EXHIBIT (h)
FORM OF UNDERWRITING AGREEMENT
ROYCE MICRO-CAP TRUST, INC.
_____ % CUMULATIVE PREFERRED STOCK
Liquidation Preference $25.00 per share
UNDERWRITING AGREEMENT
----------------------
New York, New York
October __, 2003
Citigroup Global Markets Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Royce Micro-Cap Trust, Inc., a Maryland
corporation (the "Fund") and Royce & Associates, LLC, a Delaware limited
liability company (the "Adviser") address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The Fund
proposes to sell to the Underwriters 2,400,000 shares (the "Securities") of its
___% Cumulative Preferred Stock, par value $.001 per share and liquidation
preference $25.00 per share (the "Cumulative Preferred Stock"). Unless otherwise
stated, the term "you" as used herein means each of Citigroup Global Markets
Inc. and UBS Securities LLC individually on its own behalf and on behalf of the
other Underwriters. Certain terms used herein are defined in Section 18 hereof.
The Securities will be authorized by, and subject to the terms and conditions
of, the Articles Supplementary to be adopted in connection with the issuance of
the Securities (the "Articles Supplementary").
The Fund and the Adviser wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Securities by the
Underwriters.
The Fund has entered into (i) an Investment Advisory Agreement
with the Adviser, dated as of October 1, 2001; (ii) a Custodian Agreement with
State Street Bank and Trust Company ("State Street") dated as of December 15,
1993, as amended to date; and (iii) a Registrar, Transfer Agency and Paying
Agency Agreement with State Street, dated as of July 2,
1997, as amended to date; and such agreements are herein referred to as the
"Advisory Agreement," the "Custodian Agreement" and the "Transfer Agency
Agreement," respectively. Collectively, the Advisory Agreement, the Custodian
Agreement and the Transfer Agency Agreement are herein referred to as the "Fund
Agreements."
1. Representations and Warranties of the Fund and the Adviser. The
Fund and the Adviser, jointly and severally, represent and warrant to, and agree
with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a
registration statement (file numbers 333-107924 and 811-8030) on Form
N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein),
for registration under the 1933 Act and the 1940 Act of the offering
and sale of the Securities. The Fund may have filed one or more
amendments thereto, including a related preliminary prospectus
(including the statement of additional information incorporated by
reference therein), each of which has previously been furnished to you.
The Fund will next file with the Commission one of the following:
either (1) prior to the Effective Date of such registration statement,
a further amendment to such registration statement (including the form
of final prospectus (including the statement of additional information
incorporated by reference therein)) or (2) after the Effective Date of
such registration statement, a final prospectus (including the
statement of additional information incorporated by reference therein)
in accordance with Rules 430A and 497. In the case of clause (2), the
Fund has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Acts and the Rules and Regulations to be included in
such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such
final prospectus (including the statement of additional information
incorporated by reference therein), shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to
the Execution Time, will be included or made therein. The Fund has
furnished the Underwriters with copies of such Registration Statement,
each amendment to such Registration Statement filed with the Commission
and each Preliminary Prospectus.
(b) Each Preliminary Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 497, complied when so
filed in all material respects with the provisions of the Acts and the
Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(c) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, the Prospectus
and any supplement thereto when filed with the
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Commission under Rule 497 and the 1940 Act Notification when originally
filed with the Commission and any amendment or supplement thereto when
filed with the Commission, complied or will comply in all material
respects with the provisions of the Acts and the Rules and Regulations
and did not or will not at any such times 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, except that this representation and warranty does not apply
to statements in or omissions from the registration statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Fund in writing by or on
behalf of any Underwriter through you expressly for use therein.
(d) The Securities have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights and will
conform to the description thereof in the Registration Statement and
the Prospectus (and any amendment or supplement to either of them).
(e) The Fund's capitalization and adjusted capitalization as of
June 30, 2003 is as set forth in the Prospectus; all outstanding shares
of the Fund's Common Stock, the 7.75% Preferred have been duly
authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights, and conform to the
description thereof in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them).
(f) The Fund is a corporation duly organized and validly existing
in good standing under the laws of the State of Maryland with full
corporate power and authority to own, lease and operate its property or
assets and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement to either
of them), and is duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature
of its property or assets or the conduct of its business requires such
registration or qualification, except where the failure so to register
or qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, property, net assets or
results of operations of the Fund, or on the ability of the Fund to
perform its obligations under this Agreement or any of the Fund
Agreements. The Fund has no subsidiaries.
(g) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, threatened, against the Fund, or to which
the Fund or any of its property or assets is subject, that are required
to be described in the Registration Statement or the Prospectus (and
any amendment or supplement to either of them) but are not described as
required, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus (and any amendment or supplement to either
of them) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Acts or the Rules
and Regulations.
