Shares Patriot Capital Funding, Inc. Common Stock UNDERWRITING AGREEMENT
Exhibit h
[_____] Shares
Common Stock
June ___, 2006
X.X. Xxxxxxx & Sons, Inc.
As Representative of the several Underwriters
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
As Representative of the several Underwriters
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
Introductory. Patriot Capital Funding, Inc., (the “Company”) a Delaware corporation, proposes
to issue and sell to the several underwriters named in Schedule A (the “Underwriters”) an
aggregate of [___] shares of its common stock, par value $0.01 per share (the “Shares”); and
Wilton Funding Holdings, LLC (the “Selling Stockholder”) proposes to sell to the Underwriters an
aggregate of [___] Shares. The [___] Shares to be sold by the Company and the [___] Shares to
be sold by the Selling Stockholder are collectively called the “Firm Shares.” In addition, the
Company and the Selling Stockholder have granted to the Underwriters an option to purchase up to an
additional [___] Shares (the “Optional Shares”), as provided in Section 2. The Firm Shares and,
if and to the extent such option is exercised, the Optional Shares are collectively called the
"Offered Shares.” X.X. Xxxxxxx & Sons, Inc. (“X.X. Xxxxxxx”) has agreed to act as representative
of the several Underwriters (in such capacity, the “Representative”) in connection with the
offering and sale of the Offered Shares.
The Company has prepared and filed with the Securities and Exchange Commission (the
"Commission”) a registration statement on Form N-2 (File No. 333-132458), which contains a form of
prospectus to be used in connection with the public offering and sale of the Offered Shares. The
registration statement, as amended, including the financial statements, exhibits and schedules
thereto, in the form in which it was declared effective by the Commission under the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the
"Securities Act”), including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 497 under the Securities Act and deemed to be a part of the
registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act,
is called the “Registration Statement.” Any registration statement filed by the Company pursuant
to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration Statement,” and
from and after the date and time of filing of the Rule 462(b) Registration Statement, the term
"Registration Statement” shall include the Rule 462(b) Registration Statement. The prospectus, in
the form first used by the Underwriters to confirm sales of the Offered Shares, is called the
"Prospectus”. The Company’s preliminary prospectus subject to completion dated May [___], 2006
relating to the Offered Shares is hereinafter referred to as the “Preliminary Prospectus”. The
Preliminary Prospectus, together with the information set forth in the oral pricing script attached
as Exhibit A is hereinafter referred to as the “Disclosure Package”. All references in
this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, the
Preliminary Prospectus or the 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”).
The Company and the Selling Stockholder hereby confirm their respective agreements with the
Underwriters as follows:
A. Representations and Warranties of the Company. The Company hereby represents, warrants and
covenants to each Underwriter as follows:
(a) Compliance with Registration Requirements. The Registration Statement and any Rule
462(b) Registration Statement have been declared effective by the Commission under the Securities
Act. The Company has complied with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been
instituted or are pending or, to the best knowledge of the Company, are threatened by the
Commission.
The Preliminary Prospectus and the Prospectus when filed with the Commission complied in all
material respects with the requirements of the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T under the Securities
Act), was identical to the copy thereof delivered to the Underwriters for use in connection with
the offer and sale of the Offered Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it became effective
and at all subsequent times, complied and will comply in all material respects with the
requirements of the Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus as amended or supplemented, as of its date
and at all subsequent times, did not and will not 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. The representations and warranties
set forth in the two immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by the Representative expressly for use therein, it being understood and agreed that the
only such information furnished by the Representative to the Company consists of the information
described in Section 8(c) below. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration Statement which have not
been described or filed as required.
(b) Disclosure Package. The Disclosure Package as of the Time of Sale 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 the Representative expressly for use therein, it being
understood and agreed that the only such information furnished by the Representative to the
Company consists of the information described in Section 8(c) below. The “Time of Sale” shall
mean [ ], Eastern Standard Time, on [ ], 2006.
(c) Offering Materials Furnished to Underwriters. The Company has delivered to the
Representative one complete manually signed copy of the Registration Statement and of each
consent
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and certificate of experts filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits) and the Preliminary Prospectus and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representative has reasonably
requested for each of the Underwriters.
(d) Distribution of Offering Material By the Company. The Company has not distributed and
will not distribute, prior to the later of (i) the expiration or termination of the option
granted to the several Underwriters in Section 2 and (ii) the completion of the Underwriters’
distribution of the Offered Shares, any offering material in connection with the offering and
sale of the Offered Shares other than the Preliminary Prospectus, the Prospectus or the
Registration Statement.
(e) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company, enforceable against the
Company in accordance with its terms except as the enforcement hereof or thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles and except as
rights to indemnity hereunder may be limited by general equitable principles or federal or state
securities laws or public policy underlying such laws.
(f) Authorization of the Offered Shares. The Offered Shares to be purchased by the
Underwriters from the Company have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this Agreement, will be
validly issued, fully paid and nonassessable. The Offered Shares to be purchased by the
Underwriters from the Selling Stockholder have been duly authorized, validly issued, fully paid
and nonassessable.
(g) No Applicable Registration or Other Similar Rights. Other than the agreement by the
Company to include the Offered Shares held by the Selling Stockholder in the Registration
Statement and the offering contemplated by this Agreement, there are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by this Agreement.
(h) Subsidiaries. The Company does not own, directly or indirectly, any shares of stock or
any other equity or long-term debt securities of any corporation or other entity other than (i)
100% of the equity interests in Patriot Capital Funding LLC I (the “Subsidiary”) and (ii) those
corporations or other entities described in the Disclosure Package and the Prospectus under the
caption “Portfolio Companies” (each a “Portfolio Company” and collectively, the “Portfolio
Companies”). The Company does not control (as such term is defined in Section 2(a)(9) of the
Investment Company Act of 1940, as amended, and the rules and regulations thereunder
(collectively, the “Investment Company Act”)) any of the Portfolio Companies. In accordance with
Article 6 of Regulation S-X under the Securities Act, the Company is not required to consolidate
the financial statements of any corporation, association or other entity with the Company’s
financial statements other than the Subsidiary.
(i) Capitalization of Subsidiary. All of the outstanding membership or equity interests of
the Subsidiary have been duly authorized and issued and are fully paid and nonassessable, and all
outstanding membership or equity interests of the Subsidiary are owned by the Company free and
clear of any security interests, claims, liens or encumbrances.
(j)
[Intentionally Left Blank]
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(k) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package and
Prospectus, subsequent to the respective dates as of which information is given in the Disclosure
Package and the Prospectus: (i) there has been no material adverse change, or any development
that could reasonably be expected to result in a material adverse change, in the condition,
financial or otherwise, or in the earnings, business, management, operations or prospects,
whether or not arising from transactions in the ordinary course of business, of the Company (any
such change is called a “Material Adverse Change”); (ii) the Company has not incurred any
material liability or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the ordinary course of
business; and (iii) there has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of capital stock or repurchase or redemption by the Company of any
class of capital stock.
