4,000,000 Shares*
of Beneficial Interest
DREYFUS HIGH YIELD STRATEGIES FUND
UNDERWRITING AGREEMENT
April __, 1998
PAINEWEBBER INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX XXXXXX
XXXXXXXXXX & CO. INC.
INTERSTATE/XXXXXXX LANE CORPORATION
as Representatives of the Several Underwriters
named in Schedule 1 hereto
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Dreyfus High Yield Strategies Fund, a Massachusetts business
trust (the "Fund"), proposes to issue and sell to you and the other underwriters
named in Schedule 1 hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), 4,000,000 of its shares of beneficial
interest (the "Firm Shares"), par value $.001 per share (the "Common Shares").
In addition, the Fund hereby grants to the Underwriters an option (the "Option")
to purchase up to an additional 600,000 of its Common Shares (the "Option
Shares") solely for the purpose of covering over-allotments. The Firm Shares and
the Option Shares are referred to collectively herein as the "Shares."
The Dreyfus Corporation ("Dreyfus"), a New York corporation,
will act as the Fund's investment manager and administrator pursuant to an
Investment Management and Administration Agreement by and between the Fund and
Dreyfus, dated as of April __, 1998 (the "Investment Advisory Agreement").
Mellon Bank, N.A. will act as the custodian (the "Custodian") of the Fund's cash
and portfolio assets pursuant to a custody agreement, dated as of April __, 1998
(the "Custody Agreement"). ChaseMellon Shareholder Services, LLC will act as the
Fund's dividend disbursing agent, transfer agent and registrar (the "Transfer
-----------------
* Plus an option to purchase, in the aggregate, up to 600,000 additional Common
Shares to cover over-allotments.
Agent") pursuant to a transfer agency agreement, dated April __, 1998 (the
"Transfer Agency Agreement"). PaineWebber Incorporated will provide the Fund and
its shareholders with certain shareholder services, pursuant to a shareholder
servicing agreement, dated April __, 1998 (the "Shareholder Servicing
Agreement"). [Add any other material agreements.]
The Fund and Dreyfus each hereby confirms as follows their
agreements with the Representatives and the several other Underwriters.
1. SALE AND PURCHASE; COMPENSATION.
-------------------------------
(a) The Fund will issue and sell to each Underwriter,
and each Underwriter will purchase from the Fund, the number of Firm Shares
opposite such Underwriter's name in Schedule 1 hereto, at the purchase price of
$15.00 per share of Common Shares.
(b) The Fund grants to the Underwriters the Option to
purchase all or any part of the Option Shares for the same consideration per
share as for the Firm Shares. The Option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters. The number
of Option Shares (adjusted by the Representatives to eliminate fractions) to be
purchased by each Underwriter will be the same percentage of the aggregate
number of Option Shares being sold as such Underwriter is obligated to purchase
of the Firm Shares. Such Option may be exercised in whole or in part, only to
cover over-allotments, at any time or from time to time on or before the 60th
day after the date of this Underwriting Agreement, upon written or telefacsimile
notice (the "Option Shares Notice") from the Representatives to the Fund no
later than 12:00 noon, New York City time, at least two and not more than five
business days before the date specified for closing in the Option Shares Notice
(the "Option Shares Closing Date"), setting forth the number of Option Shares to
be purchased and the time and date of such purchase. Upon delivery and receipt
of the Option Shares Notice, the Fund will issue and sell to each Underwriter,
and each Underwriter will purchase from the Fund, on the Option Shares Closing
Date, its portion of the number of Option Shares set forth in the Option Shares
Notice.
(c) The obligations of the Underwriters under this
Underwriting Agreement are several and not joint and are undertaken on the basis
of the representations and are subject to the conditions set forth in this
Underwriting Agreement.
(d) Dreyfus agrees to make the payments to the
Underwriters when and as required by Section 2 hereof.
2. PAYMENT AND DELIVERY. Delivery by the Fund of the Firm
Shares (the "Firm Shares Closing") to the Representatives for the accounts of
the Underwriters against payment of the purchase price by wire transfer of
Federal Funds or similar same day funds to the Fund for the Firm Shares, will
take place at the offices of ________________, or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00 a.m.,
New York City time, on the third business day following the date of this
Underwriting Agreement, or at such time on such other date, not later than ten
2
business days after the date of this Underwriting Agreement, as may be agreed on
by the Fund and the Representatives (the "Firm Shares Closing Date").
If and to the extent that the Option is exercised, delivery of
the Option Shares and payment by the Underwriters (in the manner specified
above) will take place at the offices or through the facilities specified above
for the Firm Shares Closing at the time and date (which may be the Firm Shares
Closing Date) specified in the Option Shares Notice. Any Option Shares Closing
Date may not be later than three business days following the exercise of the
related Option. The Firm Shares Closing Date and any Option Shares Closing Date
are called the "Closing Dates. "
Certificates evidencing Common Shares will be in definitive
form (or temporary form acceptable to the New York Stock Exchange), registered
in such names and in such denominations as the Representatives requests at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the Option as described in
Section 1(b), and will be made available to the Representatives for checking and
packaging, at a place in New York City designated by the Representatives, at
least one full business day before the relevant Closing Date.
Simultaneous with delivery to the Underwriters of and payment
by the Underwriters for (i) Firm Shares on the Firm Shares Closing Date and (ii)
Option Shares on the Option Shares Closing Date, Dreyfus will pay to the
Underwriters an amount equal to __ percent of the purchase price per Share for
each Share to be purchased by the Underwriters on such date by certified or
official bank check or checks payable in New York Clearing House (next day)
funds on such Firm Shares Closing Date or Option Shares Closing Date, as the
case may be, to the order of PaineWebber Incorporated.
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The
Fund has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the published rules and regulations adopted by the Commission under the
Securities Act (the "Securities Act Rules") and the Investment Company Act (the
"Investment Company Act Rules"), a Notification of Registration on Form N-8A
(the "Notification") pursuant to Section 8 of the Investment Company Act and a
registration statement on Form N-2 (File Nos. 333-48117 and 811-8703) relating
to the Shares (the "registration statement"), including a preliminary prospectus
(including any preliminary statement of additional information), and such
amendments to such registration statement as may have been required to the date
of this Underwriting Agreement. The preliminary prospectus is to be used in
connection with the offering and sale of the Shares. The term "Preliminary
Prospectus" as used herein means any preliminary prospectus included at any time
as a part of the registration statement and any preliminary prospectus
(including any preliminary statement of additional information) omitted
therefrom pursuant to the Securities Act Rules.
The Fund has furnished the Representatives copies of such
registration statement, each amendment to such registration statement filed by
3
the Fund with the Commission and the Preliminary Prospectus filed by the Fund
with the Commission or used by the Fund. If the registration statement has not
become effective, a further amendment (the "Final Amendment") to such
registration statement, including the forms of final prospectus (including any
final statement of additional information), necessary to permit such
registration statement to become effective will promptly be filed by the Fund
with the Commission. If such registration statement has become effective and any
prospectus (including any statement of additional information) contained therein
omits certain information at the time of effectiveness pursuant to Rule 430A of
the Securities Act Rules, a final prospectus (the "Rule 430A Prospectus")
containing such omitted information will be filed by the Fund with the
Commission in accordance with Rule 497(h) of the Securities Act Rules. The
registration statement as amended at the time it becomes or became effective
(the "Effective Date"), including financial statements and all exhibits, and any
information deemed to be included by Rule 430A, is called the "Registration
Statement." The term "Prospectus" means the prospectus (including any statement
of additional information) in the form in which it is first filed with the
Commission pursuant to Rule 497(b), (h) or (j) of the Securities Act Rules, as
the case may be.