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(h) The Fund is not in violation of its articles of incorporation,
as amended and supplemented to date, including the Articles
Supplementary relating to the 7.75% Preferred (collectively, the
"Charter") or its amended and restated bylaws (the "Bylaws"), or of any
law, ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, any state
securities commission, any national securities exchange, any
arbitrator, any court or governmental agency, body or official having
jurisdiction over the Fund, or in default in any material respect in
the performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any material agreement, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its property or assets may
be bound.
(i) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (A) requires any consent,
approval, authorization or other order of or registration or filing
with, the Commission, any state securities commission, any national
securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except for the registration of the Securities under the 1933 Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by you and the required rating agency confirmation), (B)
violates or will violate or conflicts or will conflict with any
provision of the Charter or bylaws of the Fund or any statute, law,
regulation or judgment, injunction, order or decree applicable to the
Fund or any of its property or assets or (C) conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under,
any agreement, indenture, lease or other instrument to which the Fund
is a party or by which it or any of its property or assets may be
bound, or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Fund pursuant to the
terms of any agreement or instrument to which it is a party or by which
it may be bound or to which any of its property or assets is subject.
The Fund is not subject to any order of any court or of any arbitrator,
governmental authority or administrative agency.
(j) Xxxx, Xxxxxx & Xxxxx, who have audited the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Fund within the meaning of the 1933 Act and the 1933 Act
Rules and Regulations.
(k) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement to either
of them), present fairly the financial position, results of operations
and changes in financial position of the Fund on the basis stated or
incorporated by reference in the Registration Statement at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the
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other financial and statistical information and data included in
the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) are accurately presented and prepared on
a basis consistent with such financial statements and the books and
records of the Fund.
(l) The execution and delivery of, and the performance by the Fund
of its obligations under, this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund, and this Agreement and
the Fund Agreements have been duly executed and delivered by the Fund
and constitute the valid and legally binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution hereunder and thereunder may be
limited under federal or state securities laws.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them), the Fund has not incurred
any liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material
to the Fund, and there has not been any change in the capital stock, or
material increase in the short-term debt or long-term debt, of the
Fund, or any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective material
adverse change, in the condition (financial or other), business,
prospects, property, net assets or results of operations of the Fund
taken as a whole, whether or not arising in the ordinary course of
business.
(n) The Fund has not distributed and, prior to the later to occur
of the Closing Date and the completion of the distribution of the
Securities will not distribute, any offering material in connection
with the offering and sale of the Securities other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or
other materials, if any, permitted by the Acts or the Rules and
Regulations.
(o) The Fund has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its property and assets and to conduct its
business in the manner described in the Prospectus (and any supplement
thereto), subject to such qualifications as may be set forth in the
Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the Fund under any such permit, subject in each case to
such qualification as may be set forth in the Prospectus (and any
supplement thereto); and, except as described in the Prospectus (and
any supplement thereto), none of such permits contains any restriction
that is materially burdensome to the Fund.
(p) The Fund maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with general or specific authorization from the
Fund's officers and with the applicable requirements of the 1940 Act,
the 1940 Act Rules and Regulations and the Code; (ii)
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transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets and to maintain
compliance with the books and records requirements under the 1940 Act
and the 1940 Act Rules and Regulations; (iii) access to assets is
permitted only in accordance with general or specific authorization
from the Fund's officers; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(q) To the Fund's knowledge, neither the Fund nor any employee or
agent of the Fund has made any payment of funds of the Fund or received
or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required
to be disclosed in the Prospectus.
(r) The Fund has filed all tax returns required to be filed, which
returns are complete and correct, and the Fund is not in default in the
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto; and the statements in the Prospectus
under the headings "Taxation", "Description of Cumulative Preferred
Stock" and "Description of Capital Stock" fairly summarize the matters
therein described.
(s) No holder of any security of the Fund has any right to require
registration of shares of Cumulative Preferred Stock or any other
security of the Fund because of the filing of the registration
statement or consummation of the transactions contemplated by this
Agreement.
(t) The Fund, subject to the registration statement having been
declared effective and the filing of the Prospectus under Rule 497, has
taken all required action under the Acts and the Rules and Regulations
to make the public offering and consummate the sale of the Securities
as contemplated by this Agreement.
(u) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee
of any patents, patent licenses, trademarks, service marks or trade
names which it does not own, possess or license.
(v) The Fund is registered under the 1940 Act as a closed-end,
diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission and, at the time of filing
thereof and any amendment or supplement thereto, conformed in all
material respects with all applicable provisions of the 1940 Act and
the Rules and Regulations. The Fund is, and at all times through the
completion of the transactions contemplated hereby will be, in
compliance in all material respects with the terms and conditions of
the Acts. No person is serving or acting as an officer, director or
investment adviser of the Fund except in accordance with the provisions
of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act,
and the Advisers Act Rules and Regulations; the Fund has not received
any notice from the Commission pursuant to Section 8(e) of the 1940 Act
with respect to the 1940 Act Notification or the Registration
Statement.
