6,666,667 Shares
Common Stock
($.01 Par Value Per Share)
UNDERWRITING AGREEMENT
_________ __, 2003
UNDERWRITING AGREEMENT
, 2003
UBS Securities LLC
Xxxxxxxxx & Company, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Xxxx Xxxxxxxx Inc.
JMP Securities LLC
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Technology Investment Capital Corp., a Maryland corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule A
annexed hereto (the "Underwriters"), for whom you are acting as representatives,
an aggregate of 6,666,667 shares (the "Firm Shares") of Common Stock, $.01 par
value per share (the "Common Stock"), of the Company. In addition, solely for
the purpose of covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to an additional
1,000,000 shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." 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 [5]% 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 net of the sales
concession to the Company's officers, directors and employees of BDC Partners,
LLC, a Delaware limited liability company ("BDC Partners") (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 NASD 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 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 designated to participate in the Directed
Share Program may decline to do so.
The Company has 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 Se-
curities and Exchange Commission (the "Commission") a registration statement on
Form N-2 (File No. 333-109055) including a prospectus, relating to the Shares. A
Form N-54A Notification of Election to be Subject to Sections 55 Through 65 of
the Investment Company Act of 1940 Filed Pursuant to Section 54(a) of the
Investment Company Act (File No. 814-00638) (the "Notification of Election") was
filed with the Commission on September 23, 2003 under the Investment Company Act
of 1940, as amended, and the rules and regulations thereunder (collectively, the
"Investment Company Act"). The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses
(each such preliminary prospectus, being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it became or becomes
effective, including all documents filed as a part thereof, and including any
information contained in a prospectus subsequently filed with the Commission
pursuant to Rule 497(h) under the Act and deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430(A) under the Act and
also including any registration statement filed pursuant to Rule 462(b) under
the Act, is herein called the "Registration Statement," and the prospectus, in
the form filed by the Company with the Commission pursuant to Rule 497(c) under
the Act or Rule 430A and Rule 497(h) 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 form of final prospectus
included in the Registration Statement at the time it became effective, is
herein called the "Prospectus." As used herein, "business day" shall mean a day
on which the New York Stock Exchange is open for trading.
The Company has entered into an amended and restated investment
advisory agreement, dated as of _______, 2003 (the "Investment Advisory
Agreement"), with Technology Investment Management, LLC (formerly known as BDC
Management Company, 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").
The Company has entered into an amended and restated administration
agreement, dated as of _______, 2003 (the "Administration Agreement"), with BDC
Partners.
The Company, the Adviser, the Adviser's managing member, BDC Partners 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 $15.00 per Share. The Company is
advised by you that the Underwriters intend (i) to make a public offering of
their respective portions of the Firm Shares as soon after the effective date of
the Registration Statement as in your judgment is advisable and (ii) initially
to offer the Firm Shares upon the terms set forth in the Prospectus. You may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as you may determine.
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In addition, the Company hereby grants to the Underwriters severally
the 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. This option may be exercised by UBS Securities LLC ("UBS") 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 option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the 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 you 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 you 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 _______________, 2003 (unless another time shall be agreed to by
you 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 you at the time of purchase in such names and in
such denominations as you shall specify.
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 you at the additional time of purchase in such names and in
such denominations as you 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 Sidley Xxxxxx
Xxxxx & Xxxx LLP, 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. The Company, the
Adviser and BDC Partners, jointly and severally, represent and warrant to and
agree with each of the Underwriters that:
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(a) the Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or suspending
the use of any Preliminary 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; each Preliminary Prospectus, at the
time of filing thereof, complied in all material respects to the
requirements of the Act and the Investment Company Act and the last
Preliminary Prospectus distributed in connection with the offering of
the Shares did not, as of its date, and does not as of the date hereof
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; the Registration Statement complied when it
became effective, complies and will comply, at the time of purchase and
any additional time of purchase, in all material respects with the
requirements of the Act and the Investment Company Act and the
Prospectus will comply, as of its date and at the time of purchase and
any additional times of purchase, in all material respects with the
requirements of the Act, the Investment Company Act and any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement have been and will be
so described or filed; the Company is eligible to use Form N-2; the
Registration Statement did not when it became effective, does not and
will not, at the time of purchase and any additional time of purchase,
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 the Prospectus will not, as of
its date and at the time of purchase and any additional time of
purchase, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement
contained in the last Preliminary Prospectus, the Registration
Statement or the Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use
in the last Preliminary Prospectus, the Registration Statement or the
Prospectus; and the Company has not distributed and will not distribute
any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the then most recent
Preliminary Prospectus and the Prospectus;
(b) the authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and the
Prospectus under the caption "Capitalization." All issued and
outstanding shares of common stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of common stock of the Company was
issued in violation of the preemptive or other similar rights of any
stockholder of the Company;
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(c) when the Notification of Election was filed with the
Commission, it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Investment Company Act and (ii) did not
include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading;
(d) 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 to conduct its business as described in the
Prospectus, to execute and deliver this Agreement and to issue, sell
and deliver the Shares as contemplated herein;
(e) 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, have a material adverse effect on the business, properties,
financial condition, results of operation or prospects of the Company
(a "Material Adverse Effect");
(f) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Prospectus and the certificates for the Shares are in due and
proper form and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(h) this Agreement, the Investment Advisory Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by the Company;
