FORM OF UNDERWRITING AGREEMENT] IRON LEAF CAPITAL CORPORATION [___] Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit H
[FORM
OF UNDERWRITING AGREEMENT]
IRON LEAF CAPITAL CORPORATION
[___] Shares of Common Stock
X.X. Xxxxxxxxxx & Co., Inc.
as Representative of the several
Underwriters named on Schedule I hereto
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the several
Underwriters named on Schedule I hereto
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Iron Leaf Capital Corporation, a Maryland corporation (the “Company”),
confirms its agreement with you as underwriter and as the representative (the “Representative”) of
each of the several underwriters named on Schedule I hereto (herein collectively called
the “Underwriters”). The Company proposes to issue and sell to the Underwriters [___] shares of
Common Stock, par value $0.01 per share (“Common Stock”), of the Company (said shares to be issued
and sold by the Company being hereinafter called the “Underwritten Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to [___] additional shares of
Common Stock to cover over-allotments (the “Option Securities”, and together with the Underwritten
Securities, being hereinafter called the “Securities”). Unless otherwise stated, the term “you” as
used herein means X.X. Xxxxxxxxxx & Co., Inc. individually on its own behalf and on behalf of the
other Underwriters. Certain terms used herein are defined in Section 21 hereof.
The Company has entered into an Investment Advisory Agreement, dated as of , 2007 (the
“Advisory Agreement”), with Iron Leaf Advisors, LLC, a Delaware limited liability company
registered as an investment adviser (the “Adviser”), under the Investment Advisers Act of 1940, as
amended, and the rules and regulations thereunder.
The Company has entered into an Administration Agreement, dated as of , 2007 (the
“Administration Agreement”), with Iron Leaf Administrator LLC, a Delaware limited liability company
(the “Administrator”).
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE ADVISER AND THE
ADMINISTRATOR. The Company represents and warrants to and agrees with each of the
Underwriters, and the Adviser and the Administrator, jointly and severally, represent and warrant
to and agree with each of the Underwriters as follows.
(a) The Company has prepared and filed with the Commission a Registration Statement (file
number 333-141497) on Form N-2, including a related Preliminary Prospectus, for registration under
the 1933 Act of the offering and sale of the Securities. The Company has filed one or more
amendments thereto, each including a related Preliminary Prospectus. The Company’s Registration
Statement has been declared effective by the Commission; no stop order of the Commission preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for such purpose have been instituted
or, to the Company’s knowledge, threatened by the Commission.
(b) The Registration Statement and the Pre-Pricing Prospectus complied at the Effective Date,
and the Prospectus will comply, as of the date the Prospectus is first filed in accordance with
Rule 497 and on the Closing Date (as defined below) and any Option Closing Date (as defined below),
in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Rules
and Regulations; the Registration Statement did not, at the Effective Date, does not and will not,
as of the date the Prospectus is first filed in accordance with Rule 497 and on the Closing Date
and any Option Closing Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein
not misleading; the Prospectus will not, as of the date of the Prospectus is first filed in
accordance with Rule 497 and on the Closing Date and any Option Closing Date, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the Prospectus (or any supplement
thereto), in reliance upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), it being understood and agreed the only such information
furnished by or on behalf of any Underwriter consists of the information described in Section
19 hereof.
(c) The Pre-Pricing Prospectus, together with the Pricing Information, as of the Time of Sale,
did not contain 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; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the Pre-Pricing Prospectus in
reliance upon and in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter specifically for inclusion in the Pre-Pricing Prospectus, it being
understood and agreed the only such information furnished by or on behalf of any Underwriter
consists of the information described in Section 19 hereof.
(d) The Company is a corporation duly organized and validly existing in good standing under
the laws of the State of Maryland with corporate power and authority to own, lease and operate its
properties and assets and to conduct its business as described in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus, and is duly qualified to conduct business as a foreign
corporation and is in good standing in each jurisdiction in which the conduct of its business or
the ownership or leasing of property requires such qualification, except where the failure to be so
qualified and in good standing would not (i) prevent the issuance and sale of the Securities by the
Company as contemplated herein, or (ii) have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company, whether or not arising
from transactions in the ordinary course of business (clauses (i) and (ii) together or
individually, a “Material Adverse Effect”). The Company has no subsidiaries.
(e) The Company’s authorized equity capitalization is as set forth in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus under the caption “Capitalization”; the
Common Stock conforms in all material respects to the description thereof contained in the
Registration Statement, the Pre-Pricing Prospectus and the Prospectus; all issued and outstanding
shares of Common Stock have been duly authorized and validly issued, are fully paid and
nonassessable, none of the issued and outstanding Common Stock was issued in violation of any
preemptive or other similar rights; the Securities have been duly authorized, and, when issued and
delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will
be fully paid and nonassessable and free of any preemptive or similar rights that entitle or will
entitle any person to acquire any Securities upon issuance
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thereof by the Company; the certificates for the Securities are in due and proper form; and, other
than as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding. Except as described in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus, no person has the right to act as an
underwriter or as a financial advisor to the Company in connection with the offer and sale of the
Securities; no person has the right, contractual or otherwise, to cause the Company to register
under the 1933 Act any shares of Common Stock or shares of any other capital stock of or other
equity interests in the Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby.
(f) The Company has filed with the Commission a Form 8-A, as amended (file number )
providing for the registration under the Exchange Act of the Common Stock, and such Form 8-A has
become effective under the Exchange Act.