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(w) Except as stated in this Agreement and in the Prospectus (and
any supplement thereto), the Fund has not taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any securities issued by the Fund to
facilitate the sale or resale of the Securities, and the Fund is not
aware of any such action taken or to be taken by any affiliates of the
Fund.
(x) The Fund has filed in a reasonably timely manner each document
or report required to be filed by it pursuant to the Exchange Act and
Exchange Act Rules and Regulations; each such document or report at the
time it was filed conformed to the requirements of the Exchange Act and
the Exchange Act Rules and Regulations; and none of such documents or
reports contained an untrue statement of any material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
(y) Each of the Fund Agreements and the Fund's and the Adviser's
obligations under this Agreement and each of the Fund Agreements comply
in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
(z) The Fund will use its reasonable best efforts to cause the
Cumulative Preferred Stock, on or prior to the Closing Date, to be
assigned a rating of "Aaa" by the Rating Agency.
(aa) At all times since its inception, as required by Subchapter M
of the Code, the Fund has complied with the requirements to qualify as
a regulated investment company under the Code.
(bb) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them), no
director of the Fund is an "interested person" (as defined in the 1940
Act) of the Fund or an "affiliated person" (as defined in the 1940 Act)
of any Underwriter.
(cc) The Fund will use its reasonable best efforts to cause the
Cumulative Preferred Stock to be listed, subject to notice of issuance,
on the NYSE within 30 days of the effectiveness of the Registration
Statement and to comply with the rules and regulations of such
exchange.
(dd) The Fund intends to direct the investment of the proceeds of
the offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(ee) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic
form, authorized in writing by or prepared by the Fund or the Adviser
for use in connection with the offering and sale of the Securities
(collectively, "sales material"), if any, complied and comply in all
material respects with the applicable requirements of the 1933 Act, the
1933 Act Rules and Regulations and the
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rules and interpretations of the NASD and if required to be filed
with the NASD under the NASD's conduct rules were or will be so filed
prior to the Closing. No sales material contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(ff) The Fund's directors and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy or fidelity bond as to which any insurance company is denying
liability or defending under a reservation of rights clause; the Fund
has not been refused any insurance coverage sought or applied for; and
the Fund has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto).
(gg) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any affiliate of Citigroup Global Markets Inc. and
(ii) does not intend to use any of the proceeds from the sale of the
Securities hereunder to repay any outstanding debt owed to any
affiliate of Citigroup Global Markets Inc.
(hh) There is and has been no failure on the part of the Fund and
any of the Fund's directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Xxxxxxxx-Xxxxx Act"), including Sections 302
and 906 related to certifications.
(ii) The operations of the Fund are and have been conducted at all
times in compliance in all material respects with any applicable
financial recordkeeping and reporting requirements of The Bank Secrecy
Act of 1970, as amended (including amendments pursuant to the
International Money Laundering Abatement and Anti-Terrorist Financing
Act of 2001), the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the "Money Laundering Laws") and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Fund with
respect to the Money Laundering Laws is pending or, to the knowledge of
the Fund, threatened.
(jj) Neither the Fund nor, to the knowledge of the Fund, any
director, officer, agent, employee or affiliate of the Fund is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department
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("OFAC"); and the Fund will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such
proceeds to any other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(kk) Neither the Fund nor, to the knowledge of the Fund, any
director, officer, agent, employee or affiliate of the Fund is aware of
or has taken any action, directly or indirectly, that would result in a
violation by such persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay
or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to
any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA and the Fund,
and, to the knowledge of the Fund, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
Any certificate signed by any officer of the Fund and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Fund, as to matters covered thereby, to each Underwriter.
2. Representations and Warranties of the Adviser. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser is a limited liability company duly formed and
validly existing in good standing under the laws of the State of
Delaware, with full corporate power and authority to own, lease and
operate its property or assets and to conduct its business as described
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its property or assets or the conduct of its
business requires such registration or qualification, except where the
failure to so register or to qualify does not have a material adverse
effect on the condition (financial or other), business, prospects,
property, net assets or results of operations of the Adviser, or on the
ability of the Adviser to perform its obligations under this Agreement
and the Investment Advisory Agreement.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or
the 1940 Act Rules and Regulations from acting under the Investment
Advisory Agreement for the Fund as contemplated by the Prospectus (or
any supplement thereto). There does not exist any proceeding or, to the
Adviser's knowledge, any facts or circumstances the existence of which
could reasonably lead to any proceeding, which might adversely affect
the registration of the Adviser with the Commission.
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(c) There are no legal or governmental proceedings pending or, to
the knowledge of the Adviser, threatened against the Adviser, or to
which the Adviser or any of its property or assets is subject, that are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but are
not described as required or that may reasonably be expected to involve
a prospective material adverse change, in the condition (financial or
other), business, prospects, property, net assets or results of
operations of the Adviser or on the ability of the Adviser to perform
its obligations under this Agreement and the Investment Advisory
Agreement.