(i) 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 person acting
on such holder's behalf), the right to require the repurchase,
redemption or repayment of all or part of such indebtedness under) its
charter or by-laws or any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company
is a party or by which it or its properties may be bound or affected,
or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company, and the
execution, delivery and performance of this Agreement, the Investment
Advisory Agreement and the Administration Agreement and consummation of
the transactions contemplated hereby and thereby, will not conflict
with,
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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 or constitute a default under),
the charter or by-laws of the Company or any indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company is a party or by which it or its
properties may be bound or affected, or any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Company;
(j) 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 is required in connection
with the issuance and sale of the Shares or the consummation by the
Company of the transactions contemplated hereby, except such as have
been required by the Act and the Investment Company Act or under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or under the rules and
regulations of the NASD;
(k) except as set forth in 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 or other equity interests of 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, in
the case of each of the foregoing clauses (i), (ii) and (iii), whether
as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or
otherwise; except as described in the Prospectus, 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
or other equity interests of the Company, or to include any such shares
or interests in the Registration Statement or the offering contemplated
thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise;
(l) except as described in the Prospectus, the Company has all
necessary licenses, authorizations, consents and approvals
(collectively, "Consents") and has made all necessary filings required
under any federal, state, local or foreign law, regulation or rule and
has obtained all necessary Consents from other persons, in order to
conduct its business; the Company is not in violation of, or in default
under, nor has the Company received notice of any proceedings relating
to revocation or modification of any such Consent or any federal,
state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company, except where such revocation or
modification would not, individually or in the aggregate, have a
Material Adverse Effect;
-6-
(m) except as described in the Prospectus, there are no
actions, suits, claims, investigations or proceedings pending or, to
the knowledge of the Company, threatened 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, or before or by any federal, state, local
or foreign governmental or regulatory commission, board, body,
authority or agency, except any such action suit, claim, investigation
or proceeding which would not result in a judgment, decree or order
either (A) having, individually or in the aggregate, a Material Adverse
Effect or (B) preventing the consummation of the transactions
contemplated hereby;
(n) PricewaterhouseCoopers LLP, whose report on the
consolidated financial statements of the Company is filed with the
Commission as part of the Prospectus, are independent public
accountants with respect to the Company as required by the Act;
(o) subsequent to the respective dates as of which information
is given in the Prospectus, and except as may be otherwise stated in
the Registration Statement and the Prospectus there has not been any
material adverse change, or any development involving a prospective
material adverse change, in the business, properties, prospects,
regulatory environment, management, financial condition or results of
operations of the Company;
(p) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), in the form set
forth as Exhibit A hereto, of each of its directors and officers and
each stockholder named in Exhibit A-1 hereto;
(q) the Company owns or possesses, has the right to use or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by the Company, except where the
failure to have such ownership or possession would not, singly or in
the aggregate, have a Material Adverse Effect, and the Company has not
received any notice or is not otherwise aware of any infringement of or
conflict with asserted rights of others 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, singly or in the aggregate, would result in a
Material Adverse Effect;
(r) 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, or filed as an exhibit to,
the Registration Statement, and
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no such termination or non-renewal has been threatened by the Company
or, to the Company's knowledge after due inquiry, any other party to
any such contract or agreement;
(s) the Company has not, directly or indirectly, extended
credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate of
any director or executive officer of the Company;
(t) the Company has duly authorized, executed and delivered
the non-binding commitments relating to the loans as described in the
Registration Statement and the Prospectus under the caption "Business";
(u) neither the Company nor, to the Company's knowledge, any
employee or agent of the Company has made any payment of funds of the
Company or received or retained any funds in violation of any law, rule
or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus;
(v) neither the Company nor any of their respective 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, under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act"), the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares;
(w) [to the Company's knowledge after due inquiry, there are
no affiliations or associations between any member of the NASD and any
of the Company's officers, directors or 5% or greater securityholders,
except as set forth in the Prospectus];
(x) the terms of the Investment Advisory Agreement, including
compensation terms, comply in all material respects with all applicable
provisions of the Investment Company Act, the Advisers Act and the
applicable published rules and regulations thereunder;
(y) the approvals by the board of directors and the sole
stockholder of the Company of the Investment Advisory Agreement and the
amended and restated sub-advisory agreement between the Company, the
Adviser, BDC Partners and Hill Street Advisors LLC the ("Sub-Adviser")
dated as of [_________], 2003 (the "Sub-Advisory Agreement") have been
made in accordance with the requirements of Section 15 of the
Investment Company Act applicable to companies that have elected to be
business development companies under the Investment Company Act;
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(z) except as disclosed in the Registration Statement 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) no
director of the Company is an "interested person" (as defined in the
Investment Company Act) of the Company or an "affiliated person" (as
defined in the Investment Company Act) of any of the Underwriters;
(aa) the Company has duly elected to be treated by the
Commission under the Investment Company Act as a business development
company, such election is effective and all required action has been
taken by the Company under the Act and the Investment Company Act to
make the public offering and consummate the sale of the Shares as
provided in this Agreement; the provisions of the corporate charter and
by-laws of the Company and the investment objectives, policies and
restrictions described in the Prospectus, assuming they are implemented
as so described, will comply in all material respects with the
requirements of the Investment Company Act;
(bb) the operations of the Company are in compliance in all
material respects with the provisions of the Investment Company Act
applicable to business development companies and the rules and
regulations of the Commission thereunder;
(cc) the Company has not offered 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 respective 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 the case may be, as to matters covered thereby, to each
Underwriter.
