Prospect Energy Corporation (a Maryland Corporation) 4,971,000 Shares of Common Stock Par Value $.001 per Share Underwriting Agreement August 10, 2006
Exhibit (h)
Prospect Energy Corporation
(a Maryland Corporation)
4,971,000 Shares of Common Stock
Par Value $.001 per Share
(a Maryland Corporation)
4,971,000 Shares of Common Stock
Par Value $.001 per Share
August 10, 2006
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxx, Xxxx & Xxxxx, Inc.
c/o Xxxxxx Xxxxxx & Company, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxx, Xxxx & Xxxxx, Inc.
c/o Xxxxxx Xxxxxx & Company, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Prospect Energy Corporation, a Maryland corporation (the “Company”) confirms its agreement
with Xxxxxx Xxxxxx & Company, Inc. (“Xxxxxx Xxxxxx”), Xxxxxx, Xxxxx Xxxxx, Incorporated,
Xxxxxxxxxxx & Co. Inc., X.X. Xxxxxxxx & Co. and Sterne, Agee & Xxxxx, Inc. (collectively, the
“Underwriters”), with respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective number of shares of common stock,
par value $.001 per share of the Company (the “Common Shares”) set forth in Schedule A
hereof, and with respect to the grant by the Company to the Underwriters, acting severally and not
jointly, of the option described in Section 3(b) hereof to purchase all or any part of 745,650
additional Common Shares to cover over-allotments, if any. The aforesaid 4,971,000 Common Shares
(the “Firm Shares”) to be purchased by the Underwriters and all or any part of the 745,650 Common
Shares subject to the option described in Section 3(b) hereof (the “Option Shares”) are
collectively referred to as the “Shares.”
The Company understands that the Underwriters propose to make a public offering of the Shares
as soon as the Underwriters deem advisable after this Agreement has been executed and delivered.
The Company has entered into an investment advisory agreement, dated as of June 24, 2004, as
renewed on May 15, 2006 by the Board of Directors (the “Board”) of the Company (the “Investment
Advisory Agreement”), with Prospect Capital Management LLC, a Delaware limited liability company
registered as an investment adviser (the “Adviser”) under the Investment Advisers Act of 1940, as
amended, and the rules and regulations thereunder (collectively, the “Advisers Act”). The Company
has entered into an administration agreement, dated as of June 24, 2004, as renewed on May 15, 2006
by the Board (the “Administration Agreement”), with Prospect Administration, LLC, a Delaware
limited liability company (the
“Administrator”).
The Company has filed, pursuant to the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the “1933 Act”), with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form N-2 (File No. 333-132575), which
registers the offer and sale of certain securities to be issued from time to time by the Company,
including the Shares. The Company filed a Form N-54A “Notification of Election to be Subject to
Sections 55 through 65 of the 1940 Act Filed Pursuant to Section 54(a) of the 1940 Act” (File No.
814-00659) with the Commission on April 16, 2004, under the Investment Company Act of 1940, as
amended, and the rules and regulations promulgated thereunder (collectively, the “1940 Act”).
The registration statement as amended, including the exhibits and schedules thereto, at the
time it became effective (or is deemed effective pursuant to Rule 430A or Rule 430C under the 1933
Act), including the information, if any, omitted from the registration statement pursuant to Rule
430A (the “Rule 430A Information”), any registration statement filed pursuant to Rule 462(b) under
the 1933 Act, and any post-effective amendment thereto, is hereinafter referred to as the
“Registration Statement.” The prospectus included in the Registration Statement at the time it
became effective is hereinafter referred to as the “Base Prospectus.” The Base Prospectus and any
prospectus or prospectus supplement that omitted the Rule 430A Information that was used prior to
the execution and delivery of this Agreement and filed pursuant to Rule 497(a) under the 1933 Act,
including in each case any statement of additional information incorporated therein by reference,
is herein called a “Preliminary Prospectus.”
The Company has prepared and will file with the Commission in accordance with Rule 497 under
the 1933 Act, a prospectus supplement (the “Prospectus Supplement”) supplementing the Base
Prospectus in connection with the offer and sale of the Shares. The Base Prospectus and Prospectus
Supplement filed with the Commission pursuant to Rule 497 under the 1933 Act (including the
information, if any, deemed to be a part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A or Rule 430C under the 0000 Xxx) are hereinafter referred to collectively as
the “Prospectus.”
