Shares of Common Stock Par Value $0.01 Per Share UNDERWRITING AGREEMENT
, 2007
[ ]
Ladies and Gentlemen:
MVC Capital, Inc., a corporation organized under the laws of the State of Delaware (the
“Company”), proposes to issue and sell to the underwriters named in Schedule A annexed
hereto (the “Underwriters”), for which [ ] (the “Representative”) is acting as Representative,
an aggregate of [ ] shares of common stock (the “Firm Shares”), par value $0.01 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 [ ] 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 has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), and in
accordance with the provisions of the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder (collectively, the “Investment Company Act”), with the Securities and
Exchange Commission (the “Commission”) a registration statement on Form N-2 (File No. 333-147039)
under the Act (the “registration statement”), including a prospectus relating to the Shares. Such
registration statement has become effective under the Act.
Except where the context otherwise requires, “Registration Statement,” as used herein, means
the registration statement, as amended at the time of the effectiveness of such registration
statement, including any post-effective amendment thereto, for purposes of Section 11 of the Act,
as such section applies to the respective Underwriters (the “Effective Time”), including (i) all
documents filed as a part thereof, (ii) any information contained in a prospectus filed with the
Commission pursuant to Rule 497 under the Act, to the extent such information is deemed, pursuant
to Rule 430A, Rule 430B or Rule 430C under the Act, to be part of the registration statement at the
Effective Time, and (iii) any registration statement filed to register the offer and sale of Shares
pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers named in a
document provided to the Company (the “dealers”) in connection with the offering of the Shares,
copies of one or more preliminary prospectus supplements, relating to the Shares. Except where the
context otherwise requires, “Pre-Pricing Prospectus,” as used herein, means each such preliminary
prospectus supplement, in the form so furnished, including any base prospectus (whether or not in
preliminary form) furnished to you by the Company and attached to or used with such preliminary
prospectus supplement. Except where the context otherwise requires, “Base Prospectus,” as used
herein, means any such base prospectus and any base prospectus furnished to you by the Company and
attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means
the final prospectus supplement, relating to the Shares, filed by the Company with the
Commission pursuant to Rule 497 under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Shares.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Base Prospectus attached to or used with the Prospectus
Supplement.
“Disclosure Package,” as used herein, means any Pre-Pricing Prospectus or Base Prospectus, in
either case used at or before the date of this Agreement, if any, and the information set forth in
Schedule B annexed hereto.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter”
and similar terms, as used in this Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other subdivision of this Agreement. The
term “or,” as used herein, is not exclusive.
The Xxxxxx Group Advisers LLC, a Delaware limited liability company (“TTG” or the “Investment
Adviser”), acts as the Company’s investment adviser pursuant to an Investment Advisory and
Management Agreement by and between the Company and the Investment Adviser, dated as of October 31,
2006 (the “Investment Advisory and Management Agreement”). U.S. Bank National Association acts as
the custodian (the “Custodian”) of the Company’s cash and portfolio assets pursuant to a Custodian
Agreement by and between the Company and the Custodian, dated as of November 23, 2004 (the
“Custodian Agreement”). Computershare Ltd. (f/k/a EquiServe) acts as the Company’s transfer agent,
registrar and dividend disbursing agent (the “Transfer Agent”) pursuant to a Transfer Agency Letter
Agreement by and between the Company and the Transfer Agent, dated as of June 21, 2002 (the
“Transfer Agency Letter Agreement”). U.S. Bancorp Fund Services, LLC acts as the administrator of
the Company (the “Administrator”) pursuant to a Fund Administration Servicing Agreement by and
among the Company, MVC Financial Services, Inc. (“MVCFS”) and the Administrator, dated as of
February 21, 2006 (the “Fund Administration Servicing Agreement”). Guggenheim Corporate Funding,
LLC acts as the Company’s administrative agent (the “Administrative Agent”) pursuant to a Credit
Agreement by and among the Company, MVCFS and the Administrative Agent, dated as of April 27, 2006
(the “Credit Agreement”). In addition, the Company has adopted a dividend reinvestment plan (the
“Dividend Reinvestment Plan”) pursuant to which holders of Shares have their dividends
automatically reinvested in additional shares of Common Stock of the Company, unless such holders
elect otherwise.
On December 7, 1999, a Form N-54A Notification of Election to be Subject to Sections 55
through 65 of the Investment Company Act of 1940 (File No. 814-00201) (the “Notification of
Election”) was filed with the Commission under the Investment Company Act, pursuant to which the
Company elected to be treated as a business development company (“BDC”). Commencing with its
taxable year ended October 31, 2000, the Company has elected to be treated, and, to its knowledge,
has qualified to be treated, as a regulated investment company (“RIC“) (within the meaning of
Section 851(a) of the Internal Revenue Code of 1986, as amended (the “Code”)).
The Company, the Investment Adviser and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in accordance with Section 9 hereof, in
each case at a purchase price of $[ ] per Share (the “Purchase Price”). The Company is advised
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 is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus.
In addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the Company, ratably in accordance with the number of
Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the
Purchase Price to be paid by the Underwriters to the Company for the Firm Shares. The
Over-Allotment Option may be exercised by the Representative 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 Supplement, by written notice to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the Over-Allotment Option is being exercised, and the date
and time when the Additional Shares are to be delivered (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 Over-Allotment Option shall have been exercised
nor later than the tenth business day after the date on which the Over-Allotment Option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such adjustment as the
Representatives 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 by the Underwriters to the Company by a Federal Funds wire transfer against delivery of such
Firm Shares or certificates for the Firm Shares, if any, to the Representative 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 the third business
day following the date of this Agreement (unless another date shall be agreed to by the
Representative and the Company or unless terminated in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are actually 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 [ ], at 9:00 A.M., New York
City time, on the date of the closing of the purchase of the Firm Shares or the Additional
Shares, as the case may be.
