Shares Patriot Capital Funding, Inc. Common Stock FORM OF UNDERWRITING AGREEMENT
Exhibit (h)
Shares
Common Stock
FORM OF UNDERWRITING AGREEMENT
July __, 2005
X.X. Xxxxxxx & Sons, Inc.
As Representative of the several Underwriters
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
As Representative of the several Underwriters
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
Introductory. Patriot Capital Funding, Inc., (the “Company”) a Delaware corporation, proposes
to issue and sell to the several underwriters named in Schedule A (the “Underwriters”) an
aggregate of [ ] shares of its common stock, par value $0.01 per share (the “Shares”); and
the stockholders of the Company named in Schedule B (the “Selling Stockholders”) propose to
sell to the Underwriters an aggregate of [ ] Shares. The
[ ] Shares to be sold by the
Company and the [ ]
Shares to be sold by the Selling Stockholders are collectively called the
“Firm Shares.” In addition, the Company and the Selling Stockholders have granted to the
Underwriters an option to purchase up to an additional [ ]
Shares (the “Optional Shares”), as
provided in Section 2. The Firm Shares and, if and to the extent such option is exercised, the
Optional Shares are collectively called the “Offered Shares.” X.X. Xxxxxxx & Sons, Inc. (“X.X.
Xxxxxxx”) has agreed to act as representative of the several Underwriters (in such capacity, the
“Representative”) in connection with the offering and sale of the Offered Shares.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form N-2 (File No. 333-124831), which contains a form of
prospectus to be used in connection with the public offering and sale of the Offered Shares. A Form
N-6F Notice of Intent to Elect to be Subject to Sections 55 through 65 of the Investment Company
Act of 1940 (File No. 333-814-00707) (the “Notice of Intent”) was filed, pursuant to Section 6(f)
of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder
(collectively, the “Investment Company Act”) with the Commission on May 12, 2005. 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-___) (the
“Notification of Election”) was filed under the Investment Company Act with the Commission on July
___, 2005. The registration statement, as amended, including the financial statements, exhibits
and schedules thereto, in the form in which it was declared effective by the Commission under the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), including any information contained in a prospectus
subsequently filed with the Commission pursuant to Rule 497 under the Securities Act and deemed to
be a part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule
434 under the Securities Act, is called the “Registration Statement.” Any registration statement
filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b)
Registration Statement,” and from and after the date and time of filing of the
Rule 462(b) Registration Statement, the term “Registration Statement” shall include the Rule
462(b) Registration Statement. The prospectus, in the form first used by the Underwriters to
confirm sales of the Offered Shares, is called the “Prospectus”. The Company’s preliminary
prospectus subject to completion dated July 13, 2005 relating to the Offered Shares is hereinafter
referred to as the “Preliminary Prospectus”. All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus or the Prospectus, or
any amendments or supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system (“XXXXX”).
The Company and the Selling Stockholders hereby confirm their respective agreements with the
Underwriters as follows:
A. Representations and Warranties of the Company. The Company hereby represents, warrants and
covenants to each Underwriter as follows:
The Preliminary Prospectus and the Prospectus when filed with the Commission complied in all
material respects with the requirements of the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T under the Securities
Act), was identical to the copy thereof delivered to the Underwriters for use in connection with
the offer and sale of the Offered Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it became effective
and at all subsequent times, complied and will comply in all material respects with the
requirements of the Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus as amended or supplemented, as of its date
and at all subsequent times, did not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The representations and warranties
set forth in the two immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by the Representative expressly for use therein, it being understood and agreed that the
only such information furnished by the Representative to the Company consists of the information
described in Section 8(b) below. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration Statement which have not
been described or filed as required.
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(d) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company, enforceable against the Company
in accordance with its terms except as the enforcement hereof or thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles and except as rights to
indemnity hereunder may be limited by general equitable principles or federal or state securities
laws or public policy underlying such laws.
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1934, as amended, and the rules and regulations promulgated thereunder (collectively, the
“Exchange Act”); (ii) to the best of the Company’s knowledge, in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X; and
(iii) to the best of the Company’s knowledge, a registered public accounting firm as defined by the
Public Company Accounting Oversight Board (the “PCAOB”) whose registration has not been suspended
or revoked and who has not requested such registration to be withdrawn.
