Main Street Capital Corporation (a Maryland Corporation) Shares of Common Stock Par Value $0.01 per Share Underwriting Agreement
Exhibit (h)
Main Street Capital Corporation
(a Maryland Corporation)
Shares of Common Stock
Par Value $0.01 per Share
(a Maryland Corporation)
Shares of Common Stock
Par Value $0.01 per Share
___, 2007
Xxxxxx Xxxxxx & Company, Inc.
BB&T Capital Markets
As representatives of the several Underwriters
named in Schedule A
c/o Xxxxxx Xxxxxx & Company, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
BB&T Capital Markets
As representatives of the several Underwriters
named in Schedule A
c/o Xxxxxx Xxxxxx & Company, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Main Street Capital Corporation, a Maryland corporation (the “Company”) confirms its agreement
with the underwriters listed on Schedule A, for whom Xxxxxx Xxxxxx & Company, Inc. (“Xxxxxx
Xxxxxx”) and BB&T Capital Markets are acting as representatives (collectively, the “Underwriters”),
with respect to the issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly (the “Offering”), of the respective number of shares of the Company’s
common stock, par value $0.01 per share (the “Common Shares”) set forth in Schedule A
hereof, and with respect to the grant by the Company to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any part of
additional Common Shares to cover over-allotments, if any. The aforesaid
Common
Shares (the “Firm Shares”) to be purchased by the Underwriters and all or any part of the
Common Shares subject to the option described in Section 2(b) hereof (the “Option
Shares”) are collectively referred to as the “Shares.”
At the Closing Time (as hereinafter defined), the Company will have completed a series of
transactions described in the Prospectus (as hereinafter defined) under the captions “Prospectus
Summary – Formation Transaction” and “Formation; Business Development Company and Regulated
Investment Company Elections” (such transactions being hereinafter referred to collectively as the
“Formation Transactions.”) As part of the Formation Transactions, the Company will (a) acquire
100% of the limited partnership interests in Main Street Mezzanine Fund, LP (the “Fund”) which will
retain its license as a small business investment company (“SBIC”), continue to hold its existing
investments and maintain its existing SBA leverage; (b) acquire 100% of the equity interests of
Main Street Mezzanine Management, LLC, the general partner of the Fund (the “General Partner”); and
(c) acquire 100% of the equity interests of Main Street Capital Partners, LLC, management and
investment advisor to the Fund (the “Investment Advisor”).
The Company understands that the Underwriters propose to make a public offering of the Shares
as soon as the Underwriters deem advisable after this Agreement has been executed and delivered.
Pursuant to the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “1933 Act”), the Company has filed with the United States Securities
and Exchange Commission (the “Commission”) a registration statement on Form N-2 (File No.
333-142879), to register the offer and sale of the Shares to be offered, sold and issued in the
Offering.
Pursuant to the Investment Company Act of 1940, as amended, and the rules and regulations
promulgated thereunder (collectively, the “1940 Act”), the Company has filed with the Commission a
Notification of Election to be Subject to Sections 55 through 65 of the 1940 Act filed on Form
N-54A (File No. ) (the “BDC Election”), pursuant to which the Company elected to be
treated as a business development company (“BDC”) under the 1940 Act. The Company intends to elect
to be treated as a regulated investment company (“RIC”) (within the meaning of Section 851(a) of
the Internal Revenue Code of 1986, as amended (the “Code”)) commencing with its first taxable year
that it is treated as a corporation for Federal income tax purposes.
The registration statement as amended, including the exhibits and schedules thereto, at the
time it became effective, including the information, if any, omitted from the registration
statement pursuant to Rule 430A (the “Rule 430A Information”), any registration statement filed
pursuant to Rule 462(b) under the 1933 Act, and any post-effective amendment thereto, is
hereinafter referred to as the “Registration Statement.” The preliminary prospectus subject to
completion dated ___, 2007 that omitted the Rule 430A Information and was distributed prior
to the execution and delivery of this Agreement and filed pursuant to Rule 497 under the 1933 Act
is herein called the “Preliminary Prospectus.”
The Company has prepared and will file with the Commission in accordance with Rule 497 under
the 1933 Act, a final prospectus (the “Final Prospectus”) in connection with the offer and sale of
the Shares. The Preliminary Prospectus and Final Prospectus are hereinafter referred to
collectively as the “Prospectus.”