4. Representations and Warranties of the Adviser and BDC Partners: The
Adviser and BDC Partners, jointly and severally, represent and warrant to the
Underwriters that:
(a) each of the Adviser and BDC Partners has been duly formed
and is validly existing as a Delaware limited liability company and in
good standing under the laws of the State of Delaware, with full power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to execute and deliver
this Agreement; the Adviser has full power and authority to execute and
deliver the Investment Advisory Agreement; and each of the Adviser and
BDC Partners is duly qualified to do business as a foreign entity and
is in good standing in each jurisdiction where the ownership or leasing
of its
-9-
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, have a Material Adverse Effect;
(b) the Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the Investment Company Act or the applicable published
rules and regulations thereunder from acting under the Investment
Advisory Agreement for the Company as contemplated by the Prospectus
(or any amendment or supplement thereto). 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;
(c) except as described in the Prospectus, there are no
actions, suits, claims, investigations or proceedings pending or
threatened or, to the knowledge of the Adviser and BDC Partners,
contemplated to which either the Adviser or BDC Partners or any of its
members and officers is or would be a party or of which any of its
properties is 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, except any such action
suit, claim, investigation or proceeding which would not result in a
judgment, decree or order either (A) having, individually or in the
aggregate, a Material Adverse Effect or (B) preventing the consummation
of the transactions contemplated hereby;
(d) neither the Adviser nor BDC Partners is 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) its limited liability company operating agreement
or any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Adviser or BDC
Partners is a party or by which it or its properties may be bound or
affected, or under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Adviser or
BDC Partners, and the execution, delivery and performance of this
Agreement (and with respect to the Adviser only, the Investment
Advisory Agreement and with respect to BDC Partners only, the
Administration Agreement) and consummation of the transactions
contemplated hereby and thereby, 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 or constitute a default under), the charter,
limited liability company operating agreement or by-laws of the Adviser
or BDC Partners or any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Adviser
or BDC Partners is a party or by which it or its properties may be
bound or affected,
-10-
or any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Adviser or BDC Partners;
(e) this Agreement has been duly authorized, executed and
delivered by the Adviser and BDC Partners, the Investment Advisory
Agreement has been duly authorized, executed and delivered by the
Adviser, and the Administration Agreement has been duly authorized,
executed and delivered by BDC Partners; the Investment Advisory
Agreement and the Administration Agreement constitute valid and legally
binding agreements of the Adviser and BDC Partners, respectively,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights to indemnification and contribution may be limited by
equitable principles of general applicability or by state or federal
securities laws or the policies underlying such laws;
(f) the description of the Adviser, BDC Partners and the
Sub-Adviser in the Prospectus, as amended or supplemented, complied and
comply in all material respects with the provisions of the Advisers Act
and the applicable published rules and regulations thereunder, and
prior to the time of purchase will not, contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(g) each of the Adviser and BDC Partners has the financial
resources available to it necessary for the performance of its services
and obligations as contemplated in the Prospectus and under this
Agreement and the Investment Advisory Agreement (and with respect to
BDC Partners only, the Administration Agreement);
(h) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except
as may be otherwise stated in the Prospectus, there has not been (A)
any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, prospects,
regulatory environment, management, financial condition or results of
operations of the Adviser or BDC Partners, (B) any transaction which is
material to the Adviser or BDC Partners or (C) any obligation, direct
or contingent (including any off-balance sheet obligations), incurred
by the Adviser or BDC Partners, which is material to the Adviser or BDC
Partners, respectively;
(i) except as described in the Prospectus, each of the Adviser
and BDC Partners has all Consents and has made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule and has obtained all necessary Consents from other persons, in
order to conduct its business, except where the failure to obtain such
Consents would not, individually or in the aggregate, have a material
adverse effect; neither the Adviser nor BDC Partners is in violation
of, or in default under, nor has the Adviser or BDC Partners received
notice
-11-
of any proceedings relating to revocation or modification of any such
Consent or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to the Adviser and BDC
Partners, except where such revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect; and
(j) neither the Adviser, BDC Partners nor any of their
respective members, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, under the Exchange
Act, to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale of the Shares.
(k) the Adviser is not aware that (i) any executive, key
employee or significant group of employees of the Company, if any, the
Adviser or BDC Partners, as applicable, plans to terminate employment
with the Company, the Adviser or BDC Partners 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;
5. Certain Covenants of the Company, the Adviser and BDC Partners. The
Company, the Adviser and BDC Partners, jointly and severally, agree that:
(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 you may reasonably designate and to maintain such
qualifications in effect for a period of nine months from the date
hereof for the distribution of the Shares; provided 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 or
subject itself to any tax (except service of process with respect to
the offering and sale of the Shares) where it is not now so qualified
or subject; and to promptly advise you of the receipt by the Company of
any notification with respect to (I) the suspension of the
qualification of the Shares for sale in any jurisdiction or (II) the
initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement 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 reasonably request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration
-12-
Statement and the Prospectus as may be necessary to permit compliance
with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective
amendment thereto to be declared effective before the Shares may be
sold, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible
and the Company will advise you as promptly as is reasonably
practicable and, if requested by you, will confirm such advice in
writing, (i) when the Registration Statement and any such
post-effective amendment thereto 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 under such Rule);
(d) to advise you as promptly as is reasonably practicable,
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 every reasonable effort to obtain
the lifting or removal of such order as soon as reasonably practicable;
to advise UBS Securities LLC as soon as reasonably practicable of any
intention to amend or supplement the Registration Statement or the
Prospectus and to provide you 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 you shall reasonably object in writing;