3. Representations and Warranties of the Company and the Investment Adviser. Each of
the Company and the Investment Adviser jointly and severally represents and warrants to each
Underwriter as follows:
(a) the Registration Statement has heretofore become effective under the Act or, with respect
to any registration statement to be filed to register the offer and sale of Shares pursuant to
Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no
later than 10:00 P.M., New York City time, on the date of determination of the public offering
price for the Shares; no stop order of the Commission preventing or suspending the use of any Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus or the Prospectus Supplement, 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, threatened or are contemplated by the
Commission;
(b) the Registration Statement complied when it became effective, complies as of the date
hereof and, as amended or supplemented, at the Time of Purchase, each Additional Time of Purchase,
if any, and at all times during which a prospectus is required by the Act to be delivered in
connection with any sale of Shares, will comply, in all material respects, with the requirements
of the Act and the Investment Company Act; the conditions to the use of Form N-2 in connection
with the offering and sale of the Shares as contemplated hereby have been satisfied; the
Registration Statement did not, as of the Effective Time, 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; each Pre-Pricing Prospectus complied, at the time it was
filed with the Commission, and complies as of the date hereof, in all material respects with the
requirements of the Act and the Investment Company Act; at no time during the period that begins
on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus
was filed with the Commission and ends at the Time of Purchase did or will any Pre-Pricing
Prospectus, as then amended or supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and at no time during such period
did or will any Pre-Pricing Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
each Base Prospectus complied or will comply, as of its date and the date it was or will be filed
with the Commission, complies as of the date hereof (if filed with the Commission on or prior to
the date hereof) and, at the Time of Purchase, each Additional Time of Purchase, if any, and at
all times during which a prospectus is required by the Act to be delivered in connection with any
sale of Shares, will comply, in all material respects, with the requirements of the Act and the
Investment Company Act; at no time during the period that begins on the earlier of the date of
such Base Prospectus and the date such Base Prospectus was filed with the Commission and ends at
the Time of Purchase did or will any Base Prospectus, as then amended or supplemented, include an
untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any Base Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; each of the Prospectus Supplement and the Prospectus will comply,
as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, the Time of Purchase, each Additional Time
of Purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered in connection with any sale of Shares, in all material respects, with the requirements
of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the
Act) and the Investment Company Act; at no time during the period that begins on the earlier of
the date of the Prospectus Supplement and the date the Prospectus Supplement is filed with the
Commission and ends at the later of the Time of Purchase, the latest Additional Time of Purchase,
if any, and the end of the period during which a prospectus is required by the Act to be delivered
in connection with any sale of Shares did or will any Prospectus Supplement or the Prospectus, as
then amended or supplemented, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
makes no representation or warranty with respect to any statement contained in the Registration
Statement, any Pre-Pricing Prospectus, 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 Registration Statement, such Pre-Pricing
Prospectus, or the Prospectus;
(c) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the section of the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus entitled “Description of Securities” and as set forth in the
section of the Prospectus Supplement entitled “Capitalization,” and, as of the Time of Purchase
and any Additional Time of Purchase, as the case may be, the Company shall have an authorized and
outstanding capitalization as set forth in the section of the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus entitled “Description of Securities” and as set forth
in the section of the Prospectus Supplement entitled “Capitalization”; all of the issued and
outstanding shares of capital stock, including the Common Stock, of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; the Shares are duly listed, and
admitted and authorized for trading, subject to official notice of issuance, on the NYSE;
(d) the Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full corporate power and authority to own,
lease and operate its properties and conduct its business as described in the Registration
Statement, the Pre-Pricing Prospectuses, and 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, either (i) have a material adverse effect on
the business, properties, financial condition, results of operations or prospects of the Company
and the Subsidiaries (as defined below) taken as a whole, (ii) prevent or materially interfere
with consummation of the transactions contemplated hereby or (iii) result in the delisting of
shares of Common Stock from the NYSE (the occurrence of any such effect or any such prevention or
interference or any such result described in the foregoing clauses (i), (ii) and (iii) being
herein referred to as a “Material Adverse Effect”)
(f) the Company has no subsidiaries other than MVCFS, MVC Partners LLC, MVC Global LLC and
MVC Europe LLC (collectively, the “Subsidiaries”) accordingly, entities
of which the Company holds equity and debt investments in its investment portfolio are not
Subsidiaries; the Company owns all of the issued and outstanding ownership interests of each of
the Subsidiaries; complete and correct copies of the certificates of incorporation or formation,
bylaws or other organizational documents of the Company and each Subsidiary and all amendments
thereto have been delivered to you, and no changes therein will be made on or after the date
hereof through and including the Time of Purchase or, if later, any Additional Time of Purchase;
each Subsidiary has been duly formed or incorporated and is validly existing in good standing
under the laws of the jurisdiction of its formation, with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the Pre-Pricing Prospectuses, and the Prospectus; each Subsidiary is duly qualified to
do business as a foreign corporation or limited liability company 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; all of the
outstanding ownership interests of the Subsidiaries have been duly authorized and validly issued,
and, if corporate entities, are fully paid and non-assessable, have been issued in compliance with
all applicable securities laws, were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right and are owned by the Company subject to no security
interest, other encumbrance or adverse claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(g) the Shares have been duly and validly authorized and, when issued and delivered against
payment therefor by the Underwriters as provided herein, will be duly and validly issued, fully
paid and non-assessable and free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights; the Shares, when issued and delivered against payment
therefor by the Underwriters as provided herein, will be free of any restriction upon the voting
or transfer thereof pursuant to the Company’s certificate of incorporation or bylaws or any
agreement or other instrument to which the Company is a party;
(h) the capital stock of the Company, including the Shares, conforms in all material respects
to each description thereof contained or incorporated by reference in the Registration Statement,
the Pre-Pricing Prospectuses, and the Prospectus; and the certificates for the Shares, if any, are