(d) Neither the execution, delivery or performance of this
Agreement or the Investment Advisory Agreement by the Adviser, nor the
consummation by the Adviser of the transactions contemplated hereby or
thereby (i) requires the Adviser to obtain any consent, approval,
authorization or other order of or registration with, the Commission,
any state securities commission, any national securities exchange, any
arbitrator, any court, regulatory body, administrative agency or other
governmental body, agency or official, (ii) violates or will violate or
conflicts or will conflict with any provision of the certificate of
formation or by-laws or other organizational documents of the Adviser
or any statute, law, regulation or judgment, injunction, order or
decree applicable to the Adviser or any of its property or assets or
(iii) conflicts or will conflict with or constitutes or will constitute
a breach of or a default under, any agreement, indenture, lease or
other instrument to which the Adviser is a party or by which it or any
of its property or assets may be bound, or will result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Adviser pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to
which any of the property or assets of the Adviser is subject. The
Adviser is not subject to any order of any court or of any arbitrator,
governmental authority or administrative agency.
(e) The execution and delivery of, and the performance by the
Adviser of its obligations under, this Agreement and the Investment
Advisory Agreement have been duly and validly authorized by the
Adviser, and this Agreement and the Investment Advisory Agreement have
been duly executed and delivered by the Adviser and each constitutes
the valid and legally binding agreement of the Adviser, enforceable
against the Adviser in accordance with its terms except as rights to
indemnity and contribution hereunder may be limited under federal or
state securities laws.
(f) The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Prospectus (or any supplement thereto) and under
this Agreement and the Investment Advisory Agreement.
(g) The description of the Adviser in the Registration Statement
and the Prospectus (and any amendment or supplement to either of them)
complied and comply in all material respects with the provisions the
Acts, the Advisers Act, the Rules and Regulations, and the Advisers Act
Rules and Regulations and such description did not, as of the effective
date of the Registration Statement and the date hereof, and will not,
as of the Closing Date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(h) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them), the Adviser has not
incurred any liability or obligation, direct or contingent, or entered
into any transaction, not in the ordinary course of business, that is
material to the Fund, and there has not been any material adverse
change, or any development involving or which may reasonably be
expected to involve, a prospective material adverse change, in the
condition (financial or other), business, prospects, property, net
assets or results of operations of the Adviser, whether or not arising
in the ordinary course of business, or which, in each case, could have
a material adverse effect on the ability of the Adviser to perform its
obligations under this Agreement and the Investment Advisory
Agreement.
(i) The Adviser has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as
are necessary to own its property and assets and to conduct its
business in the manner described in the Prospectus (and any supplement
thereto); the Adviser has fulfilled and performed all its material
obligations with respect to such permits, and to the Adviser's
knowledge no event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the Adviser under any
such permit; and, except as described in the Prospectus (and any
supplement thereto), none of such permits contains any restriction that
is materially burdensome to the Adviser.
(j) Except as stated in this Agreement and in the Prospectus (and
any supplement thereto), the Adviser has not taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities issued by the Fund to
facilitate the sale or resale of the Securities, and the Adviser is not
aware of any such action taken or to be taken by any affiliates of the
Adviser.
(k) Xxxxxxx X. Xxxxx is the validly appointed President of the
Adviser.
(l) In the event that the Fund or the Adviser makes available any
promotional materials intended for use only by qualified broker-dealers
and registered representatives thereof by means of an Internet web site
or similar electronic means, the Adviser will install and maintain
pre-qualification and password-protection or similar procedures which
are reasonably designed to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers
and registered representatives thereof.
(m) This Agreement and the Investment Advisory Agreement comply in
all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Advisers Act and the Advisers
Act Rules and Regulations.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund, at a purchase
11
price of $_____ per share, the number of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
4. Delivery and Payment. Delivery of and payment for the
Underwritten Securities shall be made at 10:00 AM, New York City time, on the
business day after the date hereof at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such time on such
later date not more than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Fund or as provided in Section 10
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Fund by wire transfer payable
in same-day funds to an account specified by the Fund. Delivery of the
Underwritten Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Adviser. The Fund and the
Adviser, jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering
of the Securities, the Fund will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Fund has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 497, the Fund will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to Rule
497 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Fund
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 497
or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have
been filed or become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Fund of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or
threatening of any proceeding
12
for such purpose. The Fund will use its best efforts to prevent
the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the 1933 Act, any event occurs as a
result of which, in the judgment of the Fund or in the reasonable
opinion of counsel for the Underwriters, the Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the 1933 Act, the
1940 Act and the Rules and Regulations, the Fund promptly will (1)
notify the Representatives of any such event; (2) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this
Section 6, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Fund will make generally available
to its security holders and to the Representatives an earnings
statement or statements of the Fund which will satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(d) The Fund will furnish to the Representatives and counsel for
the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the 1933 Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Fund will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Fund be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(f) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge,
or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Fund or any
affiliate of the Fund or any person in privity with the Fund, directly
or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act) any other senior security of the Fund or any
securities convertible into, or exercisable, or exchangeable for, any
senior security of the Fund; or
13
publicly announce an intention to effect any such transaction for
a period of 180 days following the Execution Time.