(l) Independent Accountants. Xxxxx Xxxxxxxx LLP, who have expressed their opinion with
respect to the consolidated financial statements and the related notes thereto filed with the
Commission as a part of the Registration Statement and included in the Disclosure Package and the
Prospectus (the “Financial Statements”), are: (i) independent public or certified public
accountants as required by the Securities Act and the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”);
(ii) to the best of the Company’s knowledge, in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X; and (iii) to the
best of the Company’s knowledge, a registered public accounting firm as defined by the Public
Company Accounting Oversight Board (the “PCAOB”) whose registration has not been suspended or
revoked and who has not requested such registration to be withdrawn.
(m) Preparation of the Financial Statements. The Financial Statements present fairly in all
material respects the consolidated financial position of the Company and the Subsidiary, as of
and at the dates indicated and the results of their operations and cash flows for the periods
specified. Such Financial Statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods involved, except as
may be expressly stated in the related notes thereto. No other financial statements or
supporting schedules are required to be included in the Registration Statement. The financial
data set forth in the Disclosure Package and the Prospectus in the column “Actual” under the
caption “Capitalization” fairly presents the information set forth therein on a basis consistent
with that of the audited financial statements and related notes thereto contained in the
Registration Statement. To the best of the Company’s knowledge, no person who has been suspended
or barred from being associated with a registered public accounting firm, or who has failed to
comply with any sanction pursuant to Rule 5300 promulgated by the PCAOB, has participated in or
otherwise aided the preparation of, or audited, the Financial Statements, supporting schedules or
other financial data filed with the Commission as a part of the Registration Statement and
included in the Disclosure Package and the Prospectus.
(n) Company’s Accounting System. The Company makes and keeps accurate books and records and
maintains a system of accounting controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management’s general or specific authorization; (ii)
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transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain accountability for
assets; (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.
(i) The Company has been duly organized and is validly existing as a corporation, in
good standing under the laws of the State of Delaware, (A) has the corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement and (B) is duly qualified as a foreign corporation to transact business
and is in good standing in the State of Connecticut and each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of property or
the conduct of business, except to the extent that the failure to be so qualified or be in
good standing would not reasonably be expected to result in a Material Adverse Change.
(ii) The Subsidiary has been duly organized and is validly existing as a limited
liability company, in good standing under the laws of the State of Delaware, (A) has the
limited liability company power and authority to own, lease and operate its properties and
to conduct its business as described in the Disclosure Package and the Prospectus and (B) is
duly qualified as a foreign limited liability company to transact business and is in good
standing in the State of Connecticut and each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of
business, except to the extent that the failure to be so qualified or be in good standing
would not reasonably be expected to result in a Material Adverse Change or a material
adverse change with respect to the Subsidiary.
(p) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the
column entitled “Actual” under the caption “Capitalization”. The Shares (including the Offered
Shares) conform in all material respects to the description thereof contained in the Disclosure
Package and the Prospectus. All of the issued and outstanding Shares (including the Offered
Shares sold by the Selling Stockholder) have been duly authorized and validly issued, are fully
paid and nonassessable and have been issued in compliance with federal and state securities laws.
The Offered Shares to be sold by the Company have been duly authorized and, upon payment
therefor as set forth in this Agreement, will be validly issued, fully paid and nonassessable and
will be issued in compliance with federal and state securities laws. None of the outstanding
Shares have been, and none of the Company Offered Shares will be, issued in violation of any
preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
securities of the Company arising under the Delaware General Corporation Law (“DGCL”), the
Company’s charter or bylaws or any agreement to which the Company is party. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company other than those accurately described in the Disclosure
Package and the Prospectus. The description of the Company’s stock option plan, and the options
or other rights granted thereunder, set forth in the Disclosure Package and the Prospectus
accurately and fairly presents the information required to be shown with respect to such plan and
options. The Company has no other stock plans or arrangements other than those described in the
Disclosure Package and the Prospectus.
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(q) Listing. The Offered Shares have been approved for inclusion on the Nasdaq National
Market, subject only to official notice of issuance. The Shares are registered pursuant to
Section 12(g) of the Exchange Act. The Shares are quoted on the Nasdaq National Market, and the
Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Shares under the Exchange Act or the quotation of the Shares on the Nasdaq
National Market. The Company has not received any notification that (i) the Commission is
contemplating terminating the Company’s registration under the Exchange Act or (ii) the Nasdaq
National Market is contemplating delisting the Shares from the Nasdaq National Market.
(r) Non-Contravention of Company Instruments; No Further Authorizations or Approvals
Required. The Company (i) is not in violation of its charter or by-laws and (ii) is not in
default (or, with the giving of notice or lapse of time, would be in default) (a “Company
Default”) under any indenture, mortgage, loan or credit agreement, note, contract, franchise,
lease or other instrument to which the Company is a party or by which it may be bound, or to
which any of the property or assets of the Company is subject (each, a “Company Instrument”),
except, with respect to clause (ii) to the extent that any such Company Default would not
reasonably be expected to result in a Material Adverse Change. The Company’s execution, delivery
and performance of this Agreement, the consummation of the transactions contemplated hereby and
by the Disclosure Package and the Prospectus and the issuance and sale of the Offered Shares: (i)
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 Company Default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, or require the consent of any other party to, any Company Instrument; and
(iii) will not result in any violation of any law, administrative regulation or administrative or
court decree applicable to the Company, except with respect to clauses (ii) and (iii), to the
extent that any such contravention would not reasonably be expected to result in a Material
Adverse Change. 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 and consummation of the
transactions contemplated hereby and by the Disclosure Package and the Prospectus, except (i)
registration of the Offered Shares under the Securities Act, which has been effected, (ii) any
necessary qualification under the securities or blue sky laws of the various jurisdictions in
which the Offered Shares are being offered by the Underwriters and (iii) under the rules and
regulations of the NASD in connection with the purchase and distribution of Offered Shares by the
Underwriters.
(s) No Material Actions or Proceedings. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, there are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company’s knowledge, threatened: (i) against or affecting the
Company; (ii) which has as the subject thereof any officer or director of, or property owned or
leased by, the Company; or (iii) relating to environmental or discrimination matters against or
affecting the Company, where in each such case (A) there is a reasonable possibility that such
action, suit or proceeding might be determined adversely to the Company or such officer or
director and (B) any such action, suit or proceeding, if so determined adversely, would
reasonably be expected to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement. No material labor dispute with
the employees of the Company exists or, to the best of the Company’s knowledge, is threatened or
imminent.
(t) Ability to Invest Assets. There are no material restrictions, limitations or
regulations with respect to the ability of the Company to invest its assets as described in the
Disclosure Package and the Prospectus, other than as described therein.