in due and proper form;
(i) this Agreement has been duly authorized, executed and delivered by the Company;
(j) neither the Company nor any of the Subsidiaries 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 a person acting on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (A) its certificate of incorporation or
bylaws or certificate of formation or limited liability company agreement, as applicable, or (B)
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 it is a
party or by which it or any of its properties may be bound or affected, or (C) any federal, state,
local or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation, the
rules and regulations of the NYSE), or (E) any decree, judgment or order
applicable to it or any of its properties, except with respect to clause (C), to the extent
such violations, individually or in the aggregate, would not have a Material Adverse Effect;
(k) the execution, delivery and performance of this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated hereby will not conflict with, result
in any breach or violation of or constitute a default under (nor constitute any event which, with
notice, lapse of time or both, would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Subsidiary pursuant to) (A) the certificate of incorporation or
bylaws or certificate of formation or limited liability company agreement, as applicable, of the
Company or any of the Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or
other loan or other evidence of indebtedness, or any license, lease, contract or other agreement
or instrument to which the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or affected, or (C) any federal, state, local
or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation, the
rules and regulations of the NYSE), or (E) any decree, judgment or order applicable to the Company
or any of the Subsidiaries or any of their respective properties;
(l) no approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or agency, or of or with
any self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the NYSE), or approval of the stockholders of the Company, is required in
connection with the issuance and sale of the Shares or the consummation by the Company of the
transactions contemplated hereby, other than (i) registration of the Shares under the Act, which
has been effected (or, with respect to any registration statement to be filed hereunder pursuant
to Rule 462(b) under the Act, will be effected in accordance herewith), (ii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or (iii) under the Conduct Rules of the Financial
Industry Regulatory Authority (“FINRA”);
(m) except as described in the Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus, (i) no person has the right, contractual or otherwise,
to cause the Company to issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock of or other equity interests in the Company and (iii) no person
has the right to act as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares; no person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or shares of any other capital stock
of or other equity interests in the Company, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby;
(n) each of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any applicable law,
regulation or rule, and has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct their respective businesses, except where the
failure to do so would not have a Material Adverse Effect; neither the
Company nor any of the Subsidiaries is in violation of, or in default under, or has received
notice of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to the Company or any of the Subsidiaries, except
where such violation, default, revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect;
(o) there are no actions, suits, claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of the Subsidiaries or
any of their respective directors or officers is or would be a party or of which any of their
respective properties is or would be subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
before or by any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NYSE), except any such action, suit, claim, investigation or
proceeding which, if resolved adversely to the Company or any Subsidiary, would not, individually
or in the aggregate, have a Material Adverse Effect;
(p) Ernst & Young, whose report on the consolidated financial statements of the Company and
the Subsidiaries is included in the Registration Statement, the Pre-Pricing Prospectuses and the
Prospectus, are independent registered public accountants as required by the Act and by the rules
of the Public Company Accounting Oversight Board;
(q) the consolidated financial statements included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, and the Prospectus, together with the
related notes and schedules, present fairly the consolidated financial position and the
investments of the Company and the Subsidiaries as of the dates indicated and the consolidated
results of operations, cash flows and changes in stockholders’ equity and net assets of the
Company for the periods specified and have been prepared in compliance with the requirements of
the Act in all material respects, and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved; the other financial and
statistical data contained or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, and the Prospectus are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and records of the Company; there are no
financial statements that are required to be included or incorporated by reference in the
Registration Statement, any Pre-Pricing Prospectus or the Prospectus that are not included or
incorporated by reference as required; the Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing
Prospectus and the Prospectus; and all disclosures contained in the Registration Statement, the
Pre-Pricing Prospectuses, and the Prospectus, regarding “non-GAAP financial measures” (as such
term is defined by the rules and regulations of the Commission), if any, comply with Regulation G
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item 10 of Regulation
S-K under the Act, to the extent applicable;
(r) subsequent to the respective dates as of which information is given in the Registration
Statement, the Pre-Pricing Prospectuses, and the Prospectus, in each case excluding any amendments
or supplements to the foregoing made after the execution of this Agreement, there has not been,
except as otherwise disclosed in the Pre-Pricing Prospectus, (i) any material adverse change, or
any development involving a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries taken
as a whole, (ii) any transaction which is material to the Company and
the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is
material to the Company and the Subsidiaries taken as a whole, (iv) any change in the capital
stock or outstanding indebtedness of the Company or any Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company or any
Subsidiary;
(s) 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” (within the meaning of Rule 16a-1(f) under the Exchange Act) and each stockholder named
in Exhibit A-1 hereto;
(t) the Company and each of the Subsidiaries owns each of its portfolio investments described
in the Registration Statement, the Pre-Pricing Prospectuses, and the Prospectus, as being owned by
any of them, free and clear of all liens, claims, security interests or other encumbrances, other
than those described in the Registration Statement, the Pre-Pricing Prospectuses, and the
Prospectus, except where such liens, claims, security interests or other encumbrances,
individually or in the aggregate, would not have a Material Adverse Effect;
(u) each of the Company and the Subsidiaries owns or possesses all inventions, patent
applications, patents, trademarks (both registered and unregistered), tradenames, service names,
copyrights, trade secrets and other proprietary information described in the Registration
Statement, each Pre-Pricing Prospectus, and the Prospectus, as being owned or licensed by it or
which is necessary for the conduct of, or material to, its businesses (collectively, the
“Intellectual Property”), and the Company is unaware of any claim to the contrary or any challenge