(g) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation,
the Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause the Fund's
directors and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the
provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Fund and the Adviser will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Fund to facilitate the sale or resale of the
Securities.
(i) The Fund agrees to pay the costs and expenses relating to the
following matters: (A) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus and the 1940 Act Notification and each
amendment or supplement to any of them; (B) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, any sales
material and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (C) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (D) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum,
dealer agreements and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (E) the registration of the Securities under the 1933 Act
and the listing of the Securities on the NYSE; (F) any registration or
qualification, if necessary, of the Securities for offer and sale under
the securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (G) any
filings required to be made with the NASD (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (H) the transportation and other expenses
incurred by or on behalf of Fund representatives in connection with
presentations to prospective purchasers of the Securities; (I) the fees
and expenses of the Fund's accountants and the fees and expenses of
counsel (including local and special counsel) for the Fund; (J) the
fees payable to the Rating Agency; and (K) all other costs and expenses
incident to the performance by the Fund of its obligations hereunder,
but not including the fees, expenses, and costs of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel to the Underwriters, except as provided in
Sections 6(i)(D) and (G) and in Section 8 of this Agreement
(j) The Fund will direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
14
(k) The Fund will use its best efforts to cause the Cumulative
Preferred Stock to be listed, subject to notice of issuance, on the
NYSE within 30 days of effectiveness of the Registration Statement and
to comply with the rules and regulations of such exchange.
(l) The Fund will use its best efforts to cause the Cumulative
Preferred Stock, on or prior to the Closing Date, to be assigned a
rating of "Aaa" by the Rating Agency.
(m) The Fund will comply with the requirements of Subchapter M of
the Code to qualify as a regulated investment company under the Code.
(n) The Fund and the Adviser will use their reasonable best
efforts to perform all of the agreements required of them by this
Agreement and discharge all conditions of theirs to closing as set
forth in this Agreement.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the
part of the Fund and the Adviser contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 4 hereof, to the
accuracy of the statements of the Fund made in any certificates pursuant to the
provisions hereof, to the performance by the Fund or the Adviser of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 9:30 AM on the Business
Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 497, the Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 497; and no stop order suspending the effectiveness of
the Registration Statement shall have been issued by the Commission and
no proceedings for that purpose shall have been instituted or
threatened by the Commission.
(b) The Fund shall have requested and caused Xxxxxx Xxxxxx Xxxxx &
Wood LLP, special counsel for the Fund, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the Fund is qualified to do business and is in good
standing as a foreign corporation in the State of New York, and,
to such counsel's knowledge, owns, possesses or has obtained and
currently maintains, all material governmental licenses, permits,
consents, orders, approvals and other authorizations under the
Federal laws of the United States and the laws of the State of New
York necessary to carry on its business as contemplated by the
Prospectus;
15
(ii) the Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable;
(iii) this Agreement has been duly authorized, executed
and delivered by the Fund and complies with the provisions of the
1940 Act and the 1940 Act Rules and Regulations applicable to the
Fund;
(iv) each of the Fund Agreements has been duly
authorized, executed and delivered by the Fund, each complies as
to form in all material respects with all applicable
provisions of the 1940 Act and the 1940 Act Rules and Regulations;
(v) the Registration Statement is effective under the
1933 Act and the 1933 Act Rules and Regulations and, to such
counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act or
the 1933 Act Rules and Regulations or proceedings therefor
initiated or threatened by the Commission;
(vi) at the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements, accompanying notes, and other financial or statistical
information contained or incorporated by reference therein or
omitted therefrom, as to which no opinion need be rendered)
complied as to form in all material respects with the requirements
of the Acts and the Rules and Regulations;
(vii) to such counsel's knowledge, (A) there are no
contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments of the Fund required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein
or filed as exhibits thereto, (B) the descriptions thereof are
correct in all material respects, (C) references thereto are
correct and (D) no default exists in the due performance or
observance by the Fund of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so
described, referred to or filed as an exhibit to the Registration
Statement;
(viii) no consent, approval, authorization or order of any
court or governmental authority or agency is required in
connection with the performance by the Fund of its obligations
under this Agreement, except for (A) such as may be required under
state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by you, (B) the required rating
agency confirmation (as to which such counsel need express no
opinion), (C) such as have been made or obtained under the 1933
Act, and (D) such as may have been obtained under Maryland law;
and to such counsel's knowledge, the execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein will not conflict with or constitute a breach
of, or a default under, or result in the creation or imposition of
any lien, charge or encumbrance
16
upon any property or assets of the Fund pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Fund is a party or by which it may be
bound or to which any of the property or assets of the Fund is
subject, nor will such action result in any violation of the
provisions of the Charter or the Bylaws of the Fund, or, to such
counsel's knowledge, any Federal or New York law or administrative
regulation, or administrative or court decree;
(ix) the Fund is registered with the Commission under
the 1940 Act and the 1940 Act Rules and Regulations as a
closed-end, diversified management investment company, and all
required action has been taken by the Fund under the Acts and the
Rules and Regulations to make the public offering and consummate
the sale of the Securities pursuant to this Agreement; the
provisions of the Charter and the Bylaws of the Fund comply as to
form in all material respects with the requirements of the 1940
Act and the 1940 Act Rules and Regulations; and, to such counsel's
knowledge, no order of suspension or revocation of such
registration under the 1940 Act and the 1940 Act Rules and
Regulations, has been issued or proceedings therefor initiated or
threatened by the Commission;
(x) the information in the Prospectus under the caption
"Taxation", to the extent that it constitutes matters of Federal
income tax law or legal conclusions relating to Federal income tax
matters, has been reviewed by them and is correct in all material
respects; and
(xi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Fund or its property of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus.