The Preliminary Prospectus, together with the information set forth on Schedule B
hereto (which information the Underwriters have informed the Company is being conveyed orally by
the Underwriters to prospective purchasers at or prior to the Underwriters’ confirmation of sales
of the Shares in the public offering) is hereinafter referred to as the “Disclosure Package.”
All references in this Agreement to the Registration Statement, the Preliminary Prospectus,
the Final Prospectus or any amendments or supplements to any of the foregoing, shall include any
copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“XXXXX”).
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The Company represents and warrants to and agrees with each of the Underwriters, as of the
date hereof, the Applicable Time (defined below), 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) The Company meets the requirements for use of Form N-2 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act, and no stop order
suspending the effectiveness of the Registration Statement or suspending the use of
the Preliminary Prospectus or the Final Prospectus has been issued, and no
proceedings for any such purpose, have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information with respect thereto has been
complied with.
(ii) At the respective times the Registration Statement, and any post-effective
amendment thereto, 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, and all amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act, and did not and will
not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading. Neither the Preliminary Prospectus, the Final 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 any untrue statement
of a material fact or omitted or will 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. 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 information
furnished to the Company by or on behalf of any Underwriter for use in the
Registration Statement or Prospectus, it being understood and agreed that the only
such information furnished to the Company in writing by the Underwriters consists of
the information described in Section 6(g) below.
(iii) The Disclosure Package as of the Applicable Time does 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. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by any Underwriter
or its representative expressly for use therein, it being understood and agreed that
the only such information furnished by the Underwriters to the Company consists of
the information described in
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Section 6(g) below. As used in this subsection and elsewhere in this Agreement
“Applicable Time” means : p.m. (Eastern Daylight Time) on ___, 2007;
provided that, if, subsequent to the date of this Agreement, the Company and the
Underwriters have determined that the Disclosure Package included an untrue
statement of material fact or omitted a statement of material fact necessary to make
the information therein not misleading, and have agreed, in connection with the
public offering of the Shares, to provide an opportunity to purchasers to terminate
their old contracts and enter into new contracts, then “Applicable Time” will refer
to the information available to purchasers at the time of entry into the first such
new contract.
(iv) The Preliminary Prospectus when first filed under Rule 497 and as of its date
complied in all material respects with the 1933 Act, and if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T under
the 1933 Act), was substantially identical to the copy thereof delivered to the
Underwriters for use in connection with this offering. The Final Prospectus when
first filed under Rule 497 and as of its date complied in all material respects with
the 1933 Act, and if filed by electronic transmission pursuant to XXXXX (except as
may be permitted by Regulation S-T under the 1933 Act), will be substantially
identical to the copy thereof delivered to the Underwriters for use in connection
with this offering.
(v) The Company’s registration statement on Form 8-A under the 1934 Act is
effective.
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material respects the information shown therein and have been compiled on a basis consistent
with the combined financial statements included in the Registration Statement. All adjustments to
historical financial information to arrive at pro forma financial information are reasonably based.
All disclosures contained in the Registration Statement, the Disclosure Package or the Prospectus
regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of
the Commission) comply with Regulation G under the 1934 Act and Item 10 of Regulation S-K of the
1933 Act Regulations, to the extent applicable.
(h) Good Standing of the Company, the Fund, the General Partner and the Investment
Advisor. The Company is duly incorporated and 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 the
Disclosure Package and to enter into and perform its obligations under this Agreement. The Company
is duly qualified as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the aggregate, have a Material
Adverse Effect.
5
The Fund is a limited partnership duly organized and validly existing as a limited partnership
under the laws of the state of Delaware and is duly qualified as a foreign limited partnership to
transact business, and is in good standing in each jurisdiction in which such qualification is
required whether by reason of ownership or leasing of property or the conduct of business, except
for such jurisdictions where the failure to so qualify or be in good standing would not,
individually or in the aggregate, have a Material Adverse Effect.