(e) subject to Section 5(d) hereof, to file as soon as
reasonably practicable all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; to
provide you with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act during such period a reasonable amount of
time prior to any proposed filing, and to promptly notify you of such
filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters as promptly as is reasonably
practicable of the happening of any event within the time during which
a prospectus relating to the Shares is required to be delivered under
the Act which 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
-13-
fact necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during
such time, subject to Section 5(d) hereof, to prepare and furnish, at
the Company's expense, to the Underwriters as promptly as is reasonably
practicable any such amendment or supplement 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 you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve 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 not later than March, 2005;
(i) to furnish each of you with copies of the Registration
Statement and Notification of Election, each as initially filed with
the Commission, and of all amendments thereto (including all exhibits
thereto);
(j) to furnish to you as promptly as is reasonably practicable
and, upon request, to each of the other Underwriters for a period of
one year from the date of this Agreement (i) copies of any reports,
proxy statements, or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company;
(k) to furnish to you 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 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 certified public accountants, as stated in their
letter to be furnished pursuant to Section 7(d) hereof;
(l) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(m) the Company, during a period of two years from the
effective date of the Company's election to be a business development
company, will use its best efforts to maintain its status as a business
development company; provided, however, the Company may change the
nature of its business so as to cease to be, or to withdraw its
election as, a business development company with the approval of the
board of directors and a vote of stockholders as required by Section 58
of the Investment Company Act or any successor provision;
-14-
(n) the Company will use its best efforts to qualify for and
elect to be treated as a regulated investment company under Subchapter
M of the Internal Revenue Code of 1986, as amended (the "Code"), and to
maintain such qualification and election in effect for each full fiscal
year during which it is a business development company under the
Investment Company Act; provided that, at the discretion of the
Company's board of directors, it may elect not to be so treated;
(o) the Company will comply in all material respects with all
applicable securities and other laws, rules and regulations, including
without limitation, the Xxxxxxxx-Xxxxx Act, and use its best efforts to
cause the officers and directors of the Company, in their capacities as
such, to comply with such laws, rules and regulations, including
without limitation, the provisions of the Xxxxxxxx-Xxxxx Act;
(p) the Company will maintain 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 and with the applicable requirements of the
Investment Company Act and the applicable published rules and
regulations thereunder (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 and to maintain compliance with the books and records
requirement under the Investment Company Act and the applicable
published rules and regulations thereunder and the Code; (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;
(q) the Company will establish and maintain disclosure
controls and procedures (as such term is defined in Rule 13a-14 and
15d-14 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; the Company's auditors and the Audit Committee of the
Board of Directors have been advised of: (i) any significant
deficiencies in the design or operation of internal controls which
could adversely affect the Company's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or
not material, that involves management or other employees who have a
role in the Company's internal controls; any material weaknesses in
internal controls have been identified for the Company's auditors; and
since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses;
-15-
(r) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof 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 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 as aforesaid
(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, (iv) any listing of the
Shares on any securities exchange or qualification of the Shares for
quotation on the Nasdaq National Market System ("Nasdaq NMS") and any
registration thereof under the Exchange Act, (v) any filing for review
of the public offering of the Shares by the NASD, including the legal
fees and filing fees and other disbursements of counsel to the
Underwriters, (vi) the fees and disbursements of any transfer agent or
registrar for the Shares, (vii) 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 (subject to
consent of the Company) 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, (viii) the offer and sale
of the Reserved Shares, including the reasonable costs and expenses of
UBS-FinSvc and the Underwriters, including the fees and disbursement of
counsel for the Underwriters, and (ix) the performance of the Company's
other obligations hereunder;
(s) not to 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, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to Common Stock for a period of 180 days after the date hereof (the
"Lock-Up Period"), without the prior written consent of UBS, except for
(i) the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement, (ii) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the
Registration Statement and the
-16-
Prospectus, and (iii) the issuance of employee stock options not
exercisable during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement and the Prospectus;
(t) to use its best efforts to cause the Common Stock to be
listed for quotation on the Nasdaq NMS;
(u) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock; and
(v) to use its reasonable best efforts to ensure that the
Directed Shares will be restricted from sale, transfer, assignment,
pledge or hypothecation for such period and to such extent as may be
required by the NASD and its rules; and to comply with all applicable
securities and other applicable 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(r) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel reasonably incurred in connection
with this Agreement on the Offering contemplated hereof.
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, the Adviser and BDC Partners on the
date hereof, at the time of purchase and, if applicable, at the additional time
of purchase, the performance by the Company, the Adviser and BDC Partners of
each of its obligations hereunder and to the following additional conditions
precedent:
(a) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of
Shearman & Sterling 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 reproduced copies for each of the
other Underwriters and in form and substance satisfactory to Sidley
Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, stating that:
(i) to such counsel's knowledge, none of the Shares
was issued in violation of any preemptive rights arising under
any agreement to which the Company is a party;
(ii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this
-17-
Agreement and the Investment Advisory Agreement, and the
issuance of the Shares will not (a) contravene any provision
of the laws of the State of New York or the federal laws of
the United States or, to such counsel's knowledge, any decree,
judgment or order applicable to the Company pursuant to any
New York State or U.S. federal statute by any court or
governmental agency or body having jurisdiction over the
Company, other than the securities or blue sky laws of the