(g) There are no agreements, contracts, indentures, leases or other instruments that are
required to be filed as an exhibit to the Registration Statement which are not so filed as required
by the Acts or the Rules and Regulations; and the statements in the Pre-Pricing Prospectus and the
Prospectus under the headings “Regulation as a Business Development Company,” “Certain U.S. Federal
Income Tax Considerations” and “Description of Securities” fairly summarize the matters therein
described.
(h) Each of this Agreement, the Advisory Agreement and the Administration Agreement has been
duly authorized, executed and delivered by the Company. Assuming due authorization, execution and
delivery of the Advisory Agreement and the Administration Agreement by the Adviser and the
Administrator, as applicable, the Advisory Agreement and the Administration Agreement constitute
the legal, valid and binding agreements of the Company, enforceable against the Company in
accordance with their terms, except as rights to indemnity and contribution thereunder may be
limited by federal or state securities laws or principles of public policy and subject to the
qualification that the enforceability of the Company’s obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors’ rights generally and by general equitable principles, regardless whether
enforcement is considered in a proceeding in equity or at law.
(i) The Company has elected to be treated by the Commission under the 1940 Act as a “business
development company” by filing of a Form N-54A Notification of Election to be Subject to Sections
55 Through 65 of the Investment Company Act of 1940 filed pursuant to Section 54(a) of the 1940 Act
(file number ) (the “Notification of Election”) with the Commission on , 2007. The
Company has not filed with the Commission any notice of withdrawal of the Notification of Election
pursuant to Section 54(c) of the 1940 Act. The Notification of Election is effective and no order
of suspension or revocation of such election has been issued or proceedings therefor initiated or,
to the Company’s knowledge, threatened by the Commission.
(j) The Company conducts its business in compliance in all material respects with the
provisions of the 1940 Act applicable to business development companies and the 1940 Act Rules and
Regulations thereunder. No person is serving or acting as an officer, director or investment
adviser of the Company 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.
(k) No consent, approval, authorization, filing with or order of any court or governmental
agency or body is required for the issuance and sale of the Securities or the consummation
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of the transactions contemplated hereby, other than (a) those that have been made or obtained under
the Acts, (b) filings with the Commission pursuant to Rule 497 under the 1933 Act, (c) any
necessary qualification of the Securities under the securities or blue sky laws of the various
jurisdictions in which the Securities are being offered by you, (d) under the rules and regulations
of the FINRA, and (e) such other approvals as have been obtained.
(l) Neither the issuance and sale of the Securities, nor the execution, delivery or
performance by the Company of this Agreement, the Advisory Agreement or the Administration
Agreement (i) conflicts or will conflict with or constitutes or will constitute a breach of the
articles of incorporation of the Company, as amended to date (the “Charter”) or bylaws of the
Company, as amended to date (the “Bylaws”), (ii) conflicts or will conflict with or constitutes or
will constitute a breach of or a default under, or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of,
any agreement filed as an exhibit to the Registration Statement or (iii) violates or will violate
any federal or state statute, law or regulation or judgment, injunction, order or decree applicable
to the Company, except, with respect to clause (ii) and (iii), to the extent that such
contravention would not have a Material Adverse Effect.
(m) There are no contracts or agreements between the Company and any person granting such
person the right to require the Company to include any securities of the Company owned or to be
owned by such person in the securities registered pursuant to the Registration Statement.
(n) The financial statements, together with related schedules and notes, included in the
Registration Statement, the Pre-Pricing Prospectus and the Prospectus present fairly in all
material respects the financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form in all material respects with the
applicable requirements of the 1933 Act and the 1933 Act Rules and Regulations and have been
prepared in conformity with United States generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted therein).
(o) Other than as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, no action, suit or proceeding by or before any federal or state court or governmental
agency, authority or body or any arbitrator involving the Company or its property is pending or, to
Company’s knowledge, threatened which, if resolved adversely to the Company, would result in a
judgment, decree or order having a Material Adverse Effect.
(p) The Company owns or leases all such properties as are necessary to the conduct of its
operations as presently conducted.
(q) The Company is not (i) in violation of its Charter or Bylaws, (ii) in breach or default
under any agreement filed as an exhibit to the Registration Statement, or (iii) in violation of any
federal or state statute, law or regulation or judgment, injunction, order or decree applicable to
the Company, except, with respect to clause (ii) and (iii), to the extent that such contravention
would not have a Material Adverse Effect.
(r) To the best of the Company’s knowledge, Xxxxx Xxxxxxxx LLP, who has audited the financial
statements included in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus,
is an independent registered public accounting firm with respect to the Company within the meaning
of the 1933 Act and the 1933 Act Rules and Regulations and the rules and regulations promulgated by
the Public Company Accounting Oversight Board. Xxxxx Xxxxxxxx LLP has not, during the periods
covered by the financial statements included in the Registration Statement, the Pre-Pricing
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Prospectus and the Prospectus, provided to the Company any non-audit services, as such term is used
in Section 10A(g) of the Exchange Act.
(s) The Company has not distributed and, prior to the later to occur of (i) the expiration or
termination of the option granted to the Underwriters in Section 3(b) and (ii) 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 Pre-Pricing
Prospectus, the Prospectus or other materials required or permitted by the Acts or the Rules and
Regulations.
(t) There are no transfer taxes or other similar fees or charges under federal law or the laws
of any state, or any political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company or sale by the Company of
the Securities.
