TORTOISE ENERGY INFRASTRUCTURE CORPORATION (a Maryland Corporation) 1,100,000 Shares of Common Stock Par Value $.001 Per Share UNDERWRITING AGREEMENT September 25, 2008
Exhibit h(1)
Execution Version
TORTOISE ENERGY INFRASTRUCTURE CORPORATION
(a Maryland Corporation)
1,100,000 Shares of Common Stock
Par Value $.001 Per Share
(a Maryland Corporation)
1,100,000 Shares of Common Stock
Par Value $.001 Per Share
September 25, 2008
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxxxxxxxxx & Co. Inc.
RBC Capital Markets
as Representatives of the several Underwriters
x/x Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxxxxxx & Co. Inc.
RBC Capital Markets
as Representatives of the several Underwriters
x/x Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Tortoise Energy Infrastructure Corporation, a Maryland corporation (the “FUND”), and the
Fund’s investment adviser, Tortoise Capital Advisors, LLC, a Delaware limited liability company
(the “ADVISER”), each confirms its agreement with each of the other Underwriters named in Schedule
A hereto (collectively, the “UNDERWRITERS”), for whom Xxxxxx, Xxxxxxxx & Company, Incorporated,
Xxxxxxxxxxx & Co., Inc. and RBC Capital Markets are acting as Representatives (in such capacity,
the “REPRESENTATIVES”), with respect to the issue and sale by the Fund and the purchase by the
Underwriters, acting severally and not jointly, of the respective number of shares of common stock,
par value $.001 per share, of the Fund (“COMMON SHARES”) set forth in Schedule A hereof
(collectively, the “PRIMARY SHARES”), and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 165,000 additional Common Shares to cover over-allotments, if any (the
“OPTION SHARES”). The Primary Shares and the Option Shares are collectively referred to as the
“SHARES.”
The Fund understands that the Underwriters propose to make a public offering of the Shares as
soon as the Representatives deem advisable after this Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the “COMMISSION”) a
registration statement on Form N-2 (File Nos. 333-146095 and 811-21462) which became effective on
February 12, 2008 and a related preliminary prospectus supplement, covering the registration of the
Shares under the Securities Act of 1933, as amended (the “1933 ACT”), and a notification on Form
N-8A of registration of the Fund as an investment company under the Investment Company Act of 1940,
as amended (the “1940 ACT”), and the rules and regulations of the Commission under the 1933 Act and
the 1940 Act (the “RULES AND
REGULATIONS”). Promptly after execution and delivery of this Agreement, the Fund will prepare
and file a prospectus supplement in accordance with the provisions of Rule 430A (“RULE 430A”) and
paragraph (c) and/or (h) of Rule 497 (“RULE 497”) of the Rules and Regulations. The information
included in any such prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as “RULE 430A INFORMATION.” Each
prospectus used before such registration statement became effective, and any prospectus that
omitted the Rule 430A Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, including in each case any statement of additional information
incorporated therein by reference, is herein called a “PRELIMINARY PROSPECTUS.” Such registration
statement, including the amendments thereto, the exhibits and schedules thereto at the time it
became effective and including the Rule 430A Information and any statement of additional
information incorporated therein by reference, is herein called the “REGISTRATION STATEMENT.” Any
registration statement filed pursuant to Rule 462(b) of the Rules and Regulations is herein
referred to as the “RULE 462(B) REGISTRATION STATEMENT,” and the term “REGISTRATION STATEMENT”
shall include any Rule 462(b) Registration Statement that shall have been filed. The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Shares, including the statement of additional information incorporated therein by reference,
is herein called the “PROSPECTUS.” For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which are incorporated by
reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case
may be.
(a) Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser
represent and warrant to each Underwriter as of the date hereof, as of the Applicable Time (as
defined below), as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agree with each Underwriter, as follows:
(i) Compliance With Registration Requirements. Each of the Registration Statement and
any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act, or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act, and no proceedings for
any such purpose, have been instituted or are pending or, to
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the knowledge of the Fund or the Adviser, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto (filed before the Closing Time) became
effective and at the Closing Time, as hereinafter defined (and, if any Option Shares are
purchased, at the Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement, the notification on Form N-8A and all amendments and supplements
thereto complied and will comply in all material respects with the requirements of the 1933
Act, the 1940 Act and the Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither the Prospectus nor any
amendment or supplement thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time (and, if any Option Shares are purchased, at
the Date of Delivery), included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance upon and in
conformity with written information furnished to the Fund by or on behalf of any Underwriter
for use in the Registration Statement or Prospectus.
As of the Applicable Time (as defined below), the Rule 482 Statement, if any (as
defined below) issued at or prior to the Applicable Time, if any, the Statutory Prospectus
(as defined below) and the information included on Schedule C hereto, all considered
together (collectively, the “GENERAL DISCLOSURE PACKAGE”), did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 9:30 a.m. (Eastern time) on September 25, 2008 or such other
time as agreed by the Fund and the Representatives.
“Rule 482 Statement” means a document, if any, prepared in accordance with the
provisions of Rule 482 of the 1933 Act in connection with the offering of the Shares and
which is set forth on Schedule D hereto.