(m) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the column entitled “Actual”
under the caption “Capitalization”. The Shares (including the Offered Shares) conform in all
material respects to the description thereof contained in the Prospectus. All of the issued and
outstanding Shares will have been duly authorized and validly issued, are fully paid and
nonassessable and will have been issued in compliance with federal and state securities laws. None
of the outstanding Shares have been issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase securities of the Company arising
under the Delaware General Corporation Law (“DGCL”), the Company’s charter or bylaws or any
agreement to which the Company is party. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any capital stock of the
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Company other than those accurately described in the Prospectus. The description of the
Company’s stock option plan, and the options or other rights granted thereunder, set forth in the
Prospectus accurately and fairly presents the information required to be shown with respect to such
plan and options. The Company has no other stock plans or arrangements other than those described
in the Prospectus.
(q) No Material Actions or Proceedings. Except as otherwise disclosed in the Prospectus,
there are no legal or governmental actions, suits or proceedings pending or, to the best of the
Company’s knowledge, threatened: (i) against or affecting the Company; (ii) which has as the
subject thereof any officer or director of, or property owned or leased by, the Company; or (iii)
relating to environmental or discrimination matters against or affecting the Company, where in each
such case (A) there is a reasonable possibility that such action, suit or proceeding might be
determined adversely to the Company
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or such officer or director and (B) any such action, suit or proceeding, if so determined
adversely, would reasonably be expected to result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this Agreement. No material labor dispute
with the employees of the Company exists or, to the best of the Company’s knowledge, is threatened
or imminent.
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(kk) Merger. The merger transaction described in the Registration Statement under the heading
entitled “Reorganization, Business Development Company and Regulated Investment Company Elections”
is referred to herein as the “Merger”. The Company has complied with all requirements of
applicable law in connection with the Merger and the Merger has been duly consummated under the
laws
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of the DGCL and the Delaware Limited Liability Company Act. The Merger (i) did not result in
any violation of the provisions of the charter, by-laws or limited liability company agreement of
the Company or Wilton; (ii) except for the iStar Defaults, did not constitute a breach of, or
Company Default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to, any Company Instrument; (iii) did not
result in any violation of any federal or state law or, to the best of the Company’s knowledge, any
administrative regulation or administrative or court decree, applicable to the Company or Wilton;
or (iv) did not require any consents, approvals or authorizations to be obtained by the Company or
Wilton, or any registrations, declarations or filings to be made by the Company or Wilton, in each
case, under any federal or state statute, rule or regulation applicable to the Company or Wilton
that has not have been obtained or made.
The Company acknowledges that the Underwriters and, for purposes of the opinions to be
delivered pursuant to Section 5 hereof, counsel to the Company and counsel to the Underwriters,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents
to such reliance.
B. Representations and Warranties of the Selling Stockholders. The Selling Stockholders
jointly and severally represent, warrant and covenant to each Underwriter as follows:
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amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by the Representative expressly for use therein, it being understood and agreed
that the only such information furnished by the Representative to the Company consists of the
information described in Section 8(b) below. The Selling Stockholders have reviewed and are
familiar with the Registration Statement and the Prospectus and to the knowledge of the Selling
Stockholders, neither the Prospectus nor any amendments or supplements thereto includes any untrue
statement of a material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
(b) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholders and is a valid and binding agreement of the
Selling Stockholders, enforceable in accordance with its terms, except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general equitable principles and except
as rights to indemnity hereunder may be limited by general equitable principles or federal or state
securities laws or public policy underlying such laws.
(f) Delivery of the Offered Shares to be Sold. Delivery of the Offered Shares which are to be
sold by the Selling Stockholders pursuant to this Agreement will pass good and valid title to such
Offered Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or
other adverse claim.
