Exhibit 99.B-(2)(h)(i)
ING GLOBAL EQUITY DIVIDEND AND PREMIUM INCOME FUND
_____ COMMON SHARES OF BENEFICIAL INTEREST
($ .01 par value)
FORM OF UNDERWRITING AGREEMENT
New York, New York
, 2005
Citigroup Global Markets Inc.
[Other Underwriters]
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, ING Global Equity Dividend and Premium Income Fund, a
Delaware statutory trust (the "Fund"), ING Investments, LLC, an Arizona limited
liability company (the "Adviser") and ING Investment Advisors B.V., a
Netherlands corporation (the "Subadviser" and together with the Adviser, the
"Advisers"), address you as underwriters and as the representatives (the
"Representatives") of each of the several underwriters named on Schedule I
hereto (the "Underwriters"). The Fund proposes to sell to the Underwriters _____
shares (the "Underwritten Securities") of its common shares of beneficial
interest, par value $0.01 per share (the "Common Shares"). The Fund also
proposes to grant to the Underwriters an option to purchase up to _____
additional Common Shares to cover over-allotments (the "Option Securities"). The
Underwritten Securities and the Option Securities are hereinafter collectively
referred to as the "Securities." Unless otherwise stated, the term "you" as used
herein means Citigroup Global Markets Inc. individually on its own behalf and on
behalf of the other Representatives. Certain terms used herein are defined in
Section 18 hereof.
The Fund and the Advisers wish to confirm as follows their agreements
with you and the other several Underwriters on whose behalf you are acting in
connection with the several purchases of the Securities by the Underwriters.
The Fund has entered into an Investment Management Agreement with the
Adviser dated as of _____, 2005, a Custodian Agreement with The Bank of New York
dated as of _____, 2005, a Shareholder Transfer Agency and Service Agreement
with DST Systems, Inc. dated as of _____, 2005 and an Administration Agreement
with ING Funds Services, LLC dated
as of , 2005, and such agreements are herein referred to as the "Management
Agreement," the "Custodian Agreement," the "Transfer Agency Agreement" and the
"Administration Agreement," respectively. The Adviser has entered into a
Sub-Advisory Agreement with the Subadviser dated as of ________, 2005, [an
Additional Compensation Agreement with _________ dated as of _______, 2005,] and
a Structuring Fee Agreement with Citigroup Global Markets Inc. dated as of
_____, 2005, and such agreements are herein referred to as the "Sub-Advisory
Agreement," [the "Additional Compensation Agreement"] and the "Structuring Fee
Agreement." Collectively, the Management Agreement, the Custodian Agreement, the
Transfer Agency Agreement and the Administration Agreement are herein referred
to as the "Fund Agreements." In addition, the Fund has adopted a dividend
reinvestment plan (the "Dividend Reinvestment Plan") pursuant to which holders
of Common Shares shall have their dividends automatically reinvested in
additional Common Shares of the Fund unless they elect to receive such dividends
in cash.
1. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE ADVISERS. The
Fund and the Advisers, jointly and severally, represent and warrant to, and
agree with, each Underwriter as set forth below in this Section 1.
(a) The Fund has prepared and filed with the Commission a registration
statement (file numbers 333-114333 and 811-21553) on Form N-2, including a
related preliminary prospectus (including the statement of additional
information incorporated by reference therein), for registration under the
Act and the 1940 Act of the offering and sale of the Securities. The Fund
may have filed one or more amendments thereto, including a related
preliminary prospectus (including the statement of additional information
incorporated by reference therein), each of which has previously been
furnished to you. The Fund will next file with the Commission one of the
following: either (1) prior to the Effective Date of such registration
statement, a further amendment to such registration statement (including
the form of final prospectus (including the statement of additional
information incorporated by reference therein)) or (2) after the Effective
Date of such registration statement, a final prospectus (including the
statement of additional information incorporated by reference therein) in
accordance with Rules 430A and 497. In the case of clause (2), the Fund has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the 1940 Act and the Rules and Regulations to be included in such
registration statement and the Prospectus. As filed, such amendment and
form of final prospectus (including the statement of additional information
incorporated by reference therein), or such final prospectus (including the
statement of additional information incorporated by reference therein),
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
497 and on the Closing Date
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(as defined herein) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a "settlement date"), the
Prospectus (and any supplements thereto) will, and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission did or will, comply in
all material respects with the applicable requirements of the Act, the 1940
Act and the Rules and Regulations and the Registration Statement did not or
will 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; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 497, will not, and on the date of
any filing pursuant to Rule 497 and on the Closing Date and any settlement
date, the Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Fund makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto), in reliance upon and in conformity
with information furnished in writing to the Fund by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto). The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus.