“Statutory Prospectus” as of any time means the prospectus relating to the Shares that
is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
Each preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule
497 of the Rules and Regulations, complied when so filed in all material respects
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with the Rules and Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with the offering and
sale of the Shares, the Fund has complied or will comply with the requirements of Rule 111
of the Rules and Regulations relating to the payment of filing fees thereof.
At the time of filing the Registration Statement, any 462(b) Registration Statement and
any post-effective amendments thereto and at the date hereof, the Fund was not and is not an
“ineligible issuer,” as defined in Rule 405 of the Rules and Regulations.
(ii) Incorporation of Documents by Reference. The documents incorporated in the
Registration Statement, the Prospectus and the Statutory Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material
respects with the requirements of the Securities Exchange Act of 1934, as amended (the “1934
ACT”) and the rules and regulations of the Commission under the 1934 Act (the “1934 ACT
REGULATIONS”), the 1940 Act and the Rules and Regulations and, when read together with the
other information in the Prospectus, (a) at the time the Registration Statement became
effective, (b) at the time the Prospectus was issued and (c) at the Closing Time, did not
and will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the statement of assets
and liabilities included in the Registration Statement have confirmed to the Fund their
status as independent public accountants as required by the 1933 Act and the Rules and
Regulations and the Fund and the Adviser have no reason to believe that they are not
independent public accountants.
(iv) Financial Statements. The statement of assets and liabilities included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related notes, presents fairly in accordance with generally accepted accounting principles
(“GAAP”) in all material respects the financial position of the Fund at the date indicated
and has been prepared in conformity with GAAP. The supporting schedules, if any, present
fairly in accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis consistent with that
of audited financial statements included in the Registration Statement.
(v) Expense Summary. The information set forth in the Prospectus in the fee table
contained in the section of the Prospectus entitled “Summary of Company Expenses” has been
prepared in all material respects in accordance with the requirements of Form N-2, and
interpretations thereunder, and to the extent estimated or projected,
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such estimates or projections are reasonably believed to be attainable and reasonably
based.
(vi) No Material Adverse Change. Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Fund, whether or not arising in the ordinary course of business (other than
as a result of changes in market conditions generally) (a “MATERIAL ADVERSE EFFECT”), (B)
there have been no transactions entered into by the Fund, other than those in the ordinary
course of business, which are material with respect to the Fund, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Fund on any class of its
capital stock.
(vii) Good Standing of the Fund. The Fund has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of Maryland and has
the corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Fund is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(viii) No Subsidiaries. The Fund has no subsidiaries.
(ix) Investment Company Status. The Fund is duly registered with the Commission under
the 1940 Act as a nondiversified, closed-end management investment company, and no order of
suspension or revocation of such registration has been issued or proceedings therefor
initiated or, to the Fund’s knowledge, threatened by the Commission.
(x) Officers and Directors. 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 and
the Rules and Regulations and the Investment Advisers Act of 1940, as amended (the “ADVISERS
ACT”), and the rules and regulations of the Commission promulgated under the Advisers Act
(the “ADVISERS ACT RULES AND REGULATIONS”). Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, to the Fund’s knowledge after
due inquiry, no director of the Fund is an “Interested Person” (as defined in the 0000 Xxx)
of the Fund or an “Affiliated Person” (as defined in the 0000 Xxx) of any Underwriter that
serves as a Representative.
(xi) Capitalization. The authorized, issued and outstanding capital stock of the Fund
is as set forth in the General Disclosure Package and the Prospectus as of the date thereof
under the captions “The Company” and “Description of Securities.” All issued and outstanding
Common Shares of the Fund and all issued and outstanding
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Tortoise Preferred Shares of the Fund (the “PREFERRED SHARES”) have been duly
authorized and validly issued and are fully paid and non-assessable, and have been offered
and sold or exchanged by the Fund in compliance with all applicable laws (including, without
limitation, federal and state securities laws). None of the outstanding Common Shares or
Preferred Shares of the Fund was issued in violation of the preemptive or other similar
rights of any securityholder of the Fund.
(xii) Authorization and Description of Shares. The Shares to be purchased by the
Underwriters from the Fund have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by the Fund pursuant
to this Agreement against payment of the consideration set forth herein, will be validly
issued, fully paid and non-assessable. The Common Shares conform to all statements relating
thereto contained in the General Disclosure Package and the Prospectus and such description
conforms in all material respects to the rights set forth in the instruments defining the
same; and the issuance of the Shares is not subject to the preemptive or other similar
rights of any securityholder of the Fund.
(xiii) Absence of Defaults and Conflicts. The Fund is not in violation of its charter
or by-laws, or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other 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 Fund
is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations or
defaults that would not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, and the consummation of the transactions contemplated in this
Agreement and in the Registration Statement (including the issuance and sale of the Shares
and the use of the proceeds from the sale of the Shares as described in the General
Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by
the Fund with its obligations thereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Fund pursuant to the Investment Advisory
Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund
Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to
in the Registration Statement (as used herein, individually the “Investment Advisory
Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund
Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,”
respectively and collectively the “FUND AGREEMENTS”) and the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Fund or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of
its assets, properties or operations (except for such violations that would not result in a
Material Adverse Effect). As used herein, a
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“REPAYMENT EVENT” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Fund.
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Fund or the Adviser, threatened, against
or affecting the Fund, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which could reasonably be expected to result in a
Material Adverse Effect, or which could reasonably be expected to materially and adversely
affect the properties or assets of the Fund or the consummation of the transactions
contemplated in this Agreement or the performance by the Fund of its obligations hereunder.