The Preliminary Prospectus, together with the information set forth in the oral pricing script
included on Schedule B hereto (which information the Underwriters have informed the Company
is being conveyed orally by the Underwriters to prospective purchasers at or prior to the
Underwriters’ confirmation of sales of the Shares in the public offering) is hereinafter referred
to as the “Disclosure Package.”
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “disclosed,” “included,” “filed as part of” or “stated” in the Registration
Statement or the Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which are or are deemed
to be incorporated by reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the Registration Statement
or the Prospectus shall be deemed to mean and include the filing of any document under the
Securities and Exchange Act of 1934, as amended (the “1934 Act”) which is
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or is deemed to be incorporated by reference in the Registration Statement, Disclosure Package
or the Prospectus, as the case may be. All references in this Agreement to the Registration
Statement, Disclosure Package, the Prospectus or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“XXXXX”).
The Company represents and warrants to and agrees with each of the Underwriters, and the
Adviser and the Administrator, jointly and severally, represent and warrant to and agree with each
of the Underwriters, as of the date hereof, the Applicable Time (defined below), the Closing Time
referred to in Section 3(c) hereof, and as of each Date of Delivery (if any) referred to in Section
3(b) hereof, as follows:
(i) The Company meets the requirements for use of Form N-2 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued under the
1933 Act, and no proceedings for any such purpose, have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has been
complied with.
(ii) At the respective times the Registration Statement, and any post-effective
amendment thereto, became effective and at the Closing Time, as hereinafter defined
(and, if any Option Shares are purchased, at the Date of Delivery), the Registration
Statement, and all amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the rules and
regulations promulgated thereunder, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendment or supplement thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Time (and, if any
Option Shares are purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The representations and warranties in
this subsection shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with information
furnished to the Company by or on behalf of any Underwriter for use in the
Registration Statement or Prospectus it being understood and agreed that the only
such information furnished to the Company in writing by the Underwriters consists of
the information described in Section 7(g) below.
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(iii) The Disclosure Package as of the Applicable Time does not include any untrue
statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by any Underwriter
or its representative expressly for use therein, it being understood and agreed that
the only such information furnished by the Underwriters to the Company consists of
the information described in Section 7(g) below. As used in this subsection and
elsewhere in this Agreement “Applicable Time” means 5:30 p.m. (New York City time)
on August 10, 2006 or such other time as agreed by the Company and the Underwriters;
provided that, if, subsequent to the date of this Agreement, the Company and the
Underwriters have determined that the Disclosure Package included an untrue
statement of material fact or omitted a statement of material fact necessary to make
the information therein not misleading, and have agreed, in connection with the
public offering of the Shares, to provide an opportunity to purchasers to terminate
their old contracts and enter into new contracts, then “Applicable Time” will refer
to the information available to purchasers at the time of entry into the first such
new contract.
(iv) The Prospectus when filed, and as of the date of the Prospectus Supplement,
complied in all material respects with the 1933 Act, and if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T under
the 1933 Act), will be substantially identical to the copy thereof delivered to the
Underwriters for use in connection with this offering.
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defined by the rules and regulations of the Commission) comply with Regulation G under the
1934 Act and Item 10 of Regulation S-K of the 1933 Act Regulations, to the extent applicable.
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and each subsidiary that is a corporation is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock of each subsidiary that is a corporation has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or
claim.
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consummation of the transactions contemplated hereby and by the Prospectus and the Disclosure
Package, except such as have already been obtained or made under the 1933 Act and the 1940 Act and
such as may be required under any applicable state securities or blue sky laws or from the National
Association of Securities Dealers, Inc. (the “NASD”).
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the applicable financial statements referred to in the Prospectus and the Disclosure Package
in respect of all federal, state and foreign income and franchise taxes for all periods as to which
the tax liability of the Company or any of its subsidiaries has not been finally determined. The
Company is not aware of any tax deficiency that has been or might be asserted or threatened against
the Company or any subsidiary that could result in a Material Adverse Effect.
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defined in the 0000 Xxx) of any of the Underwriters except as otherwise disclosed in the
Registration Statement.