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or conflict with, result in a breach of, or constitute a default under, or require the consent
of any other party to, the charter or by-laws, partnership agreement, or other organizational
documents of the applicable Selling Stockholder or any other agreement or instrument to which such
Selling Stockholder is a party or by which it is bound or under which it is entitled to any right
or benefit, any provision of applicable law or any judgment, order, decree or regulation applicable
to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over such Selling Stockholder, except for such contraventions,
conflicts, breaches, defaults or consents that have been duly waived or would not be reasonably
expected to adversely affect the consummation of the transactions contemplated by this Agreement or
the ability of the Selling Stockholders to perform their obligations hereunder. No consent,
approval, authorization or other order of, or registration or filing with, any court or other
governmental authority or agency, is required for the consummation by the Selling Stockholders of
the transactions contemplated in this Agreement, except such as have been obtained or made and are
in full force and effect under the Securities Act, applicable state securities or blue sky laws and
from the NASD.
(h) No Registration, Pre-emptive, Co-Sale or Other Similar Rights. No Selling Stockholder (i)
has any registration or other similar rights to have any equity or debt securities registered for
sale by the Company under the Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as are described in the Prospectus under “Shares Eligible
for Future Sale,” (ii) has any preemptive right, co-sale right or right of first refusal or other
similar right to purchase any of the Offered Shares that are to be sold by the Company to the
Underwriters pursuant to this Agreement, except for such rights the Selling Stockholders have
waived prior to the date hereof and as have been described in the Registration Statement and
Prospectus, and (iii) owns any warrants, options or similar rights to acquire, or has any right or
arrangement to acquire, any capital stock, right, warrants, options or other securities from the
Company, other than those described in the Registration Statement and the Prospectus.
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Each Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion
to be delivered pursuant to Section 5 hereof, counsel to the Selling Stockholders, counsel to the
Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the
foregoing representations and hereby consents to such reliance.
(a) The Firm Shares. Upon the terms herein set forth, (i) the Company agrees to issue and
sell to the several Underwriters an aggregate of 7,333,334 Firm Shares and (ii) each Selling
Stockholder agrees to sell to the several Underwriters that number of Firm Shares set forth in
Schedule B opposite the name of such Selling Stockholder. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to the conditions herein
set forth, the Underwriters agree, severally and not jointly, to purchase from the Company and the
Selling Stockholders the respective number of Firm Shares set forth opposite their names on
Schedule A. The purchase price per Firm Share to be paid by the several Underwriters to
the Company and the Selling Stockholders shall be
$[ ] per share; provided that, the aggregate amount paid to the each of the Company and the Selling
Stockholders shall be reduced by the amount of the advisory fees set forth in Section 2(h) (in the
case of the Company) and Section 2(i) (in the case of the Selling Stockholders), which amounts
shall be paid to X.X. Xxxxxxx.
(b) The First Closing Date. Delivery of certificates for the Firm Shares to be purchased by
the Underwriters and payment therefor shall be made at the offices of Sidley Xxxxxx Xxxxx & Xxxx
llp, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to
by the Company and the Representative) at 9:00 a.m. New York time, on [___],1or such
other time and date not later than 1:30 p.m. New York time, on [___]2as the
Representative shall designate by notice to the Company (the time and date of such closing are
called the “First Closing Date”). The Company and the Selling Stockholders hereby acknowledge that
circumstances under which the Representative may provide notice to postpone the First Closing Date
as originally scheduled include, but are in no way limited to, any determination by the Company,
the Selling Stockholders or the Representative to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of Section 10.
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in Section 2(a) above. The option granted hereunder is for use by the Underwriters solely in
covering any over-allotments in connection with the sale and distribution of the Firm Shares. The
option granted hereunder may be exercised at any time and from time to time in whole or in part
upon notice by the Representative to the Company and the Selling Stockholders, which notice may be
given at any time within thirty (30) days from the date of this Agreement. Such notice shall set
forth: (i) the aggregate number of Optional Shares as to which the Underwriters are exercising the
option; (ii) the names and denominations in which the certificates for the Optional Shares are to
be registered; and (iii) the time, date and place at which such certificates will be delivered
(which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in
such case the term “First Closing Date” shall refer to the time and date of delivery of
certificates for the Firm Shares and such Optional Shares). Such time and date of delivery, if
subsequent to the First Closing Date, is called an “Option Closing Date” and shall be determined by
the Representative and shall not be earlier than three (3) nor later than five (5) full business
days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of Optional Shares (subject
to such adjustments to eliminate fractional shares as the Representative may determine) that bears
the same proportion to the total number of Optional Shares to be purchased as the number of Firm
Shares set forth on Schedule A opposite the name of such Underwriter bears to the total
number of Firm Shares. The Representative may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to the Company and the Selling
Stockholders. If less than all of the Optional Shares are to be sold, Optional Shares will be sold
to the Underwriters by the Company and the Selling Stockholders on a pro rata basis between the
Company, on the one hand, and the Selling Stockholders, on the other hand, in proportion to the
aggregate number of Optional Shares to be sold by the Company, on the one hand, and the Selling
Stockholders, on the other hand, as set forth in this Section 2(c).