(c) The Fund has been duly formed and is validly existing in good
standing as a statutory trust under the laws of the State of Delaware, with
full power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification. The Fund has
no subsidiaries.
(d) The Fund's authorized equity capitalization is as set forth in the
Prospectus; the capital stock of the Fund conforms to the description
thereof contained in the Registration Statement and the Prospectus; all
outstanding Common Shares have been duly and validly authorized and issued
and are fully paid and nonassessable; the Securities have been duly and
validly authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly listed, and admitted and authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the NYSE; the certificates for the Securities
are in valid and sufficient form; the holders of outstanding Common Shares
are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Fund are
outstanding.
(e) The Fund's registration statement on Form 8-A under the Exchange
Act has become effective.
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(f) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497, has
taken all required action under the Act, the 1940 Act and the Rules and
Regulations to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement.
(g) There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement
or the Prospectus, or to be filed as an exhibit thereto, which are not
described or filed as required by the Act, the 1940 Act or the Rules and
Regulations; and the statements in the Prospectus under the headings "Tax
Matters," "Description of Shares" and "Certain Provisions in the
Declaration of Trust" fairly summarize the matters therein described.
(h) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and constitute
the valid and legally binding agreements of the Fund, enforceable against
the Fund in accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
(i) The Fund is duly registered under the 1940 Act as a closed-end,
non-diversified management investment company and the 1940 Act Notification
has been duly filed with the Commission. The Fund has not received any
notice from the Commission pursuant to Section 8(e) of the 1940 Act with
respect to the 1940 Act Notification or the Registration Statement.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Fund Agreements, except such as
have been made or obtained under the Act and the 1940 Act and such as may
be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Prospectus.
(k) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement or any of the Fund Agreements by
the Fund, nor the consummation by the Fund of the transactions herein or
therein contemplated (i) conflicts or will conflict with or constitutes or
will constitute a breach of the declaration of trust or by-laws of the
Fund, (ii) conflicts or will conflict with or constitutes or will
constitute a breach of or a default under, any agreement, indenture, lease
or other instrument to which the Fund is a party or by which it or any of
its properties may be bound or (iii) violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree
applicable to the Fund or any of its properties or will result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Fund pursuant to
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the terms of any agreement or instrument to which it is a party or by which
it may be bound or to which any of the property or assets of the Fund is
subject.
(l) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(m) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Fund as of
the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and the 1940 Act and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); and the other financial and statistical
information and data included in the Registration Statement and the
Prospectus are accurately derived from such financial statements and the
books and records of the Fund.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Fund
or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of
the transactions herein contemplated or (ii) could reasonably be expected
to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(o) The Fund owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(p) The Fund is not (i) in violation of its declaration of trust or
by-laws, (ii) in breach or default in the performance of the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which it is a party or bound or to which its property is subject or
(iii) in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to the Fund or of any decree of the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official having
jurisdiction over the Fund.
(q) KPMG LLP, who has audited the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus,
is an independent registered public accounting firm with respect to the
Fund within the meaning of the Act and the Act Rules and Regulations.
(r) The Fund has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute any
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offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus or other materials permitted by the Act, the
1940 Act or the Rules and Regulations.
(s) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Fund or sale by the Fund of the
Securities.