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(u) Intellectual Property Rights. The Company owns or possesses sufficient trademarks,
trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets and
other similar rights (collectively, “Intellectual Property Rights”) reasonably necessary to
conduct its business as now conducted and as described in the Disclosure Package and the
Prospectus, except where the failure to own or possess such rights would not reasonably be
expected to result in a Material Adverse Change; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse Change. The Company has not
received, and has no reason to believe that it will receive, any notice of infringement or
conflict with asserted Intellectual Property Rights of others. The Company is not a party to or
bound by any options, licenses or agreements with respect to the Intellectual Property Rights of
any other person or entity that are required to be set forth in the Registration Statement, the
Disclosure Package and the Prospectus and are not described therein. None of the technology
employed by the Company has been obtained or is being used by the Company in violation of any
contractual obligation binding on the Company or, to the Company’s knowledge, any of its
officers, directors or employees in violation of the rights of any persons, except to the extent
that any such violation would not reasonably be expected to result in a Material Adverse Change.
(v) Environmental Laws. (i) The Company is in compliance with all rules, laws and
regulations relating to the use, treatment, storage and disposal of toxic substances and
protection of health or the environment (“Environmental Laws”) that are applicable to its
business, except where the failure to comply would not result in a Material Adverse Change, (ii)
the Company has received no notice from any governmental authority or third party of an asserted
claim under Environmental Laws, which claim is required to be disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, (iii) the Company will not be required to
make future material capital expenditures to comply with Environmental Laws and (iv) no property
that is owned, leased or occupied by the Company has been designated as a Superfund site pursuant
to the Comprehensive Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §
9601, et seq.), or otherwise designated as a contaminated site under applicable state or local
law.
(w) All Necessary Permits. The Company possesses such valid and current certificates,
authorizations or permits issued by the appropriate state or federal regulatory agencies or
bodies necessary to conduct its business, and the Company has not received, and has no reason to
believe that it will receive, any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse Change.
(x) Title to Properties. The Company has good and marketable title to all of the real and
personal property and other assets reflected as owned in the Financial Statements, in each case,
except as disclosed in the Disclosure Package and the Prospectus, free and clear of any security
interests, mortgages, liens, encumbrances, equities and adverse claims. The real property,
improvements, equipment and personal property held under lease by the Company are held under
valid and enforceable leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property, improvements, equipment
or personal property by the Company.
(y) Tax Law Compliance. The Company has filed all necessary federal and state income and
franchise tax returns. The Company has paid all taxes required to be paid by it and, if due and
payable, any related or similar assessment, fine or penalty levied against it, except to the
extent that the failure to file or pay such tax returns and taxes would not result in a Material
Adverse Change. The Company has made adequate charges, accruals and reserves in the Financial
Statements in respect of all income tax and franchise taxes for all periods as to which the tax
liability of the Company has not
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been finally determined. The Company is not aware of any tax deficiency that has been or
might be asserted or threatened against the Company that would reasonably be expected to result
in a Material Adverse Change.
(z) Insurance. The Company maintains insurance policies in such amounts and with such
deductibles and covering such risks as it deems appropriate for its business. The Company has no
reason to believe that it will not be able: (i) to renew its existing insurance coverage as and
when such policies expire; or (ii) to obtain comparable coverage from similar institutions as may
be necessary or appropriate to conduct its business as now conducted and at a cost that would not
reasonably be expected to result in a Material Adverse Change. The Company has not been denied
any insurance coverage which it has sought or for which it has applied.
(aa) No Price Stabilization or Manipulation; Compliance with Regulation M. The Company has
not taken, directly or indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of the Shares or any other
“reference security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation
M”)) whether to facilitate the sale or resale of the Offered Shares or otherwise, and has taken
no action which would directly or indirectly violate Regulation M. The Company acknowledges that
the Underwriters may engage in passive market making transactions in the Offered Shares on the
Nasdaq National Market in accordance with Regulation M.
(bb) Related Party Transactions. There are no business relationships or transactions that
exist between or among the Company, on the one hand, and any director, executive officer,
stockholder or any other person, on the other hand, which are required to be described in the
Registration Statement, the Disclosure Package and the Prospectus which have not been described
as required.
(cc) No Unlawful Contributions or Other Payments. Neither the Company nor, to the best of
the Company’s knowledge or any employee of the Company or any agent on behalf of the Company, has
made any contribution or other payment to any official of, or candidate for, any federal, state
or foreign office in violation of any law or of the character required to be disclosed in the
Registration Statement, the Disclosure Package and the Prospectus.
(dd) Disclosure Controls and Procedures; Deficiencies in or Changes to Internal Control Over
Financial Reporting. The Company has established and maintains disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)), which: (i) are designed to ensure
that material information relating to the Company is made known to the Company’s principal
executive officer and its principal financial officer by others within the Company; and (ii) are
effective in all material respects to perform the functions for which they were established. The
Company is not aware of (x) any significant deficiencies or material weaknesses in the design or
operation of its internal control over financial reporting (as such term is defined in Exchange
Act Rules 13a-15(f) and 15d-15(f)) which are reasonably likely to adversely affect the Company’s
ability to record, process, summarize and report financial information or (y) any fraud, whether
or not material, that involves management or other employees who have a significant role in the
Company’s internal control over financial reporting. Since the date of the Financial
Statements, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to material affect, the Company’s internal
control over financial reporting.
(ee) Xxxxxxxx-Xxxxx Act Compliance. The Company has complied in all material respects with
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act") and has made
the evaluations of the Company’s disclosure controls and procedures required under Rule 13a-15
under the Exchange Act. For the year ended December 31, 2005, the Company is not
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required to complete the assessment under Section 404 of the Xxxxxxxx-Xxxxx Act and the
rules and regulations promulgated in connection therewith and is not required to include a report
regarding such assessment in its Annual Report on Form 10-K for the fiscal year ended December
31, 2005.
(ff) ERISA Compliance. The Company and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company are
in compliance with ERISA. No “reportable event” (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any “employee benefit plan” established or
maintained by the Company. No “employee benefit plan” established or maintained by the Company
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit
liabilities” (as defined under ERISA). The Company has not incurred and does not reasonably
expect to incur any liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the
Internal Revenue Code of 1986, as amended, and the regulations and published interpretations
thereunder (collectively, the “Code”). Each “employee benefit plan” established or maintained by
the Company that is intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or failure to act, which would cause the loss of such
qualification. The Company has not received any notification of any investigation, examination,
audit or review of any type by or with the Internal Revenue Service or Department of Labor
regarding or in connection with any “employee benefit plan” established or maintained by the
Company.
(gg) Brokers. Except as otherwise disclosed in the Disclosure Package and the Prospectus,
there is no broker, finder or other party that is entitled to receive from the Company any
brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated
by this Agreement.