(u) The Company has filed all federal and state tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the failure so to file would not have
a Material Adverse Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently being contested in good
faith or as would not have a Material Adverse Effect.
(v) The Company has such licenses, permits 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 Pre-Pricing Prospectus and the Prospectus, except where the failure
to obtain such licenses, permits or authorizations would not have a Material Adverse Effect; the
Company has not received any notice of proceedings relating to the revocation or modification of,
or non-compliance with, and such Permits which, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect.
(w) The Company will maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(x) Neither the Company, nor to the Company’s knowledge, any of its affiliates has taken,
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 Company to facilitate the sale of the Securities.
(y) The terms of the Advisory Agreement, including compensation terms, comply in all material
respects with the requirements of Section 15 of the 1940 Act and Section 205 of the Advisers Act
applicable to business development companies. The approvals by the board of directors and the sole
stockholder of the Company of the Advisory Agreement have been made in accordance with the
requirements of Section 15 of the 1940 Act applicable to companies that have elected to be
regulated as business development companies under the 1940 Act.
(z) Except as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus (A) no person is serving or acting as an officer, director or investment adviser of the
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Company, except in accordance with the provisions of the 1940 Act and the Advisers Act, and (B) to
the knowledge of the Company, no director of the Company is an “interested person” (as defined in
the 0000 Xxx) of the Company or an “affiliated person” (as defined in the 0000 Xxx) of any of the
Underwriters.
(aa) There are no business relationships or related party transactions involving the Company
or any other person required to be described in the Registration Statement, the Pre-Pricing
Prospectus and the Prospectus which have not been described as required.
(bb) The Company owns, possesses or licenses all trademarks, service marks and trade names
(“Intellectual Property”) required for the conduct of its business as described in the Pre-Pricing
Prospectus and the Prospectus, except where the failure to own, possess or license such
Intellectual Property would not have a Material Adverse Effect.
(cc) Neither the Company nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company, has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation, including the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder, which payment, receipt
or retention of funds is of a character required to be disclosed in the Prospectus.
(dd) The Company and, to its knowledge, its directors and officers (in such capacity) are in
compliance with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx
Act”) and the Commission’s published rules promulgated thereunder.
(ee) Neither the Company nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company 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.
(ff) The statistical and market-related data included in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate.
(gg) Except as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, there are no contracts, agreements or understandings between the Company and any person
(other than the parties hereto) that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the
transactions contemplated by this Agreement.
(hh) To the Company’s knowledge, there are no affiliations or associations between any member
of the FINRA and any of the Company’s officers, directors or 5% or greater shareholders, except as
set forth in the Prospectus or otherwise disclosed by the Company to the Representative.
Any certificate signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company as to matters covered therein, to each Underwriter.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE ADVISER AND THE ADMINISTRATOR. The
Adviser and the Administrator, jointly and severally, represent and warrant to each Underwriter as
follows:
(a) Each of the Adviser and the Administrator is a limited liability company duly formed and
validly existing in good standing under the laws of the State of Delaware, with limited liability
company power and authority to own, lease and operate its properties and assets and to conduct its
business as described in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus,
and is duly qualified to do business as a foreign limited liability company and is in good standing
under the laws of each jurisdiction in which the conduct of its business or the ownership or
leasing of property requires such qualification, except where the failure to be so qualified and in
good standing would not have a material adverse effect on the business, financial condition,
capitalization or regulatory status of such entity, or otherwise reasonably be expected to prevent
such entity from carrying out its obligations under the Advisory Agreement or the Administration
Agreement, as applicable (a “Adviser/Administrator Material Adverse Effect”).
(b) The Adviser is 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 as an investment adviser for the Company as
contemplated in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus. There
have been no proceedings initiated or, to the Adviser’s knowledge, threatened, which would
adversely affect the registration of the Adviser with the Commission.
(c) Each of this Agreement and the Advisory Agreement has been duly authorized, executed and
delivered by the Adviser. Assuming due authorization, execution and delivery thereof by the
Company, the Advisory Agreement constitutes the legal, valid and binding agreements of the Adviser,
enforceable against the Adviser in accordance with its terms, except as rights to indemnity and
contribution thereunder may be limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of the Adviser’s obligations
thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors’ rights generally and by general
equitable principles, regardless whether enforcement is considered in a proceeding in equity or at
law.
(d) Each of this Agreement and the Administration Agreement has been duly authorized, executed
and delivered by the Administrator. Assuming due authorization, execution and delivery thereof by
the Company, the Administration Agreement constitutes the legal, valid and binding agreements of
the Administrator, enforceable against the Administrator in accordance with its terms, except as
rights to indemnity and contribution thereunder may be limited by federal or state securities laws
or principles of public policy and subject to the qualification that the enforceability of the
Administrator’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights
generally and by general equitable principles, regardless whether enforcement is considered in a
proceeding in equity or at law.
(e) Each of the Adviser and the Administrator has the financial resources available to it
necessary for the performance of its services and obligations as contemplated in the Pre-Pricing
Prospectus, the Prospectus and the Registration Statement and under this Agreement and, with
respect to the Adviser only, the Advisory Agreement and, with respect to the Administrator only,
the Administration Agreement.