(t) The Fund has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(u) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), whether in printed or electronic form, authorized in
writing by or prepared by the Fund or the Advisers for use in connection
with the offering and sale of the Securities (collectively, "sales
material") complied and comply in all material respects with the applicable
requirements of the Act, the 1940 Act, the Rules and Regulations and the
rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were provided to Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, for filing. No sales material
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.
(v) The Fund's trustees and officers errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the 1940 Act Rules
and Regulations are in full force and effect; the Fund is in compliance
with the terms of such policy and fidelity bond in all material respects;
and there are no claims by the Fund under any such policy or fidelity bond
as to which any insurance company is denying liability or defending under a
reservation of rights clause; the Fund has not been refused any insurance
coverage sought or applied for; and the Fund has no reason to believe that
it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund, whether or not
arising
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from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
(w) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such permits contains any restriction
that is materially burdensome to the Fund.
(x) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment objectives, policies and
restrictions of the Fund and the applicable requirements of the 1940 Act,
the 1940 Act Rules and Regulations and the Internal Revenue Code of 1986,
as amended (the "Code"); (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (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.
(y) The Fund has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(z) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1940 Act, the 1940
Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(aa) Except as disclosed in the Prospectus, no trustee of the Fund is
an "interested person" (as defined in the 0000 Xxx) of the Fund or an
"affiliated person" (as defined in the 0000 Xxx) of any Underwriter listed
in Schedule I hereto.
(bb) The Fund intends to direct the investment of the proceeds of the
offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
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(cc) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(dd) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global Markets
Holdings Inc. and (ii) does not intend to use any of the proceeds from the
sale of the Securities hereunder to repay any outstanding debt owed to any
affiliate of Citigroup Global Markets Holdings Inc.
(ee) There is and has been no failure on the part of the Fund and any
of the Fund's trustees or officers, in their capacities as such, to comply
with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx Act"),
including Sections 302 and 906 related to certifications.
Any certificate signed by any officer of the Fund and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Fund, as
to matters covered therein, to each Underwriter.
2. REPRESENTATIONS AND WARRANTIES OF THE ADVISERS. Each of the
Adviser and the Subadviser, severally as to itself only and not jointly or as to
any other party, represents and warrants to each Underwriter as follows:
(a) Such Adviser has been duly formed and is validly existing in good
standing as a corporation under the laws of the jurisdiction of its
organization, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification.
(b) Such Adviser is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Management Agreement, the Sub-Advisory Agreement,
[the Additional Compensation Agreement] or the Structuring Fee Agreement as
contemplated by the Prospectus.
(c) Such Adviser has full power and authority to enter into this
Agreement, the Management Agreement, the Sub-Advisory Agreement, [the
Additional Compensation Agreement] and the Structuring Fee Agreement, the
execution and delivery of, and the performance by such Adviser of its
obligations under, this Agreement, the Management Agreement, the
Sub-Advisory Agreement, [the Additional Compensation Agreement] and the
Structuring Fee Agreement have been duly and validly authorized by such
Adviser; and this Agreement, the Management Agreement, the Sub-Advisory
Agreement, [the Additional Compensation Agreement] and the Structuring Fee
Agreement have been duly executed and delivered by such Adviser and
constitute the valid and legally binding
8
agreements of such Adviser, enforceable against such Adviser in accordance
with their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it necessary
for the performance of its services and obligations as contemplated in the
Prospectus and under this Agreement, the Management Agreement, the
Sub-Advisory Agreement, [the Additional Compensation Agreement] and the
Structuring Fee Agreement.
(e) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement and
the Prospectus complied and comply in all material respects with the
provisions of the Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations and did not and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving such
Adviser or its property is pending or, to the best knowledge of such
Adviser, threatened that (i) could reasonably be expected to have a
material adverse effect on the ability of such Adviser to fulfill its
obligations hereunder or under the Management Agreement, the Sub-Advisory
Agreement, [the Additional Compensation Agreement] or the Structuring Fee
Agreement or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of such Adviser, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto); and
there are no agreements, contracts, indentures, leases or other instruments
relating to such Adviser that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as required by
the Act, the 1940 Act or the Rules and Regulations.