(hh) No Outstanding Loans or Other Extensions of Credit. The Company has not extended or
maintained credit, arranged for the extension of credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer of the Company except for such
extensions of credit as are (i) expressly permitted by Section 13(k) of the Exchange Act or (ii)
fully repaid, discharged, forgiven or otherwise no longer outstanding or owing in any way on the
date of this Agreement.
(ii) Compliance with Laws. The Company has not been advised, and has no reason to believe,
that it is not conducting business in compliance with all applicable laws, rules and regulations
of the jurisdictions in which it is conducting business.
(jj) Reports Filed. The Company has timely filed all reports required to be filed pursuant
to the Securities Act, the Investment Company Act and the Exchange Act.
(kk) Exchange Act Compliance. The documents filed by the Company with the Commission
complied in all material respects with the requirements of the Exchange Act, and, at the time of
filing, did not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ll) Election as a Business Development Company. The Company has filed with the Commission
pursuant to Section 54(a) of the Investment Company Act, 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 Investment Company Act (the “Notification of Election”), pursuant to which
the Company has elected to be subject to Sections 55 to 65 of the Investment Company Act. The
Company will not, as of the First Closing Date (as defined below) and any Option Closing Date
9
(as defined below), have filed with the Commission any notice of withdrawal of the
Notification of Election pursuant to Section 54(c) of the Investment Company 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 best knowledge of the Company,
threatened by the Commission.
(mm) Portfolio Companies. The Company has duly authorized, executed and delivered agreements
required to make the investments described in the Disclosure Package and the Prospectus under the
caption “Portfolio Companies” (each a “Portfolio Company Agreement”). Except as otherwise
disclosed in the Disclosure Package and the Prospectus, each Portfolio Company is current with all
its obligations under the applicable Portfolio Company Agreements, no event of default (or a
default which with the giving of notice or the passage of time would become an event of default)
has occurred under such agreements, except to the extent that any such failure to be current in its
obligations and any such default would not reasonably be expected to result in a Material Adverse
Change.
(nn) Termination of Agreements. Except as disclosed in the Disclosure Package and the
Prospectus, the Company has not sent or received any communication regarding termination of, or
intent not to renew, any of the contracts or agreements referred to or described in, or filed as an
exhibit to, the Registration Statement, and no such termination or non-renewal has been threatened
by the Company or, to the Company’s knowledge, any other party to any such contract or agreement.
(oo) No Affiliations. To the best of the Company’s knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company’s officers, directors or 5% or
greater securityholders, except as set forth in the Disclosure Package and the Prospectus.
(pp) Regulated Investment Company Status. Since August 1, 2005, the Company has been
organized and operated, and is currently organized and operated, in compliance in all material
respects with the requirements to be taxed as a regulated investment company under Subchapter M of
the Code. The Company intends to operate its business in such a manner as to continue to comply
with the requirements for taxation as a regulated investment company under Subchapter M of the
Code.
(qq) Interested Persons. Except as disclosed in the Disclosure Package and the Prospectus,
(i) no person is serving or acting as an officer or director of the Company except in accordance
with the provisions of the Investment Company Act and (ii) no director of the Company is an
“interested person” (as defined in the Investment Company Act) of the Company or an “affiliated
person” (as defined in the Investment Company Act) of any of the Underwriters.
(rr) Operations Comply with Investment Company Act. The operations of the Company are in
compliance in all material respects with the provisions of the Investment Company Act applicable to
“business development companies”. The provisions of the charter and by-laws of the Company and the
investment objective, strategies, policies and restrictions described in the Disclosure Package and
the Prospectus, assuming they are implemented as so described, will comply in all material respects
with the requirements of the Investment Company Act.
(ss) No Transfer Taxes or Other Fees. 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 and sale
by the Company of the Offered Shares.
(tt) Lock-Up Agreements. Each person listed on Schedule B signed an agreement in the
form attached hereto as Exhibit B (the “Lock-up Agreements”). The Company has provided to
counsel for the Underwriters true, accurate and complete copies of all the Lock-up Agreements.
10
(uu) Conditions for Use of Form N-2. The Company has satisfied the conditions for the use of
Form N-2, as set forth in the general instructions thereto, with respect to the Registration
Statement.
The Company acknowledges that the Underwriters and, for purposes of the opinions to be
delivered pursuant to Section 5 hereof, counsel to the Company and counsel to the Underwriters,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents
to such reliance.
B. Representations and Warranties of the Selling Stockholder. The Selling Stockholder
represents, warrants and covenants to each Underwriter as follows:
(a) Accurate Disclosure. To the best knowledge of the Selling Stockholder, the
representations and warranties of the Company contained in Section 1(A) hereof are true and
correct. The representations and warranties referred to in the immediately preceding sentence do
not apply to statements in or omissions from the Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, the Disclosure Package, or the
Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by the
Representative expressly for use therein, it being understood and agreed that the only such
information furnished by the Representative to the Company consists of the information described
in Section 8(c) below. The Selling Stockholder has reviewed and is familiar with the
Registration Statement, the Disclosure Package and the Prospectus and to the knowledge of the
Selling Stockholder, none of the Disclosure Package, the Prospectus, nor any amendments or
supplements thereto include any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder and is a valid and binding agreement of the
Selling Stockholder, enforceable in accordance with its terms, except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles
and except as rights to indemnity hereunder may be limited by general equitable principles or
federal or state securities laws or public policy underlying such laws.
(c) The Custody Agreement. The Custody Agreement signed by the Selling Stockholder and
American Stock Transfer & Trust Company, as custodian (the “Custodian”), relating to the deposit
of the Offered Shares to be sold by the Selling Stockholder (the “Custody Agreement”) has been
duly authorized, executed and delivered by the Selling Stockholder and is a valid and binding
agreement of the Selling Stockholder, enforceable in accordance with its terms, except as rights
to indemnification thereunder may be limited by applicable law and except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable
principles.
(d) Power of Attorney. The Power of Attorney appointing certain individuals named therein
as the attorneys-in-fact for the Selling Stockholder (each, an “Attorney-in-Fact”) to the extent
set forth therein relating to the transactions contemplated hereby and by the Prospectus (the
“Power of Attorney”), has been duly authorized, executed and delivered by the Selling Stockholder
and is a valid and binding agreement of the Selling Stockholder, enforceable in accordance with
its terms, except as rights to indemnification thereunder may be limited by applicable law and
except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles.
11
(e) Title to Offered Shares to be Sold. The Selling Stockholder has, and on the First
Closing Date and each applicable Option Closing Date will have, good and valid title to all of
the Offered Shares which may be sold by the Selling Stockholder pursuant to this Agreement on
such date and the legal right and power to sell, transfer and deliver all of the Offered Shares
which may be sold by the Selling Stockholder pursuant to this Agreement and to comply with its
other obligations hereunder and thereunder.
