INVESCO GLOBAL HEALTH SCIENCES FUND
6,081,223 Shares of Beneficial Interest
Issuable Upon Exercise of Non-Transferable Rights
to Subscribe for Such Shares of Beneficial Interest
DEALER MANAGER AGREEMENT
New York, New York
May 24, 1999
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of INVESCO Global Health Sciences Fund, a Massachusetts business trust
(the "Fund"), and INVESCO Funds Group, Inc., a Delaware corporation (the
"Investment Manager"), hereby confirms the agreement with and appointment of
PaineWebber Incorporated to act as dealer manager (the "Dealer Manager") in
connection with the issuance by the Fund to the holders of record (the
"Holders") of common shares of beneficial interest of the Fund (the "Common
Shares") at the close of business on the record date set forth in the Prospectus
(as defined herein) (the "Record Date") non-transferable rights entitling such
Holders to subscribe for up to 6,081,223 new shares (each a "Share" and,
collectively, the "Shares") of the Common Shares of the Fund (the "Offer").
Pursuant to the terms of the Offer, the Fund is issuing each Holder one
non-transferable right (each a "Right" and, collectively, the "Rights") for
every five Common Shares held by such Holder on the Record Date. The Fund will
issue one Right to Holders owning less than five Common Shares on the Record
Date. Such Rights entitle Holders to acquire during the subscription period set
forth in the Prospectus (the "Subscription Period"), at the price set forth in
such Prospectus (the "Subscription Price"), one Share for each Right exercised
on the terms and conditions set forth in such Prospectus. No fractional rights
or shares will be issued. Any Holder who fully exercises all Rights initially
issued to such Holder (other than those Rights that cannot be exercised because
they represent the right to acquire less than one Share) will be entitled to
subscribe for, subject to allocation, additional Shares (the "Over-Subscription
Privilege") on the terms and conditions set forth in the Prospectus. Pursuant to
the Over-Subscription Privilege, the Fund may, at its discretion, increase the
number of Shares subject to subscription by up to 25%, or 1,520,306 Shares, for
an aggregate total of 7,601,529 Shares.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (Nos. 333-75831 and
811-06476) and a related preliminary prospectus and preliminary statement of
additional information under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the Commission under the
Investment Company Act and the Securities Act (the "Rules and Regulations"), and
has filed such amendments to such registration statement on Form N-2, if any,
and such amended preliminary prospectuses and preliminary statements of
additional information as may have been required to the date hereof. If the
registration statement has not become effective, a further amendment to such
registration statement, including forms of a final prospectus and final
statement of additional information, necessary to permit such registration
statement to become effective will promptly be filed by the Fund with the
Commission. If the registration statement has become effective and any
prospectus or statement of additional information contained therein omits
certain information at the time of effectiveness pursuant to Rule 430A of the
Rules and Regulations, a final prospectus and final statement of additional
information containing such omitted information will promptly be filed by the
Fund with the Commission in accordance with Rule 497(h) of the Rules and
Regulations. The term "Registration Statement" means the registration statement,
as amended, at the time it becomes or became effective, including financial
statements and all exhibits and all documents, if any, incorporated therein by
reference, and any information deemed to be included by Rule 430A. The term
"Prospectus" means the final prospectus and final statement of additional
information in the forms filed with the Commission pursuant to Rule 497(c), (e),
(h) or (j) of the Rules and Regulations, as the case may be, as from time to
time amended or supplemented pursuant to the Securities Act. The Prospectus and
letters to beneficial owners of Common Shares of the Fund, subscription
certificates and other forms used to exercise rights, brochures, wrappers, any
letters from the Fund to securities dealers, commercial banks and other nominees
and any newspaper announcements, press releases and other offering materials and
information that the Fund may use, approve, prepare or authorize for use in
2
connection with the Offer, are collectively referred to hereinafter as the
"Offering Materials".
1. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Fund and the Investment Manager represents and
warrants to, and agrees with, the Dealer Manager as of the date hereof, as of
the date of the commencement of the Offer (such later date being hereinafter
referred to as the "Representation Date") and as of the Expiration Date (as
defined below) that:
(i) the Fund meets the requirements for use of
Form N-2 under the Securities Act and the Investment
Company Act and the Rules and Regulations. At the time
the Registration Statement became or becomes effective,
the Registration Statement did or will contain all
statements required to be stated therein in accordance
with and did or will comply in all material respects
with the requirements of the Securities Act, the
Investment Company Act and the Rules and Regulations
and did not or 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. From the time the
Registration Statement became or becomes effective
through the expiration date of the Offer set forth in
the Prospectus (the "Expiration Date"), the Prospectus
and the other Offering Materials will not contain an
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, in
the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall
not apply to statements relating to the Dealer Manager
in, or omissions from the Registration Statement,
Prospectus or Offering Materials relating to the Dealer
Manager, made in reliance upon and in conformity with
information furnished to the Fund in writing by the
Dealer Manager expressly for use in the Registration
Statement, Prospectus or Offering Materials, such
information being as set forth in Section 7(h) hereof.