It is understood that the Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Optional Shares the Underwriters have agreed to
purchase. X.X. Xxxxxxx, individually and not as the Representative of the Underwriters, may (but
shall not be obligated to) make payment for any Offered Shares to be purchased by any Underwriter
whose funds shall not have been received by the Representative by the First Closing Date or the
applicable Option Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
Each Selling Stockholder hereby agrees that (i) it will pay all stock transfer taxes, stamp
duties and other similar taxes, if any, payable upon the sale or delivery of the Offered Shares to
be sold by such Selling Stockholder to the several Underwriters, or otherwise in connection with
the performance of such Selling Stockholder’s obligations hereunder and (ii) the Custodian is
authorized to deduct for such payment any such amounts from the proceeds to each Selling
Stockholder hereunder and to hold such amounts for the account of such Selling Stockholder with the
Custodian under the Custody Agreement.
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(f) Delivery of the Offered Shares. The Company and the Selling Stockholders shall deliver,
or cause to be delivered, to the Representative for the accounts of the several Underwriters,
certificates for the Firm Shares to be sold by them at the First Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The Company and the Selling Stockholders shall also deliver, or cause to
be delivered, to the Representative for the accounts of the several Underwriters, certificates for
the Optional Shares the Underwriters have agreed to purchase from them at the First Closing Date or
the applicable Option Closing Date, as the case may be, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price therefor. The
certificates for the Offered Shares shall be in definitive form and registered in such names and
denominations as the Representative shall have requested at least two (2) full business days prior
to the First Closing Date (or the applicable Option Closing Date, as the case may be) and shall be
made available for inspection on the business day preceding the First Closing Date (or the
applicable Option Closing Date, as the case may be) at a location in New York City as the
Representative may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Underwriters.
(i) Advisory Fee Payable by the Selling Stockholder. The Selling Stockholders shall pay to
X.X. Xxxxxxx a financial advisory fee of 0.5% of the gross proceeds (before underwriting discounts
or commissions) to the Selling Stockholders from the sale of the Offered Shares at the First
Closing and, if applicable, each Option Closing Date. This fee shall be payable on the applicable
Closing Date by wire transfer of immediately available funds to an account designated by X.X.
Xxxxxxx.
A. Covenants of the Company. The Company further covenants and agrees with each Underwriter
as follows:
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any filing of any post-effective amendment to the Registration Statement or any amendment or
supplement to the Preliminary Prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes effective, and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Offered
Shares for offering and sale in any jurisdiction. If the Commission shall enter any such stop
order at any time, the Company will use its best efforts to obtain the lifting of such order at the
earliest possible moment. Additionally, the Company agrees that it shall comply with the
provisions of Rules 430A and 497, as applicable, under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under Rule 497(c) of the
Securities Act were received in a timely manner by the Commission.
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The foregoing restrictions in the immediately preceding paragraph shall not apply to (A) the
issuance by the Company of its Shares pursuant to the dividend reinvestment plan or (B) any options
granted pursuant to the existing stock option plan of the Company referred to in the Prospectus.
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facilitate the sale or resale of the Offered Shares or otherwise, and the Company will, and
shall cause each of their respective affiliates to, comply with all applicable provisions of
Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with
respect to the Offered Shares or any other reference security pursuant to any exception set forth
in Section (d) of Rule 102, then promptly upon notice from the Representative (or, if later, at the
time stated in the notice), the Company will, and shall cause each of its respective affiliates to,
comply with Rule 102 as though such exception were not available but the other provisions of Rule
102 (as interpreted by the Commission) did apply.