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(f) The description of the Adviser and the Administrator contained in the Pre-Pricing
Prospectus, the Prospectus and the Registration Statement is true, accurate and complete in all
material respects. Neither the Adviser nor the Administrator is aware that any executive, key
employee or significant group of employees of the Company, if any, the Adviser or the Administrator, as
applicable, plans to terminate employment with the Company, the Adviser or the Administrator
(g) Subsequent to the respective dates as of which information is given in the Pre-Pricing
Prospectus and the Prospectus, (i) there has not been any material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the Adviser or the
Administrator, whether or not arising from transactions in the ordinary course of business; and
(ii) the Adviser and the Administrator have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of business and have not entered into
any material transaction or agreement not in the ordinary course of business other than (i) as may
be incurred hereunder or entered into herewith or (ii) as disclosed in the Registration Statement,
the Pre-Pricing Prospectus and the Prospectus.
(h) Other than as disclosed in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, no action, suit or proceeding by or before any federal or state court or governmental
agency, authority or body or any arbitrator involving the Adviser or the Administrator or their
respective property is pending or, to the knowledge of the Adviser or the Administrator, as
applicable, is threatened which, if resolved adversely to the Adviser or the Administrator, as
applicable, would result in a judgment, decree or order having an Adviser/Administrator Material
Adverse Effect.
(i) Each of the Adviser and the Administrator has such Permits as are necessary to own its
property and assets and to conduct its business in the manner described in the Pre-Pricing
Prospectus and the Prospectus, except where the failure to obtain such licenses, permits or
authorizations would not have an Adviser/Administrator Material Adverse Effect; neither the Adviser
nor the Administrator has received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, and such Permits which, if the subject of an unfavorable
decision, ruling or finding, would have an Adviser/Administrator Material Adverse Effect.
(j) Neither the execution, delivery or performance by the Adviser and the Administrator of
this Agreement, nor the execution, delivery or performance by the Adviser and the Administrator of
the Advisory Agreement and the Administration Agreement, respectively, (i) conflicts or will
conflict with or constitutes or will constitute a breach of the certificate of formation or limited
liability company operating agreement of the Adviser or the Administrator, as applicable, (ii)
conflicts or will conflict with or constitutes or will constitute a breach of or a default under,
or will result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Adviser or the Administrator, as applicable, pursuant to the terms of, any
agreement, indenture, lease or other instrument to which the Adviser or the Administrator is a
party or by which it or any of its properties may be bound, or (iii) violates or will violate any
federal or state statute, law or regulation or judgment, injunction, order or decree applicable to
the Adviser or the Administrator, as applicable, except, with respect to clause (ii) and (iii), to
the extent that such contravention would not have an Adviser/Administrator Material Adverse Effect.
(k) Neither the Adviser nor the Administrator, nor their respective affiliates, has taken,
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 Company to facilitate the sale of the Securities.
Any certificate signed by any officer of the Adviser or the Administrator and delivered to the
Representative or counsel for the Underwriters in connection with the offering of the Securities
shall be
8
deemed a representation and warranty by the Adviser and the Administrator, as applicable,
as to matters covered therein, to each Underwriter.
SECTION 3. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase price of $[___]
per share, the number of the Underwritten Securities set forth opposite such Underwriter’s name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to Option Securities at the same purchase price
per share as the Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time on or before the 45th
day after the date of the Prospectus (the “Option Expiration Date”) upon written notice by the
Representative to the Company setting forth the number of shares of the Option Securities as to
which the several Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional shares.
SECTION 4. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 3(b) hereof
shall have been exercised on or before the third Business Day prior to the Closing Date) shall be
made at 10:00 AM, New York City time, on , 2007 (unless another time shall be agreed to
by you and the Company or unless postponed in accordance with the provisions of 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 Representative for the respective
accounts of the several Underwriters against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of the Underwritten
Securities and the Option Securities shall be made through the facilities of The Depository Trust
Company unless the Representative shall otherwise instruct the Company in writing.
If the option provided for in Section 3(b) hereof is exercised after the third
Business Day prior to the Closing Date, the Company will deliver the Option Securities (at the
expense of the Company) to the Representative, on the date specified by the Representative (which
shall be within three Business Days after exercise of said option)(each, an “Option Closing Date”)
for the respective accounts of the several Underwriters, against payment by the several
Underwriters through the Representative of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by the Company.
SECTION 5. OFFERING BY UNDERWRITERS. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions of the Underwritten
Securities as soon after the effectiveness of this Agreement as in your judgment is advisable and
(ii) initially to offer the Underwritten Securities upon the terms set forth in the Prospectus.