The Fund and Dreyfus understand that the Underwriters propose
to make a public offering of the Firm Shares, as described in the Prospectus, as
soon after the Effective Date (or, if later, after the date this Underwriting
Agreement is signed) as the Representatives deems advisable. The Fund and
Dreyfus confirm that the Underwriters and dealers have been authorized to
distribute the Preliminary Prospectus relating to the Shares included in the
initial filing of the registration statement and are authorized to distribute
the Prospectus and any amendments or supplements thereto.
4. REPRESENTATIONS.
---------------
(a) Each of the Fund and Dreyfus jointly and
severally represents to each Underwriter as follows:
(i) On (A) the Effective Date and the date
on which the Prospectus is first filed with the Commission
pursuant to Rule 497(b), (h) or (j) of the Securities Act
Rules, as the case may be, (B) the date on which any
post-effective amendment to the Registration Statement (except
any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the
distribution of the Shares is completed) became or becomes
effective or any amendment or supplement to the Prospectus was
or is filed with the Commission and (C) the Closing Dates, the
Registration Statement, the Prospectus and any such amendment
or supplement thereto and the Notification complied or will
comply in all material respects with the requirements of the
Securities Act, the Investment Company Act, the Securities Act
Rules and the Investment Company Act Rules, as the case may
be. On the Effective Date and on the date that any
post-effective amendment to the Registration Statement (except
any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the
4
distribution of the Shares is completed) became or becomes
effective, neither the Registration Statement nor any such
amendment did or will contain any untrue statement of a
material fact or omit to state a material fact required to be
stated in it or necessary to make the statements in it not
misleading. At the Effective Date and, if applicable, the date
the Prospectus or any amendment or supplement to the
Prospectus was or is filed with the Commission and at the
Closing Dates, the Prospectus did not or will not, as the case
may be, contain any untrue statement of a material fact or
omit to state a material fact required to be stated in it or
necessary to make the statements in it, in light of the
circumstances under which they were made, not misleading. The
foregoing representations in this Section 4(a)(i) do not apply
to statements or omissions relating to the Underwriters made
in reliance on and in conformity with information furnished in
writing to the Fund by the Representatives expressly for use
in the Registration Statement, the Prospectus, or any
amendments or supplements thereto.
(ii) The Fund has been duly organized and is
validly existing as a Massachusetts business trust in good
standing under the laws of The Commonwealth of Massachusetts,
with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be
owned) or leased (or to be leased) by it and to conduct its
business as described in the Registration Statement and
Prospectus, and the Fund is duly licensed and qualified to do
business and in good standing as a foreign corporation or
otherwise in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires
such qualification, except where the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Fund, and the Fund owns, possesses or
has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to
carry on its business as contemplated in the Prospectus. The
Fund has no subsidiaries.
(iii) The capitalization of the Fund is as
set forth in the Registration Statement and the Prospectus.
The Common Shares of the Fund conform in all respects to the
description of them in the Prospectus. All the outstanding
Common Shares have been duly authorized and are validly
issued, fully paid and nonassessable. The Shares to be issued
and delivered to and paid for by the Underwriters in
accordance with this Underwriting Agreement against payment
therefor as provided by this Underwriting Agreement have been
duly authorized and when issued and delivered to the
Underwriters will have been validly issued and will be fully
paid and nonassessable. No person is entitled to any
preemptive or other similar rights with respect to the Shares.
(iv) The Fund is duly registered with the
Commission under the Investment Company Act as a
non-diversified, closed-end management investment company, and
all action under the Securities Act, the Investment Company
5
Act, the Securities Act Rules and the Investment Company Act
Rules, as the case may be, necessary to make the public
offering and consummate the sale of the Shares as provided in
this Underwriting Agreement has or will have been taken by the
Fund.
(v) The Fund has full power and authority to
enter into each of this Underwriting Agreement, the Investment
Advisory Agreement, the Custody Agreement, the Transfer Agency
Agreement and the Shareholder Servicing Agreement
(collectively, the "Fund Agreements") and to perform all of
the terms and provisions hereof and thereof to be carried out
by it and (A) each Fund Agreement has been duly and validly
authorized, executed and delivered by the Fund, (B) each Fund
Agreement complies in all material respects with all
provisions of the Investment Company Act, the Investment
Advisers Act of 1940 (the "Advisers Act"), the Investment
Company Act Rules and the rules and regulations adopted by the
Commission under the Advisers Act (the "Advisers Act Rules"),
as the case may be, and (C) assuming due authorization,
execution and delivery by the other parties thereto, each Fund
Agreement constitutes the legal, valid and binding obligation
of the Fund enforceable in accordance with its terms, (1)
subject, as to enforcement, to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (2) as rights to indemnity thereunder may be limited
by federal or state securities laws.
(vi) None of (A) the execution and delivery
by the Fund of the Fund Agreements, (B) the issue and sale by
the Fund of the Shares as contemplated by this Underwriting
Agreement and (C) the performance by the Fund of its
obligations under the Fund Agreements or consummation by the
Fund of the other transactions contemplated by the Fund
Agreements conflicts with or will conflict with, or results or
will result in a breach of, the Declaration of Trust or the
By-laws of the Fund or any agreement or instrument to which
the Fund is a party or by which the Fund is bound, or any law,
rule or regulation, or order of any court, governmental
instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the
Fund, other than state or foreign securities or "blue sky"
laws applicable in connection with the purchase and
distribution of the Shares by the Underwriters pursuant to
this Underwriting Agreement.
(vii) The Fund is not currently in breach
of, or in default under, any written agreement or instrument
to which it is a party or by which it or its property is bound
or affected.
(viii) No person has any right to the
registration of any securities of the Fund because of the
filing of the registration statement.
6
(ix) No consent, approval, authorization or
order of any court or governmental agency or body or
securities exchange or association, whether foreign or
domestic, is required by the Fund for the consummation by the
Fund of the transactions to be performed by the Fund or the
performance by the Fund of all the terms and provisions to be
performed by or on behalf of it in each case as contemplated
in the Fund Agreements, except such as (A) have been obtained
under the Securities Act, the Investment Company Act, the
Advisers Act, the Securities Act Rules, the Investment Company
Act Rules, and the Advisers Act Rules, and (B) may be required
by the New York Stock Exchange or under state or foreign
securities or "blue sky" laws, in connection with the purchase
and distribution of the Shares by the Underwriters pursuant to
this Underwriting Agreement.
(x) The Shares are duly authorized for
listing, subject to official notice of issuance, on the New
York Stock Exchange and the Fund's Registration Statement on
Form 8-A, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), has become effective.