(ff) Any certificate signed by any officer of the Company or the Adviser and delivered to the
Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by
the Company or the Adviser (as applicable), to each Underwriter as to the matters covered thereby.
The Adviser and the Administrator, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, as of the Applicable Time, the Closing Time referred to in
Section 3(c) hereof, and as of each Date of Delivery (if any) referred to in Section 3(b) hereof,
and agree with each Underwriter as follows:
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Material Adverse Change” or an “Adviser Material Adverse Effect,” where the context so
requires) or the Administration Agreement (an “Administrator Material Adverse Change” or an
“Administrator Material Adverse Effect,” where the context so requires).
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law, statute, rule, regulation, judgment, order or decree except for such violations or
defaults that would not reasonably be expected to result in an Adviser Material Adverse Effect or
an Administrator Material Adverse Effect, as applicable; and the execution, delivery and
performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement
and the consummation of the transactions contemplated herein and therein and in the Registration
Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale
of the Shares as described in the Prospectus and the Disclosure Package under the caption “Use of
Proceeds”) and compliance by the Adviser with its obligations hereunder and under the Investment
Advisory Agreement and by the Administrator with its obligations hereunder and under the
Administration Agreement do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Adviser or the Administrator pursuant to such Agreement except for such violations or defaults that
would not reasonably be expected to result in an Adviser Material Adverse Effect or an
Administrator Material Adverse Effect, as applicable, nor will such action result in any violation
of the provisions of the limited liability company operating agreement of the Adviser or
Administrator, respectively; nor will such action result in any violation of any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the Adviser, the
Administrator, or any of their respective assets, properties or operations except for such
violations that would not reasonably be expected to result in an Adviser Material Adverse Effect or
an Administrator Material Adverse Effect, as applicable.
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been obtained under the laws and regulations of jurisdictions outside the United States in
which the Shares are offered.
Section 3. Sale and Delivery to Underwriters; Closing.
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Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Underwriters for the respective accounts
of the Underwriters of the Shares to be purchased by them. It is understood that each Underwriter
has authorized Xxxxxx Xxxxxx, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Firm Shares and the Option Shares, if any, which it has agreed to
purchase. Xxxxxx Xxxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Firm Shares or the Option
Shares, if any, to be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
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(d) Denominations; Registration. Certificates for the Firm Shares and the Option
Shares, if any, shall be in such denominations and registered in such names as the Underwriters may
request in writing at least three (3) full business days before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Firm Shares and the Option Shares,
if the Company determines to issue any such certificates, will be made available for examination
and packaging by the Underwriters in the City of New York no later than 10:00 a.m. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
The Firm Shares and the Option Shares to be purchased hereunder shall be delivered to you at the
Closing Time or the relevant Date of Delivery, as the case may be, through the facilities of the
Depository Trust Company or another mutually agreeable facility, against payment of the purchase
price therefore in immediately available funds to the order of the Company.
Section 4. Covenants.
The Company agrees, and the Adviser and the Administrator, jointly and severally, agree with
each Underwriter as follows:
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Section 6. Conditions of Underwriters’ Obligations.
The obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company, the Adviser and the Administrator contained in
Sections 1 and 2 hereof or in certificates of any officer of the Company, the Adviser and the
Administrator delivered pursuant to the provisions hereof, to the performance by the Company, the
Adviser and the Administrator of their covenants and other obligations hereunder, and to the
following further conditions:
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force and effect as though expressly made at and as of Closing Time, (iii) each of the
Company, the Adviser, and the Administrator, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration Statement, pursuant to Section
8(d) of the 1933 Act, has been issued and no proceedings for any such purpose have been instituted
or, to the knowledge of the Company, are pending or are contemplated by the Commission.
(i) Officers’ Certificates. Certificates, dated such Date of Delivery, of a
duly authorized officer of the Company, the Adviser and the Administrator and of the
chief financial or chief accounting officer of the Company, the Adviser and the
Administrator confirming that the information contained in the certificate delivered
by each of them at the Closing Time pursuant to Section 6(d) hereof remains true and
correct as of such Date of Delivery.
(ii) Opinions of Counsel for the Company, the Adviser and the Administrator.