(ii) the Fund has been duly organized and is
validly existing as a business trust under the laws of
3
the Commonwealth of Massachusetts, has full power and
authority (corporate and other) to own its properties
and to conduct its business as described in the
Registration Statement and the Prospectus, currently
maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations
(collectively, the "Licenses and Permits") necessary to
carry on its business as contemplated in the
Prospectus, and is duly qualified to do business in
each jurisdiction wherein it owns or leases real
property or in which the conduct of its business
requires such qualification, except where the failure
to be so qualified would not result in a material
adverse change to the Fund's business, properties,
financial position or results of operations. The Fund
has no subsidiaries.
(iii) the Fund is duly registered with the
Commission under the Investment Company Act as a
closed-end, diversified management investment company,
no order of suspension or revocation of such
registration has been issued or proceedings therefor
initiated or, to the best of the Fund's knowledge,
threatened by the Commission, all required action has
been taken under the Securities Act, the Investment
Company Act to make the public offering and consummate
the issuance of the Rights and the issuance and sale of
the Shares by the Fund upon exercise of the Rights, and
the provisions of the Fund's declaration of trust and
by laws comply as to form in all material respects with
the requirements of the Investment Company Act and the
rules and regulations thereunder.
(iv) PricewaterhouseCoopers LLP, the independent
accountants who audited the financial statements of the
Fund set forth or incorporated by reference in the
Registration Statement and the Prospectus, are
independent public accountants as required by the
Securities Act, the Investment Company Act and the
Rules and Regulations.
(v) the financial statements of the Fund set forth
or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all
material respects the financial condition of the Fund
as of the dates or for the periods indicated in
4
conformity with generally accepted accounting
principles applied on a consistent basis; and the
information set forth in the Prospectus under the
headings "Fee Table" and "Financial Highlights"
presents fairly in all material respects the
information stated therein.
(vi) the Fund has an authorized capitalization as
set forth in the Prospectus; the outstanding Common
Shares have been duly authorized and are validly
issued, fully paid and non-assessable and conform in
all material respects to the description thereof in the
Prospectus under the heading "Description of Shares of
Beneficial Interest"; the Rights have been duly
authorized by all requisite action on the part of the
Fund for issuance pursuant to the Offer; the Shares
have been duly authorized by all requisite action on
the part of the Fund for issuance and sale pursuant to
the terms of the Offer and, when issued and delivered
by the Fund pursuant to the terms of the Offer against
payment of the consideration set forth in the
Prospectus, will be validly issued, fully paid and
non-assessable; the Shares and the Rights conform in
all material respects to all statements relating
thereto contained in the Registration Statement, the
Prospectus and the other Offering Materials; and the
issuance of each of the Rights and the Shares is not
subject to any preemptive rights.
(vii) except as set forth in the Prospectus,
subsequent to the respective dates as of which
information is given in the Registration Statement and
the Prospectus, (A) the Fund has not incurred any
liabilities or obligations, direct or contingent, or
entered into any transactions, other than in the
ordinary course of business, that are material to the
Fund, (B) there has not been any material change in the
Common Shares or long-term debt of the Fund, if any, or
any material adverse change, or any development
involving a prospective material adverse change, in the
condition (financial or other), business, prospects,
net worth or results of operations of the Fund
(excluding fluctuations in the Fund's net asset value
due to investment activities in the ordinary course of
business) and (C) there have been no dividends or
distributions paid or declared in respect of the Fund's
Common Shares.
5
(viii) there is no pending or, to the best of the
Fund's knowledge, threatened action, suit or proceeding
that may materially affect the Fund or to which the
Fund is a party before or by any court or governmental
agency, authority or body or any arbitrator, whether
foreign or domestic, which might result in any material
adverse change in the Fund's condition (financial or
other), business prospects, net worth or results of
operations, or which might materially and adversely
affect the properties or assets thereof of a character
required to be disclosed in the Registration Statement
or the Prospectus.
(ix) there are no franchises, contracts or other
documents of the Fund required to be described in the
Registration Statement or the Prospectus, or to be
filed or incorporated by reference as exhibits which
are not described or filed or incorporated by reference
therein as permitted by the Securities Act, the
Investment Company Act or the Rules and Regulations.