(g) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; such Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of such Adviser under any such permit.
(h) This Agreement, the Management Agreement, the Sub-Advisory
Agreement, [the Additional Compensation Agreement] and the Structuring Fee
Agreement comply in all material respects with all applicable provisions of
the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
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(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Management Agreement, the
Sub-Advisory Agreement, [the Additional Compensation Agreement] or the
Structuring Fee Agreement, except such as have been made or obtained under
the Act and the 1940 Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner contemplated herein and
in the Prospectus.
(j) Neither the execution, delivery or performance of this Agreement
or the Management Agreement, the Sub-Advisory Agreement, [the Additional
Compensation Agreement] and the Structuring Fee Agreement, nor the
consummation by the Fund or such Adviser of the transactions herein or
therein contemplated (i) conflicts or will conflict with or constitutes or
will constitute a breach of the charter or by-laws of such Adviser, (ii)
conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, any agreement, indenture, lease or other instrument
to which such Adviser is a party or by which it or any of its properties
may be bound or (iii) violates or will violate any statute, law, regulation
or filing or judgment, injunction, order or decree applicable to such
Adviser or any of its properties or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of such Adviser pursuant to the terms of any agreement or instrument to
which such Adviser is a party or by which such Adviser may be bound or to
which any of the property or assets of such Adviser is subject.
(k) Such Adviser has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and such Adviser is not aware of any such
action taken or to be taken by any affiliates of such Adviser.
(l) In the event that the Fund or such Adviser makes available any
promotional materials intended for use only by qualified broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, such Adviser will install and maintain
pre-qualification and password-protection or similar procedures which are
reasonably designed to effectively prohibit access to such promotional
materials by persons other than qualified broker-dealers and registered
representatives thereof.
Any certificate signed by any officer of such Adviser and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by such
Adviser, as to matters covered therein, to each Underwriter.
3. PURCHASE AND SALE. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Fund
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Fund,
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at a purchase price of $_____ per share, the amount of the Underwritten
Securities set forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly,
up to _____ Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in
part at any time and from time to time on or before the 45th day after the
date of the Prospectus upon written or telegraphic notice by the
Representatives to the Fund setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 3(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on ____, 2005
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Fund or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Fund will deliver the
Option Securities (at the expense of the Fund) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
If settlement for the Option Securities occurs after the Closing Date, the Fund
will deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 7 hereof.
11
5. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. AGREEMENTS OF THE FUND AND THE ADVISERS. The Fund and the Advisers,
jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Fund will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Fund has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 497, the
Fund will cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the
Commission pursuant to Rule 497 within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely filing.
The Fund will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 497 or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Fund of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Fund
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act, the 1940 Act and the Rules and Regulations, the Fund promptly will (1)
notify the Representatives of any such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
6, an amendment or supplement which will correct such statement or omission
or effect such compliance and (3) supply any supplemented Prospectus to you
in such quantities as you may reasonably request.
12
(c) As soon as practicable, the Fund will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Fund which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel for the
Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Fund will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; provided
that in no event shall the Fund be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Fund will not, without the prior written consent of Citigroup
Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of, or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Fund or any affiliate of the Fund or any person in
privity with the Fund, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other Common Shares or any
securities convertible into, or exercisable, or exchangeable for, Common
Shares; or publicly announce an intention to effect any such transaction
for a period of 180 days following the Execution Time, PROVIDED, HOWEVER,
that the Fund may issue and sell Common Shares pursuant to any dividend
reinvestment plan of the Fund in effect at the Execution Time.
(g) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Xxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Fund's
trustees and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Xxxxxxxx-Xxxxx Act.
(h) The Fund and the Advisers will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Fund to
facilitate the sale or resale of the Securities.