The opinion of Xxxxxxxx Chance US LLP, acting as counsel for the Company, the
Adviser and the Administrator, dated such Date of Delivery, relating to the Option
Shares to be purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 6(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The opinion of Bass, Xxxxx &
Xxxx PLC, counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Shares to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 6(c) hereof.
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(iv) Bring-down Comfort Letter. A letter from BDO Xxxxxxx, LLP in form and
substance satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 6(f) hereof.
Section 7. Indemnification.
(i) any and all loss, damage, expense, liability or claim whatsoever (including the
reasonable cost of any investigation incurred in connection therewith) which,
jointly or severally, any such Underwriter or any such person may incur under the
1933 Act, the 1934 Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in the Disclosure
Package or the Prospectus (or any
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amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(e) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxx Xxxxxx), reasonably incurred in
investigating, preparing or defending against any litigation (including the fees and
disbursements of counsel chosen by Xxxxxx Xxxxxx), or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under
(i) or (ii) above.
Provided, however, that the indemnity agreement set forth in this Section 7(a) shall
not apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the Company by
any Underwriter through Xxxxxx Xxxxxx or its counsel expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, the Disclosure Package or the Prospectus (or any amendment or
supplement thereto); and provided further that the Company will not be liable to any
Underwriter with respect to the Prospectus and the Disclosure Package to the extent
that the Company shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such Underwriter, in
contravention of a requirement of this Agreement or applicable law, sold Shares to a
person to whom such Underwriter failed to send or give, at or prior to the Closing
Time, a copy of the final Prospectus, as then amended or supplemented if: (i) the
Company has previously furnished copies thereof (sufficiently in advance of the
Closing Time to allow for distribution by the Closing Time) to the Underwriter and
the loss, liability, claim, damage or expense of such Underwriter resulted from an
untrue statement or omission of a material fact contained in or omitted from the
Prospectus which was corrected in the Prospectus Supplement as, if applicable,
amended or supplemented prior to the Closing Time and such final Prospectus was
required by law to be delivered at or prior to the written confirmation of sale to
such person and (ii) such failure to give or send such final Prospectus by the
Closing Time to the party or parties asserting such loss, liability, claim, damage
or expense would have constituted a defense to the claim asserted by such person.
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does not include a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
Section 8. Contribution.
If the indemnification provided for in Section 7 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other hand from the
offering of the Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Company, the
Adviser and the Administrator on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
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The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Shares pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the Shares
pursuant to this Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters (whether from the Company or otherwise), in each
case as set forth on the cover of the Prospectus bear to the aggregate public offering price of the
Shares as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 8 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
No Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has otherwise been required to
pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director and officer of the Company, and each person, if
any, who controls the Company, within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’
respective obligations to contribute pursuant to this Section 8 are several in proportion to the
number of Firm Shares set forth opposite their respective names in Schedule A hereto and
not joint.
Any contribution by the Company shall be subject to the requirements and limitations of
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Section 17(i) of the 1940 Act and 1940 Act Release 11330.
All representations, warranties and agreements contained in this Agreement or in certificates
of officers of the Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the Shares to the
Underwriters.
Section 10. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the date of the Prospectus Supplement, any material adverse
change in the condition, financial or otherwise, or in the earnings or business affairs of the
Company, whether or not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or the international
financial markets, any material outbreak of hostilities or material escalation thereof or other
calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Underwriters, impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares, or (iii) if trading in the Common Shares
of the Company has been suspended or materially limited by the Commission or the NASDAQ, or if
trading generally on the New York Stock Exchange has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a banking moratorium
has been declared by either Federal or New York state authorities.
Section 11. Default by One or More of the Underwriters.
(a) If one or more of the Underwriters shall fail at Closing Time or any Date of Delivery to
purchase the Shares which it or they are obligated to purchase under this Agreement (the “Defaulted
Shares”), the Underwriters shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Shares in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Underwriters shall not have completed such arrangements within
such 24-hour period, then:
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(i) if the number of Defaulted Shares does not exceed 10% of the number of Shares to
be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Shares exceeds 10% of the number of Shares to be
purchased on such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the Underwriters to purchase
and of the Company to sell the Option Shares to be purchased and sold on such Date
of Delivery shall terminate without liability on the part of any non-defaulting
Underwriter.