In rendering such opinion, Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall
additionally state that nothing has come to their attention that has
caused them to believe that the Registration Statement or any amendment
thereto, at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement thereto, as of the
time it was first provided to the Underwriters or as of the Closing
Date, included an untrue statement of a material fact or omitted 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 that such counsel need not express any belief
with respect to the financial statements, accompanying notes, and other
financial and statistical information contained or incorporated by
reference in the Registration Statement and the Prospectus or omitted
therefrom (and any amendment or supplement to either of the foregoing).
In addition, Xxxxxx Xxxxxx Xxxxx & Xxxx LLP (A) may state that they
express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the laws of the State of Maryland and
the Federal laws of the United States of America, (B) may rely as to
matters involving the laws of the State of Maryland upon the opinion of
Xxxxxxx LLP referred to in paragraph (c) of this Section 7 and (C)
17
may rely, as to matters of fact, upon the representations and
warranties made by the Fund and the Adviser herein and on certificates
and written statements of officers and employees of and accountants for
the Fund and the Adviser and of public officials. Except as otherwise
specifically provided herein, when giving their opinions to their
"knowledge", Xxxxxx Xxxxxx Xxxxx & Xxxx LLP have relied solely upon an
inquiry of the attorneys of that firm who have worked on matters for
the Fund, on certificates or written statements of officers of the Fund
and, where appropriate, a review of the Registration Statement,
Prospectus, exhibits to the Registration Statement, the Charter and
Bylaws of the Fund and a review of the minute books of the Fund and
have made no other investigation or inquiry.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxx LLP, special Maryland counsel to the Fund, dated the Closing
Date and addressed to you, to the effect that:
(i) the Fund has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland;
(ii) the Fund has corporate power and authority, under
the laws of the State of Maryland, to own, lease and operate its
property or assets and conduct its business as described in the
Registration Statement and in the Prospectus;
(iii) the authorized capital stock of the Fund conforms
as to legal matters in all material respects to the description
thereof in the Prospectus under the captions "Description of
Cumulative Preferred Stock" and "Description of Capital Stock";
(iv) the Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of the Securities will not be subject to
preemptive or other similar rights pursuant to the Charter or
Bylaws of the Fund or the Maryland General Corporation Law; and
the form of certificate used to evidence the Shares is in due and
proper form and complies with all provisions of applicable
Maryland law;
(v) the Fund has full corporate power to enter into the
Fund Agreements and each has been duly and validly authorized,
executed and delivered by the Fund;
(vi) to such counsel's knowledge, the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or
constitute a breach of the Charter or the Bylaws of the Fund, or
any Maryland law (other than Maryland securities laws) or
regulation, or, to their knowledge, any order of any Maryland
court, governmental instrumentality or arbitrator; and
18
(vii) all descriptions in the Prospectus of Maryland
statutes and regulations or legal or governmental proceedings, if
any, under the laws of the State of Maryland are accurate in all
material respects.
In rendering such opinion, Xxxxxxx LLP may rely, as to matters of
fact, upon the representations and warranties made by the Fund and the
Adviser herein and on certificates and written statements of officers
and employees of and accountants for the Fund and the Adviser and of
public officials. Except as otherwise specifically provided herein,
when giving their opinions to their "knowledge", Xxxxxxx LLP have
relied solely upon an inquiry of the attorneys of that firm who have
worked on matters for the Fund, on certificates or written statements
of officers of the Fund and, where appropriate, a review of the
Registration Statement, Prospectus, exhibits to the Registration
Statement, the Charter and Bylaws of the Fund and have made no other
investigation or inquiry.