The aggregate of all pending legal or governmental proceedings to which the Fund is a party
or of which any of its property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus (or the documents incorporated
by reference therein) or to be filed as exhibits thereto by the 1933 Act, the 1940 Act or by
the Rules and Regulations which have not been so described and filed as required.
(xvi) Possession of Intellectual Property; Fund Name. The Fund owns or possesses, or
can acquire on reasonable terms, adequate licenses, copyrights, know-how (including trade
secrets or confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, “INTELLECTUAL PROPERTY”) necessary
to carry on the business now operated by the Fund, and the Fund has not received any notice
or is not otherwise aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the interest of the Fund
therein.
(xvii) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Fund of its
obligations hereunder, in connection with the offering, issuance or sale of the Shares
hereunder or the consummation of the transactions contemplated by this Agreement, except
such as have been already obtained or as may be required under the 1933 Act, the 1940 Act,
the Securities Exchange Act of 1934, as amended (the “1934 ACT”), or under the rules of the
New York Stock Exchange (“NYSE”) , or under the rules of the Financial Industry Regulatory
Association (“FINRA”) and the NASD Conduct Rules that are included thereunder, or state
securities laws. In furtherance of the foregoing, the Fund represents and warrants that it
has
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previously filed, in consultation with the Representatives, with FINRA all Rule 482
Statements, if any, which are required to be filed with FINRA.
(xviii) Possession of Licenses and Permits. The Fund possesses such permits, licenses,
approvals, consents and other authorizations (collectively, “GOVERNMENTAL LICENSES”) issued
by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary
to operate its properties and to conduct the business as contemplated in the Prospectus.
The Fund is in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect. All of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse Effect. The Fund
has not received any notice of proceedings relating to the revocation or modification of any
such Governmental Licenses.
(xix) Advertisements. Any advertising, sales literature or other promotional material
(including “prospectus wrappers,” “broker kits,” “road show slides” and “road show scripts”
and “electronic road show presentations”) authorized in writing by or prepared by the Fund
or the Adviser used in connection with the public offering of the Shares (collectively,
“SALES MATERIAL”) does not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Moreover, all Sales
Material complied and will comply in all material respects with the applicable requirements
of the 1933 Act, the 1940 Act, the Rules and Regulations and the rules and interpretations
of FINRA (except that this representation and warranty does not apply to statements in or
omissions from the Sales Material made in reliance upon and in conformity with written
information relating to any Underwriter furnished to the Fund by or on behalf of any
Underwriter through you expressly for use therein), including any requirement to file any
Rule 482 Statement.
(xx) Subchapter M. The Fund has not made and will not make an election under Section
851(b) of the Internal Revenue Code of 1986, as amended (the “CODE”) (or any successor
provisions thereto), to be treated as a regulated investment company for federal income tax
purposes.
(xxi) Distribution of Offering Materials. The Fund has not distributed and, prior to
the later of (A) the Closing Time and (B) completion of the distribution of the Shares, will
not distribute any offering material to the public in connection with the offering and sale
of the Shares other than the Registration Statement, the Statutory Prospectus, the Rule 482
Statement and the Prospectus.
(xxii) Accounting Controls and Disclosure Controls. The Fund maintains a system of
internal accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorization
and with the applicable requirements of the 1940 Act, the Rules and Regulations, FINRA and
the Code; (B) transactions are recorded as necessary to
8
permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets and to maintain compliance with the books and records requirements
under the 1940 Act and the Rules and Regulations; (C) access to assets is permitted only in
accordance with the management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Fund has developed and
maintains disclosure controls and procedures (as such term is defined in Rule 30a-3 of the
0000 Xxx) that are effective in ensuring that information required to be disclosed by the
Fund in the reports that it files or submits under the 1940 Act is recorded, processed,
summarized and reported, within the time periods specified in the rules and forms of the
Commission, including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Fund in the reports that it files or submits
under the 1940 Act is accumulated and communicated to the Fund’s management, including its
principal executive officer or officers and its principal financial officer or officers, as
appropriate to allow timely decisions regarding required disclosure.
(xxiii) Absence of Undisclosed Payments. Neither the Fund nor, to the Fund’s
knowledge, any employee or agent of the Fund, has made any payment of funds of the Fund or
received or retained any funds, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus and which payment has not been so
disclosed.
(xxiv) Material Agreements. The Fund Agreements and this Agreement have each been duly
authorized by all requisite action on the part of the Fund and executed and delivered by the
Fund, as of the dates noted therein, and each complies with all applicable provisions of the
1940 Act in all material respects. Assuming due authorization, execution and delivery by
the other parties thereto with respect to this Agreement and the Fund Agreements, each of
the Fund Agreements and this Agreement constitutes a valid and binding agreement of the
Fund, enforceable in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing and except as rights to indemnification or contribution thereunder may be
limited by federal or state laws.
(xxv) Registration Rights. There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Fund under the 1933 Act.
(xxvi) NYSE Listing. The Shares have been duly authorized for listing, upon notice of
issuance, on the NYSE and the Fund’s registration statement on Form 8-A under the 1934 Act
has become effective.