B. Covenants of the Selling Stockholders. The Selling Stockholders further covenant and agree
with each Underwriter:
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Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-up Period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs, or (2) prior to the expiration of the Lock-up Period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the Lock-up Period, the restrictions imposed by this
Section (3)(B)(a) shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event, as
applicable, unless X.X. Xxxxxxx waives, in writing, such extension.
C. Waiver by X.X. Xxxxxxx. X.X. Xxxxxxx, on behalf of the several Underwriters, may, in its
sole discretion, waive in writing the performance by the Company or the Selling Stockholders of any
one or more of the foregoing covenants or extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation: (i) all expenses incident to the
issuance and delivery of the Offered Shares (including all printing and engraving costs); (ii) all
fees and expenses of the registrar and transfer agent of the Shares; (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the Offered Shares to
the Underwriters; (iv) all fees and expenses of the Company’s counsel, independent public or
certified public accountants and other advisors; (v) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and certificates of experts), the
Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this
Agreement; (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Offered Shares for offer and sale under
the state securities or blue sky laws or the provincial securities laws of Canada, and, if
requested by the Representative, preparing and printing a “Blue Sky Survey” or memorandum, and any
supplements thereto, advising the Underwriters of such qualifications, registrations,
determinations and exemptions; (vii) the filing fees incident to, and the reasonable fees and
expenses of counsel for the Underwriters in connection with, the NASD’s review and approval of the
Underwriters’ participation in the offering and distribution of the Offered Shares; (viii) the
fees and expenses associated with including the Offered Shares on the Nasdaq National Market; and
(ix) all other fees, costs and expenses referred to in Item 27 of Part C of the Registration
Statement. For the avoidance of doubt, the Company and the Underwriters agree that each party
shall be responsible for its own expenses in connection with the road show. Except
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as provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the Underwriters
shall pay their own expenses, including the fees and disbursements of their counsel.
The Selling Stockholders further agree, jointly and severally, with each Underwriter to pay
(directly or by reimbursement) all fees and expenses incident to the performance of their
obligations under this Agreement and the consummation of the transactions contemplated thereby,
including but not limited to (i) fees and expenses of counsel and other advisors for the Selling
Stockholders, (ii) fees and expenses of the Custodian and (iii) expenses and taxes incident to the
sale and delivery of the Offered Shares to be sold by the Selling Stockholders to the Underwriters
hereunder (which taxes, if any, may be deducted by the Custodian under the provisions of Section 2
of this Agreement).
This Section 4 shall not affect or modify any separate, valid agreement relating to the
allocation of payment of expenses between the Company, on the one hand, and the Selling
Stockholders, on the other hand.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Shares as provided herein on the First Closing
Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company and the Selling
Stockholders set forth in Sections 1(A) and 1(B) hereof as of the date hereof and as of the First
Closing Date as though then made and, with respect to the Optional Shares, as of each Option
Closing Date as though then made, to the timely performance by the Company and the Selling
Stockholders of their respective covenants and other obligations hereunder, and to each of the
following additional conditions:
(i) the Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner and within the
time period required by Rule 497 under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the information required
by such Rule 430A, and such post-effective amendment shall have become effective;
(ii) no stop order suspending the effectiveness of the Registration Statement, any Rule
462(b) Registration Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such purpose shall have been instituted
or, to the best of the Company’s knowledge, threatened by the Commission;
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(iii) the NASD shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements; and
(iv) no Prospectus, amendment to the Registration Statement or amendment or supplement
to the Prospectus shall have been filed to which X.X. Xxxxxxx has reasonably objected in
writing.
(i) they have reviewed the Registration Statement and Prospectus;
(ii) the Financial Statements and other financial information included in the
Registration Statement and Prospectus fairly present in all material respects the combined
financial conditions, results of operations and cash flows of the Company and Wilton as of,
and for the periods presented in the Registration Statement;
(iii) for the period from and after the date of this Agreement and prior to such
Closing Date, there has not occurred any Material Adverse Change;
(iv) the representations, warranties and covenants of the Company set forth in Section
1(A) of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(v) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
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(i) the representations, warranties and covenants of the Selling Stockholders set forth
in Section 1(B) of this Agreement are true and correct with the same force and effect as
though expressly made by the Selling Stockholders on and as of such Closing Date; and
(ii) the Selling Stockholders have complied with all the agreements and satisfied all
the conditions on their part to be performed or satisfied at or prior to such Closing Date.