(f) Delivery of the Offered Shares to be Sold. Delivery of the Offered Shares which are to
be sold by the Selling Stockholder pursuant to this Agreement will pass good and valid title to
such Offered Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance
or other adverse claim.
(g) Non-Contravention; No Further Authorizations or Approvals Required. The execution and
delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its
obligations under, this Agreement, the Custody Agreement and the Power of Attorney will not
contravene or conflict with, result in a breach of, or constitute a default under, or require the
consent of any other party to, the charter or by-laws, partnership agreement, or other
organizational documents of the Selling Stockholder or any other agreement or instrument to which
the Selling Stockholder is a party or by which it is bound or under which it is entitled to any
right or benefit, any provision of applicable law or any judgment, order, decree or regulation
applicable to the Selling Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling Stockholder, except for such
contraventions, conflicts, breaches, defaults or consents that have been duly waived or would not
be reasonably expected to adversely affect the consummation of the transactions contemplated by
this Agreement or the ability of the Selling Stockholder to perform its obligations hereunder.
No consent, approval, authorization or other order of, or registration or filing with, any court
or other governmental authority or agency, is required for the consummation by the Selling
Stockholder of the transactions contemplated in this Agreement, except such as have been obtained
or made and are in full force and effect under the Securities Act, applicable state securities or
blue sky laws and from the NASD.
(h) No Registration, Pre-emptive, Co-Sale or Other Similar Rights. The Selling Stockholder
does not (i) have any registration or other similar rights to have any equity or debt securities
registered for sale by the Company under the Registration Statement or included in the offering
contemplated by this Agreement, (ii) have any preemptive right, co-sale right or right of first
refusal or other similar right to purchase any of the Offered Shares that are to be sold by the
Company to the Underwriters pursuant to this Agreement, and (iii) own any warrants, options or
similar rights to acquire, or have any right or arrangement to acquire, any capital stock, right,
warrants, options or other securities from the Company.
(i) No Further Consents, etc. Except for such consents, approvals and waivers which have
been obtained by the Selling Stockholder on or prior to the date of this Agreement, no consent,
approval or waiver is required under any instrument or agreement to which the Selling Stockholder
is a party or by which it is bound or under which it is entitled to any right or benefit, in
connection with the offering, sale or purchase by the Underwriters of any of the Offered Shares
which may be sold by the Selling Stockholder under this Agreement or the consummation by the
Selling Stockholder of any of the other transactions contemplated hereby.
(j) Disclosure Made by the Selling Stockholder in the Prospectus. All information furnished
by or on behalf of the Selling Stockholder in writing expressly for use in the Registration
Statement and the Prospectus is, and on the First Closing Date and the applicable Option Closing
Date will be, true, correct, and complete in all material respects, and does not, and on the
First Closing Date and the
12
applicable Option Closing Date will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make such information not misleading. All
information furnished by or on behalf of the Selling Stockholder in writing for use in the
Disclosure Package as of the Time of Sale 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 number of shares held
(i) of record by the Selling Stockholder and (ii) beneficially by Compass Group Investments, Inc.
(“CGI”) (both prior to and after giving effect to the sale of the Offered Shares) are accurately
set forth in the Prospectus under the caption “Control Persons and Principal and Selling
Stockholder”.
(k) No Price Stabilization or Manipulation; Compliance with Regulation M. The Selling
Stockholder has not taken, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the price of the
Shares or any other reference security, whether to facilitate the sale or resale of the Offered
Shares or otherwise, and has taken no action which would directly or indirectly violate any
provision of Regulation M.
(l) Distribution of Offering Materials by the Selling Stockholder. The Selling Stockholder
has not distributed and will not distribute, prior to the later of (i) the expiration or
termination of the option granted to the several Underwriters under Section 2 and (ii) the
completion of the Underwriters’ distribution of the Offered Shares, any offering material in
connection with the offering and sale of the Offered Shares other than the Preliminary
Prospectus, the Prospectus or the Registration Statement.
(m) No Affiliations. There are no affiliations or associations between any members of the
NASD and the Selling Stockholder.
The Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to
be delivered pursuant to Section 5 hereof, counsel to the Selling Stockholder, counsel to the
Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the
foregoing representations and hereby consents to such reliance.
(a) The Firm Shares. Upon the terms herein set forth, (i) the Company agrees to issue and
sell to the several Underwriters an aggregate of [ ] Firm Shares and (ii) the
Selling Stockholder agrees to sell to the several Underwriters [ ] Firm Shares. On
the basis of the representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly,
to purchase from the Company and the Selling Stockholder the respective number of Firm Shares set
forth opposite their names on Schedule A. The purchase price per Firm Share to be paid by
the several Underwriters to the Company and the Selling Stockholder shall be $[___] per share.
(b) The First Closing Date. Delivery of certificates for the Firm Shares to be purchased by
the Underwriters and payment therefor shall be made at the offices of
Sidley Austin llp, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to by the
Company and the Representative) at 9:00 a.m. New York time, on June [ ], 2006, or such other time
and date not later than 1:30 p.m. New York time, on June [ ], 2006 as the
Representative shall designate by notice to the Company (the time and date of such closing are
called the “First Closing Date”). The Company and the Selling Stockholder hereby acknowledge that
circumstances under which the Representative may provide
13
notice to postpone the First Closing Date as originally scheduled include, but are in no way
limited to, any determination by the Company, the Selling Stockholder or the Representative to
recirculate to the public copies of an amended or supplemented Prospectus or a delay as
contemplated by the provisions of Section 10.
It is understood that the Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Optional Shares the Underwriters have agreed to
purchase. X.X. Xxxxxxx,
00
individually and not as the Representative of the Underwriters, may (but shall not be
obligated to) make payment for any Offered Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representative by the First Closing Date or the applicable
Option Closing Date, as the case may be, for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any of its obligations under this Agreement.
The Selling Stockholder hereby agrees that (i) it will pay all stock transfer taxes, stamp
duties and other similar taxes, if any, payable upon the sale or delivery of the Offered Shares to
be sold by the Selling Stockholder to the several Underwriters, or otherwise in connection with the
performance of the Selling Stockholder’s obligations hereunder and (ii) the Custodian is authorized
to deduct for such payment any such amounts from the proceeds to the Selling Stockholder hereunder
and to hold such amounts for the account of the Selling Stockholder with the Custodian under the
Custody Agreement.