Each of the General Partner and the Investment Advisor is a limited liability company that is
duly formed and validly existing as a limited liability company under the laws of the State of
Delaware and is duly qualified as a foreign limited liability company to transact business, and is
in good standing in each jurisdiction in which such qualification is required whether by reason of
ownership or leasing of property or the conduct of business, except for such jurisdictions where
the failure to so qualify or be in good standing would not, individually or in the aggregate, have
a Material Adverse Effect. All of the issued and outstanding limited liability company interests
and partnership interests of the General Partner and the Investment Advisor, and the Fund,
respectively, have been duly authorized and validly issued, are fully paid and non-assessable and,
upon the consummation of the Formation Transactions, will be owned by the Company, directly or
indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
6
material respect with the requirements of, the 1940 Act and (ii) did not include any untrue
statement of material fact or omit to state a material fact necessary to make the statements
therein not misleading. The Company has not filed with the Commission any notice of withdrawal of
the BDC Election pursuant to Section 54(c) of the 1940 Act, the BDC Election remains in full force
and effect, and, to the Company’s knowledge, no order of suspension or revocation of the BDC
Election under the 1940 Act has been issued or proceedings therefore initiated or threatened by the
Commission. The operations of the Company are in compliance in all material respects with the
provisions of the 1940 Act and the rules and regulations of the Commission thereunder, including
the provisions applicable to BDCs.
The Company’s execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby and by the Prospectus and the Disclosure
7
Package (i) have been duly authorized by all necessary corporate action, have been effected in
accordance with Section 23(b) of the 1940 Act (which is made applicable to BDCs pursuant to Section
63 of the 0000 Xxx) and will not result in any violation of the provisions of the charter or by
laws of the Company, (ii) will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company or the Fund pursuant to, or require the consent of any other party to, any existing
instrument, except for such conflicts, breaches, defaults, liens, charges or encumbrances as would
not, individually or in the aggregate, result in a Material Adverse Effect and (iii) will not
result in any violation of any law, administrative regulation or administrative or court decree
applicable to the Company or the Fund. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory authority or agency, is
required for the Company’s execution, delivery and performance of this Agreement or consummation of
the transactions contemplated hereby and by the Prospectus and the Disclosure Package, except such
as have already been obtained or made under the 1933 Act and the 1940 Act and such as may be
required under any applicable state securities or blue sky laws or from the National Association of
Securities Dealers, Inc. (the “NASD”).
8
Common Shares to the Fund’s former limited partners, and members of the General Partner and
the Investment Advisor) have been duly authorized by all necessary corporate or other required
action and do not and will not, whether with or without the giving of notice or passage of time or
both, result in any violation of the provisions of the charter, bylaws and other organizational
documents of either the Company or the Fund, each as amended from time to time, or any statute,
law, rule, regulation, filing, judgment, order, injunction, writ or decree applicable to the
Company or the Fund or any of their assets, properties or operations as would not, individually or
in the aggregate, result in a Material Adverse Event. All necessary or required filings with, or
authorizations, approvals, consents, licenses, orders, registrations, qualifications or decrees of,
any court or governmental authority or agency (including, without limitation, the United States
Small Business Administration), domestic or foreign, in connection with the execution, delivery
and/or performance of the Formation Agreements (as defined herein) and consummation of the
Formation Transactions have been obtained, and any and all necessary or required authorizations,
approvals, votes or other consents of any other person or entity for the performance by the Company
or the Fund of their respective obligations in connection therewith, or the consummation of the
transactions contemplated thereby, have been obtained, other than such as may be required with
respect to the issuance of Common Shares to the Fund’s limited partners and members of the General
Partner and the Investment Advisor under the 1933 Act and any applicable state securities or blue
sky laws. For purposes of this Agreement, the Formation Agreements means (i) Agreement and Plan of
Merger by and between Main Street Capital Corporation and Main Street
Mezzanine Fund LP dated [
], (ii) Exchange Agreement by and between Main Street Capital Corporation and Main Street
Capital Partners, LLC dated [ ], (iii) Exchange Agreement by and between Main Street
Capital Corporation and Main Street Mezzanine Management, LLC dated [ ], and (iv) such
other contribution agreements, operating agreements or amendments thereto, such as are required or
necessary in order to consummate the transactions contemplated thereby.
9
10
protect the Company and its business; all such insurance is fully in force on the date hereof
and will be fully in force at the time of purchase of the Shares.
11
pursuant to the Registration Statement or otherwise registered by the Company under the 1933
Act.
12
Section 2. Sale and Delivery to Underwriters; Closing.
13
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.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Underwriters for the respective accounts
of the Underwriters of the Shares to be purchased by them. It is understood that each Underwriter
has authorized Xxxxxx Xxxxxx, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Firm Shares and the Option Shares, if any, which it has agreed to
purchase. Xxxxxx Xxxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Firm 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.
Section 3. Covenants.