(x) each of this agreement (the "Agreement"), the
Subscription Agency Agreement (the "Subscription Agency
Agreement") dated as of May 24, 1999 between the Fund
and EquiServe, Inc. (the "Subscription Agent"), the
Information Agent Agreement (the "Information Agent
Agreement") dated as of May 24, 1999 between the Fund
and Shareholder Communications Corp. (the "Information
Agent"), the Investment Management Agreement dated as
of February 4, 1988 between the Fund and the Investment
Manager (the "Management Agreement"), the Custodian
Agreement dated as of January 23, 1992 between the Fund
and State Street Bank and Trust Company ("State
Street") (the "Custodian Agreement"), the Transfer
Agency and Service Agreement dated as of January 16,
1992 between the Fund and State Street (the "Transfer
Agency Agreement"), and the Administration Agreement
between the Fund and the Investment Manager dated as of
February 28, 1997 and as amended November 1, 1998 (the
"Administration Agreement") (collectively, all the
foregoing are the "Fund Agreements") has been duly
authorized, executed and delivered by the Fund; each of
the Fund Agreements complies with all applicable
provisions of the Investment Company Act and the
Investment Advisers Act
6
of 1940, as amended (the "Advisers Act") and the rules
and regulations under such Acts; and, assuming due
authorization, execution and delivery by the other
parties thereto, each of the Fund Agreements
constitutes a legal, valid, binding and enforceable
obligation of the Fund, subject to the qualification
that the enforceability of the Fund's obligations
thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of
general applicability relating to or affecting
creditors' rights, and to general principles of equity
(regardless of whether enforceability is considered in
a proceeding in equity or at law).
(xi) neither the issuance of the Rights, nor the
issuance and sale of the Shares, nor the execution and
delivery by the Fund of the Fund Agreements, nor the
performance and consummation by the Fund of any other
of the transactions contemplated in the Fund Agreements
or any sub-custodial arrangements entered into pursuant
to the Custodian Agreement, nor the consummation of the
transactions contemplated therein or in the
Registration Statement nor the fulfillment of the terms
thereof will conflict with, result in a breach or
violation of, or constitute a default or an event of
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties
or assets of the Fund under the declaration of trust or
bylaws of the Fund or the terms and provisions of any
agreement, indenture, mortgage, lease or other
instrument to which the Fund is a party or by which it
may be bound or to which any of the property or assets
of the Fund is subject, nor will such action result in
any violation of any order, law, rule or regulation of
any court or governmental agency or body, whether
foreign or domestic, having jurisdiction over the Fund
or any of its properties.
(xii) no consent, approval, authorization,
notification or order of, or filing with, any court or
governmental agency or body, whether foreign or
domestic, is required for the consummation by the Fund
of the transactions contemplated by the Fund Agreements
7
or the Registration Statement, except such as have been
obtained, or if the registration statement filed with
respect to the Shares is not effective under the
Securities Act as of the time of execution hereof, such
as may be required (and shall be obtained as provided
in this Agreement) under the Investment Company Act,
the Securities Act, and the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(xiii) the Common Shares have been duly listed on
the New York Stock Exchange and prior to their issuance
the Shares will have been duly approved for listing,
subject to official notice of issuance, on the New York
Stock Exchange.
(xiv) the Fund (A) has not taken, directly or
indirectly, any action designed to cause or to result
in, or that has constituted or which might reasonably
be expected to constitute, the stabilization or
manipulation of the price of any security of the Fund
to facilitate the issuance of the Rights or the sale or
resale of the Shares, (B) has not since the filing of
the Registration Statement sold, bid for or purchased,
or paid anyone any compensation for soliciting
purchases of, Common Shares of the Fund (except for the
solicitation of exercises of the Rights pursuant to
this Agreement) and (C) will not, until the later of
the expiration of the Rights or the completion of the
distribution (within the meaning of the
antimanipulation rules under the Exchange Act) of the
Shares, sell, bid for or purchase, pay or agree to pay
to any person any compensation for soliciting another
to purchase any other securities of the Fund (except
for the solicitation of the exercises of Rights
pursuant to this Agreement); PROVIDED THAT any action
in connection with the Fund's dividend reinvestment and
cash purchase plan will not be deemed to be within the
terms of this Section 1(a)(xiv).
(xv) the Fund has complied in all previous tax
years, and intends to direct the investment of the
proceeds of the offering described in the Registration
Statement and the Prospectus in such a manner as to
continue to comply with the requirements of Subchapter
M of the Internal Revenue Code of 1986, as amended
("Subchapter M of the Code"), and has qualified and
8
intends to continue to qualify as a regulated
investment company under Subchapter M of the Code.
(b) The Investment Manager represents and warrants to, and
agrees with, the Dealer Manager as of the date hereof, as of the Representation
Date and as of the Expiration Date that:
(i) the Investment Manager has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware, has full power and
authority (corporate and other) to own its properties and to
conduct its business as described in the Registration
Statement and the Prospectus, currently maintains all
governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to carry on its business
and to enable the Investment Manager to continue to
supervise investments in securities as contemplated in the
Prospectus, and is duly qualified to do business as a
foreign corporation in each jurisdiction wherein it owns or
leases real property or in which the conduct of its business
requires such qualification, except where the failure to be
so qualified would not result in a material adverse change
to the Investment Manager's business, properties, financial
position or results of operations.