(i) The Fund agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of
13
the Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, the Prospectus and the 1940 Act
Notification and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, any
sales material and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (iv) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum, dealer agreements
and all other agreements or documents printed (or reproduced) and delivered
in connection with the offering of the Securities; (v) the registration of
the Securities under the Exchange Act and the listing of the Securities on
the NYSE; (vi) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for
the Underwriters relating to such registration and qualification); (vii)
any filings required to be made with the NASD (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating
to such filings); (viii) the transportation and other expenses incurred by
or on behalf of Fund representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Fund's accountants and the fees and expenses of counsel (including local
and special counsel) for the Fund; (x) all other costs and expenses
incident to the performance by the Fund of its obligations hereunder; and
(xi) an amount equal to $.005 per Common Share for each Common Share sold
pursuant to this Agreement, payable no later than 45 days from the date of
this Agreement to the Underwriters in partial reimbursement of their
expenses in connection with the offering. To the extent that the foregoing
costs and expenses incidental to the performance of the obligations of the
Fund under this Agreement exceed $0.04 per Share, the Adviser will pay all
such costs and expenses.
(j) The Fund will direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as described
in the Prospectus.
(k) The Fund will comply with the requirements of Subchapter M of the
Code to qualify as a regulated investment company under the Code.
(l) The Fund and the Advisers will use their reasonable best efforts
to perform all of the agreements required of them by this Agreement and
discharge all conditions of theirs to closing as set forth in this
Agreement.
(m) The Adviser hereby agrees and covenants to waive receipt of a
portion of its fees or other payments from the Fund to which it is entitled
in the amounts and for the time periods set forth in the Prospectus.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may
14
be, shall be subject to the accuracy of the representations and warranties on
the part of the Fund and the Advisers contained herein as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 4 hereof, to the
accuracy of the statements of the Fund made in any certificates pursuant to the
provisions hereof, to the performance by the Fund or the Advisers of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the total public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the total public offering price was
determined, if such determination occurred after 3:00 PM New York City time
on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 497, the Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
497; and no stop order suspending the effectiveness of the Registration
Statement or order pursuant to Section 8(e) of the 1940 Act shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened, and any request of the Commission for additional information
(to be included in the Registration Statement or Prospectus or otherwise)
shall have been complied with in all material respects.
(b) The Fund shall have requested and caused Dechert LLP, counsel for
the Fund, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) The Fund has been duly formed and is validly existing in
good standing as a statutory trust under the laws of the State of
Delaware, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification; and the Fund has no subsidiaries;
(ii) The Fund is duly registered with the Commission under the
1940 Act as a closed-end, non-diversified management investment
company and all action has been taken by the Fund as required by the
Act and the 1940 Act and the Rules and Regulations in connection with
the issuance and sale of the Securities to make the public offering
and consummate the sale of the Securities as contemplated by this
Agreement; the Fund Agreements comply in all material respects with
all applicable provisions of the Act, the 1940 Act, the Advisers Act,
the Rules and Regulations and the Advisers Act Rules and Regulations;
and the Fund has not received any notice from the Commission pursuant
to Section 8(e) of the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement;
(iii) This Agreement has been duly authorized, executed and
delivered by the Fund;
15
(iv) The Fund Agreements have been duly authorized, executed
and delivered by the Fund and constitute the valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance
with their terms, except as rights to indemnity and contribution may
be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
(v) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the
Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions herein or therein contemplated or the adoption of the
Fund's Dividend Reinvestment Plan (i) conflicts or will conflict with
or constitutes or will constitute a breach of the declaration of trust
or by-laws of the Fund, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Fund is a
party or by which it or any of its properties may be bound or (iii)
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of
its properties or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Fund
pursuant to the terms of any agreement or instrument to which it is a
party or by which it may be bound or to which any of the property or
assets of the Fund is subject;
(vi) The Fund's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Fund conforms to the
description thereof contained in the Registration Statement and the
Prospectus; all outstanding Common Shares have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution,
on the NYSE; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding Common Shares are not
entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in
the Fund are outstanding;
(vii) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there are no agreements, contracts, indentures, leases
or other instruments that are required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is
16
not described or filed as required by the Act, the 1940 Act or the
Rules and Regulations; and the statements included in the Prospectus
under the headings "Tax Matters," "Description of Shares" and "Certain
Provisions in the Agreement and Declaration of Trust" insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings;
(viii) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the Fund
Agreements, except such as have been made or obtained under the Act
and the 1940 Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner contemplated in
this Agreement and in the Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(ix) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement; and
(x) The Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 497 have been made in the manner and within
the time period required by Rule 497; to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
1940 Act and the Rules and Regulations; and such counsel has no reason
to believe that on the Effective Date or the date the Registration
Statement was last deemed amended the Registration Statement contained
any untrue statement of a material fact or omitted to state any
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 on the Closing Date included or includes any 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 (in each
case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Fund and public
17
officials. References to the Prospectus in this paragraph (b) shall also
include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of Xxxx X.