(xxvii) Payment of Taxes. All United States federal income tax returns of the Fund
required by law to be filed have been filed and all taxes shown by such returns or otherwise
assessed, which are due and payable, have been paid, except
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assessments that are being contested in good faith and as to which adequate reserves
have been provided. The Fund has filed all other tax returns that are required to have
been filed by them pursuant to applicable foreign, state, local or other law except insofar
as the failure to file such returns would not result in a Material Adverse Effect, and has
paid all taxes due pursuant to such returns or pursuant to any assessment received by the
Fund, except for such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. The charges, accruals and reserves on the books of
the Fund in respect of any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for additional tax for any
years not finally determined, except to the extent of any inadequacy that would not result
in a Material Adverse Effect. All material taxes which the Fund is required by law to
withhold or to collect for payment have been duly withheld and collected and have been paid
to the appropriate governmental authority or agency or have been accrued, reserved against
and entered on the books of the Fund.
(xxviii) Insurance. The Fund carries on or is entitled to the benefits of insurance,
with financially sound and reputable insurers, in such amounts and covering such risks as
are generally maintained by companies of established repute engaged in the same or similar
business, and all such insurance is in full force and effect. The Fund has no reason to
believe that it will not be able to (A) renew its existing insurance coverage as and when
such policies expire or (B) obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Effect.
(xxix) Statistical and Market-Related Data. Any statistical and market-related data
included in the Registration Statement, the General Disclosure Package and the Prospectus
are based on or derived from sources that the Fund believes to be reliable and accurate, and
the Fund has obtained written consent to the use of such data from such sources.
(b) Representations and Warranties by the Adviser. The Adviser represents and warrants to
each Underwriter as of the date hereof, as of the Applicable Time, as of the Closing Time referred
to in Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof as follows:
(i) Good Standing of the Adviser. The Adviser has been duly organized and is validly
existing and in good standing as a limited liability company under the laws of the State of
Delaware with full power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
is duly qualified as a foreign entity to transact business and is in good standing in each
other jurisdiction in which such qualification is required except as would not, individually
or in the aggregate, result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of such Adviser,
whether or not arising in the ordinary course of business (an “ADVISER MATERIAL ADVERSE
EFFECT”).
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(ii) Investment Adviser Status. The Adviser is duly registered and in good standing
with the Commission as an investment adviser under the Advisers Act, and is not prohibited
by the Advisers Act, the 1940 Act, or the rules and regulations of the Commission under such
acts, from acting under the Investment Advisory Agreement for the Fund as contemplated by
the Prospectus.
(iii) Description of Adviser. The description of the Adviser in the Registration
Statement, the General Disclosure Package and the Prospectus (including any amendment or
supplement thereto) complied and comply in all material respects with the provisions of the
1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and is true and correct and does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were
made, not misleading.
(iv) Capitalization. The Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the General
Disclosure Package, the Prospectus and in the Investment Advisory Agreement.
(v) Authorization of Fund Agreements; Absence of Defaults and Conflicts. This
Agreement and the Investment Advisory Agreement have each been duly authorized, executed and
delivered by the Adviser, and (assuming the due authorization, execution and delivery of
each other party thereto) each such Agreement constitutes a valid and binding obligation of
the Adviser, enforceable in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable principles
(whether considered in a proceeding in equity or at law) or an implied covenant of good
faith and fair dealing and except as rights to indemnification or contribution thereunder
may be limited by federal or state laws; and 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 lapse of
time or both, a default under, (i) any agreement or instrument to which the Adviser is a
party or by which it is bound, (ii) the limited liability company operating agreement and
other organizational documents of the Adviser, or (iii) to the Adviser’s knowledge, by any
law, order, decree, rule or regulation applicable to it 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 properties or
operations other than any conflict, breach or default that would not, individually or in the
aggregate, reasonably be expected to result in an Adviser Material Adverse Effect; and no
consent, approval, authorization or order of any court or governmental authority or agency
is required for the consummation by the Adviser of the transactions contemplated by this
Agreement or the Investment Advisory Agreement, except as have been obtained or will be
obtained prior to the Closing Time or may be required under the 1933 Act, the 1940 Act, the
1934 Act or state securities laws.
11
(vi) No Material Adverse Change. Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus,
there has not occurred any event which could reasonably be expected to have a material
adverse effect on the ability of the Adviser to perform its respective obligations under
this Agreement and the Investment Advisory Agreement.
(vii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Adviser, threatened against or affecting
the Adviser or any “affiliated person” of the Adviser (as such term is defined in the 0000
Xxx) or any partners, directors, officers or employees of the foregoing, whether or not
arising in the ordinary course of business, which could reasonably be expected to result in
an Adviser Material Adverse Effect, or materially and adversely affect the ability of the
Adviser to function as an investment adviser with respect to the Fund or perform its
obligations under this Agreement or the Investment Advisory Agreement, or which is required
to be disclosed in the Registration Statement and the Prospectus.
(viii) Absence of Violation or Default. The Adviser is not in violation of its limited
liability company operating agreement or other organizational documents or in default under
any agreement, indenture or instrument, except for such violations or defaults that have not
and could not result in an Adviser Material Adverse Effect.
(c) Officer’s Certificates. Any certificate signed by any officer of the Fund or the Adviser
delivered to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Fund or the Adviser, as the case may be, to each Underwriter as
to the matters covered thereby.