(b) No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
(c) In the event of any such default which does not result in a termination of this Agreement
or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Shares, as the case may be, either the Underwriters or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven (7) days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 11.
Section 12. Tax Disclosure.
Notwithstanding any other provision of this Agreement, from the commencement of discussions
with respect to the transactions contemplated hereby, the Company (and each employee,
representative or other agent of the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure (as such terms are used in Sections
6011, 6111 and 6112 of the Code and the Treasury Regulations promulgated thereunder) of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided relating to such tax treatment and tax structure.
Section 13. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or
telecopied and confirmed to the parties hereto as follows:
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If to the Underwriters:
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with a copy to: | |
Xxxxxx Xxxxxx & Company, Inc.
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Bass, Xxxxx & Xxxx PLC | |
00 Xxxxx Xxxxx Xxxxxx
|
000 Xxxxxxx Xxxxx, Xxxxx 000 | |
Xxxxxxx, Xxxxxxxxx 00000
|
Xxxxxxx, Xxxxxxxxx 00000 | |
Facsimile: (000) 000-0000
|
Facsimile: (000) 000-0000 | |
Attention: Xxxx Xxxxxxxx
|
Attention: Xxxx X. Good, Esq. | |
If to the Company or the Adviser:
|
with a copy to: | |
00 Xxxx 00xx Xxxxxx
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Xxxxxxxx Xxxxxx XX LLP | |
Xxx Xxxx, Xxx Xxxx 00000
|
00 Xxxx 00xx Xxxxxx | |
Facsimile: (000) 000-0000
|
Xxx Xxxx, Xxx Xxxx 00000 | |
Attention: Xxxx X. Xxxxx III
|
Facsimile: (000) 000-0000 | |
Attention: Xxxxxxx Xxxxxx, Esq. |
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 14. Parties.
This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the
Company, the Adviser, the Administrator and their respective partners and successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters, the Company, the Adviser, the Administrator and their
respective successors and the controlling persons and officers and directors referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company, the Adviser, the Administrator and their respective partners and
successors, and said controlling persons and officers, directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No purchaser of
Shares from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 15. No Fiduciary Obligation.
The Company, the Adviser and the Administrator acknowledge and agree that each of the
Underwriters have acted, and are acting, solely in the capacity of an arm’s-length contractual
counterparty to the Company with respect to the offering of the Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company, the Adviser, the Administrator or any other person.
Additionally, the Underwrites have not advised, and are not advising, the Company, the Adviser,
the Administrator or any other person as to any legal, tax, investment, accounting or regulatory
matter in any jurisdiction with respect to the transactions contemplated hereby. The Company shall
consult with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company with respect thereto. Any
review by the Underwriters of the Company, the Adviser, or
29
the Administrator, the transactions contemplated hereby or other matters relating to such
transactions has been and will be performed solely for the benefit of the Underwriters and have not
been and shall not be on behalf of the Company, the Adviser, the Administrator or any other person.
It is understood that the offering price was arrived at through arm’s-length negotiations between
the Underwriters and the Company, and that such price was not set or otherwise determined as a
result of expert advice rendered to the Company by any Underwriter. The Company acknowledges and
agrees that the Underwriters are collectively acting as an independent contractor, and any duty of
the Underwriters arising out of this Agreement and the transactions completed hereby shall be
contractual in nature and expressly set forth herein. Notwithstanding anything in this
Underwriting Agreement to the contrary, the Company acknowledges that the Underwriters may have
financial interests in the success of the offering contemplated hereby that are not limited to the
difference between the price to the public and the purchase price paid to the Company by the
Underwriters for the Shares.
Section 16. Governing Law and Time.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE
EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 17. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Company, the Adviser, the Administrator and the Underwriters
and in accordance with its terms.
Very truly yours, Prospect Energy Corporation |
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By: | ||||
Name: | ||||
Title: | ||||
Prospect Capital Management LLC |
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By: | ||||
Name: | ||||
Title: | ||||
Prospect Administration LLC |
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By: | ||||
Name: | ||||
Title: | ||||
Confirmed and Accepted,
as of the date first above written:
as of the date first above written:
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxx, Xxxx & Xxxxx, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxx, Xxxx & Xxxxx, Inc.
By: Xxxxxx Xxxxxx & Company, Inc.