by any other person to the rights of the Company or any of the Subsidiaries with respect to the
Intellectual Property; neither the Company nor any of the Subsidiaries has infringed or is
infringing the intellectual property of a third party, and neither the Company nor any Subsidiary
has received notice of a claim by a third party to the contrary;
(v) neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have a Material Adverse
Effect, (i) there is (A) no unfair labor practice complaint pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened against the
Company or any of the Subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of the Subsidiaries, (ii) to the Company’s
knowledge, no union organizing activities are currently taking place concerning the employees of
the Company or any of the Subsidiaries and (iii) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the Employee Retirement Income
Security Act of 1974 (“ERISA”) or the rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries;
(w) the Company and the Subsidiaries and their respective properties, assets and operations
are in compliance with, and the Company and each of the Subsidiaries hold all permits,
authorizations and approvals required under, Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are no past,
present or, to the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the Company or any Subsidiary under,
or to interfere with or prevent compliance by the Company or any Subsidiary with, Environmental
Laws; except as would not, individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) is the subject of any investigation, (ii) has
received any notice or claim, (iii) is a party to or affected by any pending or, to the Company’s
knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order
or (v) has entered into any agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below) (as used herein, “Environmental Law” means
any federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened release of Hazardous
Materials, and “Hazardous Materials” means any material (including, without limitation,
pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated by or may
give rise to liability under any Environmental Law);
(x) the Company and each of its Subsidiaries have filed on a timely basis (including all
valid extensions) all material tax returns required to be filed through the date hereof, and all
such tax returns are true, correct and complete in all material respects; the Company and each of
its Subsidiaries have paid all material taxes required to be paid, and have properly provided for
all taxes not yet due or payable on the consolidated books of the Company; no tax deficiency has
been determined adversely to the Company or any of its Subsidiaries, nor does the Company or any
of its Subsidiaries have any knowledge of any tax deficiencies that would have a Material Adverse
Effect; the Company’s ability to use its capital loss carryovers (within the meaning of Section
1212 of the Code) is not currently limited by the provisions of Sections 382 or 383 of the Code,
and the Company’s ability to use its capital loss carryovers will not be limited by the provisions
of Sections 382 or 383 of the Code as a result of the Company’s issuance of the Shares pursuant to
this Agreement;
(y) the Company and each of the Subsidiaries maintain insurance covering their respective
properties, operations, personnel and businesses as the Company reasonably deems adequate; such
insurance insures against such losses and risks to an extent which is adequate in accordance with
customary industry practice to protect the Company and the Subsidiaries and their respective
businesses; all such insurance is fully in force on the date hereof and will be fully in force at
the Time of Purchase and each Additional Time of Purchase, if any; neither the Company nor any
Subsidiary has reason to believe that it will not be able to renew any such insurance, or obtain
comparable coverage, as and when such insurance expires;
(z) neither the Company nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements referred to or
described in any Pre-Pricing Prospectus or the Prospectus, or referred to or described in, or
filed as an exhibit to, the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or any Subsidiary or, to the Company’s knowledge, any other party
to any such contract or agreement;
(aa) the Company and each of the Subsidiaries 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; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(bb) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rules 13a-15 and 15d-15
under the Exchange Act); such disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its consolidated subsidiaries, is made
known to the individual who performs the functions of a principal executive officer and the
individual who performs the functions of a principal financial officer, and such disclosure
controls and procedures are effective to perform the functions for which they were established;
the Company’s independent registered public accounting firm and the Audit Committee of the Board
of Directors of the Company have been advised of: (i) all significant deficiencies, if any, 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) all fraud, if any, whether or not
material, that involves management or other employees who have a role in the Company’s internal
controls; all material weaknesses, if any, in internal controls have been identified to the
Company’s independent auditors; since the date of the most recent evaluation of such disclosure
controls and procedures and internal controls, 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; the individual
who performs the functions of a principal executive officer and the individual who performs the
functions of a principal financial officer of the Company have made all certifications required by
the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any related rules and
regulations promulgated by the Commission, and the statements contained in each such certification
are complete and correct; the Company, the Subsidiaries and the Company’s directors and officers,
in their capacity as directors and officers, are each in compliance in all material respects with
all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations of the
Commission and the NYSE promulgated thereunder;
(cc) all statistical or market-related data included or incorporated by reference in the
Registration Statement, each Pre-Pricing Prospectus, and the Prospectus, are based on or derived
from sources that the Company reasonably believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources to the extent required;
(dd) neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries has
made any unlawful payment in violation of the Foreign Corrupt Practices Act of 1977, as amended
(the “Foreign Corrupt Practices Act”), to the extent applicable to the Company and its
Subsidiaries;
(ee) the operations of the Company and the Subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”), to the extent such requirements,
statutes, rules, regulations and guidelines are, with respect to the Money Laundering Laws,
applicable to the Company and its Subsidiaries; and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator or non-governmental authority to
which the Company or any of the Subsidiaries is a party, to the Company’s knowledge, is pending or
threatened;
(ff) neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries is a
prohibited person or entity under any U.S. sanctions programs administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”), to the extent applicable to the
Company and its Subsidiaries; and the Company will not knowingly directly or indirectly use the
proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or other person or entity in a
manner that would violate any U.S. sanctions programs administered by OFAC;
(gg) no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on such Subsidiary’s capital stock, from
repaying to the Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of
the Company, except as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus;
(hh) the issuance and sale of the Shares as contemplated hereby will not cause any holder of
any shares of capital stock, securities convertible into or exchangeable or exercisable for