(xi) KPIG Peat Marwick LLP, whose report
appears in the Prospectus, are independent public accountants
with respect to the Fund as required by the Securities Act,
the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules.
(xii) The statement of assets and
liabilities included in the Registration Statement and the
Prospectus presents fairly in all material respects, in
accordance with generally accepted accounting principles in
the United States applied on a consistent basis, the financial
position of the Fund as at the date indicated.
(xiii) The Fund will maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance
with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D)
the recorded accountability for assets is compared with
existing assets through an asset reconciliation procedure or
otherwise at reasonable intervals and appropriate action is
taken with respect to any differences.
(xiv) Since the date as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the Fund,
7
whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Fund other
than those in the ordinary course of its business and (C)
there has been no dividend or distribution of any kind
declared, paid or made on any class of its capital shares.
(xv) There is no action, suit or proceeding
before or by any court, commission, regulatory body,
administrative agency or other governmental agency or body,
foreign or domestic, now pending, or, to the knowledge of the
Fund, threatened against or affecting the Fund, which (A)
might result in any material adverse change in the condition,
financial or otherwise, business affairs or business prospects
of the Fund or might materially adversely affect the
properties or assets of the Fund or (B) is of a character
required to be described in the Registration Statement or the
Prospectus; and there are no contracts, franchises or other
documents that are of a character required to be described in,
or that are required to be filed as exhibits to, the
Registration Statement that have not been described or filed
as required.
(xvi) Except for stabilization transactions
conducted by the Underwriters, and except for Share
repurchases effected following the date on which the
distribution of the Shares is completed in accordance with the
policies of the Fund as set forth in the Prospectus, the Fund
has not taken and will not take, directly or indirectly, any
action designed or which might be reasonably expected to cause
or result in, or which will constitute, stabilization or
manipulation of the price of the Common Shares in violation of
federal securities laws.
(xvii) The Fund intends to direct the
investment of the proceeds of the offering of the Shares in
such a manner as to comply with the requirements of Subchapter
M of the Internal Revenue Code of 1986, as amended (the
"Code").
(xviii) To the knowledge of the Fund after
due inquiry, no advertising, sales literature or other
promotional materials (excluding broker kits, road show slides
or road show tapes) were authorized or prepared by or on
behalf of the Fund and Dreyfus or any representative thereof
for use in connection with the public offering or sale of the
Shares other than the definitive client brochure and the
definitive broker fact sheet (collectively, the "sales
materials"), drafts of which were filed by or on behalf of the
Fund with the National Association of Securities Dealers, Inc.
(the "NASD") on March 18, 1998; the sales materials complied
and comply in all material respects with the applicable
requirements of the Securities Act, the Securities Act Rules
and the rules and interpretations of the NASD; and no broker
kits, road show slides, road show tapes or sales materials
authorized or prepared by the Fund or authorized or prepared
on behalf of the Fund by Dreyfus or any representative thereof
for use in connection with the public offering or sale of the
Shares contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading.
8
(xix) There are no material restrictions,
limitations or regulations with respect to the ability of the
Fund to invest its assets as described in the Prospectus other
than as described therein.
(b) Dreyfus represents to each Underwriter as
follows:
(i) Dreyfus has been duly organized and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation with full power and
authority to conduct all of the activities conducted by it, to
own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration
Statement and Prospectus, and Dreyfus is duly licensed and
qualified as a foreign corporation and in good standing in
each jurisdiction in which it is required to be so qualified,
except to the extent that failure to be so qualified or be in
good standing would not have a material adverse affect on
Dreyfus; and Dreyfus owns, possesses or has obtained and
currently maintains all governmental licenses, permits,
consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary to carry on its business as
contemplated in the Registration Statement and the Prospectus.
(ii) Dreyfus is (A) duly registered as an
investment adviser under the Advisers Act and (B) not
prohibited by the Advisers Act, the Investment Company Act,
the Advisers Act Rules or the Investment Company Act Rules
from acting as the investment adviser for the Fund as
contemplated by the Investment Advisory Agreement, the
Registration Statement and the Prospectus.
(iii) Dreyfus has full power and authority
to enter into each of this Underwriting Agreement and the
Investment Advisory Agreement and to carry out all the terms
and provisions hereof and thereof to be carried out by it, and
each such agreement has been duly and validly authorized,
executed and delivered by Dreyfus; each of the Investment
Advisory Agreement and this Underwriting Agreement complies in
all material respects with all provisions of the Investment
Company Act, the Advisers Act, the Investment Company Act
Rules and the Advisers Act Rules; and assuming due
authorization, execution and delivery by the other parties
thereto, each of this Underwriting Agreement and the
Investment Advisory Agreement constitutes a legal, valid and
binding obligation of Dreyfus, enforceable in accordance with
its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and (2) as rights to indemnity thereunder
may be limited by federal or state securities laws.
(iv) Neither (A) the execution and delivery
by Dreyfus of this Underwriting Agreement or the Investment
Advisory Agreement by Dreyfus nor (B) the consummation by
9
Dreyfus of the transactions contemplated by, or the
performance of its obligations under such agreements conflicts
or will conflict with, or results or will result in a breach
of, the Articles of Incorporation or By-Laws of Dreyfus or any
agreement or instrument to which Dreyfus is a party or by
which Dreyfus is bound, or any law, rule or regulation, or
order of any court, governmental instrumentality, securities
exchange or association or arbitrator, whether foreign or
domestic, applicable to Dreyfus.
(v) No consent, approval, authorization or
order of any court, governmental agency or body or securities
exchange or association, whether foreign or domestic, is
required for the consummation of the transactions contemplated
in, or the performance by Dreyfus of its obligations under,
this Underwriting Agreement or the Investment Advisory
Agreement, as the case may be, except such as have been
obtained under the Investment Company Act, the Advisers Act,
the Securities Act, the Investment Company Act Rules, the
Advisers Act Rules and the Securities Act Rules.
(vi) The description of Dreyfus and its
business in the Registration Statement and the Prospectus
complies with the requirements of the Securities Act, the
Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules and does not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(vii) There is no action, suit or proceeding
before or by any court, commission, regulatory body,
administrative agency or other governmental agency or body,
foreign or domestic, now pending or, to the knowledge of
Dreyfus, threatened against or affecting Dreyfus of a nature
required to be disclosed in the Registration Statement or
Prospectus or that might result in any material adverse change
in the condition, financial or otherwise, business affairs or
business prospects of Dreyfus or the ability of Dreyfus to
fulfill its respective obligations under this Underwriting
Agreement or under the Investment Advisory Agreement.
(viii) Except for stabilization activities
conducted by the Underwriters, Dreyfus has not taken and will
not take, directly or indirectly, any action designed, or
which might reasonably be expected to cause or result in, or
which will constitute, stabilization or manipulation of the
price of the Common Shares.