By: | ||||
Name: | Xxxxx X. Xxxxx | |||
Title: | Managing Director | |||
For itself and on behalf of the other
Underwriters named in Schedule A hereto.
Underwriters named in Schedule A hereto.
31
SCHEDULE A
Number of | ||||
Name of Underwriter | Firm Shares | |||
Xxxxxx Xxxxxx & Company, Inc. |
2,336,370 | |||
Xxxxxx, Xxxxx Xxxxx, Incorporated |
994,200 | |||
Xxxxxxxxxxx & Co. Inc. |
994,200 | |||
X.X. Xxxxxxxx & Co. |
497,100 | |||
Sterne, Agee & Xxxxx, Inc. |
149,130 | |||
Total |
4,971,000 |
SCHEDULE B
Members of the Underwriters’ selling group orally communicated the following information to their
respective customers:
The Company proposes to sell 4,971,000 shares of common stock to the Underwriters (5,716,650 shares
including the underwriters’ over-allotment option). The last reported sale price of the Company’s
common stock on the NASDAQ on August 10, 2006 was $15.30 per share.
The purchase price for the common shares will be $14.54 per share, which represents a price to the
public of $15.30 per share, less an underwriting discount of $0.76 per share. The Company expects
to invest all of the net proceeds from this offering within 120 days of the date of the completion
of the offering.
The Company intends to distribute the $2.2 million realized capital gain on its equity position in
Natural Gas Systems, Inc. by December 31, 2006. The dividend for the Company’s 2006 first fiscal
quarter, may be comprised of a combination of operating earnings, capital gains and return of
capital.
SCHEDULE C
Form(s) of Opinion from Xxxxxxxx Chance US LLP
Form(s) of Opinion from Xxxxxxxx Chance US LLP
With respect to Prospect Energy Corporation (the “Company”):
1. | The Company has been duly incorporated and validly exists as a corporation in good standing under the laws of the State of Maryland with requisite corporate power to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus. |
2. | The Company is duly qualified to do business as a foreign corporation and is in good standing under the laws of the State of New York. |
3. | The authorized, issued and outstanding capital stock of the Company was as set forth in the Prospectus Supplement under the caption “Capitalization” and the issued and outstanding shares of capital stock set forth in the Prospectus Supplement under the caption “Capitalization” have been duly and validly authorized and issued and are fully paid and nonassessable. |
4. | The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the Company against payment of the consideration set forth in the Underwriting Agreement, will be validly issued, fully paid and nonassessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or, to our knowledge, rights of first refusal or other similar rights to subscribe for the Shares. As of the date of the Prospectus, to such counsel’s knowledge, there were no options, warrants or other rights to purchase or acquire any shares of capital stock of the Company. |
5. | To such counsel’s knowledge, no holders of securities of the Company have rights to require the registration under the 1933 Act of resales of such securities. |
6. | To such counsel’s knowledge, (i) there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or its directors or officers is or would be a party or to which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement or the Prospectus but are not so described, and (ii) there are no indentures, contracts, leases, mortgages, deeds of trust, note agreements, loans or other agreements or instruments of a character required to be described in the Prospectus or filed as an exhibit to the Registration Statement, which are not so described or filed, as required by the 1933 Act and the rules and regulations thereunder. |
7. | The statements in the Prospectus under the headings “Description of Our Capital Stock” and “Regulation” and in the Registration Statement under Item 30, insofar as such statements purport to summarize legal matters, agreements or documents discussed |
therein, fairly present, in all material respects, such legal matters, agreements or documents. The statements in the Prospectus under the heading “Material U.S. Federal Income Tax Considerations,” to the extent that they constitute matters of U.S. federal income tax law or legal conclusions with respect thereto, are accurate in all material respects. |
8. | The Registration Statement has become effective under the 1933 Act; to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or overtly threatened. Any required filing of the Prospectus, and any supplement thereto, pursuant to Rule 497 under the 1933 Act, has been made in the manner and within the time period required by Rule 497. |
9. | The Registration Statement and the Prospectus Supplement, as of their respective effective or issue dates, comply as to form in all material respects (other than the financial statements and supporting schedules included or incorporated by reference therein or omitted therefrom as to which such counsel need not express such opinion) with the requirements of Form N-2, the applicable requirements of the 1933 Act and the 0000 Xxx. |
10. | Each of the Underwriting Agreement, Investment Advisory Agreement and the Administration Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company. |
11. | No consent, approval, authorization or filing with or order of any court or governmental agency or body in the United States having jurisdiction over the Company is required for the consummation by the Company of the transactions contemplated by the Underwriting Agreement, except such as have been obtained under the 1933 Act, the 1940 Act, and the rules and regulations thereunder, and except such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated in the Underwriting Agreement, as to which we need express no opinion, and in the Prospectus, or under the bylaws, rules and regulations of the NASD. |