(ii) the Investment Manager is duly registered as an
investment adviser under the Advisers Act and is not
prohibited by the Investment Company Act or the Advisers
Act, or the rules and regulations under such Acts, from
acting as an investment adviser for the Fund as contemplated
in the Prospectus and the Management Agreement.
(iii) each of this Agreement and the Management
Agreement has been duly authorized, executed and delivered
by the Investment Manager, complies in all material respects
with all applicable provisions of the Investment Company Act
and the Advisers Act and the rules and regulations under
such Acts, and is, assuming due authorization, execution and
delivery by the other parties thereto, a legal, valid,
binding and enforceable obligation of the Investment
Manager, subject to the qualification that the
9
enforceability of the Investment Manager's obligations
thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights,
and to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law).
(iv) neither the execution or delivery by the
Investment Manager of this Agreement or the Management
Agreement, nor the performance and consummation by the
Investment Manager of its obligations under this Agreement
or the Management Agreement, nor the consummation of the
transactions contemplated therein or in the Registration
Statement nor the fulfillment of the terms thereof will
conflict with, result in a breach or violation of, or
constitute a default or an event of default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Investment
Manager under the charter or bylaws of the Investment
Manager or the terms and provisions of any agreement,
indenture, mortgage, lease or other instrument to which the
Investment Manager is a party or by which it may be bound or
to which any of the property or assets of the Investment
Manager is subject, nor will such action result in any
violation of any order, law, rule or regulation of any court
or governmental agency or body, whether foreign or domestic,
having jurisdiction over the Investment Manager or any of
its properties.
(v) there is no pending or, to the best of the
Investment Manager's knowledge, threatened action, suit or
proceeding affecting the Investment Manager or to which the
Investment Manager is a party before or by any court or
governmental agency, authority or body or any arbitrator,
whether foreign or domestic that would materially affect the
Investment Manager's ability to perform its obligations
under this Agreement or under the Management Agreement.
(vi) no consent, approval, authorization, notification
or order of, or any filing with, any court or governmental
agency or body, whether foreign or domestic, is required for
10
the consummation by the Investment Manager of the
transactions contemplated by this Agreement or the
Management Agreement.
(vii) the Investment Manager (A) has not taken,
directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation
of the price of any security of the Fund to facilitate the
issuance of the Rights or the sale or resale of the Shares,
(B) has not since the filing of the Registration Statement
sold, bid for or purchased, or paid anyone any compensation
for soliciting purchases of, Common Shares (except for the
solicitation of exercises of Rights pursuant to this
Agreement) and (C) will not, until the later of the
expiration of the Rights or the completion of the
distribution (within the meaning of the antimanipulation
rules under the Exchange Act) of the Shares, sell, bid for
or purchase, pay or agree to pay any person any compensation
for soliciting another to purchase any other securities of
the Fund (except for the solicitation of exercises of Rights
pursuant to this Agreement); PROVIDED THAT any action in
connection with the Fund's dividend reinvestment and cash
purchase plan will not be deemed to be within the terms of
this Section 1(b)(vii).
(c) Any certificate required by this Agreement that is signed
by any officer of the Fund and the Investment Manager and delivered to the
Dealer Manager or counsel for the Dealer Manager shall be deemed a
representation and warranty by the Fund and the Investment Manager, as the case
may be, to the Dealer Manager, as to the matters covered thereby.
2. AGREEMENT TO ACT AS DEALER MANAGER.
(a) On the basis of the representations and warranties
contained herein, and subject to the terms and conditions of the Offer:
(i) The Fund hereby appoints the Dealer Manager and
other soliciting dealers entering into a Soliciting Dealer
Agreement, in the form attached hereto as Exhibit A, with
the Dealer Manager (the "Soliciting Dealers"), and the
11
Dealer Manager xxxxxx agrees to solicit the exercise of
Rights, in accordance with the Securities Act, the
Investment Company Act and the Exchange Act, and its
customary practice, the exercise of the Rights, subject to
the terms and conditions of this Agreement, the procedures
described in the Registration Statement, the Prospectus and,
where applicable, the terms and conditions of such
Soliciting Dealer Agreement; and
(ii) The Fund agrees to furnish, or cause to be
furnished, to the Dealer Manager, lists, or copies of those
lists, showing the names and addresses of, and number of
Common Shares held by, Holders as of the Record Date, and
the Dealer Manager agrees to use such information only in
connection with the Offer, and not to furnish the
information to any other person except to securities brokers
and dealers that have been requested by the Dealer Manager
to solicit exercises of Rights.