(f) Delivery of the Offered Shares. The Company and the Selling Stockholder shall deliver, or
cause to be delivered, to the Representative for the accounts of the several Underwriters,
certificates for the Firm Shares to be sold by them at the First Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The Company and the Selling Stockholder shall also deliver, or cause to
be delivered, to the Representative for the accounts of the several Underwriters, certificates for
the Optional Shares the Underwriters have agreed to purchase from them at the First Closing Date or
the applicable Option Closing Date, as the case may be, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price therefor. The
certificates for the Offered Shares shall be in definitive form and registered in such names and
denominations as the Representative shall have requested at least two (2) full business days prior
to the First Closing Date (or the applicable Option Closing Date, as the case may be) and shall be
made available for inspection on the business day preceding the First Closing Date (or the
applicable Option Closing Date, as the case may be) at a location in New York City as the
Representative may designate. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the Underwriters.
A. Covenants of the Company. The Company further covenants and agrees with each Underwriter
as follows:
15
Prospectus or the Prospectus, or affecting the information contained therein, (ii) of the time
and date of any filing of any post-effective amendment to the Registration Statement or any
amendment or supplement to the Preliminary Prospectus or the Prospectus, (iii) of the time and date
that any post-effective amendment to the Registration Statement becomes effective, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of any order preventing or suspending the use
of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the
Offered Shares for offering and sale in any jurisdiction. If the Commission shall enter any such
stop order at any time, the Company will use its best efforts to obtain the lifting of such order
at the earliest possible moment. Additionally, the Company agrees that it shall comply with the
provisions of Rules 430A and 497, as applicable, under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under Rule 497 of the Securities
Act were received in a timely manner by the Commission.
16
trading in any jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the
earliest possible moment.
The foregoing restrictions in the immediately preceding paragraph shall not apply to (A) the
issuance by the Company of its Shares pursuant to the dividend reinvestment plan or (B) any options
granted pursuant to any stock option plan of the Company referred to in the Prospectus.
17
flows for the year then ended and the opinion thereon of the Company’s independent public or
certified public accountants; (ii) as soon as practicable after the filing thereof, copies of each
proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form
8-K or other report filed by the Company with the Commission, the NASD or any securities exchange
or association; (iii) as soon as available, copies of any report or communication of the Company
mailed generally to holders of its capital stock and (iv) as soon as practically after the filing
thereof, copies of all other documents or reports filed with the Commission, the NASD or any
national securities exchange or association.
B. Covenants of the Selling Stockholder. The Selling Stockholder further covenants and agrees
with each Underwriter:
(a) Agreement Not to Offer or Sell Additional Shares. The Selling Stockholder will not,
without the prior written consent of X.X. Xxxxxxx (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option to sell (including
without limitation any short sale), pledge, transfer, establish an open “put equivalent position”
within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any Shares,
options or warrants to acquire Shares, or securities exchangeable or exercisable for or
convertible into Shares currently or hereafter owned either of record or beneficially (as defined
in Rule 13d-3 under Exchange
18
Act) by the Selling Stockholder, or publicly announce the Selling Stockholder’s intention to
do any of the foregoing, for a period commencing on the date hereof and continuing through the
close of trading on the last day of the Lock-up Period. The foregoing sentence shall not apply
to (i) bona fide gifts, provided the recipient thereof agrees in writing with the Representative
to be bound by the terms of this Agreement, (ii) dispositions to any trust for the direct or
indirect benefit of the Selling Stockholder and/or immediate family of the Selling Stockholder,
provided that such trust agrees in writing with the Representative to be bound by the terms of
this Agreement, (iii) dispositions to an Affiliate (as defined below), provided that (A) the
Representative has consented in writing (which consent shall not be unreasonably withheld) and
(B) such Affiliate agrees in writing to be bound by the terms of this Agreement, (iv) shares of
common stock of the Company purchased by the Selling Stockholder in the secondary market
following the Offering and (v) shares of common stock of the Company acquired by the Selling
Stockholder in connection with the Company’s dividend reinvestment plan. “Affiliate” shall mean,
with respect to any person, any other person that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, such person. For
purposes of this definition, “control” of a person means the power, directly or indirectly,
either to (A) vote 50% or more of the stock having ordinary voting power for the election of
directors of such person or (B) direct or cause the direction of the management and policies of
such person whether by contract or otherwise.
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-up Period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs, or (2) prior to the expiration of the Lock-up Period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the Lock-up Period, the restrictions imposed by this
Section (3)(B)(a) shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event, as
applicable, unless X.X. Xxxxxxx waives, in writing, such extension.
(b) No Stabilization or Manipulation; Compliance with Regulation M. The Selling Stockholder
will not take, directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of the Shares or any
other reference security, whether to facilitate the sale or resale of the Offered Shares or
otherwise, and the Selling Stockholder will, and shall cause each of its affiliates to, comply
with all applicable provisions of Regulation M. If the limitations of Rule 102 do not apply with
respect to the Offered Shares or any other reference security pursuant to any exception set forth
in Section (d) of Rule 102, then promptly upon notice from the Representative (or, if later, at
the time stated in the notice), the Selling Stockholder will, and shall cause each of its
affiliates to, comply with Rule 102 as though such exception were not available but the other
provisions of Rule 102 (as interpreted by the Commission) did apply.
(c) Free Writing Prospectus. The Selling Stockholder agrees that it will not use,
distribute or make any offer relating to the Offered Shares that would constitute a “free writing
prospectus” as defined in Rule 405 under the Securities Act.
C. Waiver by X.X. Xxxxxxx. X.X. Xxxxxxx, on behalf of the several Underwriters, may, in its
sole discretion, waive in writing the performance by the Company or the Selling Stockholder of any
one or more of the foregoing covenants or extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation: (i) all expenses incident to the
issuance and delivery of the Offered Shares (including all printing and engraving costs); (ii) all
fees and expenses of the registrar and transfer agent of the Shares; (iii) all necessary issue,
transfer and other stamp taxes in
19
connection with the issuance and sale of the Offered Shares to the Underwriters; (iv) all fees
and expenses of the Company’s counsel, independent public or certified public accountants and other
advisors; (v) all costs and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), the Preliminary Prospectus and the Prospectus,
and all amendments and supplements thereto, and this Agreement;
(vi) all filing fees, attorneys’
fees and expenses incurred by the Company or the Underwriters in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of) all or any part of
the Offered Shares for offer and sale under the state securities or blue sky laws or the
provincial securities laws of Canada, and, if requested by the Representative,
preparing and printing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the
Underwriters of such qualifications, registrations, determinations and exemptions; (vii) the filing
fees incident to, and the reasonable fees and expenses of counsel for the Underwriters in
connection with, the NASD’s review and approval of the Underwriters’ participation in the offering
and distribution of the Offered Shares; (viii) the fees and expenses associated with including the
Offered Shares on the Nasdaq National Market; and (ix) all other fees, costs and expenses referred
to in Item 27 of Part C of the Registration Statement. For the avoidance of doubt, the Company and
the Underwriters agree that each party shall be responsible for its own expenses in connection with
the road show. Except as provided in this Section 4, Section 6, Section 8 and Section 9 hereof,
the Underwriters shall pay their own expenses, including the fees and disbursements of their
counsel.