Xxxxxxx, Xx., Esq., counsel for the Adviser, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Adviser has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the
State of Arizona, with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification.
(ii) The Adviser is duly registered under the Advisers Act as
an investment adviser and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Management Agreement, the
Sub-Advisory Agreement, [the Additional Compensation Agreement] or the
Structuring Fee Agreement as contemplated by the Prospectus;
(iii) The Adviser has full power and authority to enter into
this Agreement, the Management Agreement, the Sub-Advisory Agreement,
[the Additional Compensation Agreement] and the Structuring Fee
Agreement;
(iv) This Agreement has been duly authorized, executed and
delivered by the Adviser;
(v) The Management Agreement, the Sub-Advisory Agreement, [the
Additional Compensation Agreement] and the Structuring Fee Agreement
have been duly authorized, executed and delivered by the Adviser and
the Management Agreement, the Sub-Advisory Agreement, [the Additional
Compensation Agreement] and the Structuring Fee Agreement are each a
valid and legally binding agreement of the Adviser, enforceable
against the Adviser in accordance with its terms except as rights to
indemnity and contribution may be limited by federal or state
securities laws and subject to the qualification that the
enforceability of the Adviser's obligations thereunder may be limited
by bankruptcy, insolvency, reorganization, moratorium and and other
laws relating to or affecting creditors' rights generally and by
general equitable principles;
(vi) This Agreement, the Management Agreement, the Sub-Advisory
Agreement, [the Additional Compensation Agreement] and the Structuring
Fee Agreement comply in all material respects with all applicable
provisions of the Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations;
18
(vii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement, the Management
Agreement, the Sub-Advisory Agreement, [the Additional Compensation
Agreement] or the Structuring Fee Agreement nor the consummation by
the Adviser of the transactions herein or therein contemplated (i)
conflicts or will conflict with or constitutes or will constitute a
breach of or default under the certificate of incorporation or bylaws,
or other organizational documents, of the Adviser, (ii) conflicts or
will conflict with, or constitutes or will constitute a breach of or
default under any agreement, indenture, lease or other instrument to
which the Adviser is a party or by which it or any of its properties
may be bound or (iii) violates or will violates any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Adviser or any of their properties or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Adviser pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be
bound or to which any of the property or assets of the Adviser is
subject;
(viii) The description of the Adviser and its business in the
Prospectus complies in all material respects with all requirements of
the Act, the 1940 Act and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Adviser or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there are no agreements, contracts, indentures, leases
or other instruments that are required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required by the Act, the
1940 Act or the Rules and Regulations;
(x) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required on the part of
the Adviser in connection with the transactions contemplated herein or
in the Management Agreement, the Sub-Advisory Agreement, [the
Additional Compensation Agreement] or the Structuring Fee Agreement,
except such as have been made or obtained under the Act, the 1940 Act
and the Advisers Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus and such other
approvals (specified in such opinion) as have been obtained; and
(xi) Such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a
material fact or omitted to state any 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 on the Closing
19
Date included or includes any 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 (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Arizona or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Prospectus in this
paragraph (c) shall also include any supplements thereto at the Closing
Date.
(d) You shall have received on the Closing Date an opinion of [ ],
counsel for the Subadviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Subadviser has been duly formed and is validly existing
in good standing as a corporation under the laws of the Netherlands
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification.