(b) The Dealer Manager agrees to provide to the Fund, in
addition to the services described in paragraph (a) of this Section 2, financial
advisory and marketing services in connection with the Offer. No advisory fee,
other than the fees provided for in Section 3 of this Agreement and the
reimbursement of the Dealer Manager's out-of-pocket expenses as described in
Section 5 of this Agreement, will be payable by the Fund, or any other party
hereto, to the Dealer Manager in connection with the financial advisory and
marketing services provided by the Dealer Manager pursuant to this Section 2(b).
(c) The Fund and the Dealer Manager agree that the Dealer
Manager is an independent contractor with respect to the solicitation of the
exercise of Rights and the performance of financial advisory and marketing
services for the Fund contemplated by this Agreement.
(d) In rendering the services contemplated by this Agreement,
the Dealer Manager will not be subject to any liability to the Fund or the
Investment Manager or any of their affiliates, for any act or omission on the
part of any soliciting broker or dealer (except with respect to the Dealer
Manager acting in such capacity) or any other person, and the Dealer Manager
will not be liable for acts or omissions in performing its obligations under
this Agreement, except for any losses, claims, damages, liabilities and expenses
that are finally judicially determined by a court of competent jurisdiction to
have resulted primarily from the bad faith, willful misconduct or gross
negligence of the Dealer Manager or by reason of the intentional failure to
12
perform substantially the obligations and duties of the Dealer Manager under
this Agreement.
3. DEALER MANAGER AND SOLICITATION FEES. In full payment for the
solicitation, financial advisory and marketing services rendered and to be
rendered hereunder by the Dealer Manager, the Fund agrees to pay the Dealer
Manager a fee (the "Dealer Manager Fee") equal to 3.75% of the aggregate
Subscription Price for the Shares issued pursuant to the exercise of Rights and
the Over-Subscription Privilege. In full payment for the soliciting efforts to
be rendered, the Dealer Manager agrees to reallow solicitation fees (the
"Solicitation Fees") to Soliciting Dealers equal to 2.50% of the Subscription
Price per Share for each Share issued pursuant to the exercise of Rights and the
Over-Subscription Privilege. The Dealer Manager agrees to reallow the
Solicitation Fees to the broker-dealer designated on the applicable portion of
the form used by the Holder to exercise Rights and the Over-Subscription
Privilege, provided that such broker-dealer has entered into a Soliciting Dealer
Agreement, and if no broker-dealer is so designated or a broker-dealer is
otherwise not entitled to receive compensation pursuant to the terms of the
Soliciting Dealer Agreement, then the Dealer Manager shall retain such
Solicitation Fees for Shares issued pursuant to the exercise of Rights and the
Over-Subscription Privilege. Payment to the Dealer Manager by the Fund will be
in the form of a wire transfer of same day funds to an account or accounts
identified by the Dealer Manager. Such payment will be made on each date on
which the Fund issues Shares after the Expiration Date. Payment to a Soliciting
Dealer will be made by the Dealer Manager directly to such Soliciting Dealer by
check to an address identified by such Soliciting Dealer. Such payments shall be
made on or before the tenth business day following the day of final payment for
Shares as set forth in the Prospectus.
4. OTHER AGREEMENTS.
(a) The Fund covenants with the Dealer Manager as follows:
(i) The Fund will use its best efforts to cause the
Registration Statement to become effective and to maintain
its effectiveness under the Securities Act, and will advise
the Dealer Manager promptly as to the time at which the
Registration Statement and any amendments thereto (including
any post-effective amendment) becomes so effective.
13
(ii) The Fund will notify, and confirm the notice in
writing to, the Dealer Manager immediately (A) of the
effectiveness of the Registration Statement and any
amendment thereto (including any post-effective amendment),
(B) of the receipt of any comments from the Commission, (C)
of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (D) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, and (E) of
the suspension of the qualification of the Shares or the
Rights for offering or sale in any jurisdiction. The Fund
will make every reasonable effort to prevent the issuance of
any stop order described in subsection (D) hereunder and, if
any such stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(iii) The Fund will give the Dealer Manager notice of
its intention to file any amendment to the Registration
Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any
revised prospectus which the Fund proposes for use by the
Dealer Manager in connection with the Offer, which differs
from the prospectus on file at the Commission at the time
the Registration Statement becomes effective, whether or not
such revised prospectus is required to be filed pursuant to
Rule 497(c), (e) or (h) of the Rules and Regulations),
whether pursuant to the Investment Company Act, the
Securities Act, or otherwise, and will furnish the Dealer
Manager with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such
amendment or supplement to which the Dealer Manager or
counsel for the Dealer Manager shall reasonably object.
(iv) The Fund will, without charge, deliver to the
Dealer Manager, as soon as practicable, the number of copies
(one of which is manually executed) of the Registration
Statement as originally filed and of each amendment thereto
as it may reasonably request, in each case with the exhibits
filed therewith.