(a) Primary Shares. On the basis of the representations, warranties and covenants contained
herein and subject to the terms and conditions set forth herein, the Fund agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Fund, at the price per share set forth in Schedule B, the number of Primary
Shares set forth in Schedule A opposite the name of such Underwriter, plus any additional number of
Primary Shares which such Underwriter may become obligated to purchase pursuant to the provisions
of Section 10 hereof.
(b) Option Shares. In addition, on the basis of the representations and warranties contained
herein and subject to the terms and conditions set forth herein, the Fund hereby grants an option
to each Underwriter, severally and not jointly, to purchase up to an additional 165,000 Common
Shares in the aggregate at the price per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Fund and payable on the Primary Shares but
not payable on the Option Shares. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and distribution of the Primary
Shares upon notice by the
12
Representatives to the Fund setting forth the number of Option Shares as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such Option Shares. Any
such time and date of delivery (a “DATE OF DELIVERY”) shall be determined by the Representatives,
but shall not be later than seven (7) full business days and no earlier than three (3) full
business days after the exercise of said option, nor in any event prior to the Closing Time. If
the option is exercised as to all or any portion of the Option Shares, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total number of Option
Shares then being purchased which the number of Primary Shares set forth in Schedule A opposite the
name of such Underwriter bears to the total number of Primary Shares, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate any sales or
purchases of a fractional number of Option Shares plus any additional number of Option Shares which
such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the Primary
Shares shall be made at the offices of Xxxxxxx Xxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or at such other place as shall be agreed upon by the Representatives and the Fund, at 10:00
A.M. (Eastern time) on the third business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten (10) business days after
such date as shall be agreed upon by the Representatives and the Fund (such time and date of
payment and delivery being herein called “CLOSING TIME”). In addition, in the event that any or
all of the Option Shares are purchased by the Underwriters, payment of the purchase price for such
Option Shares shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Representatives and the Fund, on each Date of Delivery as specified in the
notice from the Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately available funds to a bank
account designated by the Fund, against delivery to the Representatives for the respective accounts
of the Underwriters of the Shares to be purchased by them. It is understood that each Underwriter
has authorized the Representatives, for their account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Primary Shares and the Option Shares, if any, which it has
agreed to purchase. Each Representative, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase price for the
Primary Shares or the Option Shares, if any, to be purchased by any Underwriter whose funds have
not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Primary Shares and the Option Shares,
if any, shall be in such denominations and registered in such names as the Representatives may
request in writing at least three (3) full business days before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Primary Shares and the Option
Shares, if the Fund determines to issue any such certificates, will be made available for
examination and packaging by the Representatives in the City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be. The Primary Shares and the Option Shares to be
13
purchased hereunder shall be delivered to you at the Closing Time or the relevant Date of
Delivery, as the case may be, through the facilities of the Depository Trust Company or another
mutually agreeable facility, against payment of the purchase price therefor in immediately
available funds to the order of the Fund.
(a) The Fund and Adviser covenant with each Underwriter as follows:
(i) Compliance With Securities Regulations and Commission Requests. The Fund, subject
to Section 3(a)(ii), will comply with the requirements of Rule 430A or Rule 430C of the
Rules and Regulations, as applicable, and will notify the Representatives as soon as
practicable, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (or any document incorporated by
reference therein) or for additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes or of any examination pursuant to
Section 8(e) of the 1933 Act concerning the Registration Statement, and (v) if the Fund
becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the
offering of the Shares. The Fund will promptly effect the necessary post-effective
amendment and the filings required pursuant to Rule 497 of the Rules and Regulations and
will take such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received for filing by the Commission
and, in the event that it was not, it will promptly file such prospectus. The Fund will
make every reasonable effort to prevent the issuance of any stop order, or order of
suspension or revocation of registration pursuant to Section 8(e) of the 1940 Act, and, if
any such stop order or order of suspension or revocation of registration is issued, to
obtain the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments and Exchange Act Documents. The Fund will give the
Representatives notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, and will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such documents to which the Representatives or counsel for
the Underwriters shall reasonably object. The Fund has given the Representatives notice of
any filings made pursuant to the 1934 Act or the 1934 Act Regulations within 48 hours prior
to the Applicable Time; the Fund will give the Representatives notice of its intention to
make any such filing from the Applicable Time to the Closing Time and will furnish the
Representatives with copies
14
of any such documents a reasonable amount of time prior to such proposed filing and
will not file or use any such document to which the Representatives or counsel for the
Underwriters shall object; provided, however that this covenant shall not apply to any
post-effective amendment required by Rule 8b-16 of the 1940 Act which is filed with the
Commission after the later of (x) one year from the date of this Agreement or (y) the date
on which the distribution of the Shares is completed.