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SECTION 6. AGREEMENTS OF THE COMPANY, THE ADVISER AND THE ADMINISTRATOR. The Company
agrees, and the Adviser and the Administrator, jointly and severally, agree with the several
Underwriters as follows:
(a) Prior to the Option Expiration Date, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing and will not file any
such proposed amendment or supplement without the Representative’s consent, which consent shall not
be unreasonably withheld or delayed. Subject to the foregoing sentence, if the Registration
Statement has become effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 497, the Company will cause the Prospectus, properly completed, and any
supplement thereto, to be filed in a form approved by the Representative with the Commission
pursuant to Rule 497 within the time period prescribed and will provide evidence satisfactory to
the Representative of such timely filing. The Company will promptly advise the Representative (1)
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, (2) when, prior to Option Expiration Date, any amendment to the
Registration Statement shall have been filed or become effective, (3) 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,
(4) 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 (5)
of the receipt by the Company 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 for such purpose. The Company 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 reasonable judgment of the
Company or in the reasonable opinion of the Underwriters or their counsel, 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 Acts and the Rules and Regulations, the Company
promptly will (1) notify the Representative 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) The Company will furnish (i) to the Representative and counsel for the Underwriters signed
copies of the Registration Statement as initially filed, and all amendments thereto, including all
consents and exhibits filed therewith, and (ii) so long as delivery of a prospectus by an
Underwriter or dealer may be required by the 1933 Act, as many copies of the Pre-Pricing Prospectus
and the Prospectus and any supplement thereto as the Representative may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders
and to the Representative an earnings statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(e) The Company will furnish such information as may be required and otherwise to cooperate in
qualifying the Securities for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in effect so
long as
10
you may request for the distribution of the Securities; provided, however, that the Company
shall not be required to qualify as a foreign corporation or to consent to the service of process
under the laws of any such jurisdiction (except a limited consent to service of process with
respect to the offering and sale of the Securities); and to promptly advise you of the receipt by
the Company of any notification with respect to the suspension of the qualification of the Securities for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(f) The Company, the Adviser and the Administrator will not, without the prior written consent
of the Representative, 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 Company, the Adviser or the Administrator, 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 shares of
Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of
Common Stock other than the Securities; or publicly announce an intention to effect any such
transaction for a period of 180 days following the Execution Time, except for (i) the registration
of the Securities and the sales to the Underwriters pursuant to this Agreement and (ii) any
issuance of shares of Common Stock pursuant to the Company’s dividend reinvestment plan.
In the event that either (x) during the last 17 days of the 180-day period referred to above,
the Company issues an earnings release or (y) prior to the expiration of such 180-day period, the
Company announces that it will release earnings results during the 15-day period beginning on the
last day of such 180-day period, the restrictions described above shall continue to apply until the
expiration of the 18-day period beginning on the date of the earnings release.
(g) The Company will use its best efforts to cause the Common Stock to be listed for quotation
on the Nasdaq Global Market and to maintain such listing.
(h) The Company will maintain a custodian and transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(i) The Company will apply the net proceeds from the sale of the Securities in the manner set
forth under the caption “Use of Proceeds” in the Pre-Pricing Prospectus and the Prospectus.
(j) The Company 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 Notification of Election 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 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 Nasdaq Global Market; (F) any
registration or qualification 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 (up to a maximum of
$5,000) and expenses of counsel for the Underwriters relating to such registration and
qualification and the preparation of the blue
11
sky memorandum); (G) any filings required to be made
with the FINRA; (H) the transportation and other expenses incurred by or on behalf of Company by
its officers, directors and/or affiliates in connection with presentations to prospective
purchasers of the Securities; (I) the fees and expenses of the Company’s accountants and the fees
and expenses of counsel (including local and special counsel) for the Company;
and (J) all other costs and expenses incident to the performance by the Company of its obligations
hereunder which are not specifically provided for in this Section 6(j); provided,
however, that in no event shall the Company be required to pay in excess of an aggregate of
$150,000 of the Underwriters’ accountable expenses, including legal fees and expenses, in
accordance with this Section 6(j). For the avoidance of doubt, it is understood that the aggregate
amount of the Underwriters’ accountable expenses the Company is required to pay in accordance with
this Section 6(j) shall be reduced to reflect the amount of any payments or advances made by the
Company to the Representative in accordance with the engagement letter, dated January 2, 2007, to
which the Representative is a party, and the amendment thereto, dated June 14, 2007 (as amended,
the “Engagement Letter”).
(k) The Company, during a period of two (2) years from the effective date of the Notification
of Election, will use its best efforts to maintain its status as a “business development company”
under the 1940 Act; provided, however, the Company may change the nature of its business so as to
cease to be, or to withdraw its election as, a business development company with the approval of
the board of directors and a vote of stockholders as required by Section 58 of the 1940 Act or any
successor provision.
(l) The Company will use its best efforts to qualify for and elect to be treated as a
regulated investment company under Subchapter M of the Code and to maintain such qualification and
election for each full fiscal year during which it is a business development company under the 1940
Act; provided, however, that at the discretion of the Company’s board of directors, it may elect
not to be so treated.
(m) The Company, during the period when the Prospectus is required to be delivered under the
1933 Act, will file all documents required to be filed with the Commission pursuant to the Exchange
Act within the time periods required by the Exchange Act and the rules and regulations of the
Commission thereunder.
(n) The Company, the Adviser and the Administrator 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 Company to facilitate the sale of the Securities.
(o) The Company will engage, for a period of not less than one (1) year from the Closing Date,
a financial public relations firm mutually acceptable to the Company and the Representative.
(p) For a period of two (2) years from the Closing Date, the Company, at its expense, shall
provide the Representative with a subscription to the Company’s weekly Depository Trust Company
Security Position Reports.
SECTION 7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase the Securities shall be subject to (i) the accuracy of the representations
and warranties on the part of the Company, the Adviser and the Administrator contained herein as of
the Execution Time, the Closing Date and, if applicable, any Option Closing Date, (ii) the
performance by the Company, the Adviser and the Administrator of the obligations hereunder required
to be performed or satisfied by them at or prior to the Closing Date and, if applicable, any Option
Closing
12
Date and (iii) the following additional conditions (except to the extent that any such
conditions may have been waived in writing by the Representative on or prior to such respective
dates):
(a) The Registration Statement shall have become effective and all necessary regulatory or
listing approvals shall have been received not later than 5:30 P.M., New York City time, on the
date of this Agreement, or at such later time and date as shall have been consented to in writing
by the Representative. The Prospectus shall have been filed with the Commission in a timely
fashion in accordance with the terms hereof; and, at or prior to the Closing Date and, if
applicable, any Option Closing Date, no stop order suspending the effectiveness of the Registration
Statement and no proceedings for that purpose or pursuant to Section 8(d) or 8(e) of the 1933 Act
shall have been instituted or threatened, and any request of the Commission for additional
information (to be included in the Registration Statement or Prospectus or otherwise) shall have
been complied with in all material respects.