5. AGREEMENTS OF THE PARTIES.
-------------------------
(a) If the registration statement relating to the
Shares has not yet become effective, the Fund will promptly file the Final
Amendment, if not previously filed, with the Commission, and will use its best
efforts to cause such registration statement to become effective and, as soon as
the Fund is advised, will advise the Representatives when the Registration
Statement or any amendment thereto has become effective. If the Registration
Statement has become effective and the Prospectus contained therein omits
certain information at the time of effectiveness pursuant to Rule 430A of the
Securities Act Rules, the Fund will file a 430A Prospectus pursuant to Rule
497(h) of the Securities Act Rules as promptly as practicable, but no later than
the second business day following the earlier of the date of the determination
of the offering price of the Shares or the date the Prospectus is first used
after the Effective Date. If the Registration Statement has become effective and
the Prospectus contained therein does not so omit such information, the Fund
will file a Prospectus pursuant to Rule 497(b) or (j) of the Securities Act
Rules as promptly as practicable, but no later than the fifth business day
following the date of the later of the Effective Date or the commencement of the
public offering of the Shares after the Effective Date. In either case, the Fund
will provide the Representatives satisfactory evidence of the filing. The Fund
will not file with the Commission any Prospectus or any other amendment (except
any post-effective amendment which is filed with the Commission after the later
of (x) one year from the date of this Underwriting Agreement or (y) the date on
which distribution of the Shares is completed) or supplement to the Registration
Statement or the Prospectus unless a copy has first been submitted to the
Representatives a reasonable time before its filing and the Representatives has
not objected to it in writing within a reasonable time after receiving the copy.
(b) For the period of three years from the date
hereof, the Fund will advise the Representatives promptly (1) of the issuance by
the Commission of any order in respect of the Fund which relates to the Fund, or
any arrangements or proposed arrangements involving the Fund, (2) of the
initiation or threatening of any proceedings for, or receipt by the Fund of any
notice with respect to, the suspension of the qualification of the Shares for
sale in any jurisdiction or the issuance of any order by the Commission
suspending the effectiveness of the Registration Statement, (3) of receipt by
the Fund, or any representative or attorney of the Fund, of any other
communication from the Commission relating to the Fund, the Registration
Statement, the Notification, any preliminary prospectus, the Prospectus or to
the transactions contemplated by this Underwriting Agreement and (4) the
issuance by any court, regulatory body, administrative agency or other
governmental agency or body, whether foreign or domestic, of any order, ruling
or decree, or the threat to initiate any proceedings with respect thereto,
regarding the Fund or Dreyfus, which relates to the Fund or any arrangements or
proposed arrangements involving the Fund or Dreyfus. The Fund will make every
reasonable effort to prevent the issuance of any order suspending the
effectiveness of the Registration Statement and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) If not delivered prior to the date of this
Underwriting Agreement, the Fund will deliver to the Representatives, without
charge, a signed copy of the registration statement and the Notification and of
any amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the registration
statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
11
Shares is completed) (excluding exhibits) as the Representatives may reasonably
request.
(d) During such period as a prospectus is required by
law to be delivered by an underwriter or a dealer, the Fund will deliver,
without charge, to the Representatives, the Underwriters and any dealers, at
such office or offices as the Representatives may designate, as many copies of
the Prospectus and as the Representatives may reasonably request, and, if any
event occurs during such period as a result of which it is necessary to amend or
supplement the Prospectus, in order to make the statements therein, in light of
the circumstances existing when such prospectus is delivered to a purchaser of
Shares, not misleading in any material respect, or if during such period it is
necessary to amend or supplement the prospectus to comply with the Securities
Act, the Investment Company Act, the Securities Act Rules or the Investment
Company Act Rules, the Fund promptly will prepare, submit to the
Representatives, file with the Commission and deliver, without charge, to the
Underwriters and to dealers (whose names and addresses the Representatives will
furnish to the Fund) to whom Shares may have been sold by the Underwriters, and
to other dealers on request, amendments or supplements to the Prospectus so that
the statements in such Prospectus, as so amended or supplemented, will not, in
light of the circumstances existing when such Prospectus is delivered to a
purchaser, be misleading in any material respect and will comply with the
Securities Act, the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules. Delivery by the Underwriters of any such
amendments or supplements to the Prospectus will not constitute a waiver of any
of the conditions in Section 6 hereof.
(e) The Fund will make generally available to holders
of the Fund's securities, as soon as practicable but in no event later than the
last day of the 18th full calendar month following the calendar quarter in which
the Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of Section 11(a) of the Securities Act and, at the option of the
Fund, Rule 158 of the Securities Act Rules.
(f) The Fund will take such actions as the
Representatives reasonably request in order to qualify the Shares for offer and
sale under the securities or "blue sky" laws of such jurisdictions as the
Representatives reasonably designate; provided that the Fund shall not be
required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction.
(g) The Fund will pay, or reimburse if paid by the
Representatives, whether or not the transactions with respect to the Fund
contemplated by this Underwriting Agreement are consummated or this Underwriting
Agreement is terminated (irrespective of who the party terminating any such
agreement is or the reason therefor), all costs and expenses incident to the
performance of the obligations of the Fund under this Underwriting Agreement,
including but not limited to costs and expenses of or relating to (1) the
preparation, printing and filing of the registration statement and exhibits to
it (including this Underwriting Agreement and related underwriting agreements),
each Preliminary Prospectus, the Prospectus and all amendments and supplements
12
thereto, (2) the issuance of the Shares and the preparation and delivery of
certificates for the Shares, (3) the registration or qualification of the Shares
for offer and sale under the securities or "blue sky" laws of the jurisdictions
referred to in the foregoing paragraph, including the fees and disbursements of
counsel for the Underwriters in that connection, and the preparation and
printing of preliminary and supplemental "blue sky" memoranda, (4) the
furnishing (including costs of design, production, shipping and mailing) to the
Underwriters and dealers of copies of each Preliminary Prospectus relating to
the Shares, the sales materials, the Prospectus, and all amendments or
supplements to the Prospectus, and of the other documents required by this
Section to be so furnished, (5) the filing requirements of the NASD in
connection with its review of the financing, including filing fees and the fees,
disbursements and other charges of counsel for the Underwriters in that
connection, (6) all transfer taxes, if any, with respect to the sale and
delivery of the Shares to the Underwriters, (7) the listing of the Shares on the
New York Stock Exchange, (8) the transfer agent for the Shares and (9) in
addition to the foregoing, an aggregate of $250,000 as partial reimbursement of
the costs and expenses of the Underwriters, which the Fund will pay by
permitting the Underwriters to deduct such amount from the proceeds payable to
the Fund at the earliest of the Closing Dates. Notwithstanding the foregoing
provisions of this Section 5(g), in the event that the transactions contemplated
by this Underwriting Agreement are not consummated, Dreyfus will pay, or
reimburse if paid by the Representatives, all of the costs and expenses incident
to the performance of the obligations of the Fund under this Underwriting
Agreement, including but not limited to the costs and expenses enumerated above
in this Section 5(g), except those set forth in Section 5(g)(9) hereof, and the
Fund shall have no liability therefore in excess of the net assets of the Fund
as of the date that such amount is finally determined to be payable.
Notwithstanding the foregoing, except as provided for in clause (9) of this
paragraph (g) and except as provided for in paragraph (h) of this Section 5, the
Underwriters agree to pay any expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with their investigation,
preparing to market and marketing of the Shares.