12. | Neither the execution and delivery by the Company of the Underwriting Agreement nor the issuance and sale of the Shares to the Underwriters, conflict with or constitute a breach or violation of, or default under or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, pursuant to any of the agreements listed on Schedule A to such counsel’s opinion (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the amended and restated articles of incorporation or bylaws of the Company, or any applicable law, statute, rule or regulation or, to the knowledge of such counsel, any judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, or any of its properties, assets or operations. |
13. | The Company has duly elected to be treated under the 1940 Act as a business development company and such election is effective. The provisions of the Company’s amended and restated articles of incorporation and bylaws and the investment objectives, policies and restrictions described in the Registration Statement and the Prospectus Supplement are not inconsistent with the provisions of the 1940 Act applicable to the Company as a “business development company” thereunder. |
14. | By virtue of its election as a “business development company,” the Company is not, and upon the sale of the Shares as contemplated under the Underwriting Agreement will not be, an investment company that is required to register under the 1940 Act. |
15. | The terms of the Underwriting Agreement, the Investment Advisory Agreement and the Administration Agreement comply in all material respects with, and such agreements have been duly approved and the issuance and sale of the Shares has been effected in accordance with all applicable provisions of the 1940 Act and the rules and regulations promulgated thereunder, and, with respect to the Investment Advisory Agreement, the Advisers Act and the rules and regulations promulgated thereunder, except that such counsel need not express any opinion regarding the amount of fees provided for in such agreements; and to the best of our knowledge after reasonably inquiry, the Company 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. |
With respect to Prospect Capital Management LLC (the “Adviser”) and Prospect Administration, LLC
(the “Administrator”):
1. | The Adviser has been duly incorporated and is validly existing as a limited liability company in good standing under the laws of the State of Delaware with requisite corporate power to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus and the Adviser is duly qualified to do business as a foreign corporation and is in good standing under the laws of the State of New York (which such counsel has been advised is the only jurisdiction in which the Adviser owns or leases property or operates or conducts its business). |
2. | The Administrator has been duly incorporated and is validly existing as a limited liability company in good standing under the laws of the State of Delaware with requisite corporate power to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus and the Administrator is duly qualified to do business as a foreign corporation and is in good standing under the laws of the State of New York (which such counsel has been advised is the only jurisdiction in which the Administrator owns or leases property or operates or conducts its business). |
3. | The Adviser is duly registered with the Commission as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and, to such counsel’s knowledge, is not prohibited by the Advisers Act, the 1940 Act or the |
applicable rules and regulations thereunder from acting under the Investment Advisory Agreement as an investment adviser to the Company and, to such counsel’s knowledge, no order of suspension or revocation of such registration under the Advisers Act has been issued and no proceedings are pending or threatened, which could reasonably be expected to adversely affect the registration of the Adviser with the Commission. |
4. | Each of the Underwriting Agreement and the Investment Advisory Agreement has been duly authorized by all necessary corporate action on the part of the Adviser and has been duly executed and delivered by the Adviser. |
5. | Each of the Underwriting Agreement and the Administration Agreement has been duly authorized by all necessary corporate action on the part of the Administrator and has been duly executed and delivered by the Administrator. |
6. | To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened to which the Adviser or the Administrator is a party or to which the properties of the Adviser or the Administrator are subject that are required under the 1933 Act to be described in the Registration Statement and the Prospectus and are not so described, or which seek to restrain, enjoin or prevent the consummation of the issuance or sale of the Shares to be sold under the Underwriting Agreement. |
7. | To such counsel’s knowledge, no consent, approval, authorization or filing with or order of any court or governmental agency or body in the United States having jurisdiction over the Adviser and the Administrator is required for the consummation by the Adviser and the Administrator of the transactions contemplated by the Underwriting Agreement, except such as have been obtained under the 1933 Act and except such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated in the Underwriting Agreement and in the Prospectus, or under the bylaws, rules and regulations of the NASD. |
*************
In addition to the matters set forth above, counsel shall also provide a statement to the
effect that nothing has come to such counsel’s attention that would lead them to believe that:
(i) the Registration Statement, when it became effective (or is deemed effective), contained
an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) as of the Applicable Time, the Disclosure Package contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or
(iii) the Prospectus Supplement, as of its date and as of the Closing Time, contained an
untrue statement of a material fact or omitted 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,
except that in each of clauses (i) through (iii) we do not express any view with respect to the
financial statements and the related notes and schedules or as to any other financial or accounting
information.