(b) The Representative shall have received on the Closing Date and, if applicable, any Option
Closing Date, an opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, dated the
Closing Date and, if applicable, any Option Closing Date, and addressed to the Representative on
behalf of the several Underwriters, substantially in the form attached hereto as Exhibit C.
In rendering such opinion, Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP (A) may state that it expresses no
opinion as to the laws of any jurisdiction other than the laws of the State of New York, the
General Corporation Law of the State of Maryland, the Delaware Limited Liability Company Act and
the federal laws of the United States of America and (B) may rely, as to matters of fact, upon the
representations and warranties made by the Company, the Adviser and the Administrator herein and in
certificates and written statements of officers and employees of and accountants for the Company,
the Adviser and the Administrator and of public officials. Except as otherwise specifically
provided herein, when giving its opinion to its “knowledge”, Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP has
relied solely upon an inquiry of the attorneys of that firm who have worked on matters involving
the issuance of the Securities as contemplated by this Agreement, in certificates or written
statements of officers of the Company, the Adviser and the Administrator and, where appropriate, a
review of the Registration Statement, the Pre-Pricing Prospectus together with the Pricing
Information, the Prospectus, exhibits to the Registration Statement, the Charter and Bylaws and a
review of the minute books of the Company and have made no other investigation or inquiry.
(c) The Representative shall have received on the Closing Date and, if applicable, any Option
Closing Date, an opinion of each of Xxxxxxxxxx Xxxxxxx PC and Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx
LLP, counsel for the Underwriters, dated the Closing Date and, if applicable, any Option Closing
Date, and addressed to the Representative on behalf of the several Underwriters, with respect to
the issuance and sale of the Securities, the Registration Statement, the Pre-Pricing Prospectus
together with the Pricing Information, the Prospectus (together with any supplement thereto) and
other related matters as the Underwriters may reasonably require. In rendering such opinion, each
of Xxxxxxxxxx Xxxxxxx PC and Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx 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 (as to
Xxxxxxxxxx Xxxxxxx PC), the laws of the State of Maryland (as to Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx
LLP) and the federal laws of the United States of America and (B) may rely, as to matters of fact,
upon the representations and warranties made by the Company, the Adviser and the Administrator
herein and in certificates and written statements of officers and employees of and accountants for
the Company, the Adviser and the Administrator and of public officials. Except as otherwise
specifically provided herein, when giving their opinions to their “knowledge”, each of Xxxxxxxxxx
Xxxxxxx PC and Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP have relied solely upon an inquiry of the
attorneys of that firm who have worked on matters involving the issuance of the Securities as
contemplated by this Agreement, in certificates or written statements of officers of the Company,
the Adviser and the Administrator and, where appropriate, a review of the Registration Statement,
the Pre-Pricing Prospectus together with the Pricing Information,
13
the Prospectus, exhibits to the
Registration Statement, the Charter and Bylaws and a review of the minute books of the Company and
have made no other investigation or inquiry.
(d) Each of the Company, the Adviser and the Administrator shall have furnished to the
Representative a certificate, signed by the Chief Executive Officer and the principal financial or
accounting officer of each of the Company, the Adviser and the Administrator, as the case may be,
dated the Closing Date or the Option Closing Date, as applicable, substantially in the form
attached hereto as Exhibit D.
(e) The Company shall have requested and caused Xxxxx Xxxxxxxx LLP to have furnished to the
Representative, at the Execution Time and at the Closing Date and, if applicable, any Option
Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date or
the Option Closing Date, as applicable, in form and substance heretofore approved by the
Representative, covering such information in the Registration Statement, the Pre-Pricing Prospectus
and the Prospectus as reasonably requested by the Representative.
(f) Between the Execution Time and the Closing Date and, if applicable, any Option Closing
Date, there shall not have occurred any change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, the Adviser or the Administrator,
whether or not arising from transactions in the ordinary course of business, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto) that, in the sole judgment of
the Representative, is so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated hereby.
(g) The Securities shall have been approved for quotation on the Nasdaq Global Market, subject
only to notice of issuance at or prior to the Closing Date and, if applicable, any Option Closing
Date.
(h) On or prior to the Closing Date, the Representative shall have received lock-up agreements
substantially in the form of Exhibit A hereto (the “Lock-up Agreements”) from each of the
persons or entities listed on Schedule II hereof.
(i) The FINRA shall have confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements; provided, that the
Representative has made all necessary filings and responded in good faith to any requests of the
FINRA staff with respect to any such filings.
(j) The Company shall have furnished to the Representative a certificate, signed by the
Secretary or Assistant Secretary of the Company, dated the Closing Date and, if applicable, any
Option Closing Date, certifying: (i) that the By-Laws and the Charter of the Company are true and
complete, have not been modified and are in full force and effect; (ii) that the resolutions
relating to the public offering contemplated by this Agreement are in full force and effect and
have not been modified; (iii) all correspondence between the Company or its counsel and the
Commission, as the case may be; and (iv) as to the incumbency of the officers of the Company. The
documents referred to in such certificate shall be attached to such certificate.