14
(v) The Fund will, without charge, furnish to the
Dealer Manager, from time to time during the period when the
Prospectus is required to be delivered under the Securities
Act, such number of copies of the Prospectus (as amended or
supplemented) as the Dealer Manager may reasonably request
for the purposes contemplated by the Securities Act or the
Rules and Regulations.
(vi) If any event shall occur as a result of which it
is necessary, in the reasonable opinion of counsel for the
Dealer Manager, to amend or supplement the Registration
Statement or the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at
the time it is delivered to a Holder, the Fund will
forthwith amend or supplement the Prospectus by preparing
and filing with the Commission (and furnishing to the Dealer
Manager a reasonable number of copies of) an amendment or
amendments of the Registration Statement or an amendment or
amendments of or a supplement or supplements to the
Prospectus (in form and substance satisfactory to counsel
for the Dealer Manager), at the Fund's expense, which will
amend or supplement the Registration Statement or the
Prospectus so that the Prospectus will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances existing at the time the Prospectus is
delivered to a Holder, not misleading.
(vii) The Fund will cooperate in connection with the
Dealer Manager's and its counsel's endeavor to qualify the
Rights and the Shares for offering and sale under the
applicable securities laws of such states and other
jurisdictions of the United States as the Dealer Manager may
designate and cooperate in the maintenance of such
qualifications in effect for the duration of the Offer;
PROVIDED, HOWEVER, that the Fund will not be obligated to
file any general consent to service of process, or to
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not now so
qualified. The Fund will file such statements and reports as
may be required by the laws of each jurisdiction in which
15
the Rights and the Shares have been qualified as above
provided.
(viii) The Fund will make generally available to its
security holders as soon as practicable, but no later than
60 days after the end of the Fund's fiscal semi-annual or
fiscal year-end period covered thereby, an earnings
statement (which need not be audited) (in form complying
with the provisions of Rule 158 of the Rules and Regulations
of the Securities Act) covering a twelve-month period
beginning not later than the first day of the Fund's fiscal
semi-annual period next following the "effective" date (as
defined in said Rule 158) of the Registration Statement.
(ix) For a period of 180 days from the date of this
Agreement, the Fund will not, without the prior consent of
the Dealer Manager, which consent will not be unreasonably
withheld, offer or sell, or enter into any agreement to
sell, any equity or equity related securities of the Fund or
securities convertible into such securities, other than the
Rights and the Shares and the Common Shares issued in
reinvestment of dividends or distributions.
(x) The Fund will use the net proceeds from the Offer
as set forth under "Use of Proceeds" in the Prospectus.
(xi) The Fund will use its best efforts to cause the
Shares to be duly authorized for listing by the New York
Stock Exchange prior to the time the Shares are issued.
(xii) The Fund will use its best efforts to maintain
its qualification as a regulated investment company under
Subchapter M of the Code.
(xiii) The Fund will advise or cause the Subscription
Agent to advise the Dealer Manager and each Soliciting
Dealer from day to day during the period of, and promptly
after the termination of, the Offer, as to the names and
addresses of all Holders exercising Rights, the total number
of Rights exercised by each Holder during the immediately
preceding day, indicating the total number of Rights
16
verified to be in proper form for exercise, rejected for
exercise and being processed and, for the Dealer Manager and
each Soliciting Dealer, the number of Rights exercised on
subscription certificates indicating the Dealer Manager or
such Soliciting Dealer, as the case may be, as the
broker-dealer with respect to such exercise, and as to such
other information as the Dealer Manager may reasonably
request; and will notify the Dealer Manager and each
Soliciting Dealer, not later than 5:00 P.M., New York City
time, on the first business day following the Expiration
Date, of the total number of Rights exercised and Shares
related thereto, the total number of Rights verified to be
in proper form for exercise, rejected for exercise and being
processed and, for the Dealer Manager and each Soliciting
Dealer, the number of Rights exercised on subscription
certificates indicating the Dealer Manager or such
Soliciting Dealer, as the case may be, as the broker-dealer
with respect to such exercise, and as to such other
information as the Dealer Manager may reasonably request.
(b) Neither of the Fund nor the Investment Manager will take,
directly or indirectly, any action designed to cause or to result in, or that
has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Fund to
facilitate the issuance of the Rights or the sale or resale of the Shares;
PROVIDED that any action in connection with the Fund's dividend reinvestment and
cash purchase plan will not be deemed to be within the meaning of this Section
4(b).