capital stock or options, warrants or other rights to purchase capital stock or any other
securities of the Company to have any right to acquire any shares of the Company;
(ii) the Company has not received any notice from the NYSE regarding the delisting of the
Common Stock from the NYSE;
(jj) neither the Company nor any of the Subsidiaries has taken, directly or indirectly, any
action designed, or which has constituted or would cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of the
Shares; to the best of the Company’s knowledge, neither the directors, officers, affiliates (as
defined in the Act) or control persons (as defined in the Act) of the Company and its Subsidiaries
has taken, directly or indirectly, any action designed, or which has constituted or would cause or
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(kk) to the Company’s knowledge, there are no affiliations or associations between (i) any
member of the NASD and (ii) the Company or any of the Company’s officers, directors or 5% or
greater security holders or any beneficial owner of the Company’s unregistered equity securities
that were acquired at any time on or after the 180th day immediately preceding the date the
Registration Statement was initially filed with the Commission, except as disclosed in the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus;
(ll) (A) the Company has duly elected to be regulated by the Commission as a BDC under the
Investment Company Act, and no order of suspension or revocation has been issued or proceedings
therefor initiated or, to the knowledge of the Company, threatened by the Commission; such
election is effective; (B) the provisions of the Company’s certificate of incorporation and bylaws
and the investment objectives, policies and restrictions described in the most recent Pre-Pricing
Prospectus and the Prospectus, comply in all material respects with the requirements of the
Investment Company Act; and (C) the Company is operated in a manner so as to be compliant in all
material respects with the provisions of the Investment Company Act applicable to BDCs;
(mm) to the best of the Company’s knowledge, when the Notification of Election was filed with
the Commission, it (a) 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 (b)
did not include any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances in which they were made,
not misleading;
(nn) the Custodian Agreement, the Transfer Agency Letter Agreement and the Fund
Administration Servicing Agreement have been duly and validly authorized, executed and delivered
by the Company and none of such agreements violate any of the applicable provisions of the
Investment Company Act or the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and
(oo) the Company elected to be treated as a RIC under the Code commencing with its taxable
year ended October 31, 2000, and its proposed method of operations as described in the Pre-Pricing
Prospectus and the Prospectus, to the Company’s knowledge, will enable the Company to continue to
qualify as a RIC under the Code; the Company intends to direct the proceeds of the sale of the
Shares in such a manner as to enable the Company to qualify as a RIC under the Code.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter
4. Representations and Warranties of the Investment Adviser. The Investment Adviser
represents and warrants to each of the Underwriters that:
(a) the Investment Adviser has been duly organized and is validly existing as a limited
liability company under the laws of the State of Delaware, with full power and authority to
conduct all of the activities conducted by it, to own, lease or operate its properties and conduct
its business as described in the Registration Statement, each Pre-Pricing Prospectus and the
Prospectus;
(b) the Investment Adviser is duly qualified to do business and in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, result in a Material Adverse Effect;
(c) the Investment Adviser is (i) duly registered as an investment adviser under the Advisers
Act, and (ii) not prohibited by the Advisers Act or the Investment Company Act
from acting as the investment adviser for the Company as contemplated by the Investment
Advisory and Management Agreement, the Registration Statement, the Pre-Pricing Prospectuses and
the Prospectus;
(d) this Agreement and the Investment Advisory and Management Agreement have been duly and
validly authorized, executed and delivered by the Investment Adviser; this Agreement and the
Investment Advisory and Management Agreement do not violate any of the applicable provisions of
the Investment Company Act or the Advisers Act;
(e) neither (i) the execution and delivery by the Investment Adviser of this Agreement or the
Investment Advisory and Management Agreement nor (ii) the consummation by the Investment Adviser
of the transactions contemplated thereby, or the performance of its obligations herein or therein
will conflict with, result in any breach or violation of or constitute a default under (or
constitute any event which, with notice, lapse of time or both, would reasonably be expected to
result in any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) or result in the creation or
imposition of a lien, charge or encumbrance on any property or assets of the Investment Adviser
pursuant to (A) the organizational documents of the Investment Adviser, (B) any material agreement
to which it is a party or by which any of its properties may be bound or affected, (C) any
federal, state, local or foreign law, regulation or rule, (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority, or (E) any decree,
judgment or order applicable to the Investment Adviser or its properties;
(f) no approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or agency, or of or with
any self-regulatory organization or other non-governmental regulatory authority is required for
the consummation of the transactions contemplated in, or the performance by the Investment Adviser
of its obligations under this Agreement or the Investment Advisory and Management Agreement,
except (i) such as have been obtained under the Act, the Investment Company Act, or the Advisers
Act, (ii) such as may be required by the NYSE or under state securities or blue sky laws, and
(iii) to the extent such failures to procure such approval, authorization, consent or order,
individually or in the aggregate, would not have a Material Adverse Effect;
(g) the description of the Investment Adviser and its business and the statements
attributable to the Investment Adviser in the Registration Statement, each Pre-Pricing Prospectus
and the Prospectus comply with the requirements of the Act and the Investment Company Act and do
not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not misleading;
(h) except as disclosed in the Registration Statement, each Pre-Pricing Prospectus and the
Prospectus, there is no action, suit or proceeding before or by any court, commission, regulatory
body, administrative agency or other governmental agency or body, foreign or domestic, now pending
or threatened against or affecting the Investment Adviser of a nature required to be disclosed in
the Registration Statement, any Pre-Pricing Prospectuses or Prospectus or that might result in any
Material Adverse Effect or affect the ability of the Investment Adviser to fulfill its obligations
under the Investment Advisory and Management Agreement; and
(i) except for stabilization activities conducted by the Underwriters and the issuance or
purchase of Shares pursuant to the Company’s Dividend Reinvestment Plan effected following the
date on which the distribution of the Shares is completed in accordance with the policies of the
Company as set forth in the Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed, or which might-reasonably be expected to cause or
result in, or which will constitute, stabilization or manipulation of the price of the shares of
Common Stock in violation of applicable federal securities laws.
In addition, any certificate signed by any officer of the Investment Adviser and delivered to
the Underwriters or counsel for the Underwriters in connection with the offering of the Shares
shall be deemed to be a representation and warranty by the Investment Adviser, as to matters
covered thereby, to each Underwriter.