various states, as to which we express no opinion, or (b)
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 or constitute a default under) any of the
agreements set forth on Schedule 1 to the Officer's
Certificate attached hereto as Annex A (except for such
conflicts, breaches, violations or defaults that would not
have a Material Adverse Effect);
(iii) to such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened to which the
Company is a party or to which the properties of the Company
are subject that are required under the Act to be described in
the Registration Statement and the Prospectus and that are not
so described, or which seek to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of
the Shares to be sold under this Agreement;
(iv) this Agreement and the Investment Advisory
Agreement have been duly executed and delivered by the Company
(to the extent that execution and delivery are matters
governed by New York law),
(v) the Investment Advisory Agreement contains the
provisions required by Section 205 of the Advisers Act,
Section 15 of the Investment Company Act [as if though such
sections apply to the Investment Advisory Agreement];
[(vi) (A) the Registration Statement, including the
Prospectus, the Notification of Election and each amendment or
supplement to the Registration Statement filed to date, the
Prospectus and the Notification of Election, as of their
respective effective or issue dates (other than the financial
statements and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion)
complied as to form in all material respects with the
requirements of the Act, the Investment Company Act and the
rules and regulations thereunder; and (B) the Company is
eligible to use Form N-2 and the conditions to use such form
have been satisfied;]
-18-
(vii) the form of certificate used to evidence the
Shares complies on its face in all material respects with all
applicable statutory requirements, with any applicable
requirements of the Nasdaq NMS;]
(viii) to such counsel's knowledge, no approval,
authorization, consent or license of any New York State or
U.S. federal governmental or regulatory commission, board,
body or authority or agency, is necessary or required for the
performance by the Company of its obligations under this
Agreement, except such as may be required by the Act, the
Investment Company Act, the rules of the NASD and the
securities or blue sky laws of the various states in which the
Shares are being offered, as to which we express no opinion;
(ix) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Registration Statement
and the Prospectus will not be, required to register as an
"investment company" as defined in the Investment Company Act;
(x) the statements in the Registration Statement and
the Prospectus under the captions "Certain Relationships,"
"Description of Capital Stock" and "Underwriting," in each
case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein,
fairly present in all material respects the information
summarized therein;
(xi) the statements in the Registration Statement and
the Prospectus under the caption "Material U.S. federal income
tax considerations" insofar as such statements constitute a
summary of the U.S. federal tax laws referred to therein, are
accurate and fairly summarize in all material respects the
U.S. federal tax laws referred to therein;
(xii) the Investment Advisory Agreement and the
Sub-Advisory Agreement have been approved by the Board of
Directors and initial shareholder of the Company in accordance
with the procedural requirements of Section 15 of the
Investment Company Act [as though such section were applicable
thereto];
(xiii) the Adviser has been duly formed and is
validly existing as a Delaware limited liability company and
in good standing under the laws of the State of Delaware, with
full power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to execute and de-
-19-
liver this Agreement; [the Adviser has full power and
authority to execute and deliver the Investment Advisory
Agreement; and the Adviser is duly qualified to do business as
a foreign limited liability company and is in good standing in
each other 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,
have a Material Adverse Effect;]
(xiv) the Adviser is duly registered with the
Commission as an investment adviser under the Advisers Act
and, to such counsel's knowledge, is not prohibited by the
Advisers Act, the Investment Company Act or the applicable
published rules and regulations thereunder from acting under
the Investment Advisory Agreement as investment adviser to the
Company, as contemplated by the Registration Statement and the
Prospectus; and, to such counsel's knowledge, there does not
exist any proceeding pending or threatened, which could
reasonably be expected to adversely affect the registration of
the Adviser with the Commission;
(xv) to such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened to which the
Adviser is a party or to which the properties of the Adviser
are subject that are required under the Act to be described in
the Registration Statement and the Prospectus and are not so
described, or which seek to restrain, enjoin, prevent the
consummation of the issuance or sale of the Shares to be sold
under this Agreement;
(xvi) to such counsel's knowledge, 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, its limited liability company operating agreement or
any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the
Adviser is a party or by which it or its properties may be
bound or affected, or under any New York State or U.S. federal
law, regulation or rule or any decree, judgment or order
applicable to the Adviser, except in each case for any such
breach, violation or default which would not have a Material
Adverse Effect, and the execution, delivery and performance of
this Agreement (and with respect to the Adviser only, the
Investment
-20-
Advisory Agreement) and consummation of the transactions
contemplated thereby, 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 or constitute a
default under), the limited liability company operating
agreement of the Adviser or any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other
agreement or instrument to which the Adviser is a party or by
which it or its properties may be bound or affected, or any
New York State or U.S. federal law, regulation or rule or any
decree, judgment or order applicable to the Adviser, except in
each case for any such conflict, breach or violation which
would not have a Material Adverse Effect;
(xvii) this Agreement has been duly executed and
delivered by the Adviser (to the extent that execution and
delivery are matters governed by the law of the State of New
York), and the Investment Advisory Agreement has been duly
executed and delivered by the Adviser (to the extent that
execution and delivery are matters governed by the law of the
State of New York);
(xviii) to such counsel's knowledge, no further
Consents, authorizations, approvals or filings are required
under any New York State or U.S. federal law, regulation or
rule in order to perform its obligations under the Investment
Advisory Agreement, other than an application to become
registered with the Commission as an investment adviser under
the Advisers Act prior to the Company electing to become a
business development company under the Investment Company Act;
(xix) the Company has filed the Notice of Election
with the Commission pursuant to Section 54(a) of the
Investment Company Act;][Move to comment, as with
effectiveness of Registration Statement above?]
[In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, on the basis of the foregoing nothing has come to
the attention of such counsel that causes them to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading,
-21-
or that the Prospectus or any supplement thereto at the date of such Prospectus
or such supplement, and at the time of purchase or the additional time of
purchase, as the case may be, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and other
financial data included in the Registration Statement or the Prospectus).]