5. PAYMENT OF EXPENSES.
(a) The Fund will pay all expenses incident to the performance
of its obligations under this Agreement, including, but not limited to, expenses
relating to (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Shares and subscription certificates
relating to the Rights, (iii) the fees and disbursements of the Fund's counsel
(including the fees and disbursements of local counsel) and accountants, (iv)
the qualification of the Rights and the Shares under securities laws in
accordance with the provisions of Section 4(a)(vii) of this Agreement, including
17
filing fees, (v) the printing or other production and delivery to the Dealer
Manager of copies of the Registration Statement as originally filed and of each
amendment thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the fees and expenses incurred with respect to filing with the
National Association of Securities Dealers, Inc., (vii) the fees and expenses
incurred in connection with the listing of the Shares on the New York Stock
Exchange, (viii) the printing or other production, mailing and delivery expenses
incurred in connection with Offering Materials and (ix) the fees and expenses
incurred with respect to the Subscription Agent and Information Agent.
(b) In addition to any fees that may be payable to the Dealer
Manager under this Agreement, the Fund agrees to reimburse the Dealer Manager
upon request made from time to time for its reasonable expenses incurred in
connection with its activities under this Agreement, including the reasonable
fees and disbursements of its legal counsel (excluding Blue Sky filing fees
which are paid directly by the Fund), in an amount up to $100,000.
(c) If this Agreement is terminated by the Dealer Manager in
accordance with the provisions of Section 6 or Section 9(a)(i), 9(a)(ii) or
9(a)(iii), the Fund agrees to reimburse the Dealer Manager for all of its
reasonable out-of-pocket expenses incurred in connection with its performance
hereunder, including the reasonable fees and disbursements of counsel for the
Dealer Manager. In the event the transactions contemplated hereunder are not
consummated, the Fund agrees to pay all of the costs and expenses set forth in
paragraphs (a) and (b) of this Section 5 which the Fund would have paid if such
transactions had been consummated.
6. CONDITIONS OF THE DEALER MANAGER'S OBLIGATIONS. The obligations
of the Dealer Manager hereunder are subject to the accuracy of the respective
representations and warranties of the Fund and the Investment Manager contained
herein, to the performance by the Fund and the Investment Manager of their
respective obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York City time, on the Record Date, or at such later
time and date as may be approved by the Dealer Manager; the Prospectus and any
amendment or supplement thereto shall have been filed with the Commission in the
manner and within the time period required by Rule 497(c), (e), (h) or (j), as
18
the case may be, under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto shall have
been issued, and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Fund, the Investment Manager or the
Dealer Manager, shall be contemplated by the Commission; and the Fund shall have
complied with any request of the Commission for additional information (to be
included in the Registration Statement, the Prospectus or otherwise).
(b) On the Representation Date and the Expiration Date, the
Dealer Manager shall have received:
(1) The favorable opinions, dated the
Representation Date and the Expiration Date, of
Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for the Fund, in
form and substance satisfactory to counsel for the
Dealer Manager to the effect that:
(i) the Fund has been duly organized and is
validly existing as a business trust under the laws of
the Commonwealth of Massachusetts, has full power and
authority (corporate and other) to own its properties
and to conduct its business as described in the
Registration Statement and the Prospectus, currently
maintains, to the best knowledge of such counsel, all
Licenses and Permits necessary to carry on its business
as contemplated in the Prospectus (except that counsel
need express no opinion as to securities or "blue sky"
laws of any state), and is duly qualified to do
business in each jurisdiction wherein it owns or leases
real property or in which the conduct of its business
requires such qualification, except where the failure
to be so qualified would not result in a material
adverse change to the Fund's business, properties,
financial position or results of operations.
(ii) the Fund is duly registered with the
Commission under the Investment Company Act as a
closed-end, diversified management investment company,
no order of suspension or revocation of such
registration has been issued or proceedings therefor
initiated or, to the best of knowledge of such counsel,
threatened by the Commission, all required action has
been taken under the Securities Act and the Investment
19
Company Act to make the public offering and consummate
the issuance of the Rights and the issuance and sale of
the Shares by the Fund upon exercise of the Rights, and
the provisions of the Fund's declaration of trust and
by laws comply as to form in all material respects with
the requirements of the Investment Company Act and the
rules and regulations thereunder.
(iii) the Fund's authorized capitalization is as
set forth in the Prospectus; the outstanding Common
Shares have been duly authorized and are validly
issued, fully paid and non-assessable and conform in
all material respects to the description thereof in the
Prospectus under the heading "Description of Shares of
Beneficial Interest"; the Rights have been duly
authorized by all requisite action on the part of the
Fund for issuance pursuant to the Offer; the Shares
have been duly authorized by all requisite action on
the part of the Fund for issuance and sale pursuant to
the terms of the Offer and, when issued and delivered
by the Fund pursuant to the terms of the Offer against
payment of the consideration set forth in the
Prospectus, will be validly issued, fully paid and
non-assessable; the Shares and the Rights conform in
all material respects to all statements relating
thereto contained in the Registration Statement, the
Prospectus and the other Offering Materials; and the
issuance of each of the Rights and the Shares is not
subject to any preemptive rights.