(ii) The Subadviser is duly registered under the Advisers Act
as an investment adviser and is not prohibited by the Advisers Act,
the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act
Rules and Regulations from acting under the Sub-Advisory Agreement as
contemplated by the Prospectus;
(iii) The Subadviser has full power and authority to enter into
this Agreement and the Sub-Advisory Agreement;
(iv) This Agreement has been duly authorized, executed and
delivered by the Subadviser;
(v) The Sub-Advisory Agreement has been duly authorized,
executed and delivered by the Subadviser and the Sub-Advisory
Agreement is a valid and legally binding agreement of the Subadviser,
enforceable against the Subadviser in accordance with its terms except
as rights to indemnity and contribution may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of the Subadviser's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equitable principles;
(vi) This Agreement, and the Sub-Advisory Agreement comply in
all material respects with all applicable provisions of the Act, the
1940 Act, the
20
Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(vii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or the
Sub-Advisory Agreement nor the consummation by the Subadviser of the
transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of or default
under the certificate of incorporation or bylaws, or other
organizational documents, of the Subadviser, (ii) conflicts or will
conflict with, or constitutes or will constitute a breach of or
default under any agreement, indenture, lease or other instrument to
which the Subadviser is a party or by which it or any of its
properties may be bound or (iii) violates or will violates any
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Subadviser or any of its properties or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Subadviser pursuant to
the terms of any agreement or instrument to which it is a party or by
which it may be bound or to which any of the property or assets of the
Subadviser is subject;
(viii) The description of the Subadviser and its business in
the Prospectus complies in all material respects with all requirements
of the Act, the 1940 Act and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Subadviser or its property of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in the
Prospectus, and there are no agreements, contracts, indentures, leases
or other instruments that are required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required by the Act, the
1940 Act or the Rules and Regulations;
(x) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required on the part of
the Subadviser in connection with the transactions contemplated herein
or in the Sub-Advisory Agreement, except such as have been made or
obtained under the Act, the 1940 Act and the Advisers Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as
have been obtained; and
(xi) Such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements
21
therein not misleading or that the Prospectus as of its date and on
the Closing Date included or includes any 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 (in each
case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the laws
of the Netherlands, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Fund and public officials.
References to the Prospectus in this paragraph (d) shall also include any
supplements thereto at the Closing Date.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Fund and the
Advisers shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) Each of the Fund and the Advisers shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of each of the
Fund and the Advisers, as the case may be, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus
and this Agreement and that:
(i) The representations and warranties of the Fund and each of
the Advisers in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date and
the Fund and each of the Advisers have complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Fund's or each of the
Adviser's knowledge, threatened; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto) (with
respect to the certificate of the Trust) and since the date of the
Prospectus (with respect to the certificate of the Advisers), there
has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Fund or
each of the Advisers, whether or not arising from transactions in the
ordinary
22
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(g) The Fund shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance heretofore approved by the
Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been any material change specified in the
letter referred to in paragraph (j) of this Section 7 delivered on the
Closing Date from the letter delivered at the Execution Time or (ii) any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), earnings, business or properties of
the Fund and each of the Advisers, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(i) The Securities shall have been listed and admitted and authorized
for trading on the NYSE, and satisfactory evidence of such actions shall
have been provided to the Representatives.
(j) Prior to the Closing Date, the Fund and the Advisers shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(k) If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Fund in writing or by telephone or
facsimile confirmed in writing.