(b) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxxxx
LLP, Maryland counsel for the Company, addressed to the Underwriters
and dated the date of the time of purchase or the date of the
additional time of purchase, as the case may be, and in form reasonably
satisfactory to Sidley Xxxxxx Xxxxx & Xxxx LLP, stating that:
(i) the Company is a corporation duly incorporated
and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the Maryland State
Department of Assessments and Taxation;
(ii) the Company has the corporate power to own,
lease and operate its property or assets and to conduct its
business in all material respects as described in the
Registration Statement and the Prospectus under the caption
"Business";
(iii) the Common Stock of the Company conforms as to
legal matters in all material respects to the description
thereof in the Registration Statement and the Prospectus under
the caption "Description of Our Capital Stock";
(iv) the sale and issuance of the Shares have been
duly authorized and, when issued and delivered in accordance
with the terms of this Agreement and the resolutions
authorizing their issuance, the Shares will be validly issued,
fully paid and nonassessable. The issuance of the Shares is
not subject to preemptive rights or other similar rights under
the Maryland General Corporation Law ("MGCL") or the charter
or the bylaws;
(v) the form of certificate representing shares of
the Common Stock complies with the applicable requirements of
the MGCL, the charter and the bylaws;
(vi) the Company has the corporate power to enter
into this Agreement and the Investment Advisory Agreement. The
execution and delivery of this Agreement and the Investment
Advisory Agreement have been duly authorized by all necessary
cor-
-22-
porate action of the Company. This Agreement and the
Investment Advisory Agreement have each been duly executed
and, so far as is known to such counsel, delivered by the
Company;
(vii) so far as is known to such counsel, the
execution and delivery of this Agreement and the Investment
Advisory Agreement and the consummation of the transactions
contemplated therein will not conflict with or constitute a
breach of the charter or bylaws or any Maryland law or
regulation, or any order or decree of any Maryland
governmental authority applicable to the Company (other than
any law, regulation, order or decree in connection with the
securities laws of the State of Maryland, as to which no
opinion is hereby expressed); and
(viii) the statements in the Registration Statement
and the Prospectus under the captions "Description of Our
Capital Stock" and "Risk Factors - Risks Relating to this
Offering - Provisions of the Maryland General Corporation Law
and of our charter and bylaws could deter takeover attempts
and have an adverse impact on the price of our common stock",
in each case insofar as such statements purport to summarize
certain provisions of Maryland law, the Charter or the bylaws,
are accurate in all material respects.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxxxx
Xxxx & Xxxxxxxxx, counsel for the Sub-Adviser, addressed to the
Underwriters and dated the date of the time of purchase or the date of
the additional time of purchase, as the case may be, and in form
reasonably satisfactory to Sidley Xxxxxx Xxxxx & Xxxx LLP, stating
that:
(i) the Sub-Adviser has been duly formed and is
validly existing as a Delaware limited liability company and
in good standing under the laws of the State of Delaware, with
full limited liability company power and authority to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus
and to execute and deliver the Sub-Advisory Agreement; and the
Sub-Adviser is duly qualified to do business as a foreign
limited liability company and is in good standing in each
other 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,
have a Material Adverse Effect;
-23-
(ii) the form of the Sub-Advisory Agreement between
the Adviser and the Sub-Adviser contains the provisions
required by Section 205 of the Advisers Act, Section 15 of the
Investment Company Act and the applicable rules thereunder;
(iii) the Sub-Adviser is duly registered with the
Commission as an investment adviser under the Advisers Act and
is not prohibited by the Advisers Act, the Investment Company
Act or the applicable published rules and regulations
thereunder from acting under the Sub-Advisory Agreement as
contemplated by the Registration Statement and the Prospectus.
To such counsel's knowledge, there does not exist any
proceeding, pending or threatened, which could reasonably be
expected to adversely affect the registration of the
Sub-Adviser with the Commission; and
(iv) to such counsel's knowledge, the Sub-Adviser has
all Consents and has made all necessary filings required under
any federal or New York law, regulation or rule, in order to
perform its obligations under the Sub-Advisory Agreement.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of
Xxxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, counsel for BDC Partners,
addressed to the Underwriters and dated the date of the time of
purchase or the date of the additional time of purchase, as the case
may be, and in form reasonably satisfactory to Sidley Xxxxxx Xxxxx &
Wood LLP, stating that:
(i) BDC Partners has been duly formed and is validly
existing as a Delaware limited liability company and in good
standing under the laws of the State of Delaware, with full
limited liability company power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and
to execute and deliver this Agreement and the Administration
Agreement; and BDC Partners is duly qualified to do business
as a foreign limited liability company and is in good standing
in each other 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,
have a Material Adverse Effect; and
(ii) BDC Partners has all Consents and has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule and has obtained all necessary
Consents from other persons, in order to conduct its business;
BDC Partners is not in violation of, or in default under, nor
has BDC Partners
-24-
received notice of any proceedings relating to revocation or
modification of any such Consent or any federal, state, local
or foreign law, regulation or rule or any decree, order or
judgment applicable to BDC Partners, except where such
revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect
(e) You shall have received from PricewaterhouseCoopers LLP
letters dated, respectively, the date of this Agreement, the time of
purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by UBS.
(f) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, dated
the time of purchase or the additional time of purchase, as the case
may be, as to the matters referred to in subparagraphs (iv), (v) and
(vii)(A) and the last subparagraph of Section 7(a).
(g) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus shall have been filed to which
you reasonably object in writing.
(h) The Registration Statement shall become effective not
later than 5:30 p.m. New York City time, on the date of this Agreement
and the Prospectus shall have been filed with the Commission pursuant
to Rule 497(c) or Rule 497(j) under the Act, and if Rule 430A under the
Act is used, under 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 and any registration statement pursuant to Rule 462(b)
under the Act required in connection with the offering and sale of the
Shares shall have been filed and become effective no later than 10:00
p.m., New York City time, on the date of this Agreement.
(i) 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) the Prospectus
and all amendments or supplements 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, in
the light of the circumstances under which they are made, not
misleading.
-25-
(j) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, no 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
shall occur or become known.
(k) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial
Officer in the form attached as Exhibit B hereto.
(l) You shall have received at the time of purchase and the
additional time of purchase, as the case may be, a certificate of the
Sub-Adviser, dated the time of purchase or the additional time of
purchase, as the case may be, and in form reasonably satisfactory to
counsel for the Underwriters, in the form as set forth in Exhibit C
hereto.
(m) You shall have received signed Lock-up Agreements referred
to in Section 3(p) hereof.
(n) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and, if applicable, the additional time of purchase,
as you may reasonably request.
(o) The Shares shall have been approved for quotation on the
Nasdaq NMS, subject only to notice of issuance at or prior to the time
of purchase or the additional time of purchase, as the case may be.
8. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, 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 or any group of Underwriters
(which may include UBS) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if (x) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the
Registration Statement 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 UBS' judgment or in the judgment of such group
of Underwriters, 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 and the Prospectus, or (y) since of
execution of this Agreement, there shall have occurred: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq NMS; (ii) a general
moratorium on commercial banking activities declared by ei-
-26-
ther federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iii) 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 (iv) 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 (iii) or (iv) in UBS'
judgment or in the judgment of such group of Underwriters 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 Registration Statement and
the Prospectus.