The Company agrees with each Underwriter as follows:
14
15
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.
16
17
The Underwriters covenant to the Company as follows:
Section 4. Payment of Expenses.
Section 5. Conditions of Underwriters’ Obligations.
The obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further
conditions:
18
19
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration Statement and
the Prospectus.
(i) Officers’ Certificates. Certificates, dated such Date of Delivery, of a
duly authorized officer of the Company and of the chief financial or chief
accounting officer of the Company confirming that the information contained in the
certificate delivered by each of them at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Company. The opinion of Xxxxxxxxxx Xxxxxx
& Xxxxxxx LLP, acting as counsel for the Company 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) hereof.
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(iii) Opinion of Counsel for the Underwriters. The opinion of Bass, Xxxxx &
Xxxx PLC, 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(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Xxxxx Xxxxxxxx LLP in form and
substance satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(f) hereof.
Section 6. Indemnification.
(i) any and all loss, damage, expense, liability or claim whatsoever (including the
reasonable cost of any investigation incurred in connection therewith) which,
jointly or severally, any such Underwriter or any such person may incur under the
1933 Act, the 1934 Act, the 1940 Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon (A) 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 (B) any untrue statement or alleged untrue statement of a material
fact included in the Disclosure Package 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, damage, expense, liability or claim 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 arises out of or is based upon
any such untrue statement or omission referred to in clause (i), or any such
21
alleged untrue statement or omission; provided that (subject to Section 6(e) below)
any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxx Xxxxxx), reasonably incurred in
investigating, preparing or defending against any actual or threatened litigation
(including the fees and disbursements of counsel chosen by Xxxxxx Xxxxxx), 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 statement or omission, to the extent that any
such expense is not paid under clauses (i) or (ii) above.
Notwithstanding the foregoing, the indemnification provisions set forth in this
Section 6(a) shall not apply to any loss, damage, expense, liability or claim to the
extent arising out of or based upon any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxx Xxxxxx or its
counsel expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, the Disclosure Package or the Prospectus (or
any amendment or supplement thereto). Moreover, that the Company will not be liable
to any Underwriter with respect to the Prospectus and the Disclosure Package to the
extent that the Company shall sustain the burden of proving that any such loss,
damage, expense, liability or claim resulted from the fact that such Underwriter, in
contravention of a requirement of this Agreement or applicable law, sold Shares to a
person to whom such Underwriter failed to send or give, at or prior to the Closing
Time, a copy of the final Prospectus, as then amended or supplemented if: (i) the
Company shall have previously furnished copies of the Prospectus (sufficiently in
advance of the Closing Time to allow for distribution by the Closing Time) to the
Underwriter and the loss, damage, expense, liability or claim against such
Underwriter resulted from an untrue statement or omission of a material fact
contained in or omitted from the Disclosure Package which was corrected in the
Prospectus prior to the Closing Time and such Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person and (ii)
such failure to give or send such Prospectus by the Closing Time to the party or
parties asserting such loss, damage, expense, liability or claim would have
constituted a defense to the claim asserted by such person.
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Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxx Xxxxxx or its
counsel expressly for use in the Registration Statement (or any amendment thereto) or the
Disclosure Package or the Prospectus (or any amendment or supplement thereto).
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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 Company 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 Company 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 Company 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 Company and the total
underwriting discount received by the Underwriters (whether from the Company or otherwise), in each
case as set forth on the cover of the Final Prospectus bear to the aggregate public offering price
of the Shares as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company 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
24
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.
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.
Notwithstanding the provisions of this Section 7, 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 and officer of the Company, and each person, if
any, who controls the Company, 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 Company. The Underwriters’
respective obligations to contribute pursuant to this Section 7 are several in proportion to the
number of Firm Shares set forth opposite their respective names in Schedule A hereto and
not joint.
Any contribution by the Company shall be subject to the requirements and limitations of
Section 17(i) of the 1940 Act and 1940 Act Release 11330.
All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company 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 Company, and shall survive delivery of the Shares to the
Underwriters.
Section 9. Termination of Agreement.
25
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 Underwriters, 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 Company has been suspended or materially limited by the Commission or the NASDAQ, or if
trading generally on the New York Stock Exchange 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, the NASDAQ 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 New York state authorities.
Section 10. Default by One or More of the Underwriters.
(a) 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 Underwriters 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 Underwriters shall not have completed such arrangements within
such 24-hour period, then:
(i) 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 respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) 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 Company 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.