(h) If this Underwriting Agreement is terminated
pursuant to any of its provisions, except as otherwise provided herein, no party
will be under any liability to any other party, except that (1) if this
Underwriting Agreement is terminated by (x) the Fund or Dreyfus pursuant to any
of the provisions hereof (otherwise than pursuant to Section 9 hereof) or (y) by
the Representatives or the Underwriters because of any inability, failure or
refusal on the part of the Fund or Dreyfus to comply with its terms or because
any of the conditions in Section 6 are not satisfied, the Fund and Dreyfus,
jointly and severally, will reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees, disbursements and other charges of
their counsel) reasonably incurred by them in connection with the proposed
purchase and sale of the Shares and (2) no Underwriter who has failed or refused
to purchase the Shares agreed to be purchased by it under this Underwriting
Agreement, in breach of its obligations pursuant to this Underwriting Agreement,
will be relieved of liability to the Fund and Dreyfus and the other Underwriters
for damages occasioned by its default.
(i) Without the prior written consent of the
Representatives, the Fund will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the Shares as described in the Prospectus
and any issuances of Common Shares pursuant to the dividend reinvestment plan
established by the Fund.
13
(j) The Fund will use its best efforts to list the
Shares on the New York Stock Exchange and comply with the rules and regulations
of such exchange.
(k) The Fund will direct the investment of the net
proceeds of the offering of the Shares in such a manner as to comply with the
investment objective and policies of the Fund as described in the Prospectus.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase the Shares are subject to the
accuracy on the date of this Underwriting Agreement, and on the Closing Dates,
of the representations of the Fund and Dreyfus in this Underwriting Agreement,
to the accuracy and completeness of all statements made by the Fund or Dreyfus
or any of their respective officers in any certificate delivered to the
Representatives or their counsel pursuant to this Underwriting Agreement, to
performance by the Fund and Dreyfus of their respective obligations under this
Underwriting Agreement and to each of the following additional conditions:
(a) The registration statement must have become
effective by 5:30 p.m., New York City time, on the date of this Underwriting
Agreement or such later date and time as the Representatives consents to in
writing. The Prospectus must have been filed in accordance with Rule 497(b), (h)
or (j), as the case may be, of the Securities Act Rules.
(b) No order suspending the effectiveness of the
Registration Statement may be in effect and no proceedings for such purpose may
be pending before or, to the knowledge of counsel to the Underwriters,
threatened by the Commission, and any requests for additional information on the
part of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) must be complied with or waived to the reasonable
satisfaction of the Representatives.
(c) Since the dates as of which information is given
in the Registration Statement and the Prospectus, (1) there must not have been
any material change in the Common Shares or liabilities of the Fund except as
set forth in or contemplated by the Prospectus; (2) there must not have been any
material adverse change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund or Dreyfus whether or
not arising from transactions in the ordinary course of business as set forth in
or contemplated by the Prospectus; (3) the Fund must not have sustained any
material loss or interference with its business from any court or from
legislative or other governmental action, order or decree, whether foreign or
domestic, or from any other occurrence not described in the Registration
Statement and Prospectus; and (4) there must not have occurred any event that
makes untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or that is not reflected
in the Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information therein (in the case of the
Prospectus, in light of the circumstances in which they were made) not
misleading in any material respect; if, in the judgment of the Representatives,
any such development referred to in clause (1), (2), (3) or (4) of this
paragraph (c) makes it impracticable or inadvisable to consummate the sale and
14
delivery of the Shares pursuant to this Underwriting Agreement by the
Underwriters, at the initial public offering price of the Shares.
(d) The Representatives must have received on each
Closing Date a certificate, dated such date, of a President or Vice President,
or Vice Chairman, and the chief financial or accounting officer of each of the
Fund and Dreyfus certifying that (1) the signers have carefully examined the
Registration Statement, the Prospectus, and this Underwriting Agreement, (2) the
representations of the Fund (with respect to the certificates from such Fund
officers) and the representations of Dreyfus (with respect to the certificates
from such officers of Dreyfus) in this Underwriting Agreement are accurate on
and as of the date of the certificate, (3) there has not been any material
adverse change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund (with respect to the
certificates from such Fund officers) or Dreyfus (with respect to the
certificates from such officers of Dreyfus), which change would materially and
adversely affect the ability of Dreyfus to fulfill its obligations under this
Underwriting Agreement or the Investment Advisory Agreement, whether or not
arising from transactions in the ordinary course of business, (4) with respect
to the Fund only, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the Registration
Statement, prohibiting the sale of any of the Shares or having a material
adverse effect on the Fund has been issued and no proceedings for any such
purpose are pending before or threatened by the Commission or any other
regulatory body, whether foreign or domestic, (5) to the knowledge of the
officers of Dreyfus, after reasonable investigation, no order having an adverse
effect on the ability of Dreyfus to fulfill its obligations under this
Underwriting Agreement or the Investment Advisory Agreement, as the case may be,
has been issued and no proceedings for any such purpose are pending before or
threatened by the Commission or any other regulatory body, whether foreign or
domestic, and (6) each of the Fund (with respect to the certificates from such
Fund officers) and Dreyfus (with respect to the certificates from such officers
of Dreyfus) has performed all of its respective agreements that this
Underwriting Agreement requires it to perform by such Closing Date.
(e) The Representatives must receive on each Closing
Date the opinions dated such Closing Date substantially in the form of Annexes A
and B to this Underwriting Agreement from the counsel identified in each such
Annex.
(f) The Representatives must receive on each Closing
Date from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or its affiliates, their
counsel, an opinion dated such Closing Date with respect to the Fund, the
Shares, the Registration Statement and the Prospectus, this Underwriting
Agreement and the form and sufficiency of all proceedings taken in connection
with the sale and delivery of the Shares. Such opinion and proceedings shall
fulfill the requirements of this Section 6(f) only if such opinion and
proceedings are satisfactory in all respects to the Representatives. The Fund
and Dreyfus shall have furnished to such counsel such documents as counsel may
reasonably request for the purpose of enabling them to render such opinion.
(g) The Representatives must receive on the date this
Underwriting Agreement is signed and delivered by the Representatives a signed
15
letter, dated such date, substantially in the form of Annex C to this
Underwriting Agreement from the firm of accountants designated in such Annex.