The Selling Stockholder further agrees with each Underwriter to pay (directly or by
reimbursement) all fees and expenses incident to the performance of its obligations under this
Agreement and the consummation of the transactions contemplated thereby, including but not limited
to (i) fees and expenses of counsel and other advisors for the Selling Stockholder, (ii) fees and
expenses of the Custodian and (iii) expenses and taxes incident to the sale and delivery of the
Offered Shares to be sold by the Selling Stockholder to the Underwriters hereunder (which taxes, if
any, may be deducted by the Custodian under the provisions of Section 2 of this Agreement).
This Section 4 shall not affect or modify any separate, valid agreement relating to the
allocation of payment of expenses between the Company, on the one hand, and the Selling
Stockholder, on the other hand.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Shares as provided herein on the First Closing
Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company and the Selling
Stockholder set forth in Sections 1(A) and 1(B) hereof as of the date hereof and as of the First
Closing Date as though then made and, with respect to the Optional Shares, as of each Option
Closing Date as though then made, to the timely performance by the Company and the Selling
Stockholder of their respective covenants and other obligations hereunder, and to each of the
following additional conditions:
20
Representative shall have received an additional three (3) conformed copies of such
accountants’ letter for each of the several Underwriters), and (ii) confirming that they are (A)
independent public or certified public accountants as required by the Securities Act and the
Exchange Act and (B) in compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X.
(b) Compliance with Registration Requirements; No Stop Order; No Objection from NASD. For the
period from and after effectiveness of this Agreement and prior to the First Closing Date and, with
respect to the Optional Shares, each Option Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner and within the
time period required by Rule 497 under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the information required
by such Rule 430A, and such post-effective amendment shall have become effective;
(ii) no stop order suspending the effectiveness of the Registration Statement, any Rule
462(b) Registration Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such purpose shall have been instituted
or, to the best of the Company’s knowledge, threatened by the Commission;
(iii) the NASD shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements; and
(iv) no Prospectus, amendment to the Registration Statement or amendment or supplement
to the Prospectus shall have been filed to which X.X. Xxxxxxx has reasonably objected in
writing.
21
(i) they have reviewed the Registration Statement, the Prospectus and the Disclosure
Package;
(ii) the Financial Statements and other financial information included in the
Registration Statement, the Disclosure Package and the Prospectus fairly present in all
material respects the consolidated financial conditions, results of operations and cash
flows of the Company as of, and for the periods presented in the Registration Statement;
(iii) for the period from and after the date of this Agreement and prior to such
Closing Date, there has not occurred any Material Adverse Change;
(iv) the representations, warranties and covenants of the Company set forth in Section
1(A) of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(v) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
(i)
Opinion of Counsel for the Selling Stockholder. On each of the First Closing Date and
each Option Closing Date, the Representative shall have received the opinion of (i) Xxxxxxxx
Xxxxx LLP, counsel for the Selling Stockholder, dated as of such Closing Date, the form of which
is attached as Exhibit D (and the Representative shall have received an additional three
(3) conformed copies of such counsel’s legal opinion for each of the several Underwriters).
(j)
Selling Stockholder’s Certificate. On each of the First Closing Date and each Option
Closing Date, the Representative shall receive a written certificate executed by the
Attorney-in-Fact of the Selling Stockholder or the Selling Stockholder, dated as of such Closing
Date, to the effect that:
(i) the representations, warranties and covenants of the Selling Stockholder set forth
in Section 1(B) of this Agreement are true and correct with the same force and effect as
though expressly made by the Selling Stockholder on and as of such Closing Date; and
(ii) the Selling Stockholder has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such Closing Date.
(k) Selling Stockholder’s Documents. On the date hereof, the Company and the Selling
Stockholder shall have furnished for review by the Representative copies of the Power of Attorney
and Custody Agreement executed by the applicable Selling Stockholder and such further
information, certificates and documents as the Representative may reasonably request.
22
(o) Compliance with Prospectus Delivery Requirements. The Company shall have complied with
the provisions of Sections 2(g) and 3(d) hereof with respect to the furnishing of Prospectuses.
(p) Additional Documents. On or before each of the First Closing Date and each Option
Closing Date, the Representative and counsel for the Underwriters shall have received such
information, documents, certificates and opinions as they may reasonably require for the purposes
of enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein,
or in order to evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representative by notice to the Company and the
Selling Stockholder at any time on or prior to the First Closing Date and, with respect to the
Optional Shares, at any time prior to the applicable Option Closing Date, which termination shall
be without liability on the part of any party to any other party, except that Section 4, Section 6,
Section 8 and Section 9 shall at all times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the
Representative pursuant to Section 5, Section 7 or Section 11, or if the sale to the Underwriters
of the Offered Shares on the First Closing Date is not consummated because of any refusal,
inability or failure on the part of the Company or the Selling Stockholder to perform any agreement
herein or to comply with any provision hereof, the Company agrees to reimburse the Representative
and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably
incurred by the Representative and the Underwriters in connection with the proposed purchase and
the offering and sale of the Offered Shares, including but not limited to fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. If the
Company is required to make any payments to the Underwriters under this Section 6 because of the
Selling Stockholder’s refusal, inability or failure to satisfy any condition to the obligations of
the Underwriters set forth in Section 5, the Selling Stockholder shall reimburse the Company on
demand for all amounts so paid by the Company.
Section 7. Effectiveness of this Agreement. This Agreement shall not become effective until
the later of: (i) the execution of this Agreement by the parties hereto; and (ii) notification by
the Commission to the Company (who shall then immediately notify the Representative) of the
effectiveness of the Registration Statement under the Securities Act. Prior to such effectiveness,
this Agreement may be terminated by any party by notice to each of the other parties hereto, and
any such termination shall be without liability on the part of: (a) the Company or the Selling
Stockholder to any Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Representative and the Underwriters pursuant to Sections 4 and 6 hereof; (b) any
Underwriter to the Company or the Selling Stockholder; or (c) any party hereto to any other party
except that the provisions of Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
23
24
jurisdiction shall have determined by a final judgment that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act undertaken or omitted
to be taken by such Underwriter through its bad faith or willful misconduct; and to reimburse each
Underwriter and each such controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by X.X. Xxxxxxx) as such expenses are reasonably incurred by such
Underwriter or such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
further, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Representative expressly for
use in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or
supplement thereto), it being understood and agreed that the only such information furnished by the
Representative on behalf of the Underwriters to the Company consists of the information described
in subsection (c) below. The liability of the Selling Stockholder pursuant to this Section 8(b)
shall be limited to an amount equal to the initial public offering price of the Offered Shares sold
by the Selling Stockholder, less the underwriting discount, as set forth on the front cover page of
the Prospectus; provided that there shall be no such limit on the liability of the Selling
Stockholder pursuant to this Section 8(b) for any loss, claim, damage, liability or expense related
to the Selling Stockholder’s representations and warranties in Section 1(B) hereof. The indemnity
agreement set forth in this Section 8(b) shall be in addition to any liabilities that the Selling
Stockholder may otherwise have.