5. Certain Covenants of the Company and the Investment Adviser. The Company and the
Investment Adviser hereby agree as follows; provided, however, that Section 5(l) shall be the sole
obligation of the Company:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying
the Shares for offering and sale (i) under U.S. federal securities laws and to maintain such
qualifications in effect so long as you may request for the distribution of the Shares and (ii)
under the securities laws of such other jurisdictions as you may reasonably designate and to use
our best efforts to maintain such qualifications in effect so long as you may request for the
distribution of the Shares; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to consent to the service of process under the
laws of any such jurisdiction (except service of process with respect to the offering and sale of
the Shares); and to promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as reasonably practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if
the Company shall have made any amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriters may reasonably request for the purposes contemplated
by the Act; in case any Underwriter is required to deliver in connection with the sale of the
Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or
after the time a post-effective amendment to the Registration Statement is required pursuant to
Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly
upon request such amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item
512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement, or a Registration Statement under Rule
462(b) under the Act, to be filed with the Commission and become effective before the Shares may
be sold, the Company will use its best efforts to cause such post-effective amendment or such
Registration Statement to be filed and become effective, and will pay any applicable fees in
accordance with the Act, as soon as possible; and the Company will advise you promptly and, if
requested by you, will confirm such advice in writing or by electronic communication, (i) when
such post-effective amendment or such Registration Statement has become effective, and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to
Rule 497 under the Act (which the Company agrees to file in a timely manner in accordance with
such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered in connection with any sale of Shares, the Registration Statement shall cease to comply
with the requirements of the Act with respect to eligibility for the use of the form on which the
Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) as soon as
reasonably practicable to file with the Commission a new registration statement under the Act,
relating to the Shares, or a post-effective amendment to the Registration Statement, which new
registration statement or post-effective amendment shall comply with the requirements of the Act,
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 registration statement
or post-effective amendment to which you shall reasonably object in writing, (iii) use its best
efforts to cause such new registration statement or post-effective amendment to become effective
under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take
all other action necessary or appropriate to permit the public offering and sale of the Shares to
continue as contemplated in the Prospectus;
(e) if, at any time during the period when a prospectus is required by the Act to be
delivered in connection with any sale of Shares, to advise you promptly, and, if requested,
confirming such advice in writing or by electronic communication, of any request by the Commission
for amendments or supplements to the Registration Statement, any Pre-Pricing Prospectus, or the
Prospectus or for additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal of such order as
soon as possible; to advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus 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;
(f) subject to Section 5(e) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company with
the Commission in order to comply with the Exchange Act for so long as a prospectus is required by
the Act to be delivered in connection with any sale of Shares;
(g) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered in connection with any sale of
Shares, which event could require the making of any change in the Prospectus then being used so
that the Prospectus would not include an untrue statement of 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 are made, not misleading, and to advise the Underwriters promptly if, during such
period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to
comply with the requirements of the Act, and, in each case, during such time, subject to Section
5(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be necessary to reflect any such change or to
effect such compliance;
(h) to make generally available to its security holders, and to deliver to you upon your
written request, an earning 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 in any case not later than 20
days after the termination of such twelve-month period;
(i) to furnish to you one copy for each Representative and one copy for Underwriters’ counsel
copies of the Registration Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and sufficient copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other Underwriters;
(j) 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 and the Subsidiaries which have been read by the Company’s
independent registered public accountants, as stated in their letter to be furnished pursuant to
Section 7(b) hereof;
(k) to apply the net proceeds from the sale of the Shares in the manner set forth under the
caption “Use of Proceeds” in the Prospectus Supplement;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and
filing of the Registration Statement, each Base Prospectus, each Pre-Pricing Prospectus, the
Prospectus Supplement, 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 producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any powers of attorney and any
closing documents (including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state or foreign laws and the determination of their eligibility for investment under
state or foreign law (including the reasonable legal fees and filing fees and other reasonable
disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing
of the Shares on the NYSE or any securities exchange and any registration thereof under the
Exchange Act, (vi) any filing for review of the public offering of the Shares by FINRA, including
the reasonable legal fees and filing fees and other reasonable disbursements of counsel to the
Underwriters relating to FINRA matters, (vii) the fees and disbursements of the Custodian or of
the Transfer Agent or registrar for the Shares, (viii) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with the marketing of the offering
and sale of the Shares to prospective investors and the Underwriters’ sales forces, including,
without limitation, expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, and (ix) the performance of
the Company’s other obligations hereunder, provided that, except as provided in this
Section 5(l) and Section 6, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel and the
expenses of advertising any offering of the Shares made by the Underwriters outside the
public offering contemplated by Section 2 of this Agreement;
(m) beginning on the date hereof and ending on, and including, the date that is [ ] days
after the date of the Prospectus Supplement (the “Lock-Up Period”), without the prior
written consent of the Representative, not to (i) issue, sell, offer to sell, contract or agree to
sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to
dispose of, directly or indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act and the rules and regulations of the Commission promulgated thereunder, with respect to, any
Common Stock or any other securities of the Company issued by the Company, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (ii) file or cause to become effective a registration statement under the Act
relating to the offer and sale of any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (iv) publicly announce an intention to effect any transaction specified in clause
(i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the
Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of
options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock
options not exercisable during the Lock-Up Period pursuant to stock option plans described in the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus; provided, however, that if (a) during the period that begins on the
date that is fifteen (15) calendar days plus three (3) business days before the last day of the
Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or (b) prior to the
expiration of the Lock-Up Period, the Company announces that it will release earnings results
during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the
restrictions imposed by this Section 5(m) shall continue to apply until the expiration of the date
that is fifteen (15) calendar days plus three (3) business days after the date on which the
issuance of the earnings release or the material news or material event occurs;
(n) prior to the Time of Purchase or any Additional Time of Purchase, as the case may be, to
issue no press release or other communication directly or indirectly and hold no press conferences
with respect to the Company or any Subsidiary, the financial condition, results of operations,
business, properties, assets, or liabilities of the Company or any Subsidiary, or the offering of
the Shares, (i) without your prior consent, which consent shall not be unreasonably withheld in
the case of such communications that are subject to Rule 482 of the Act, and (ii) without your
prior review in the case of all other communications that are not subject to Rule 482 of the Act;
(o) not, at any time during the period when a prospectus is required by the Act to be
delivered in connection with the sale of Shares, to, directly or indirectly, offer or sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the Shares, in each
case other than the Prospectus;
(p) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or might reasonably be expected to cause
or result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(q) to use its best efforts to cause the Shares to be listed on the NYSE;
(r) if, at any time during the period when a prospectus is required by the Act to be
delivered in connection with the sale of Shares, to maintain a custodian and an administrative
agent, which may include the Company and/or the Adviser, for the Company and a transfer agent and,
if necessary, a registrar for the Common Stock;
(s) to use its commercially reasonable efforts to maintain its status as a BDC under the
Investment Company Act; provided, however, (i) the Company may cease to be, or
withdraw its election as a BDC under the Investment Company Act, with the approval of its board of
directors and a vote of its stockholders as required by Section 58 of the Investment Company Act,
or a successor provision and (ii) the Company may spin-off one or more Subsidiaries that would not
operate as BDCs; and
(t) to operate in a manner so as to enable the Company to qualify as a RIC under the Code for
each taxable year during which it elects to be treated as a BDC under the Investment Company Act;
provided, however, one or more Subsidiaries may not operate in a manner so as to
enable them to qualify as a RIC.
6. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered
for any reason other than the termination of this Agreement pursuant to the fifth paragraph of
Section 9 hereof or the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts described in Section
5(l) hereof, reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of their counsel incurred in connection with this
Agreement.
7. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, at the Time of Purchase and, if applicable, at the
Additional Time of Purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the Time of Purchase and, if applicable, at the
Additional Time of Purchase, opinions of Xxxxxxx, Xxxx & Xxxxx LLP and Wildman, Harrold, Xxxxx &
Xxxxx LLP, counsel for the Company, addressed to the Underwriters, and dated the Time of Purchase
or the Additional Time of Purchase, as the may be, with reproduced copies for each of the other
Underwriters, and in form and substance satisfactory to the counsel to the Representative, in
substantially the form set forth in Exhibit B hereto.
(b) You shall have received from Ernst & Young letters dated the date of this Agreement, the
date of the Prospectus Supplement, 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 satisfactory to the Representative, which letters shall
cover, without limitation, the various financial disclosures contained in the Registration
Statement, each Pre-Pricing Prospectus, and the Prospectus.
(c) You shall have received at the Time of Purchase and, if applicable, at the Additional
Time of Purchase, the favorable opinion of [ ], counsel for the Underwriter,
dated the Time of Purchase or the Additional Time of Purchase, as the case may be.
(d) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus
shall have been filed to which you shall have reasonably objected in writing.
(e) The Registration Statement and any registration statement required to be filed, prior to
the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed and shall have
become effective under the Act. The Prospectus Supplement shall have been filed with the
Commission pursuant to Rule 497 under the Act at or before 5:30 P.M., New York City time, on the
second full business day after the date of this Agreement (or such earlier time as may be required
under the Act).
(f) Prior to and at 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; (iii) none of the Pre-Pricing Prospectuses or the
Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not misleading; and (iv) no
Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not misleading.
(g) The Company will, at the Time of Purchase and, if applicable, at the Additional Time of
Purchase, deliver to you a certificate of its principal executive and financial officers, dated
the Time of Purchase or the Additional Time of Purchase, as the case may be, in the form attached
as Exhibit C hereto.
(h) You shall have received each of the signed Lock-Up Agreements referred to in Section 5(m)
hereof, and each such Lock-Up Agreement shall be in full force and effect at the Time of Purchase
and the Additional Time of Purchase, as the case may be.
(i) 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, each Pre-Pricing
Prospectus, and the Prospectus as of the Time of Purchase and, if applicable, the Additional Time
of Purchase, as you may reasonably request.
(j) The Shares shall have been approved for listing on the NYSE, 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.
(k) FINRA shall not have raised any objection with respect to the fairness or reasonableness
of the underwriting terms and arrangements, contemplated hereby.
8. Effective Date Of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representative, if (1) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Registration Statement, each
Pre-Pricing Prospectus, and the Prospectus, there has been any change or any development involving
a prospective change in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, the effect of which change or
development is, in the sole judgment of the Representative, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the delivery of the Shares on the
terms and in the manner contemplated in the Registration Statement, the Pre-Pricing Prospectuses,
and the Prospectus, or (2) since the time of execution of this Agreement, there shall have
occurred: (A) a suspension or material limitation in trading in securities generally on the NYSE,
the American Stock Exchange or the Nasdaq Stock Market; (B) a suspension or material limitation in
trading in the Company’s securities on the NYSE; (C) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States; (D) 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 (E) 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 (D) or (E), in the sole judgment of
the Representative, makes it impractical 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,
each Pre-Pricing Prospectus, and the Prospectus, or (3) since the time of execution of this
Agreement, there shall have occurred any downgrading, or any notice or announcement shall have been
given or made of: (A) any intended or potential downgrading or (B) any watch, review or possible
change that does not indicate an affirmation or improvement in the rating accorded any securities
of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the Act.
If the Representative elects to terminate this Agreement as provided in this Section 8, the
Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 5(l), 6 and 10 hereunder).