The Representatives also must receive on each Closing Date a signed letter from
such accountants, dated such Closing Date, confirming on the basis of a review
in accordance with the procedures set forth in their earlier letter that nothing
has come to their attention during the period from a date not more than five
business days before the date of this Underwriting Agreement, specified in the
letter, to a date not more than five business days before such Closing Date,
that would require any change in their letter referred to in the foregoing
sentence.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Underwriting Agreement will comply only if they are
in form and scope reasonably satisfactory to counsel for the Representatives,
provided that any such documents, forms of which are annexed hereto, shall be
deemed satisfactory to such counsel if substantially in such form.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) Each of the Fund and Dreyfus, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of such Underwriter and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages, joint or several (including, but not limited
to, any and all investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any action, suit
or proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise, or
any claim asserted), to which such Underwriter or any such person, or any of
them, may become subject under the Securities Act, the Exchange Act, the
Investment Company Act, the Advisers Act or other federal or state statutory law
or regulation, at common law or otherwise, whether foreign or domestic, insofar
as such losses, claims, liabilities, expenses or damages arise out of or are
based on (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus or the sales materials, or any amendment or supplement thereto, or in
any documents filed under the Exchange Act and deemed to be incorporated by
reference into the Registration Statement, the Preliminary Prospectus, the
Prospectus, or in any application or other document executed by or on behalf of
the Fund or based on written information furnished by or on behalf of the Fund
filed in any jurisdiction in order to qualify the Shares under the securities
laws thereof or filed with the Commission, (ii) the omission or alleged omission
to state, in any or all such documents, a material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by such Underwriter
in connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, liability, expense or damage arising out of or based upon matters
covered by clause (i) or (ii) above (provided, however, that neither the Fund
nor Dreyfus shall be liable under this clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such loss,
claim, liability, expense or damage resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct); provided that neither the Fund nor
16
Dreyfus will be liable to the extent that such losses, claims, liabilities,
expenses or damages are based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to such Underwriter furnished in writing to the Fund by
such Underwriter expressly for inclusion in the Registration Statement, the
Preliminary Prospectus or the Prospectus. This indemnity agreement will be in
addition to any liability that the Fund or Dreyfus might otherwise have.
(b) Each Underwriter will indemnify and hold harmless
the Fund and Dreyfus, each person, if any, who controls the Fund or Dreyfus
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each trustee of the Fund and each officer of the Fund who signs
the Registration Statement to the same extent as the foregoing indemnity from
the Fund or Dreyfus to such Underwriter, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Underwriter furnished in
writing to the Fund by such Underwriter expressly for use in the Registration
Statement, the Preliminary Prospectus or Prospectus. This indemnity will be in
addition to any liability that such Underwriter might otherwise have; provided,
however, that in no case shall such Underwriter be liable or responsible for any
amount in excess of the fees and commissions received by the Underwriter
(whether from the Fund or otherwise).
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 7, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provision of this Section 7 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
disbursements and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on the advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party (3) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
18
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 7 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 7 is applicable in accordance with its terms but for any reason is held
to be unavailable from the Fund, Dreyfus or the Underwriters, the Fund, Dreyfus
and the Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Fund and Dreyfus from persons other than the
Underwriters, such as persons who control the Fund or Dreyfus within the meaning
of the Securities Act or the Exchange Act, officers of the Fund who signed the
Registration Statement and trustees of the Fund, who may also be liable for
contribution) to which the Fund, Dreyfus and the Underwriters may be subject in
such proportion as shall be appropriate to reflect the relative benefits
received by the Fund and Dreyfus on the one hand and the Underwriters on the
other. The relative benefits received by the Fund and Dreyfus (treated jointly
for this purpose as one person) on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Fund bear
to the total discounts and commissions received by the Underwriters (whether
from the Fund or otherwise). If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only such relative benefits referred to in the foregoing sentence but also the
relative fault of the Fund and Dreyfus (treated jointly for this purpose as one
18
person) on the one hand and the Underwriters on the other hand in connection
with respect to the statements or omissions or alleged statements or omissions
that resulted in the losses, claims, liabilities, expenses or damages, joint or
several (including any investigative, legal or other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), for which contribution is sought.
Such relative fault of the parties shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Fund, Dreyfus or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission and any other equitable considerations appropriate in the
circumstances. The Fund, Dreyfus and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above in
this Section 7(d) shall be deemed to include, for purposes of this Section 7(d)
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding any other provisions of this Section 7(d), no Underwriter
(except as may be provided in the Master Agreement Among Underwriters dated as
of June 11, 1984) shall be required to contribute any amount in excess of the
underwriting discounts or commissions received by it (whether from the Fund or
otherwise) and no person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7(d), any person who controls a
party to this Agreement within the meaning of the Securities Act will have the
same rights to contribution as that party, and each trustee of the Fund and each
officer of the Fund who signed the Registration Statement will have the same
rights to contribution as the Fund, subject in each case to the provisions
hereof. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), notify such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7(d). Except for a
settlement entered into pursuant to the last sentence of Section 7(c) hereof, no
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent shall not be unreasonably
withheld).
(e) Notwithstanding any other provisions in this
Section 7, no party shall be entitled to indemnification or contribution under
this Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith or gross negligence in
the performance of its duties hereunder, or by reason of such person's reckless
disregard of such person's obligations and duties hereunder.
(f) The Fund and Dreyfus acknowledge that the (i)
statements with respect to stabilization on the second page of, and the
information in the third paragraph under the caption "Underwriting" in, the
Preliminary Prospectus and the Prospectus (insofar as such information relates
to the concession to dealers and the discount to certain other dealers)
constitute the only information furnished in writing to the Fund by the
Representatives on behalf of the Underwriters expressly for use in such
documents.
19
8. TERMINATION. This Underwriting Agreement may be terminated
by the Representatives by notifying the Fund at any time:
(a) before the later of the effectiveness of the
Registration Statement and the time when any of the Shares are first generally
offered pursuant to this Underwriting Agreement by the Representatives to
dealers by letter or telegram;
(b) at or before any Closing Date if, in the sole
judgment of the Representatives, payment for and delivery of any Shares is
rendered impracticable or inadvisable because (1) trading in the equity
securities of the Fund is suspended by the Commission or by the principal
exchange that lists the Shares, (2) additional material governmental
restrictions, not in force on the date of this Underwriting Agreement, whether
foreign or domestic, have been imposed upon trading in securities or trading has
been suspended on any U.S. securities exchange, (3) a general banking moratorium
has been established by U.S. federal or New York authorities or (4) any outbreak
or material escalation of hostilities or other calamity or crisis occurs the
effect of which is such as to make it impracticable to market any of the Shares;
or
(c) at or before any Closing Date, if any of the
conditions specified in Section 6 have not been fulfilled when and as required
by this Underwriting Agreement.
9. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters fails (other than for a reason sufficient to justify the
termination of this Underwriting Agreement) to purchase on any Closing Date the
Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
deems advisable, or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Underwriting
Agreement. If no such arrangements have been made within 36 hours after such
Closing Date, and
(a) the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date does not exceed 10% of the Shares
that the Underwriters are obligated to purchase on such Closing Date, each of
the nondefaulting Underwriters will be obligated to purchase such Shares on the
terms set forth in this Underwriting Agreement in proportion to their respective
obligations under this Underwriting Agreement, or
(b) the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date exceeds 10% of the Shares to be
purchased by all the Underwriters on such Closing Date, the Fund will be
entitled to an additional period of 24 hours within which to find one or more
substitute underwriters reasonably satisfactory to the Representatives to
purchase such Shares on the terms set forth in this Underwriting Agreement.
In any such case, either the Representatives or the Fund will
have the right to postpone the applicable Closing Date for not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or the
20
Prospectus) may be effected by the Representatives and the Fund. If the number
of Shares to be purchased on such Closing Date by such defaulting Underwriter or
Underwriters exceeds 10% of the Shares that the Underwriters are obligated to
purchase on such Closing Date, and none of the nondefaulting Underwriters or the
Fund makes arrangements pursuant to this Section within the period stated for
the purchase of the Shares that the defaulting Underwriters agreed to purchase,
this Underwriting Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Fund or Dreyfus, except as provided in Sections
5(g) and 7 hereof. This Section will not affect the liability of any defaulting
Underwriter to the Fund or the nondefaulting Underwriters arising out of such
default. A substitute underwriter will become a Underwriter for all purposes of
this Underwriting Agreement.