25
(f) Notwithstanding any other provision of this Section 8, no party shall be entitled to
indemnification under this Agreement in violation of Section 17(i) of the Investment Company Act.
26
Section 9. Contribution. If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein: (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder, on the one hand, and the Underwriters, on the other hand, from
the offering of the Offered Shares pursuant to this Agreement; or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Selling Stockholder, on the one hand, and the Underwriters, on the other
hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Offered 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 Offered Shares pursuant to this Agreement (before deducting expenses)
received by the Company and the Selling Stockholder, and the total underwriting discount received
by the Underwriters, in each case as set forth on the front cover page of the Prospectus bear to
the aggregate initial public offering price of the Offered Shares as set forth on such cover. The
relative fault of the Company and the Selling Stockholder, 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 and the Selling Stockholder, on the one hand,
or the Representative, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(d), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 8(d) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 9; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8(d) for purposes of
indemnification.
The Company, the Selling Stockholder 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 (even
if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Offered Shares underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective underwriting commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each officer and employee of
an Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of the Securities Act
or the Exchange Act shall have the same rights to contribution as the Company.
27
Notwithstanding any other provision of this Section 9, no party shall be entitled to
contribution under this Agreement in violation of Section 17(i) of the Investment Company Act.
Section 10. Default of One or More of the Several Underwriters. If, on the First Closing Date
or the applicable Option Closing Date, as the case may be, any one or more of the several
Underwriters shall fail or refuse to purchase Offered Shares that it or they are obligated to
purchase hereunder on such date, and the aggregate number of Offered Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Offered Shares to be purchased on such date, the Representative may make
arrangements satisfactory to the Company for the purchase of such Offered Shares by other persons,
including any of the Underwriters, but if no such arrangements are made by such Closing Date, the
other Underwriters shall be obligated, severally, in the proportions that the number of Firm Shares
set forth opposite their respective names on Schedule A bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representative with the consent of the non-defaulting
Underwriters, to purchase the Offered Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If, on the First Closing Date or the
applicable Option Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Offered Shares and the aggregate number of Offered Shares with respect to
which such default occurs exceeds 10% of the aggregate number of Offered Shares to be purchased on
such date, and arrangements satisfactory to the Representative and the Company for the purchase of
such Offered Shares are not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of Section 4, Section
8 and Section 9 shall at all times be effective and shall survive such termination. In any such
case either the Representative or the Company shall have the right to postpone the First Closing
Date or the applicable Option Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Registration Statement and the
Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the First Closing Date, this Agreement
may be terminated by the Representative by notice given to the Company and the Selling Stockholder
if at any time: (i) trading or quotation in any of the Company’s securities shall have been
suspended or limited by the Commission or by the Nasdaq National Market, or trading in securities
generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally established on any of
such stock exchanges by the Commission or the NASD; (ii) a general banking moratorium shall have
been declared by any of federal, New York or Missouri authorities; (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any crisis or calamity, or
any change in the United States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of the Representative is material
and adverse and makes it impracticable to market the Offered Shares in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities; (iv) in the
judgment of the Representative there shall have occurred any Material Adverse Change; (v) in the
judgment of the Representative there shall have occurred a material event which affects (A) the
disclosure in the Prospectus or (B) the ability of the Underwriters to market and sell the Offered
Shares on the terms set forth in the Preliminary Prospectus or the Prospectus; or (vi) the Company
shall have sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in
28
the judgment of the Representative may interfere materially with the conduct of the business
and operations of the Company regardless of whether or not such loss shall have been insured. Any
termination pursuant to this Section 11 shall be without liability on the part of: (a) the Company
or the Selling Stockholder to any Underwriter, except that the Company shall be obligated to
reimburse the expenses of the Representative and the Underwriters pursuant to Sections 4 and 6
hereof; (b) any Underwriter to the Company or the Selling Stockholder; or (c) of any party hereto
to any other party except that the provisions of Section 8 and Section 9 shall at all times be
effective and shall survive such termination; provided that, notwithstanding the foregoing, in
connection with a termination of this Agreement pursuant to clause (v) above, no party will be
relieved of any liability in connection with any breach of its representations, warranties or
covenants in this Agreement.
Section 12. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers, of the
Selling Stockholder or its officers and the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners, officers or directors or
any controlling person, or the Selling Stockholder, as the case may be, and will survive delivery
of and payment for the Offered Shares sold hereunder and any termination of this Agreement.
Section 13. 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 Representative:
X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Investment Banking
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Investment Banking
with a copy to:
Sidley Austin llp
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
If to the Company:
Patriot Capital Funding, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
with a copy to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
29
If to the Selling Stockholder:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: [Xxxxx Xxxxxx]
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: [Xxxxx Xxxxxx]
with a copy to:
Xxxxxxxx Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 14. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of the employees, officers and directors and controlling persons referred to in Section 8
and Section 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term “successors” shall not include any purchaser of the
Offered Shares as such from any of the Underwriters merely by reason of such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 16. Governing Law Provisions. 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 such state. Any legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal
courts of the United States of America located in the Borough of Manhattan in the City of New York
or the courts of the State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a
judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such suit, action or other proceeding brought in any such court has been
brought in an inconvenient forum.
30
Section 17. No Fiduciary Relationship. Each of the Company and the Selling Stockholder
acknowledges and agree that the relationship between itself and each of the Underwriters is an
arm’s-length commercial relationship that creates no fiduciary duty on the part of any Underwriter
and each party expressly disclaims any fiduciary relationship.
Section 18. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersede all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Preliminary
Prospectus and the Prospectus (and any amendments and supplements thereto), as required by the
Securities Act, Investment Company Act and the Exchange Act.
31
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company and the Attorney-in-Fact for the Selling Stockholder the enclosed copies
hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding
agreement among the Underwriters, the Company and the Selling Stockholder in accordance with its
terms.
| Very truly yours, | ||||
| PATRIOT CAPITAL FUNDING, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| WILTON FUNDING HOLDINGS, LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
32
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representative in
New York, New York as of the date first above written.
X.X. XXXXXXX & SONS, INC.
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
By: X.X. XXXXXXX & SONS, INC.
By:
|
||||
| Name: | ||||
| Title: |
33
SCHEDULE A
| Underwriters | Number of | |
| Firm Shares | ||
| to be | ||
| Purchased | ||
X.X. Xxxxxxx & Sons, Inc. |
[ ] | |
Xxxxx Xxxxxxx & Co. |
[ ] | |
JMP Securities LLC |
[ ] | |
Xxxxxx Xxxxxxx Corp. |
[ ] | |
Total |
[ ] | |