SCHEDULE D
Form of Lock-Up Agreement
Form of Lock-Up Agreement
August 10, 2006
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxx, Xxxx & Xxxxx, Inc.
c/o Xxxxxx Xxxxxx & Company, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxx, Xxxx & Xxxxx, Inc.
c/o Xxxxxx Xxxxxx & Company, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Re: Lock-Up Agreement for shares of Prospect Energy Corporation
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain shares of common stock
(“Common Stock”) of Prospect Energy Corporation, a Maryland corporation (the “Company”) or
securities convertible into or exchangeable or exercisable for shares of Common Stock
(collectively, the “Securities”). The Company proposes to carry out a public offering of Common
Stock (the “Offering”) for which you will act as the underwriters. The undersigned recognizes that
the Offering will be of benefit to the undersigned and will benefit the Company by, among other
things, raising additional capital for its operations. The undersigned acknowledges that you and
the other underwriters are relying on the representations and agreements of the undersigned
contained in this letter agreement (this “Agreement”) in carrying out the Offering and in entering
into underwriting arrangements with the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the undersigned will not
(and will cause any spouse or immediate family member of the spouse or the undersigned living in
the undersigned’s household and any trustee of any trust that holds Securities for the benefit of
the undersigned or such spouse or family member not to), without the prior written consent of
Xxxxxx Xxxxxx & Company, Inc. (which consent may be withheld in its sole discretion), directly or
indirectly, sell, offer, contract or grant any option to sell (including without limitation any
short sale), loan, pledge, transfer, establish an open “put equivalent position” within the meaning
of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or
otherwise dispose of, or grant any rights with respect to, any Common Stock, options or warrants to
acquire Common Stock, or Securities currently or hereafter owned either of record or beneficially
(as defined in Rules 13d-3 and 16a-1(a) under the Exchange Act) by the undersigned (or such spouse
or family member), or publicly announce an intention to do any of the foregoing, for a period
commencing on the date hereof and continuing through the close of trading on the date 90 days after
the date hereof (the “Lock-up Period”). The foregoing restrictions have been expressly agreed to
by the undersigned so as to preclude the undersigned (or such spouse, family member or trustee)
from engaging in any
hedging or other transaction that is designed to or reasonably expected to lead to or result in a
disposition of Securities during the Lock-up Period, even if such Securities would be disposed of
by someone other than such holder. Such prohibited hedging or other transactions would include,
without limitation, any short sale (whether or not against the box) or any purchase, sale or grant
of any right (including, without limitation, any put or call option) with respect to any
Securities.
The foregoing shall not apply to bona fide gifts or transfers to trusts (without
consideration) for the benefit of the undersigned, any spouse, immediate family member or a
charitable, educational or religious institution by the undersigned, provided that the donee(s)
agree in writing prior to such disposition to be bound by the restrictions set forth herein and to
the extent any interest in the Securities is retained by the undersigned (or such spouse or family
member), the Securities shall remain subject to the restrictions contained in this Agreement.
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-up Period, the
Company issued an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the Lock-up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the Lock-up Period,
the restrictions imposed by this Agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of Securities held by the undersigned
or such spouse or family member as described herein except in compliance with this Agreement.
This agreement is irrevocable and will be binding on the undersigned and the respective
successors, heirs, personal representatives and assigns of the undersigned.
Yours very truly, |
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/s/ | ||||
Name: | ||||
Title: | ||||