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(i)
all material documents relating to the proposed securitization facility described in the Prospectus (the “Securitization
Facility”) have been executed;
(ii) upon the consummation of this offering (which will be satisfied on the First
Closing Date), all conditions precedent to the closing of the Securitization Facility will
have been met and the Securitization Facility will be in full force and effect; and
(iii)
funds in an amount not less than $[ ] shall be available for draw under the
Securitization Facility on the First Closing Date.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representative by notice to the Company and the
Selling Stockholders at any time on or prior to the First Closing Date and, with respect to the
Optional Shares, at any time prior to the applicable Option Closing Date, which termination shall
be without liability on the part of any party to any other party, except that Section 4, Section 6,
Section 8 and Section 9 shall at all times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the
Representative pursuant to Section 5, Section 7 or Section 11, or if the sale to the
Underwriters of the Offered Shares on the First Closing Date is not consummated because of any
refusal, inability or failure on the part of the Company or any of the Selling Stockholders to
perform any agreement herein or to comply with any provision hereof, the Company agrees to
reimburse the Representative and the other Underwriters (or such Underwriters as have terminated
this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representative and the Underwriters in connection
with the proposed purchase and the offering and sale of the Offered Shares, including but not
limited to fees and disbursements of counsel, printing expenses, travel expenses, postage,
facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become effective until
the later of: (i) the execution of this Agreement by the parties hereto; and (ii) notification by
the Commission to the Company and the Representative of the effectiveness of the Registration
Statement under the Securities Act. Prior to such effectiveness, this Agreement may be terminated
by any party by notice to each of the other parties hereto, and any such termination shall be
without liability on the part of: (a) the Company or any of the Selling Stockholders to any
Underwriter, except that the Company and the Selling Stockholders shall be obligated to reimburse
the expenses of the Representative and the Underwriters pursuant to Sections 4 and 6 hereof; (b)
any Underwriter to the Company or any of the Selling Stockholders; or (c) any party hereto to any
other party except that the provisions of Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
22
may become subject, under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation (including in settlement of any litigation), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises
out of or is based: (i) upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereto, including any information deemed
to be a part thereof pursuant to Rule 430A or Rule 497 under the Securities Act, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; (iii) any untrue statement or alleged untrue statement made by the
Company in Section 1 hereof; or (iv) any act or failure to act or any alleged act or failure to act
by any Underwriter in connection with, or relating in any manner to, the Offered Shares or the
offering contemplated hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon any matter covered by clause (i) or (ii)
above, provided, however, that the Company shall not be liable under this clause (iv) to the extent
that a court of competent jurisdiction shall have determined by a final judgment that such loss,
claim, damage, liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its bad faith or willful misconduct;
and to reimburse each Underwriter and each such controlling person for any and all expenses
(including, subject to the provisions of Section 8(d), the fees and disbursements of counsel
chosen by X. X. Xxxxxxx) as such expenses are reasonably incurred by such
Underwriter or such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
further, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Representative expressly for
use in the Registration Statement, the Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto), it being understood and agreed that the only such information furnished by
the Representative on behalf of the Underwriters to the Company consists of the information
described in subsection (c) below. The indemnity agreement set forth in this Section 8(a) shall be
in addition to any liabilities that the Company may otherwise have.
23
apply to any loss, claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written information furnished to the
Company by the Representative expressly for use in the Registration Statement, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and
agreed that the only such information furnished by the Representative on behalf of the Underwriters
to the Company consists of the information described in subsection (b) below. The liability of the
Selling Stockholders pursuant to this Section 8(b) shall be limited to an amount equal to the
initial public offering price of the Offered Shares sold by the Selling Stockholders (as a group),
less the underwriting discount, as set forth on the front cover page of the Prospectus; provided
that there shall be no such limit on the liability of the Selling Stockholders pursuant to this
Section 8(b) for any loss, claim, damage, liability or expense related to the Selling Stockholders’
representations and warranties in Section 1(B) hereof. The indemnity agreement set forth in this
Section 8(c) shall be in addition to any liabilities that the Selling Stockholders may otherwise
have.