(iii) Delivery of Registration Statements. The Fund has furnished or will deliver to
the Representatives and counsel for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated by reference
therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment (except any post-effective amendment
required by Rule 8b-16 of the 1940 Act which is filed with the Commission after the later of
(x) one year from the date of this Agreement or (y) the date on which the distribution of
the Shares is completed) thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Fund has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Fund hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Fund will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(v) Continued Compliance With Securities Laws. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the Shares, any event
shall occur or condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Fund, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the Rules and
Regulations, the Fund will promptly prepare and file with the Commission, subject to Section
3(a)(ii), such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with such
requirements, and the Fund
15
will furnish to the Underwriters such number of copies of such amendment or supplement
as the Underwriters may reasonably request. If at any time following issuance of a Rule 482
Statement, there occurred or occurs an event or development as a result of which such Rule
482 Statement conflicted with or would conflict with the information contained in the
Registration Statement (or any other registration statement relating to the Shares) or the
Statutory Prospectus or any preliminary prospectus, or such Rule 482 Statement included or
would include an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances, prevailing at the subsequent time, not misleading, the Fund will promptly
notify the Representatives and will promptly amend or supplement, at its own expense, such
Rule 482 Statement to eliminate or correct such conflict, untrue statement or omission.
(vi) Blue Sky Qualifications. The Fund will use its best efforts, in cooperation with
the Underwriters, to qualify the Shares for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as the
Representatives may designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that the foregoing shall not
apply to the extent that the Shares are “covered securities” that are exempt from state
regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided,
further, that the Fund shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
(vii) Rule 158. The Fund will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Fund will use the net proceeds received by it from the
sale of the Shares in the manner specified in the General Disclosure Package and the
Prospectus under “Use of Proceeds.”
(ix) Listing. The Fund will use its best efforts to effect the listing of the Shares
on the NYSE, subject to notice of issuance.
(x) Restriction on Sale of Shares. During a period of 90 days from the date of the
Prospectus, the Fund will not, without the prior written consent of the Representatives, (A)
directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase or lend or otherwise transfer or dispose of Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or file any registration
statement under the 1933 Act with respect to any of the foregoing or (B) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common
16
Shares, whether any such swap or transaction described in clause (A) or (B) above is to
be settled by delivery of Common Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to the Shares to be sold hereunder or the Common Shares
issued pursuant to any dividend reinvestment plan.
(xi) Reporting Requirements. The Fund, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1940 Act and the 1934 Act within
the time periods required by the 1940 Act, the Rules and Regulations and the 1934 Act
Regulations, respectively.
(xii) No Manipulation of Market for Shares. Except for the authorization of actions
permitted to be taken by the Underwriters as contemplated herein, in the General Disclosure
Package or in the Prospectus, the Fund will not (a) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Shares in violation of federal or state securities laws, and (b) until
the Closing Time, or the Date of Delivery, if any, (i) except for Share repurchases
permitted in accordance with applicable laws and issuances of Shares or purchases of Shares
in the open market pursuant to the Fund’s dividend reinvestment plan, sell, bid for or
purchase the Shares or pay any person any compensation for soliciting purchases of the
Shares or (ii) pay or agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Fund.
(xiii) Rule 462(b) Registration Statement. If the Fund elects to rely upon Rule
462(b), the Fund shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Fund shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(xiv) Sales Materials. The Fund represents and agrees that, unless it obtains the
prior consent of the Representatives, it will not use any Sales Materials in connection with
any public offering of any Shares.
(a) Expenses. The Fund will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this Agreement, any
agreement among Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Shares, (iii) the preparation, issuance and
delivery of the certificates for the Shares to the Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iv) the fees and disbursements of the Fund’s counsel,
17
accountants and other advisers, (v) the printing and delivery to the Underwriters of copies of
each preliminary prospectus, any Rule 482 Statement and of the Prospectus and any amendments or
supplements thereto and any costs associated with electronic delivery of any of the foregoing by
the Underwriters to investors, (vi) the fees and expenses of any transfer agent or registrar for
the Shares, (vii) the filing fees incident to, and the reasonable fees and disbursements of counsel
to the Underwriters in connection with, the review, if any, by FINRA of the terms of the sale of
the Shares, (viii) the fees and expenses incurred in connection with the listing of the Shares on
the NYSE, (ix) the printing of any Sales Material and (x) the fees and expenses (including, without
limitation, any damages or other amounts payable in connection with legal or contractual liability)
associated with the reforming of any contracts for sale of the Shares made by the Underwriters
caused by a breach of the representation contained in the third paragraph of Section 1(a)(i)
hereof.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Fund or the Adviser
shall reimburse, or arrange for an affiliate to reimburse, the Underwriters for all of their out of
pocket expenses, including reasonable fees and disbursements of counsel for the Underwriters. If
this Agreement is terminated for any reason other than by the Representatives in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Fund or the Adviser shall reimburse, or
arrange for an affiliate to reimburse, the Underwriters for all of their out of pocket expenses,
including reasonable fees and disbursements of counsel for the Underwriters up to a maximum
reimbursement of $70,000.
The obligations of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Fund and the Adviser contained in Section 1 hereof and in
certificates of any officer of the Fund or the Adviser delivered pursuant to the provisions hereof,
to the performance by the Fund and the Adviser of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the 1933 Act, no
notice or order pursuant to Section 8(e) of the 1940 Act shall have been issued, and no proceedings
with respect to either shall have been initiated or, to the Fund’s knowledge, threatened by the
Commission, and any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission in accordance with
Rule 497 (or a post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(i) Opinion of Counsel for the Fund and the Adviser. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
18
Time, from Xxxxxx Price P.C., counsel for the Fund, and Husch Xxxxxxxxx Xxxxxxx LLP,
counsel for the Advisor, and together with signed and reproduced copies of such letters for
each of the other Underwriters, which opinions shall be substantially similar to those
opinions delivered on June 24, 2008 in connection with a public offering of the Fund which
was made on such date, and to such further effect as counsel to the Underwriters may
reasonably request. As to matters of Maryland law, Xxxxxx Price P.C. may rely on the
opinion of Xxxxxxx LLP.