(b) No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from
liability in respect of its default.
(c) 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
26
result in a termination of the obligation of the Underwriters to purchase and the Company to
sell the relevant Option Shares, as the case may be, either the Underwriters or the Company shall
have the right to postpone the 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 Final 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.
Section 11. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or
telecopied and confirmed to the parties hereto as follows:
If to the Underwriters:
|
with a copy to: | |
Xxxxxx Xxxxxx & Company, Inc.
|
Bass, Xxxxx & Xxxx PLC | |
00 Xxxxx Xxxxx Xxxxxx
|
000 Xxxxxxx Xxxxx, Xxxxx 000 | |
Xxxxxxx, Xxxxxxxxx 00000
|
Xxxxxxx, Xxxxxxxxx 00000 | |
Facsimile: (000) 000-0000
|
Facsimile: (000) 000-0000 | |
Attention: Xxxx Xxxxxxxx
|
Attention: Xxxx X. Good, Esq. | |
If to the Company:
|
with a copy to: | |
Main Street Capital Corporation
|
Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLP | |
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
|
1275 Pennsylvania Avenue | |
Houston, Texas 77056
|
Xxxxxxxxxx, X.X. 00000 | |
Facsimile: (000) 000-0000
|
Facsimile: (000) 000-0000 | |
Attention: Xxxxxxx Xxxxxx
|
Attention: Xxxxxx X. Xxxxx, Esq. |
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 12. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the
Company 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 Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal representatives, 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 Company and their respective partners and
successors, and said controlling persons and officers, directors and their heirs and legal
representatives, 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.
27
Section 13. No Fiduciary Obligation.
The Company acknowledges and agrees that each of the Underwriters have acted, and are acting,
solely in the capacity of an arm’s-length contractual counterparty to the Company with respect to
the offering of the Shares contemplated hereby (including in connection with determining the terms
of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or
any other person. Additionally, the Underwrites have not advised, and are not advising, the
Company or any other person as to any legal, tax, investment, accounting or regulatory matter in
any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult
with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company with respect thereto. Any
review by the Underwriters of the Company, the transactions contemplated hereby or other matters
relating to such transactions has been and will be performed solely for the benefit of the
Underwriters and have not been and shall not be on behalf of the Company or any other person. It
is understood that the offering price was arrived at through arm’s-length negotiations between the
Underwriters and the Company, and that such price was not set or otherwise determined as a result
of expert advice rendered to the Company by any Underwriter. The Company acknowledges and agrees
that the Underwriters are collectively acting as an independent contractor, and any duty of the
Underwriters arising out of this Agreement and the transactions completed hereby shall be
contractual in nature and expressly set forth herein. Notwithstanding anything in this Agreement
to the contrary, the Company acknowledges that the Underwriters may have financial interests in the
success of the offering contemplated hereby that are not limited to the difference between the
price to the public and the purchase price paid to the Company by the Underwriters for the Shares.
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 ESTERN STANDARD TIME.
Section 15. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
28
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 Company and the Underwriters and in accordance with its terms.
Very truly yours, Main Street Capital Corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||
Confirmed and Accepted, | ||||
as of the date first above written: | ||||
Xxxxxx Xxxxxx & Company, Inc. | ||||
BB&T Capital Markets | ||||
By: Xxxxxx Xxxxxx & Company, Inc. | ||||
By: |
||||
Title: Managing Director | ||||
For itself and on behalf of the other | ||||
Underwriters named in Schedule A hereto. |
29
SCHEDULE A
Number of | ||||
Name of Underwriter | Firm Shares | |||
Xxxxxx Xxxxxx & Company, Inc. |
||||
BB&T Capital Markets |
||||
SMH Capital Inc. |
||||
Xxxxxx, Xxxxx Xxxxx, Incorporated |
||||
Total |
SCHEDULE B
Members of the Underwriters’ selling group orally communicated the following information to their
respective customers:
Main Street Capital Corporation proposes to sell
shares of common stock to the
Underwriters (
shares including the underwriters’ over-allotment option).
The purchase price for the common shares will be $ per share, which represents a price to the
public of $ per share, less an underwriting discount of $ per share.
The estimated net proceeds to Main Street Capital Corporation will be $ or $ with the
full exercise of the over-allotment option.
SCHEDULE C
Form(s) of Opinion from Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
SCHEDULE D
Form of Lock-Up Agreement