(d) You shall have received on the Closing Date an opinion of Xxxx
X. Xxxxxxx, Esq., General Counsel for the Adviser, dated the Closing
Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) the Adviser has been duly formed and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware, with corporate power and authority
to conduct its business as described in the Registration Statement
and in the Prospectus;
(ii) the Adviser is duly registered as an investment
adviser under the Advisers Act and the Advisers Act Rules and
Regulations and, subject to the matters covered by the no-action
letters of the Commission in Quest Advisory Corp.; Royce Value
Trust, Inc. (pub. avail. December 22, 1986) and Royce Value Trust,
Inc. (pub. avail. July 29, 1988) (collectively, the "No-Action
Letters"), is not prohibited by the Advisers Act, the Advisers Act
Rules and Regulations, the 1940 Act or the 1940 Act Rules and
Regulations, from acting under the Investment Advisory Agreement
for the Fund as contemplated by the Prospectus;
(iii) this Agreement and the Investment Advisory
Agreement each has been duly authorized, executed and delivered by
the Adviser and, subject to the matters covered by the No-Action
Letters, constitutes a valid and binding obligation of the
Adviser, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other
laws relating to or affecting creditors' rights generally and to
general equitable principles (except as to those provisions
relating to indemnity or contribution for liabilities arising
under such agreement, as to which no opinion need be expressed);
and, to his knowledge, neither the execution and delivery of this
Agreement or the Investment Advisory Agreement nor the performance
by the Adviser of its obligations hereunder or thereunder will
conflict with, or result in a breach of, any of the terms and
provisions of, or constitute, with or without the giving of notice
or the lapse of time or both, a default under, any agreement or
instrument to which the Adviser is a party or by which the Adviser
is bound, or, except as set forth in the No-Action Letters, any
law, order, rule or regulation applicable to the
19
Adviser of any jurisdiction, court, Federal or state regulatory
body, administrative agency or other governmental body, stock
exchange or securities association having jurisdiction over the
Adviser or its property or assets or operations;
(iv) to such counsel's knowledge, the description of the
Adviser in the Registration Statement and in the Prospectus (and
any amendment or supplement to either of them) does not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading;
(v) to the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in the
Prospectus, there are no actions, suits or other legal or
governmental proceedings pending or threatened against the Adviser
or to which the Adviser or any of its property is subject which
are required to be described in the Prospectus; and
(vi) no material consent, approval, authorization or
order of or registration or filing with any court, regulatory
body, administrative or other governmental body, agency or
official is required on the part of the Adviser for the
performance of this Agreement or the Investment Advisory Agreement
or for the consummation by the Adviser of the transactions
contemplated hereby or thereby.
In rendering such opinion, such counsel (A) may state that he expresses
no opinion as to the laws of any jurisdiction other than the laws of
the State of New York, the laws of the State of Delaware and the
federal laws of the United States of America, (B) may rely, as to
matters of fact, upon the representations and warranties made by the
Fund and the Adviser herein and on certificates and written statements
of officers and employees of and accountants for the Fund and the
Adviser and of public officials, and (C) may state that he is a member
of the Bar of the State of New York.
(e) The Representatives shall have received on the Closing Date
an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the
Underwriters, dated the Closing Date and addressed to the
Representatives, with respect to such matters as the Underwriters may
reasonably request.
(f) The Fund shall have furnished to the Representatives a
certificate of the Fund, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of each of
the Fund and the Adviser, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the
Prospectus, and this Agreement and that:
(i) The representations and warranties of the Fund and the
Adviser in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date
and the Fund and the Adviser have complied with
20
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted by the Commission or, to the Fund's or the
Adviser's knowledge, threatened by the Commission; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund or
the Adviser, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(g) The Fund shall have requested and caused Xxxx, Xxxxxx & Xxxxx,
the independent public accountants to the Fund, to have furnished to
the Representatives, at the Execution Time and at the Closing Date,
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance heretofore approved by the
Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(g) of this Section 7 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Fund and the
Adviser, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(i) The Fund shall have furnished to you a report showing
compliance with the asset coverage requirements of the 1940 Act and a
Basic Maintenance Report, each dated the Closing Date and in the form
and substance satisfactory to you. Each such report shall assume
receipt of the net proceeds from the sale of the Securities and the use
of such net proceeds to redeem the 7.75% Preferred as contemplated by
the Prospectus and may use portfolio holdings and valuations as of the
close of business of any day not more than six business days preceding
the Closing Date, provided, however, that the Fund represents in such
report that its total net assets as of the Closing Date have not
declined by 5% or more from such valuation date.
(j) The Fund shall have delivered and the Underwriters shall have
received evidence satisfactory to the Underwriters that the Cumulative
Preferred Stock is rated
21
"Aaa" by the Rating Agency as of the Closing Date, and there shall not
have been given any notice of any intended or potential downgrading, or
any review for a potential downgrading, in the rating according to the
shares of the Cumulative Preferred Stock by the Rating Agency.