(ii) Opinion of Counsel for the Underwriters. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, from Xxxxxxx Xxxxx LLP,
counsel for the Underwriters, together with signed and reproduced copies of such letters for
each of the other Underwriters, which opinion shall be in form and substance satisfactory to
the Representatives.
(c) Officers’ Certificates. At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Prospectus or the General
Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Fund, whether or not arising in the
ordinary course of business, and the Representatives shall have received a certificate of a duly
authorized officer of the Fund and of the chief financial or chief accounting officer of the Fund
and of the President or a Vice President or Managing Director of the Adviser, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Sections l(a) and (b) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time, (iii) the Fund or the Adviser,
as applicable, has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement, or order of suspension or revocation of registration
pursuant to Section 8(e) of the 1940 Act, has been issued and no proceedings for any such purpose
have been instituted or are pending or, to the knowledge of the Fund or the Adviser, contemplated
by the Commission.
(d) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP (“E&Y”) a letter dated such date, in
form and substance satisfactory to the Representatives, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration Statement, the
General Disclosure Package and the Prospectus.
(e) Bring-Down Comfort Letter. At Closing Time, the Representatives shall have received from
E&Y a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d) of this Section, except that the specified date
referred to shall be a date not more than three (3) business days prior to Closing Time.
(f) Approval of Listing. At Closing Time, the Shares shall have been approved for listing on
the NYSE, subject only to official notice of issuance.
19
(g) No Objection. [INTENTIONALLY RESERVED].
(h) Conditions to Purchase of Option Shares. In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or any portion of the Option Shares,
the representations and warranties of the Fund contained herein and the statements in any
certificates furnished by the Fund hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representatives shall have received:
(i) Officers’ Certificates. Certificates, dated such Date of Delivery, of a duly
authorized officer of the Fund and of the chief financial or chief accounting officer of the
Fund and of the President or a Vice President or Managing Director of the Adviser confirming
that the information contained in the certificate delivered by each of them at the Closing
Time pursuant to Section 5(c) hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel.
a) Opinions of Counsel for the Fund and the Adviser. The favorable opinions of
Xxxxxx Price P.C., counsel for the Fund, and Husch Xxxxxxxxx Xxxxxxx LLP, counsel
for the Adviser, dated such Date of Delivery, relating to the Option Shares to be
purchased on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(i) hereof, including reliance by Xxxxxx Price P.C. on
Xxxxxxx LLP as to matters of Maryland law.
b) Opinion of Counsel for the Underwriters. The favorable opinion of Xxxxxxx
Xxxxx LLP, counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Shares to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b)(ii) hereof.
(iii) Bring-Down Comfort Letter. A letter from E&Y, in form and substance satisfactory
to the Representatives and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to Section 5(e) hereof,
except that the “specified date” in the letter furnished pursuant to this paragraph shall be
a date not more than five (5) days prior to such Date of Delivery.
(i) Maintenance of Rating. Since the execution of this Agreement, there shall not have been
any decrease in the rating of any of the Fund’s securities by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the Rules and
Regulations) or any notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the possible change.
(j) Additional Documents. At Closing Time and at each Date of Delivery, counsel for the
Underwriters shall have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
20
of the Shares as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions herein contained; and
all proceedings taken by the Fund and the Adviser in connection with the organization and
registration of the Fund under the 1940 Act and the issuance and sale of the Shares as herein
contemplated shall be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Shares, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option Shares, may be terminated
by the Representatives by notice to the Fund at any time at or prior to Closing Time or such Date
of Delivery, as the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 13 shall
survive any such termination and remain in full force and effect.
(a) Indemnification of Underwriters. The Fund and the Adviser agree, jointly and severally,
to indemnify and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any
director, officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Rule 482 Statement or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Fund; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
21
statement or omission, to the extent that any such expense is not paid under (i) or
(ii) above; provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Fund or the Adviser by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, or any preliminary prospectus, any Rule 482 Statement
or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Fund, Adviser, Directors and Officers. Each Underwriter severally
agrees to indemnify and hold harmless the Fund and the Adviser, their respective directors, each of
the Fund’s officers who signed the Registration Statement, and each person, if any, who controls
the Fund or the Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Fund or the Adviser by such Underwriter
through the Representatives expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Indemnification for Marketing Materials. In addition to the foregoing indemnification,
the Fund and the Adviser also agree, jointly and severally, to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 6(a), as limited by the proviso set
forth therein, with respect to any Sales Material in the form approved by the Fund, the Adviser and
the Representatives for use by the Underwriters and securities firms to whom the Fund or the
Adviser shall have disseminated materials in connection with the public offering of the Shares.
(d) Actions Against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Fund and the Adviser. An indemnifying
party may participate at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the indemnified party) also
be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel
22
(in addition to any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this Section 6 or Section 7
hereof (whether or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(e) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
(f) Limitations on Indemnification. Any indemnification by the Fund shall be subject to the
requirements and limitations of Section 17(i) of the 1940 Act and 1940 Act Release 11330.