24
party, the indemnifying party will be entitled to participate in, and, to the extent that it
shall elect, jointly with all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local counsel), approved by the
indemnifying party, representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(f) Notwithstanding any other provision of this Section 8, no party shall be entitled to
indemnification under this Agreement in violation of Section 17(i) of the Investment Company Act.
Section 9. Contribution. If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein: (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand,
from the offering of the Offered Shares pursuant to this Agreement; or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
25
such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling Stockholders, on the
one hand, and the Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Offered Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Offered Shares pursuant
to this Agreement (before deducting expenses) received by the Company and the Selling Stockholders,
and the total underwriting discount received by the Underwriters, in each case as set forth on the
front cover page of the Prospectus bear to the aggregate initial public offering price of the
Offered Shares as set forth on such cover. The relative fault of the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information supplied by
the Company and the Selling Stockholders, on the one hand, or the Representative, on the other
hand, 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, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(d), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 8(d) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 9; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8(d) for purposes of
indemnification.
The Company, the Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 which does not take account of the equitable considerations referred to in this Section
9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Offered Shares underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective underwriting commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each officer and employee of
an Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of the Securities Act
or the Exchange Act shall have the same rights to contribution as the Company.
Notwithstanding any other provision of this Section 9, no party shall be entitled to
contribution under this Agreement in violation of Section 17(i) of the Investment Company Act.
Section 10. Default of One or More of the Several Underwriters. If, on the First Closing Date
or the applicable Option Closing Date, as the case may be, any one or more of the several
Underwriters shall fail or refuse to purchase Offered Shares that it or they are obligated to
purchase hereunder on such
26
date, and the aggregate number of Offered Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate number
of the Offered Shares to be purchased on such date, the Representative may make arrangements
satisfactory to the Company for the purchase of such Offered Shares by other persons, including any
of the Underwriters, but if no such arrangements are made by such Closing Date, the other
Underwriters shall be obligated, severally, in the proportions that the number of Firm Shares set
forth opposite their respective names on Schedule A bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representative with the consent of the non-defaulting
Underwriters, to purchase the Offered Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If, on the First Closing Date or the
applicable Option Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Offered Shares and the aggregate number of Offered Shares with respect to
which such default occurs exceeds 10% of the aggregate number of Offered Shares to be purchased on
such date, and arrangements satisfactory to the Representative and the Company for the purchase of
such Offered Shares are not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of Section 4, Section
8 and Section 9 shall at all times be effective and shall survive such termination. In any such
case either the Representative or the Company shall have the right to postpone the First Closing
Date or the applicable Option Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Registration Statement and the
Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the First Closing Date, this Agreement
may be terminated by the Representative by notice given to the Company and the Selling Stockholders
if at any time: (i) trading or quotation in any of the Company’s securities shall have been
suspended or limited by the Commission or by the Nasdaq National Market, or trading in securities
generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally established on any of
such stock exchanges by the Commission or the NASD; (ii) a general banking moratorium shall have
been declared by any of federal, New York or Missouri authorities; (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any crisis or calamity, or
any change in the United States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of the Representative is material
and adverse and makes it impracticable to market the Offered Shares in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities; (iv) in the
judgment of the Representative there shall have occurred any Material Adverse Change; or (v) the
Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other calamity
of such character as in the judgment of the Representative may interfere materially with the
conduct of the business and operations of the Company regardless of whether or not such loss shall
have been insured. Any termination pursuant to this Section 11 shall be without liability on the
part of: (a) the Company or any of the Selling Stockholders to any Underwriter, except that the
Company and the Selling Stockholders shall be obligated to reimburse the expenses of the
Representative and the Underwriters pursuant to Sections 4 and 6 hereof; (b) any Underwriter to the
Company or any of the Selling Stockholders; or (c) of any party hereto to any other party except
that the provisions of Section 8 and Section 9 shall at all times be effective and shall survive
such termination.
27
Section 12. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers, of the
Selling Stockholders or its officers and the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners, officers or directors or
any controlling person, or the Selling Stockholders, as the case may be, and will survive delivery
of and payment for the Offered Shares sold hereunder and any termination of this Agreement.
