer and Chief Compliance
Officer
|
X-0-0
XXXXX
XXXXX
XXXXXXX
X-0
OFFICERS’
CERTIFICATE
Xxxx
Xxxxxxxxxx, Managing Partner, and Xxxxxx Xxxxxxxxx, Chief Financial Officer
and
Chief Compliance Officer of MediaTech Investment Management, LLC, a Delaware
limited liability corporation (the “Adviser”), on behalf of the Adviser,
pursuant to Section 7(g)
of the
Underwriting Agreement, dated ___________, 20__ (the “Underwriting Agreement”)
among MediaTech Investment Corp., the Adviser and, on behalf of the several
Underwriters named therein, UBS Securities LLC, each hereby certifies solely
in
his capacity as an officer of the Adviser that, to the best of his knowledge,
after reasonable investigation:
|
1.
|
The
representations and warranties of the Adviser as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
|
2.
|
The
Adviser has performed all of its obligations under the Underwriting
Agreement as are required to be performed at or before the date
hereof.
|
|
3.
|
Between
the time of execution of the Underwriting Agreement and the date
hereof,
no Adviser Material Adverse Effect has occurred which would make
it
impracticable or inadvisable to proceed with the public offering
or the
delivery of the Shares on the terms and in the manner contemplated
in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
IN
WITNESS WHEREOF,
the
undersigned have hereunto set their hands.
| Dated: __________, 2007 | |||
|
By:
|
|||
|
Name: Xxxx Xxxxxxxxxx |
|||
|
Title: Chief
Executive Officer and President
|
|
By:
|
|||
|
Name: Xxxxxx Xxxxxxxxx |
|||
|
Title: Chief
Financial Officer and Chief Compliance
Officer
|
B-2-1
FINAL
DRAFT
EXHIBIT
C
Lock-Up
Agreement
___________
___, 2007
UBS
SECURITIES LLC
Together
with the other Underwriters
named
in
Schedule A to the Underwriting Agreement
referred
to herein
c/o
UBS
SECURITIES LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
This
Lock-Up Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting
Agreement”)
to be
entered into by MediaTech Investment Corp., a Maryland corporation (the
“Company”),
and
you, as representative of the several underwriters named in Schedule A to the
Underwriting Agreement, with respect to the public offering (the “Offering”)
of
common stock, par value $.01 per share, of the Company (the “Common
Stock”).
In
order
to induce you to enter into the Underwriting Agreement, the undersigned agrees
that, for a period (the “Lock-Up
Period”)
beginning on the date hereof and ending on, and including, the date that is
180
days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of UBS Securities LLC,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (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
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder with respect to, any Common Stock or
any
other securities of the Company that are substantially similar to Common Stock,
or any securities convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, (ii) enter into any swap
or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock or any other securities
of
the Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase Common Stock or any such securities, whether any such
transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (iii) publicly announce an intention to
effect any transaction specified in clause (i) or (ii). The foregoing sentence
shall not apply to (a) the registration of the offer and sale of Common Stock
as
contemplated by the Underwriting Agreement and the sale of the Common Stock
to
the Underwriters (as defined in the Underwriting Agreement) in the Offering,
(b)
bona fide gifts, provided the recipient thereof agrees in writing with the
Underwriters to be bound by the terms of this Lock-Up Agreement and confirm
that
he, she or it has been in compliance with the terms of this Agreement since
the
date hereof or (c) dispositions to any trust for the direct or indirect benefit
of the undersigned and/or the immediate family of the undersigned, provided
that
such trust agrees in writing with the Underwriters to be bound by the terms
of
this Lock-Up Agreement and confirms that it has been in compliance with the
terms of this Agreement since the date hereof. For
purposes of this paragraph, “immediate family” shall mean the undersigned and
the spouse, any lineal descendent, father, mother, brother or sister of the
undersigned.
C-1
FINAL
DRAFT
In
addition, the undersigned hereby waives any rights the undersigned may have
to
require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further agrees
that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities.
Notwithstanding
the above, if: (a) during the period that begins on the date that is
fifteen (15) calendar days plus three (3) business days before the last day
of
the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company
issues an earnings release or material news or a material event relating to
the
Company occurs; or (b) prior to the expiration of the Lock-Up Period, the
Company announces that it will release earnings results during the sixteen
(16)
day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed by this Lock-Up Agreement shall continue to apply until
the
expiration of the date that is fifteen (15) calendar days plus three (3)
business days after the date on which the issuance of the earnings release
or
the material news or material event occurs.
In
addition, the undersigned hereby waives any and all preemptive rights,
participation rights, resale rights, rights of first refusal and similar rights
that the undersigned may have in connection with the Offering or with any
issuance or sale by the Company of any equity or other securities before the
Offering, except for any such rights as have been heretofore duly
exercised.
The
undersigned hereby confirms that the undersigned has not, directly or
indirectly, taken, and hereby covenants that the undersigned will not, directly
or indirectly, take, any action designed, or which has constituted or will
constitute or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of shares of Common Stock.
*
*
*
C-2
FINAL
DRAFT
If
(i)
the Company notifies you in writing that it does not intend to proceed with
the
Offering, (ii) the registration statement filed with the Securities and Exchange
Commission with respect to the Offering is withdrawn, or (iii) for any reason
the Underwriting Agreement shall be terminated prior to the “time of purchase”
(as defined in the Underwriting Agreement), this Lock-Up Agreement shall be
terminated and the undersigned shall be released from its obligations
hereunder.
| Yours very truly, | |||
|
Name: |
|||
C-3