Section 7. Contribution. If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Fund and the Adviser on the one hand and the
Underwriters on the other hand from the offering of the Shares pursuant to this Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Fund and the Adviser on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Adviser on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Shares pursuant to this Agreement (before deducting expenses) received by the
Fund and the total underwriting discount received by the Underwriters (whether from the Fund or
otherwise), in each case as set forth on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares as set forth on such cover.
23
The relative fault of the Fund and the Adviser on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Fund or the Adviser or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Fund, the Adviser and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Fund and each director of the Adviser,
respectively, each officer of the Fund who signed the Registration Statement, and each person, if
any, who controls the Fund or the Adviser, within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the Fund and the Adviser,
respectively. The Underwriters’ respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Primary Shares set forth opposite their respective names
in Schedule A hereto and not joint.
Any contribution by the Fund shall be subject to the requirements and limitations of Section
17(i) of the 1940 Act and 1940 Act Release 11330.
24
Section 8. Representations and Warranties To Survive Delivery. All representations,
warranties and agreements contained in this Agreement or in certificates of officers of the Fund or
the Adviser submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Fund or the Adviser, and shall survive delivery of the Shares to the
Underwriters.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Fund, at any time at or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in the Prospectus or
General Disclosure Package, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Fund or the Adviser, whether or
not arising in the ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international financial markets, any
material outbreak of hostilities or material escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares, or (iii) if trading in the Common Shares of the Fund has been
suspended or materially limited by the Commission or the NYSE, or if trading generally on the
American Stock Exchange or in the NASDAQ Global Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the Commission, FINRA or any
other governmental authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a banking moratorium
has been declared by either Federal or Kansas authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7, 8 and 13 shall survive such termination and remain in
full force and effect.
Section 10. Default by One or More of the Underwriters. If one or more of the Underwriters
shall fail at Closing Time or any Date of Delivery to purchase the Shares which it or they are
obligated to purchase under this Agreement (the “DEFAULTED SHARES”), the Representatives shall have
the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Shares in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the number of Shares to be
purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that their
25
respective underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on
such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Fund to sell the Option Shares to
be purchased and sold on such Date of Delivery, shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Fund to sell the relevant
Primary Shares or Option Shares, as the case may be, either the Representatives or the Fund shall
have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven (7) days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 10.
26
Section 11. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the Representatives, x/x
Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
attention of Xxxxx Xxxxxxx, Xx., Managing Director; and notices to the Fund or the Adviser shall be
directed, as appropriate, to the office of the Adviser, 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxx 00000, attention of Management Committee.
Section 12. No Advisory or Fiduciary Relationship. The Fund acknowledges and agrees that (a)
the purchase and sale of the Shares pursuant to this Agreement, including the determination of the
public offering price of the Shares and any related discounts and commissions, is an arm’s-length
commercial transaction between the Fund, on the one hand, and the several Underwriters, on the
other hand, (b) in connection with the offering contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Fund, or any of its stockholders, creditors or employees or any other party, (c)
no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the
Fund with respect to the offering contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Fund on other matters) and no
Underwriter has any obligation to the Fund with respect to the offering contemplated hereby except
the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Fund, and (e) the Underwriters have not provided legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Fund has consulted its own
respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 13. Parties. This Agreement shall each inure to the benefit of and be binding upon
the Underwriters, the Fund, the Adviser and their respective partners and successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters, the Fund, the Adviser and their respective successors
and the controlling persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representative, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the
Fund, the Adviser and their respective partners and successors, and said controlling persons and
officers, directors and their heirs and legal representative, and for the benefit of no other
person, firm or corporation. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 14. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO CENTRAL
STANDARD TIME.
Section 15. Effect of Headings. The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
27
If the foregoing is in accordance with your understanding of our agreement, please sign and return
to us a counterpart hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Fund and the Adviser in accordance with its terms.
Very truly yours, TORTOISE ENERGY INFRASTRUCTURE CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
TORTOISE CAPITAL ADVISORS, LLC |
||||
By: | ||||
Name: | ||||
Title: |
28
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED |
||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXXXXXXXX & CO. INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
RBC CAPITAL MARKETS |
||||
By: | ||||
Name: | ||||
Title: | ||||
For itself and as Representative of the other Underwriters named in Schedule A hereto. |
29
SCHEDULE A
Number of | ||||
Name of Underwriter | Primary Shares | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
275,000 | |||
Xxxxxxxxxxx & Co. Inc. |
275,000 | |||
RBC Capital Markets |
275,000 | |||
Xxxxxx Xxxxxx & Company, Inc. |
137,500 | |||
BB&T Capital Markets, a division of Xxxxx &
Xxxxxxxxxxxx, Inc. |
137,500 | |||
TOTAL: |
1,100,000 | |||
SCHEDULE B
Tortoise Energy Infrastructure Corporation
1,100,000 Common Shares
1,100,000 Common Shares
1 The public offering price per share for the Shares, determined as provided in said Section
2, shall be $25.25.
2 The purchase price per share for the Shares to be paid by the several Underwriters shall be
$24.20, being an amount equal to the public offering price set forth above less $1.05 per share;
provided that the purchase price per share for any Option Shares purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Fund and payable on the Primary Shares but not
payable on the Option Shares.
SCHEDULE C
Price Per Share = $25.25
SCHEDULE D
None.