9. Increase In Underwriters’ Commitments. Subject to Sections 7 and 8 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 7 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 8
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as 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 forth opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by 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 provision, 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 required changes, if any, to 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 hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company to any Underwriter and without any liability on the part of any non-defaulting Underwriter
to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
10. Indemnity And Contribution.
(a) Each of the Company and the Investment Adviser agrees jointly and severally, to indemnify,
defend and hold harmless each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, 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 any investigation incurred in
connection therewith) which, jointly or severally, any such Underwriter 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 arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company) or arises out of or is
based upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity with information concerning
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 arises out of or is based upon any
omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact included in any Prospectus (the term
Prospectus for the purpose of this Section 10 being deemed to include any Base Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and any amendments or supplements
to the foregoing), or arises out of or is based upon any omission or alleged omission to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except, with respect to such Prospectus, insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use in, such Prospectus or arises out of or is based upon any omission or
alleged omission to state a material fact in such Prospectus in connection with such information,
which material fact was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the circumstances under which
they were made, not misleading; provided, however, that, subject to applicable provisions of the
Investment Company Act, if any, the Company shall not be responsible under this Section 10 for any
loss, damage, expense, liability or claim that is finally judicially determined to have resulted
from the bad faith, gross negligence or willful misconduct of the Underwriter in the performance of
its duties or by reason of its reckless disregard of its duties and obligations under this
Agreement.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the Company, the
Investment Adviser, their respective directors and officers, and any person who controls the
Company or the Investment Adviser 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 any investigation
incurred in connection therewith) which, jointly or severally, the Company or the Investment
Adviser 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 arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on behalf of such
Underwriter 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
arises out of or is based upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact was not contained
in such information and which material fact was required to be stated in such Registration
Statement or was necessary to make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use in, a Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in such Prospectus in connection with such information,
which material fact was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the circumstances under which
they were made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against a person (an
“Indemnified Party”) in respect of which indemnity may be sought against the Company, the
Investment Adviser or an Underwriter (as applicable, the “Indemnifying Party”) pursuant to
subsection (a) or (b), respectively, of this Section 10, such indemnified party shall promptly
notify such indemnifying party in writing of the institution of such Proceeding and such
indemnifying party shall assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such indemnifying party shall not
relieve such indemnifying party from any liability which such indemnifying party may have to any
indemnified party or otherwise. The indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such Proceeding
or the indemnifying party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or them which are
different from, additional to or in conflict with those available to such indemnifying party (in
which case such indemnifying party shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by such indemnifying party and paid as incurred (it being understood,
however, that such indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any settlement of any Proceeding
effected without its written consent but, if settled with its written consent, such indemnifying
party agrees to indemnify and hold harmless the indemnified party or parties from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second sentence of this Section
10(c), then the indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is entered into more than 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 or
culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 10 is unavailable to an indemnified
party under subsections (a) and (b) of this Section 10 or insufficient to hold an indemnified party
harmless in respect of any losses, damages, expenses, liabilities or claims referred to therein,
then each applicable indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Investment Adviser on the one hand and of the
Underwriters on the other in connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company 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 and the Investment Adviser on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission relates to information
supplied by the Company and/or the Investment Adviser or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection with investigating,
preparing to defend or defending any Proceeding.
(e) The Company, the Investment Adviser and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in subsection (d)
above. Notwithstanding the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to the public exceeds
the amount of any damage which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 10 are several in proportion to
their respective underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 10 and the covenants,
warranties and representations of the Company and the Investment Adviser contained in this
Agreement shall remain in full force and effect regardless of any investigation made by or on
behalf of any Underwriter, its partners, directors or officers or any 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 or the
Investment Adviser, or their directors, officers, managers or members or any person who controls
them 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
and the Investment Adviser (on the one hand) and each Underwriter (on the other) 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 or directors or the Investment Adviser in connection with the
issuance and sale of the Shares, or in connection with the Registration Statement, any Base
Prospectus, any Pre-Pricing Prospectus, or the Prospectus.
11. Information Furnished By The Underwriters. The statements set forth in a letter in
the form attached hereto as Schedule C 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 telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to the Representative, 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 000
Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxxx-Xxxxxxxxx, Vice
President/Secretary.
13. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute
of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with, the laws of the
State of New York applicable to contracts formed and to be performed entirely within the State of
New York, without regarding to the applicability and effect of any conflict of laws principles or
rules thereof, to the extent such principles would require or permit the application of the laws of
another jurisdiction. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
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
and the Investment Adviser consents to the jurisdiction of such courts and personal service with
respect thereto. The Company and the Investment Adviser hereby consent to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against any Underwriter or any indemnified party. To the
extent permitted by law, each Underwriter, the Investment Adviser and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) waive
all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. The Company and the
Investment Adviser agree 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 the Investment
Adviser and may be enforced in any other courts to the jurisdiction of which the Company is or may
be subject, by suit upon such judgment.
15. Parties At Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 10 hereof
the controlling persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
16. No Fiduciary Relationship. The Company and the Investment Adviser hereby
acknowledge that the Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company and the Investment Adviser further acknowledge
that the Underwriters are acting pursuant to a contractual relationship created solely by this
Agreement entered into on an arm’s length basis, and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its management, stockholders or
creditors or to the Investment Adviser or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the
Company’s securities, either before or after the date hereof To the extent permitted by law, the
Underwriters hereby expressly disclaim any fiduciary obligations to the Company and the Investment
Adviser, either in connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions, and the Company and the Investment Adviser hereby confirm their
understanding and agreement to that effect. The Company the Investment Adviser and the Underwriters
agree that they are each responsible for making their
own independent judgments with respect to any such transactions and that any opinions or views
expressed by the Underwriters to the Company or the Investment Adviser regarding such transactions,
including, but not limited to, any opinions or views with respect to — the price or market for the
Company’s securities, do not constitute advice or recommendations to the Company.
17. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
18. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor or assign of any
substantial portion of the Company’s and any of the Underwriters’ respective businesses and/or.
assets.
[Remainder of Page Intentionally Left Blank]
* * *
If the foregoing correctly sets forth the understanding the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company, the
Investment Adviser and the Underwriters, severally.
| Very truly yours, | ||||||
| MVC CAPITAL, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| THE XXXXXX GROUP ADVISERS LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Accepted and agreed to as of the date written above written, on behalf of themselves and the
other several Underwriters named in Schedule A.
| [ ] | ||||||
| As Representative of the several | ||||||
| Underwriters named in Schedule A | ||||||
| By: | [ ] | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