If UBS or any group of Underwriters 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 (other than due to a default in performance by the Underwriters)
for 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(s), 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 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 you 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 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 you with the
approval of the Company or selected by the Company with your approval).
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 provi-
-27-
sion, the Company or you 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.
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.
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 non-defaulting 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) (1) The Company agrees 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, and the corporate 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 or any such person may incur under the Act, the
Exchange Act, the Investment Company 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 in a
Prospectus (the term Prospectus for the purpose of this Section 10 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented 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 in
either such Registration Statement or such Prospectus or necessary to make the
statements made 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 such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading, (ii) any untrue
statement or alleged untrue statement made by the Company in Section 3 hereof or
the failure by the Company to perform when and as required any agreement or
covenant contained herein, or (iii) the Directed Share Program, provided that
neither the Company, the Adviser nor BDC Partners shall not be responsible under
this clause (iii) for any
-28-
loss, damage, expense, liability or claim that is finally judicially determined
to have resulted from the gross negligence or willful misconduct of the
Underwriters in conducting the Directed Share Program.
(2) The Adviser and BDC Partners, jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter and each other person
specified in subsection (a)(1) of this Section 10 from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) any such Underwriter or any such other person may incur as
specified in such subsection, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon (x) any of the matters specified in
clauses (i) through (iii) of subsection (a)(1) of this Section 10 or (y) any
untrue statement or alleged untrue statement made by the Adviser or BDC Partners
in Section 4 hereof.
(3) If any action, suit or proceeding (each, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company, the Adviser or BDC Partners pursuant to the
foregoing subsections (a)(1) and (a)(2), such Underwriter or such person shall
promptly notify the Company, the Adviser or BDC Partners, as applicable, in
writing of the institution of such Proceeding and the Company, the Adviser or
BDC Partners 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 the Company, the Adviser or BDC Partners shall not relieve the Company,
the Adviser or BDC Partners from any liability which the Company, the Adviser or
BDC Partners may have to any Underwriter or any such person or otherwise. Such
Underwriter or such person 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 Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company, the Adviser or BDC
Partners in connection with the defense of such Proceeding or neither the
Company, the Adviser or BDC Partners shall have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of 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 the
Company, the Adviser or BDC Partners (in which case neither the Company, the
Adviser nor BDC Partners shall have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which
events such reasonable fees and expenses shall be borne by the Company, the
Adviser or BDC Partners as applicable and paid as incurred (it being understood,
however, that neither the Company, the Adviser nor BDC Partners shall be liable
for the expenses of more than one separate counsel (in addition to any
reasonably necessary 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). Neither the Company, the Adviser nor BDC
Partners shall be liable for any settlement of any Proceeding effected without
its written consent, [which consent shall not be unreasonably withheld], but if
settled with the written consent of the Company, the Adviser or BDC Partners,
the Company, the Adviser or BDC Partners agrees to indemnify and hold harmless
any Underwriter and any such person 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 sen-
-29-
tence of this paragraph, 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 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 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, culpability or a
failure to act, by or on behalf of such indemnified party.
(4) The Company, the Adviser and BDC Partners, jointly and severally,
agree 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
subsection (a)(1) of this Section 10, or (b) any untrue statement or alleged
untrue statement of a material fact contained in any material prepared by or
with the consent of the Company, the Adviser or BDC Partners 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; (ii) 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 (iii) otherwise arises out of or is based upon the
Directed Share Program, provided that neither the Company, the Adviser nor BDC
Partners shall be responsible under this clause (iii) 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.
Subsection (a)(3) of this Section 10 shall apply equally to any Proceeding
brought against UBS-FinSvc or any such person in respect of which indemnity may
be sought against the Company, the Adviser or BDC Partners pursuant to the
foregoing sentence; except that the Company, the Adviser and BDC Partners shall
be liable for the expenses of one separate counsel (in addition to any
reasonably necessary local counsel) for UBS-FinSvc and any such person, separate
and in addition to counsel for the Underwriters, in any such Proceeding.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, the Adviser and BDC Partners, their members and officers,
and any person who controls the Company, the Adviser or BDC Partners 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, the Company, the Adviser or BDC
Partners or any such person may incur under the Act, the Exchange Act, the
Investment Company Act, the
-30-
common law or otherwise, insofar as 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 such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading.
If any Proceeding is brought against the Company, the Adviser or BDC
Partners or any such person in respect of which indemnity may be sought against
any Underwriter pursuant to the foregoing paragraph, the Company, the Adviser or
BDC Partners or such person shall promptly notify such Underwriter in writing of
the institution of such Proceeding and such Underwriter 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 Underwriter shall not relieve such
Underwriter from any liability which such Underwriter may have to the Company,
the Adviser or BDC Partners or any such person or otherwise. The Company, the
Adviser or BDC Partners or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company, the Adviser or BDC Partners or such person unless
the employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter 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 or additional to or in conflict
with those available to such Underwriter (in which case such Underwriter shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but such Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), in any of which events such fees
and expenses shall be borne by such Underwriter and paid as incurred (it being
understood, however, that such Underwriter 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). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter, [which consent shall not be
unreasonably withheld], but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the Company,
the Adviser or BDC Partners and any such person 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 paragraph, 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 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have 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
-31-
party at least 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.
(c) 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 (as specified in the subsection under which
indemnification was sought) 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, the Adviser and BDC Partners 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, the Adviser and BDC Partners 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, the Adviser and BDC Partners 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 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, the Adviser and BDC Partners 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, the Adviser and
BDC Partners 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.
(d) The Company, the Adviser and BDC Partners 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 (c) 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
-32-
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.
(e) The indemnity and contribution agreements contained in this
Section 10 and the covenants, warranties and representations of the Company
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 person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls the Company, the Adviser or
BDC Partners within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Company, the Adviser and BDC Partners
and each Underwriter agree promptly to notify each other of the commencement of
any Proceeding against it and, in the case of the Company, against any of the
Company's officers, the Adviser and BDC Partners or members or directors in
connection with the issuance and sale of the Shares, or in connection with the
Registration Statement or the Prospectus.