10. MISCELLANEOUS.
(a) The reimbursement, indemnification and
contribution agreements in Sections 5(g) and 7 hereof and the representations of
the Fund, Dreyfus and the Underwriters in this Underwriting Agreement will
remain in full force and effect regardless of any termination of this
Underwriting Agreement. The reimbursement, indemnification and contribution
agreements in Sections 5(g) and 7 hereof and the representations and agreements
of the Fund, Dreyfus and the Underwriters in this Underwriting Agreement shall
survive the Closing Dates and shall remain in full force and effect regardless
of any investigation made by or on behalf of any Underwriter, the Fund, Dreyfus
or any controlling person and delivery of and payment for the Shares.
(b) This Underwriting Agreement is for the benefit of
the Underwriters, the Fund, Dreyfus and their successors and assigns, and, to
the extent expressed in this Underwriting Agreement, for the benefit of persons
controlling any of the Underwriters, the Fund, Dreyfus and directors and
officers of the Fund and Dreyfus, and their respective successors and assigns,
and no other person, partnership, association or corporation will acquire or
have any right under or by virtue of this Underwriting Agreement. The term
"successors and assigns" does not include any purchaser of the Shares from any
Underwriter merely because of such purchase.
(c) All notices and communications under this
Underwriting Agreement will be in writing, effective only on receipt and mailed
or delivered, by messenger, facsimile transmission or otherwise, to the
Representatives in care of PaineWebber Incorporated, Attn: Financial
Institutions Group, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
the Fund at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to Dreyfus at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(d) Any action required or permitted to be taken by
the Representatives under this Underwriting Agreement may be taken by them
jointly through PaineWebber Incorporated.
(e) This Underwriting Agreement may be signed in
multiple counterparts that taken as a whole constitute one agreement.
21
(f) This Underwriting Agreement will be governed by
and construed in accordance with the laws of the State of New York without
reference to choice of law principles thereof.
Please confirm that the foregoing correctly sets forth the
agreement between us.
Very truly yours,
Dreyfus High Yield Strategies Fund
By:
-----------------------------------
Title:
Dreyfus Corporation
By:
-----------------------------------
Title:
Confirmed:
PaineWebber Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Xxxxxx
Xxxxxxxxxx & Co. Inc
Interstate/Xxxxxxx Lane Corporation
As Representatives of the Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: PaineWebber Incorporated
By:
----------------------------------
Name:
Title:
Acting on behalf of itself
and the Underwriters
named in Schedule 1
SCHEDULE 1
Number of Firm Shares
Name to be Purchased
PaineWebber Incorporated ...................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney .......................
Xxxxxxxxxx & Co. Inc........................
Interstate/Xxxxxxx Lane Corporation ........
Total ...................................
======================
23
FORM OF OPINION OF
XXXXXXXXXXX & XXXXXXXX LLC REGARDING THE FUND
1. The Registration Statement and all post-effective
amendments, if any, are effective under the Securities Act and no stop order
with respect thereto has been issued and no proceeding for that purpose has been
instituted or, to the best of our knowledge, is threatened by the Commission.
Any filing of the Prospectus or any supplements thereto required under Rule 497
of the Securities Act Rules prior to the date hereof have been made in the
manner and within the time required by such rule.
2. The Fund has been duly organized and is validly existing as
a Massachusetts business trust in good standing under the laws of the
Commonwealth of Massachusetts, with full power and authority to conduct all the
activities conducted by it, to own or lease all assets owned (or to be owned) or
leased (or to be leased) by it and to conduct its business as described in the
Registration Statement and Prospectus, and the Fund is duly licensed and
qualified to do business and in good standing as a foreign corporation or
otherwise in each jurisdiction in which its ownership or leasing of property or
its conducting of business requires such qualification, and the Fund owns,
possesses or has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary to carry on its business as contemplated in the
Prospectus. The Fund has no subsidiaries.
3. The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Common Shares of the Fund conform
in all respects to the description of them in the Prospectus. All the
outstanding Common Shares have been duly authorized and are validly issued,
fully paid and nonassessable. The Shares to be issued and delivered to and paid
for by the Underwriters in accordance with the Underwriting Agreement against
payment therefor as provided by the Underwriting Agreement have been duly
authorized and when issued and delivered to the Underwriters will have been
validly issued and will be fully paid and nonassessable. No person is entitled
to any preemptive or other similar rights with respect to the Shares.
4. The Fund is duly registered with the Commission under the
Investment Company Act as a non-diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make the public offering and consummate the sale of the Shares as
provided in the Underwriting Agreement has or will have been taken by the Fund.
5. The Fund has full power and authority to enter into each of
the Underwriting Agreement, the Investment Advisory Agreement, the Custody
A-1
Agreement, the Transfer Agency Agreement and the Shareholder Servicing Agreement
(collectively, the "Fund Agreements") and to perform all of the terms and
provisions thereof to be carried out by it and (A) each Fund Agreement has been
duly and validly authorized, executed and delivered by the Fund, (B) each Fund
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules, as the case may be, and (C) assuming due authorization,
execution and delivery by the other parties thereto, each Fund Agreement
constitutes the legal, valid and binding obligation of the Fund enforceable in
accordance with its terms, (1) subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general equitable principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (2) as rights to indemnity thereunder
may be limited by federal or state securities laws.
6. None of (A) the execution and delivery by the Fund of the
Fund Agreements, (B) the issue and sale by the Fund of the Shares as
contemplated by the Underwriting Agreement and (C) the performance by the Fund
of its obligations under the Fund Agreements or consummation by the Fund of the
other transactions contemplated by the Fund Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Fund or any agreement or instrument to which the
Fund is a party or by which the Fund is bound, or any law, rule or regulation,
or order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable to the Fund,
except that we express no opinion as to the securities or "blue sky" laws
applicable in connection with the purchase and distribution of the Shares by the
Underwriters pursuant to the Underwriting Agreement.
7. The Fund is not currently in breach of, or in default
under, any written agreement or instrument to which it is a party or by which it
or its property is bound or affected.
8. No consent, approval, authorization or order of any court
or governmental agency or body or securities exchange or association, whether
foreign or domestic, is required by the Fund for the consummation by the Fund of
the transactions to be performed by the Fund or the performance by the Fund of
all the terms and provisions to be performed by or on behalf of it in each case
as contemplated in the Fund Agreements, except such as (A) have been obtained
under the Securities Act, the Investment Company Act, the Advisers Act, the
Securities Act Rules, the Investment Company Act Rules and the Advisers Act
Rules and (B) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
9. The Shares have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance, and the Fund's
Registration Statement on Form 8-A under the 1940 Act is effective.
10. The form of the certificates for the Shares conform to the
requirements of Massachusetts law.