(k) The Company, the Adviser and the Administrator shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus as of the Closing Date and, if applicable,
any Option Closing Date, as you may reasonably request.
14
The documents required to be delivered by this Section 7 shall be delivered at the
office of Xxxxxxxxxx Xxxxxxx PC, counsel for the Underwriters, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx X. Xxxxxx, Esq., on the Closing Date and, if applicable, any Option
Closing Date.
SECTION 8. REIMBURSEMENT OF UNDERWRITERS’ EXPENSES. If the sale of the Securities
provided for herein on the Closing Date is not consummated because of any breach by the Company of
its representations, warranties or covenants set forth herein, or because of any termination
pursuant to Section 11(b) hereof , the Company will reimburse the Underwriters severally
through the Representative on demand for all accountable 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 in an amount not to exceed $100,000;
provided, that if this Agreement is terminated pursuant to Section 11(b) hereof, other than
pursuant to subparagraph (i) thereto, the amount of such reimbursement by the Company shall not
exceed an aggregate of $75,000. For the avoidance of doubt, it is understood that the aggregate
amount of the Underwriters’ accountable expenses the Company is required to pay in accordance with
this Section 8 shall be reduced to reflect the amount of any payments or advances made by
the Company to the Representative in accordance with the Engagement Letter. The provisions of this
Section 8 shall survive the termination or cancellation of this Agreement.
SECTION 9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees, and the Adviser and the Administrator, jointly and severally, agree to
indemnify and hold harmless each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons, 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, 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, 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 (and including any post-effective amendment,
any Rule 462(b) Registration Statement and any Rule 430A Information deemed to be included or
incorporated therein), the Pre-Pricing Prospectus together with the Pricing Information, or the
Prospectus (as amended or supplemented by the Company), 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; provided, however, that the Company, the
Adviser and the Administrator 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 information furnished in writing to the Company by or on behalf of any Underwriter
specifically for inclusion therein, it being understood that the only information furnished by or
on behalf of any Underwriter consists of the information described in Section 19 hereof.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Company, the Adviser and the Administrator, each of their respective their directors, members and
officers, and any person who controls the Company, the Adviser or the Administrator within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, 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
15
or otherwise, 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, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement (and including any
post-effective amendment, any Rule 462(b) Registration Statement and any Rule 430A Information
deemed to be included or incorporated therein), the Pre-Pricing Prospectus together with the
Pricing Information, or the Prospectus (as amended or supplemented by the Company) in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of any
Underwriter specifically for inclusion therein, it being understood that the only information
furnished by or on behalf of any Underwriter consists of the information described in Section
19 hereof.
(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 reasonably 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 an actual 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 indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of 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 (it being understood, however, that such Underwriter shall not
be liable for the expenses of more than one separate counsel (in addition to any local counsel)).
(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, then each
applicable indemnifying party shall 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 such indemnifying party may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company, the Adviser
and the Administrator on the one hand (treated jointly for this purpose as one person) and by the
Underwriters on the other hand 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
16
preceding sentence is unavailable for any reason, the
Company, the Adviser, the Administrator 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 Company, the Adviser and the Administrator on
the one hand (treated jointly for this purpose as one person) and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. The relative benefits received by the Company, the Adviser
and the Administrator on the one hand and the Underwriters on the other shall be deemed to be in
the same respective proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, bear to the aggregate public
offering price of the Securities. 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 Company, the
Adviser and the Administrator on the one hand (treated jointly for this purpose as one person) or
the Underwriters on the other hand, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement or omission. The
Company, the Adviser, the Administrator 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 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each partner, director and officer of an Underwriter, and
each person who controls any Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing persons, shall have the
same rights to contribution as such Underwriter, and each director, members and officer of the
Company, the Adviser and the Administrator, and each person who controls the Company, the Adviser
or the Administrator within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons shall have the same rights to
contribution as the Company, the Adviser and the Administrator, 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 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 Company, the Adviser and the Administrator 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 Company, the Adviser, the Administrator or their shareholders, trustees, directors, managers,
members or officers or any person controlling the Company, the Adviser or the Administrator within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, (ii) acceptance of any
Securities and payment therefor hereunder and (iii) any termination or cancellation of this
Agreement.
17
SECTION 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 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 the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter, the Company, the Adviser or the Administrator. 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 (5) Business Days, as the Underwriters 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 Company 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 hereto
who, with your approval and the approval of the Company, purchases Securities which a defaulting
Underwriter agreed, but failed or refused, to purchase.
SECTION 11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective when the parties hereto have executed and delivered
this Agreement.
(b) The obligations of the several Underwriters hereunder shall be subject to termination in
the absolute discretion of the Representative if (i) since the Execution Time there has been any
material adverse change in the condition (financial or otherwise), prospects, earnings, business
or properties of the Company, whether or not arising from transactions in the ordinary course of
business, taken as a whole, which would, in the judgment of the Representative, make it
impracticable or inadvisable to proceed with the initial public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Pre-Pricing Prospectus and the
Prospectus, or (ii) since the Execution Time, there shall have occurred: (A) a suspension or
material limitation in trading in securities generally on the NYSE, the American Stock Exchange or
the Nasdaq Global Market; (B) a suspension or material limitation in trading in the Company’s
securities on the Nasdaq Global Market; (C) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a declaration by the
United States of a national emergency or war; or (E) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (D) or (E), in the judgment of the Representative., makes it
impracticable or inadvisable to proceed with the initial public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
(c) If the Representative elects to terminate this Agreement as provided in this Section
11, the Company and each other Underwriter shall be notified promptly in writing.