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 the [_____ and _____] 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 and 10 hereof.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by 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, Attention:
Syndicate Department, facsimile no. (000) 000-0000, with a copy to (for
informational purposes only): Attention: Legal Department, facsimile no. (212)
821-4042 and, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 0 Xxxxx Xxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Corporate Secretary,
facsimile no. (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. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
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
-33-
any third party against UBS or any indemnified party. Each of UBS and the
Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) waives 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 in 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 9 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. 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. Delivery of an executed counterpart by facsimile shall be as
effective as delivery of a manually executed counterpart.
17. 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.
18. Miscellaneous. UBS, 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 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 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.
-34-
If the foregoing correctly sets forth the understanding between the
Company, the Adviser and BDC Partners 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 between the Company,
the Adviser and BDC Partners and the Underwriters, severally.
Very truly yours,
Technology Investment Capital Corp.
By:
------------------------------------
Name:
Title:
Technology Investment Management, LLC
By: BDC Partners, LLC,
its Managing Member
By:
------------------------------------
Name:
Title:
BDC Partners, LLC
By:
------------------------------------
Name:
Title:
-35-
Accepted and agreed to as of the
date first above written, on
behalf of themselves
and the other several Underwriters
named in Schedule A
UBS SECURITIES LLC
XXXXXXXXX & COMPANY, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
RBC XXXX XXXXXXXX INC.
JMP SECURITIES LLC
By: UBS SECURITIES LLC By: XXXXXXXXX & COMPANY, INC.
By: By:
--------------------------- --------------------------
Name: Name:
Title: Title:
By:
---------------------------
Name:
Title:
By: XXXX XXXXX XXXX XXXXXX, INCORPORATED By: RBC XXXX XXXXXXXX INC.
By: By:
--------------------------- --------------------------
Name: Name:
Title: Title:
By: JMP SECURITIES LLC
By:
---------------------------
Name:
Title:
-36-
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS SECURITIES LLC
XXXXXXXXX & COMPANY, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
RBC XXXX XXXXXXXX INC.
JMP SECURITIES LLC
--------------
Total........................
==============
EXHIBIT A
Technology Investment Capital Corp.
Common Stock
($.01 Par Value Per Share)
[Date]
UBS Securities LLC
Xxxxxxxxx & Company, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
RBC Xxxx Xxxxxxxx Inc.
JMP Securities LLC
As Representatives of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection
with the proposed Underwriting Agreement (the "Underwriting Agreement") to be
entered into by Technology Investment Capital Corp. (the "Company") and you, as
Representative of the several Underwriters named therein, 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 of 180 days after the date of the final
prospectus relating to the Offering the undersigned will not, without the prior
written consent of UBS, (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 of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, (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 securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, whether any
such transaction is to be settled by delivery of Common Stock or such other
securities, in
A-1
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 or sale to the Underwriters of any Common Stock
pursuant to the Offering and the Underwriting Agreement, (b) bona fide gifts,
provided the recipient thereof agrees in writing with the Underwriters to be
bound by the terms of this Lock-Up Letter Agreement or (c) dispositions to any
trust for the direct or indirect benefit of the undersigned and/or the immediate
family of the undersigned or by action of law, provided that, in the case of
disposition to any trust, such trust agrees in writing with the Underwriters to
be bound by the terms of this Lock-Up Letter Agreement.
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 a period of 180 days after the date of the final prospectus
relating to the Offering, the undersigned will not, without the prior written
consent of UBS, make any demand for, or exercise any right with respect to, the
registration of Common Stock of the Company or any securities convertible into
or exercisable or exchangeable for Common Stock, or warrants or other rights to
purchase Common Stock.
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 Letter
Agreement shall be terminated and the undersigned shall be released from its
obligations hereunder.
Yours very truly,
------------------------------------------
Name:
X-0
XXXXXXX X-0
[TO COME]
A-1
EXHIBIT B
Officers' Certificate
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under this Agreement
as are to be performed at or before the time of purchase and at or
before the additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (f) and (g) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in
the Registration Statement 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.
B-1
EXHIBIT C
1. The Sub-Adviser has been duly formed and is validly existing as a
Delaware limited liability company and in good standing under the laws
of the State of Delaware, with full power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus and to execute and
deliver this Agreement; and the Sub-Adviser is duly qualified to do
business as a foreign entity and is in good standing in each other
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, have a Material Adverse Effect.
2. The form of the Sub-Advisory Agreement between the Adviser and the
Sub-Adviser contains the provisions required by Section 205 of the
Advisers Act, Section 15 of the Investment Company Act and the
applicable rules thereunder.
3. The Sub-Adviser is duly registered with the Commission as an investment
adviser under the Advisers Act and is not prohibited by the Advisers
Act, the Investment Company Act or the applicable published rules and
regulations thereunder from acting under the Sub-Advisory Agreement as
contemplated by the Prospectus. There does not exist any proceeding
pending or, to the Sub-Adviser's knowledge, threatened the existence of
which could reasonably be expected to adversely affect the registration
of the Sub-Adviser with the Commission.
4. The description of the Sub-Adviser in the Prospectus complies in all
material respects with the provisions of the Advisers Act and the
applicable published rules and regulations thereunder and does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
5. The Sub-Adviser has all Consents and has made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule and has obtained all necessary Consents from other persons, in
order to conduct its business; the Sub-Adviser is not in violation of,
or in default under, nor has the Sub-Adviser received notice of any
proceedings relating to revocation or modification of any such Consent
or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Adviser and BDC Partners,
except where such revocation or modification would not, individually or
in the aggregate, have a Material Adverse Effect.
C-1