A-2
11. There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to our knowledge,
threatened against or affecting the Fund, which is required to be disclosed in
the Prospectus that is not disclosed in the Prospectus, and there are no
contracts, franchises or other documents that are of a character required to be
described in, or that are required to be filed as exhibits to, the Registration
Statement that have not been described or filed as required.
12. The Fund does not require any tax or other rulings to
enable it to qualify as a regulated investment company under Subchapter M of the
Code.
13. The section in the Prospectus entitled "Taxation" is a
fair summary of the principal United States federal income tax rules applicable
to the Fund and to the purchase, ownership and disposition of the Shares.
14. The Registration Statement (except the financial
statements and schedules and other financial data included therein as to which
we express no view), at the time it became effective, and the Prospectus (except
as aforesaid), as of the date thereof, complied as to form in all material
respects to the requirements of the Securities Act, the Investment Company Act
and the rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
the Fund.
In connection with the registration of the Shares, we have
advised the Fund as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the Fund in
the course of its preparation of the registration Statement and the Prospectus.
Rendering such assistance involved, among other things, discussions and
inquiries concerning various legal and related subjects and reviews of certain
corporate records, documents and proceedings. We also participated in
conferences with representatives of the Fund and its accountants at which the
contents of the registration and Prospectus and related matters were discussed.
With your permission, we have not undertaken, except as otherwise indicated
herein, to determine independently, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of such Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that any amendment
or supplement to the Prospectus, as of its respective date, and as of such
Closing Date, contained any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements in the
A-3
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
X-0
XXXXXXXX X
FORM OF OPINION OF
XXXX XXXXXX REGARDING DREYFUS
1. Dreyfus has been duly organized and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation with full power and authority to conduct all of the activities
conducted by it, to own or lease all of the assets owned or leased by it and to
conduct its business as described in the Registration Statement and Prospectus,
and Dreyfus is duly licensed and qualified as a foreign corporation and in good
standing in each other jurisdiction in which it is required to be so qualified
and Dreyfus owns, possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary for Dreyfus to carry on
its business as contemplated in the Registration Statement and the Prospectus.
2. Dreyfus is duly registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Fund as contemplated by the Investment
Advisory Agreement, the Registration Statement and the Prospectus.
3. Dreyfus has full power and authority to enter into each of
the Underwriting Agreement and the Investment Advisory Agreement and to carry
out all the terms and provisions thereof to be carried out by it, and each such
agreement has been duly and validly authorized, executed and delivered by
Dreyfus; each of the Investment Advisory Agreement and the Underwriting
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each of the Underwriting Agreement and the
Investment Advisory Agreement constitutes a legal, valid and binding obligation
of Dreyfus, enforceable in accordance with its terms, (1) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (2) as
rights to indemnity thereunder may be limited by federal or state securities
laws.
4. Neither (A) the execution and delivery by Dreyfus of the
Underwriting Agreement or the Investment Advisory Agreement by Dreyfus nor (B)
the consummation by Dreyfus of the transactions contemplated by, or the
performance of its obligations under such agreements conflicts or will conflict
with, or results or will result in a breach of, the Articles of Incorporation or
By-Laws of Dreyfus or any agreement or instrument to which Dreyfus is a party or
by which Dreyfus is bound, or any law, rule or regulation, or order of any
court, governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to Dreyfus.
B-1
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by Dreyfus of its obligations under, the
Underwriting Agreement or the Investment Advisory Agreement, as the case may be,
except such as have been obtained under the Investment Company Act, the Advisers
Act, the Securities Act, the Investment Company Act Rules, the Advisers Act
Rules and the Securities Act Rules.
6. The description of Dreyfus and its business in the
Registration Statement and the Prospectus complies with the requirements of the
Securities Act, the Investment Company Act, the Securities Act Rules and the
Investment Company Act Rules and does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading.
7. There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other governmental
agency or body, foreign or domestic, now pending or, to our knowledge,
threatened against or affecting Dreyfus of a nature required to be disclosed in
the Registration Statement or Prospectus or that might result in any material
adverse change in the condition, financial or otherwise, business affairs or
business prospects of Dreyfus or the ability of Dreyfus to fulfill its
respective obligations under the Underwriting Agreement or under the Investment
Advisory Agreement.
8. The Registration Statement (except the financial statements
and schedules and other financial data included therein as to which we express
no view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual
matters, upon the attached written certificates and statements of officers of
Dreyfus.
In connection with the registration of the Shares, we have
advised Dreyfus as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to Dreyfus in the
course of the preparation of the registration Statement and the Prospectus.
Rendering such assistance involved, among other things, discussions and
inquiries concerning various legal and related subjects and reviews of certain
corporate records, documents and proceedings. We also participated in
conferences with representatives of the Fund and its accountants and Dreyfus at
which the contents of the registration and Prospectus and related matters were
discussed. With your permission, we have not undertaken, except as otherwise
indicated herein, to determine independently, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements in
the Registration Statement or Prospectus. On the basis of the information which
was developed in the course of the performance of the services referred to
above, no information has come to our attention that would lead us to believe
that the Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state a material fact required
B-2
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date and as of such Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that any
amendment or supplement to the Prospectus, as of its respective date, and as of
such Closing Date, contained any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements in
the Prospectus, in the light of the circumstances under which they were made,
not misleading (except the financial statements, schedules and other financial
data included therein, as to which we express no view).
B-3
ANNEX C
FORM OF ACCOUNTANT'S LETTER
April __, 1998
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of
Dreyfus High Yield Strategies Fund (the "Fund") as of April _, 1998 included in
the Registration Statement on Form N-2 filed by the Fund under the Securities
Act of 1933 (the "Act") (File No. 333-_____) and under the Investment Company
Act of 1940 (the "1940 Act") (File No. 811-_____); such statement and our report
with respect to such statement are included in the Registration Statement; we
are independent public accountants with respect to the Fund within the meaning
of the Act and the applicable rules and regulations thereunder.
1. In our opinion, the statement of assets and liabilities
included in the Registration Statement and audited by us complies as to form in
all respects with the applicable accounting requirements of the Act, the 1940
Act and the respective rules and regulations thereunder.
2. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of the
Board of Trustees of the Fund as set forth in the minute books at the offices of
the Fund, officials of the Fund having advised us that the minutes of all such
meetings through ________________ ___, 1998, were set forth therein.
3. Fund officials have advised us that no financial statements
as of any date subsequent to _______________ ___, 1998, are available. We have
made inquiries of certain officials of the Fund who have responsibility for
financial and accounting matters regarding whether there was any change at
______________ ___, 1998, in the capital shares or net assets of the Fund as
compared with amounts shown in the ______________ ___, 1998 statement of assets
and liabilities included in the Registration Statement, except for changes that
the Registration Statement discloses have occurred or may occur. On the basis of
our inquiries and our reading of the minutes as described in Paragraph 3,
nothing came to our attention that caused us to believe that there were any such
changes.
The foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
4. This letter is solely for the information of the addressees
and to assist the underwriters in conducting and documenting their investigation
C-1
of the affairs of the Fund in connection with the offering of the securities
covered by the Registration Statement, and is not to be used, circulated, quoted
or otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
--------------------------
C-2