18
(d) If the sale to the Underwriters of the Securities, as contemplated by this Agreement, is
not carried out by the Underwriters for any reason permitted under this Agreement, or if such sale
is not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 8 and 9 hereof), and the Underwriters shall be
under no obligation or liability to the Company under this Agreement (except to the extent provided
in Section 9 hereof) or to one another hereunder.
SECTION 12. NO FIDUCIARY DUTY. The Company hereby acknowledges that (a) the purchase
and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction
between the Company, on the one hand, and the Underwriters and any affiliate through which it may
be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or
fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with
the offering and the process leading up to the offering, either before or after the date hereof, is
as independent contractors and not in any other capacity. Furthermore, the Company agrees that it
is solely responsible for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company on related or
other matters). The Company agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any breach or alleged breach of any fiduciary duty to the
Company in connection with the transactions contemplated by this Agreement or any matters leading
up to such transactions.
SECTION 13. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company, the Adviser, the Administrator and
the Underwriters, or any of them, with respect to the subject matter hereof; provided, that the
Engagement Letter shall not be superseded hereby other than as expressly provided for herein.
SECTION 14. NOTICES. All communications hereunder, except as otherwise specifically provided
herein, shall be in writing and shall be mailed or delivered by hand, reputable overnight courier
or facsimile transmission (with printed confirmation of receipt) and shall be deemed given when so
mailed (two days after such mailing) or delivered:
If to the Underwriters, to the Representative as follows:
X.X. Xxxxxxxxxx & Co., Inc.
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice):
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
19
and
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP
000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company, the Adviser or the Administrator, to the Company as follows:
Iron Leaf Capital Corporation
0 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (___) ____-
0 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (___) ____-
With a copy to (which shall not constitute notice):
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
SECTION 15. SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and the officers,
members, directors and controlling persons referred to in Section 9 hereof, and no other
person will have any right or obligation hereunder.
SECTION 16. APPLICABLE LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. 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 entirely within the State of New York, without
regard to the conflict of laws principles or rules thereof, to the extent such principles would
require or permit the application of the laws of another jurisdiction.
Except as set forth below, no claim may be commenced, prosecuted or continued in any court
other than the courts of the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts shall have
jurisdiction over the adjudication of such matters, and each of the Underwriters, the Company, the
Adviser and the Administrator hereby consents to the jurisdiction of such courts and personal
service with respect thereto. Each Underwriter and the Company, the Adviser and the Administrator
hereby consents to personal jurisdiction, service and venue in any court in which any claim arising
out of or in any way relating to this Agreement is brought by any third party against any party
hereto or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and affiliates), the Adviser and
the Administrator waive all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement. Each Underwriter and the Company, the Adviser and the Administrator hereby agree that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon each Underwriter and the Company, the Adviser and the Administrator and
may be enforced in any other courts to the jurisdiction of which any
20
Underwriter, the Company, the Adviser or the Administrator is or may be subject, by suit upon such
judgment.
SECTION 17. 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.
SECTION 18. HEADINGS. The section headings used herein are for convenience only and
shall not affect the construction hereof.
SECTION 19. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth in
the last paragraph on the cover page of the Preliminary Prospectus and the Prospectus regarding
delivery of the Securities and the statements set forth in the first, seventh, fourteenth,
fifteenth, sixteenth and seventeenth paragraphs under the caption “Underwriting” in the Preliminary
Prospectus and the Prospectus constitute the only information furnished by or on behalf of the
Underwriters, as such information is referred to in Sections 1 and 9 hereof.
SECTION 20. 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.
“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.
“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.
“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” shall mean the Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder.
“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.
21
“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.
“FINRA” shall mean the Financial Industry Regulatory Authority (formerly known as the National
Association of Securities Dealers, Inc.).
“Offering” shall mean the issuance and sale of the Securities by the Company as contemplated
herein.
“Preliminary Prospectus” shall mean any preliminary prospectus included in the Registration
Statement or filed with the Commission pursuant to Rule 497 under the 1933 Act prior to the
Effective Date.
“Pre-Pricing Prospectus” shall mean the Preliminary Prospectus dated as of [ ], 2007,
included in the Registration Statement at the Effective Date.
“Pricing Information” shall mean the information set forth in the oral pricing script attached
hereto as Exhibit B.
“Prospectus” shall mean the prospectus to be filed with the Commission pursuant to Rule 497
after the Execution Time (as defined below) and to be used to confirm sales of Securities.
“Registration Statement” shall mean the Registration Statement on Form N-2 (file number
333-141497) on Form N-2, including exhibits and financial statements included therein, as amended
at the Effective Date 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 and Rule 497.
“Rule 430A” and “Rule 462(b)” shall mean 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 and Rule 497.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the Offering.
“Rule 497” shall mean 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.
“Time of Sale” shall mean [ ][AM][PM], New York City time on [ ], 2007.
22
If the foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall
represent a binding agreement among the Company, the Adviser, the Administrator and the several
Underwriters.
| Very truly yours, IRON LEAF CAPITAL CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| IRON LEAF ADVISORS LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| IRON LEAF ADMINISTRATOR LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
23
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
accepted as of the date first above written.
X.X. XXXXXXXXXX & CO., INC.
As Representative of the several Underwriters
named on Schedule I hereto
named on Schedule I hereto
| By: | ||||
| Name: | ||||
| Title: | ||||
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