(k) Prior to the Closing Date, the Fund and the Adviser shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Fund in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be
delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxxxxxx X. Xxxxxx, Esq., on the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the Adviser to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Fund will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
9. Indemnification and Contribution. (a) The Fund and the Adviser,
jointly and severally, agree to indemnify and hold harmless each of the
Representatives and each other Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of the 1933 Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several (including reasonable
costs of investigation), to which they or any of them may become subject under
the 1933 Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Prospectus, any Preliminary Prospectus, any
sales material (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action;
22
provided, however, that the Fund will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Fund may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Fund and the Adviser, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Fund or the Advisers within the meaning of either the 1933 Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Fund and the
Advisers to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Fund by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Fund and the Adviser acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities and, under the
heading "Underwriting", (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve the indemnifying party from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below) and to control such action; provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (A) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (B) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (C) the
23
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (D) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Adviser and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Fund,
the Adviser and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Fund and the Adviser on the one hand (treated jointly for this purpose as one
person) and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Fund, the Adviser and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Fund
and the Adviser on the one hand (treated jointly for this purpose as one person)
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Fund and the Adviser (treated jointly
for this purpose as one person) shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Fund and the Adviser on the one hand
(treated jointly for this purpose as one person) or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Fund, the Adviser and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of either the 1933 Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Fund or the Adviser within the meaning of either the 1933 Act or the Exchange
Act, each officer of the Fund and the Adviser who shall have signed the
Registration Statement and each director of the Fund and the Adviser shall have
the same rights to contribution as the Fund and the Adviser, subject in each
case to the applicable terms and conditions of this paragraph (d). The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to
24
the respective number of Securities set forth opposite their names in Schedule I
(or such numbers of Securities increased as set forth in Section 10 hereof) and
not joint.
(e) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or 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 from claimants on claims that are the
subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the Adviser set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Fund, the Adviser or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Adviser (control to be determined within the meaning of the 1933 Act
or the Exchange Act), (ii) acceptance of any Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Adviser or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Adviser shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 9.
10. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate number of
Securities set forth opposite the names of all the remaining Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Inc. Master Agreement Among Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all of the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Fund.
In the event of a default by any Underwriter as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder. The
term "Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I
25
hereto who, with your approval and the approval of the Fund, purchases Firm
Securities which a defaulting Underwriter agreed, but failed or refused, to
purchase.
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, without liability on the part of
the Underwriters to the Fund or the Adviser, by notice given to the Fund or the
Adviser prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Fund's Common Stock or Cumulative
Preferred Stock shall have been suspended by the Commission or the NYSE or
trading in securities generally on the NYSE shall have been suspended or limited
or minimum prices shall have been established on either of the exchanges, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Fund and the Adviser or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Fund or the
Adviser or any of the officers, directors, employees, agents or controlling
persons referred to in Section 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Fund or the Adviser, will be mailed,
delivered or telefaxed to Royce Micro-Cap Trust, Inc. (fax no.: (000) 000-0000)
and confirmed to it at Royce Micro-Cap Trust, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
26
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1933 Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"1933 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1933 Act.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration
of the Fund as an investment company under the 1940 Act on Form N-8A,
as the 1940 Act Notification may be amended from time to time.
"7.75% Preferred" shall mean the Fund's issued and outstanding
7.75% Cumulative Preferred Stock, par value $.001 per share.
"Acts" shall mean, collectively, the 1933 Act and the 1940 Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended.
"Advisers Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Advisers Act.
"Basic Maintenance Report" shall mean that report that is
delivered to the Rating Agency on or before the third Business Day
after each Quarterly Valuation Date.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
27
"Exchange Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Exchange Act.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in Section 1(a) above and any
preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to
the Securities that is first filed pursuant to Rule 497 after the
Execution Time or, if no filing pursuant to Rule 497 is required, shall
mean the form of final prospectus (including the statement of
additional information incorporated by reference therein) relating to
the Securities included in the Registration Statement at the Effective
Date.
"Quarterly Valuation Date" means the last Valuation Date of March,
June, September and December, commencing _________ __, 2003.
"Rating Agency" shall mean Xxxxx'x Investor Services, Inc.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the 1933 Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
28
"Rule 497" refers to Rule 497(c) or 497(h) under the 1933 Act,
as applicable.
"Rules and Regulations" shall mean, collectively, the 1933 Act
Rules and Regulations and the 1940 Act Rules and Regulations.
"Valuation Date" means every Friday or, if such day is not a
Business Day, the immediately preceding Business Day.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Adviser and the several Underwriters.
Very truly yours,
ROYCE MICRO-CAP TRUST, INC.
By:
----------------------
Name:
Title:
ROYCE & ASSOCIATES, LLC
By:
----------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
UBS Securities LLC
By: Citigroup Global Markets Inc.
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
30
SCHEDULE I
----------
NUMBER OF UNDERWRITTEN
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ----------------------
Citigroup Global Markets Inc...................
UBS Securities LLC ............................
-----------
Total........................ ===========