(l) The documents required to be delivered by this Section 7 shall be
delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing
Date.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the
23
Advisers to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Advisers will
reimburse the Underwriters severally through Citigroup Global Markets Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Fund and the Advisers,
jointly and severally, agree to indemnify and hold harmless each of you and each
other Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several (including reasonable costs of investigation),
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the Securities as originally filed or in any amendment thereof (and including
any post-effective amendment, any Rule 462(b) Registration Statement and any
Rule 430A Information deemed to be included or incorporated therein), or in the
Prospectus, any Preliminary Prospectus, any sales material (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Fund and the Advisers will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Fund and the Advisers by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Fund and the
Advisers may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless each of the Fund and the Advisers, each of its trustees, each
of its officers who signs the Registration Statement, and each person who
controls the Fund or the Advisers within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Fund and the Advisers to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Fund or
the Advisers by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Fund and the
Advisers acknowledge that the statements set forth in the last paragraph of
the cover page regarding delivery of the Securities and, under the heading
"Underwriting", (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in
24
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Advisers and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively,
"Losses") to which the Fund, the Advisers and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Fund and the Advisers on the one hand
(treated jointly for this purpose as one person) and by the Underwriters on
the other from the offering of the Securities; PROVIDED, HOWEVER, that in
no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Fund, the Advisers and
25
the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Fund and the Advisers on the one hand (treated
jointly for this purpose as one person) and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Fund and the Advisers (treated jointly for this purpose as
one person) shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Fund, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Fund and the Advisers
on the one hand (treated jointly for this purpose as one person) or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Fund, the Advisers and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 9, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Fund or the Advisers
within the meaning of either the Act or the Exchange Act, each officer of
the Fund and the Advisers who shall have signed the Registration Statement
and each trustee of the Fund and the Advisers shall have the same rights to
contribution as the Fund and the Advisers, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability from claimants on
claims that are the subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Fund and the Advisers set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter, the Fund, the Advisers or their
shareholders, trustees, directors, managers, members or officers or any
person controlling the Fund or the Advisers (control to be determined
within the meaning of the Act or the Exchange Act), (ii)
26
acceptance of any Securities and payment therefor hereunder and (iii)
any termination of this Agreement. A successor to any Underwriter or to the
Fund, the Advisers or their shareholders, trustees, directors, managers,
members or officers or any person controlling any Underwriter, the Fund or
the Advisers shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 9.
10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Fund or the Advisers. In the event of a default by any Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Fund and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, without liability on the part of the
Underwriters to the Fund or the Advisers, by notice given to the Fund or the
Advisers prior to delivery of and payment for the Securities, if at any time
prior to such time (a) trading in the Fund's Common Shares shall have been
suspended by the Commission or the NYSE or trading in securities generally on
the NYSE shall have been suspended or limited or minimum prices shall have been
established on the exchange, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities or (c) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
each of the Fund and the Advisers or its officers and of the 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 Fund or the Advisers or any of the officers, trustees, directors,
employees, agents or controlling persons referred to in Section 9 hereof, and
will survive delivery of and
27
payment for the Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Fund or the Advisers, will be mailed,
delivered or telefaxed to ING Global Equity Dividend and Premium Income Fund
(fax no.: (xxx) xxx-xxxx) and confirmed to it at 0000 Xxxx Xxxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxxx, XX 00000, attention of the Legal Department.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"1940 Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration of
the Fund as an investment company under the 1940 Act on Form N-8A, as the
1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended.
"Act Rules and Regulations" shall mean the rules and regulations of
the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended.
28
"Advisers Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the Advisers Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any preliminary
prospectus (including the statement of additional information incorporated
by reference therein) included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus and any amendment or supplement
thereto (including the statement of additional information incorporated by
reference therein) relating to the Securities that is first filed pursuant
to Rule 497 after the Execution Time or, if no filing pursuant to Rule 497
is required, shall mean the form of final prospectus (including the
statement of additional information incorporated by reference therein)
relating to the Securities included in the Registration Statement at the
Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
29
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules and
Regulations and the 1940 Act Rules and Regulations.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Advisers and the several Underwriters.
Very truly yours,
ING GLOBAL EQUITY DIVIDEND AND
PREMIUM INCOME FUND
By:
--------------------------
Name:
Title:
ING INVESTMENTS, LLC
By:
--------------------------
Name:
Title:
ING INVESTMENT MANAGEMENT
ADVISERS B.V.
By:
--------------------------
Name:
Title:
31
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
By:
--------------------------------
Name:
Title:
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
32
SCHEDULE I
NUMBER OF UNDERWRITTEN SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ---------
Citigroup Global Markets Inc...................................