28
Section 13. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
If to the Representative:
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: [ ]
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: [ ]
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx llp
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
If to the Company:
Patriot Capital Funding, Inc.
00 Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
00 Xxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
with a copy to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
If to the Selling Stockholders:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: [___]
Attention: [___]
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: [___]
Attention: [___]
with a copy to:
Xxxxxxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx
29
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 14. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of the employees, officers and directors and controlling persons referred to in Section 8
and Section 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term “successors” shall not include any purchaser of the
Offered Shares as such from any of the Underwriters merely by reason of such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 16. Governing Law Provisions. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made and to be performed
in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal
courts of the United States of America located in the Borough of Manhattan in the City of New York
or the courts of the State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a
judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such suit, action or other proceeding brought in any such court has been
brought in an inconvenient forum. Each party not located in the United States irrevocably appoints
CT Corporation System, which currently maintains a New York City office at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as its agent to receive service of process or other
legal summons for purposes of any such suit, action or proceeding that may be instituted in any
state or federal court in the Borough of Manhattan in the City of New York.
With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent
permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, service of process, attachment (both before and after judgment) and execution to
which it might otherwise be entitled in the Specified Courts, and with respect to any Related
Judgment, each party waives any such immunity in the Specified Courts or any other court of
competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or
in respect of any such Related Proceeding or Related Judgment, including, without limitation, any
immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
30
Section 17. No Fiduciary Relationship. Each of the Company and each of the Selling
Stockholder acknowledges and agree that the relationship between itself and each of the
Underwriters is an arm’s-length commercial relationship that creates no fiduciary duty on the part
of any Underwriter and each party expressly disclaims any fiduciary relationship.
Section 18.
General Provisions. This Agreement constitutes the
entire agreement of the parties to this Agreement and supersede all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived in writing by each
party whom the condition is meant to benefit. The Section headings herein are for the convenience
of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Preliminary
Prospectus and the Prospectus (and any amendments and supplements thereto), as required by the
Securities Act, Investment Company Act and the Exchange Act.
31
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company and the Attorney-in-Fact for the Selling Stockholders the enclosed copies
hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding
agreement among the Underwriters, the Company and the Selling Stockholders in accordance with its
terms.
| Very truly yours, | ||||
| PATRIOT CAPITAL FUNDING, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| WILTON FUNDING HOLDINGS, LLC | ||||
| By: | ||||
| Name: | ||||
| Title: Attorney-in-Fact | ||||
| PATRIOT PARTNERS, L.P. | ||||
| By: | ||||
| Name: | ||||
| Title: Attorney-in-Fact | ||||
32
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representative in
New York, New York as of the date first above written.
X.X. XXXXXXX & SONS, INC.
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
By:
|
X.X. XXXXXXX & SONS, INC. | |||
By: |
||||
| Name: | ||||
| Title: |
33
SCHEDULE A
| Underwriters | Number of Firm | |||
| Shares to be | ||||
| Purchased | ||||
X.X. Xxxxxxx & Sons, Inc. |
||||
Xxxxxxxxx & Company, Inc. |
||||
Xxxxx Xxxxxxx & Co. |
||||
Xxxxxx Xxxxxxx Corp |
||||
Total |
||||
SCHEDULE B
| Selling Stockholder | Number of | Maximum | ||||||
| Firm Shares | Number of | |||||||
| to be Sold | Optional Shares | |||||||
| to be Sold | ||||||||
Wilton Funding Holdings, LLC |
||||||||
c/o Compass Group Investments, Inc. |
||||||||
Bayside Executive Park |
||||||||
West Bay Street and Xxxxx Xxxx |
||||||||
X.X. Xxx XX00000, Xxxxxx, Xxxxxxx |
||||||||
Attention: Xxxxxx Xxxxx |
||||||||
Patriot Partners, L.P. |
||||||||
c/o Compass Group Investments, Inc. |
||||||||
Bayside Executive Park |
||||||||
West Bay Street and Xxxxx Xxxx |
||||||||
X.X. Xxx XX00000, Xxxxxx, Xxxxxxx |
||||||||
Attention: Xxxxxx Xxxxx |
||||||||