(iv) there is no pending or, to the best knowledge
of such counsel, threatened action, suit or proceeding
affecting the Fund or to which the Fund is a party
before or by any court or governmental agency,
authority or body or any arbitrator which might result
in any material adverse change in the condition
(financial or other), business prospects, net worth or
results of operations of the Fund, or which might
materially and adversely affect the properties or
assets thereof of a character required to be disclosed
in the Registration Statement or the Prospectus.
(v) there are no franchises, contracts or other
documents of the Fund required to be described in the
20
Registration Statement or the Prospectus, or to be
filed or incorporated by reference as exhibits which
are not described or filed or incorporated by reference
therein as permitted by the Securities Act, the
Investment Company Act or the Rules and Regulations.
(vi) each of the Fund Agreements has been duly
authorized, executed and delivered by the Fund;
complies with all applicable provisions of the
Investment Company Act and the Advisers Act and the
rules and regulations under such Acts; and, assuming
due authorization, execution and delivery by the other
parties thereto, each of the Fund Agreements
constitutes a legal, valid, binding and enforceable
obligation of the Fund, subject to the qualification
that the enforceability of the Fund's obligations
thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of
general applicability relating to or affecting
creditors' rights and general principles of equity.
(vii) neither the issuance of the Rights, nor the
issuance and sale of the Shares, nor the execution and
delivery by the Fund of the Fund Agreements, nor the
performance and consummation by the Fund of any other
of the transactions contemplated in the Fund
Agreements, nor the consummation of the transactions
contemplated therein or in the Registration Statement
nor the fulfillment of the terms thereof will conflict
with, result in a material breach or material violation
of, or constitute a default or a material event of
default under, or result in the creation or imposition
of any material lien, charge or encumbrance upon any
properties or assets of the Fund under the declaration
of trust or bylaws of the Fund or the terms and
provisions of any material agreement, indenture,
mortgage, lease or other instrument to which the Fund
is a party or by which it may be bound or to which any
of the property or assets of the Fund is subject, nor
will such action result in any material violation of
any order, law, rule or regulation of any court or
governmental agency or body having jurisdiction over
the Fund or any of its properties.
(viii) no consent, approval, authorization,
notification or order of, or filing with, any court or
21
governmental agency or body is required for the
consummation by the Fund of the transactions
contemplated by the Fund Agreements or the Registration
Statement, except (A) such as have been obtained and
(B) such as may be required under the blue sky laws of
any jurisdiction in connection with the transactions
contemplated hereby.
(ix) the Common Shares have been duly listed on
the New York Stock Exchange and the Shares have been
duly approved for listing, subject to official notice
of issuance, on the New York Stock Exchange.
(x) the Registration Statement is effective under
the Securities Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule
497(c), (e), (h) or (j) required to be made to the date
hereof has been made in the manner and within the time
period required by Rule 497(c), (e), (h) or (j), as the
case may be; 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 best knowledge of such counsel, threatened; and
the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (other than the
financial statements, schedules, the notes thereto and
the schedules and other financial, economic and
statistical data contained or incorporated by reference
therein or omitted therefrom, as to which such counsel
need express no opinion) as to their respective
effective or issue dates comply as to form in all
material respects with the applicable requirements of
the Securities Act and the Investment Company Act and
the Rules and Regulations.
(xi) the statements in the Prospectus under the
headings "THE OFFER-Certain Federal Income Tax
Consequences of the Offer" and "FEDERAL TAXATION OF THE
FUND AND ITS SHAREHOLDERS" fairly present the
information disclosed therein in all material respects.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Fund, the Investment Manager and public officials.
22
Such counsel shall also have stated that, while they have not
themselves checked the accuracy and completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, in the course of their review and discussion of the contents of the
Registration Statement and Prospectus with certain officers and employees of the
Fund and its independent accountants, no facts have come to their attention
which cause them to believe that the Registration Statement, on the date it
became effective, 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 contained therein not misleading or that the Prospectus, as of
its date and on the Representation Date or the Expiration Date, as the case may
be, 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, in the light of the circumstances under which they were made, not
misleading (except that such counsel need not express any statement of belief
with respect to the financial statements, schedules or other financial or
statistical data included in or incorporated by reference in the Registration
Statement, Prospectus or the Offering Materials).
(2) The favorable opinions, dated the
Representation Date and the Expiration Date, of Xxxx X.
Xxxxx, Esq., counsel for the Investment Manager, to the
effect that:
(i) the Investment Manager has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the State of
Delaware, has full power and authority (corporate and
other) to own its properties and to conduct its
business as described in the Registration Statement and
the Prospectus, currently maintains all governmental
licenses, permits, consents, orders, approvals and
other authorizations necessary to carry on its business
and to enable the Investment Manager to continue to
supervise investments in securities as contemplated in
the Prospectus, and is duly qualified to do business as
a foreign corporation in each jurisdiction wherein it
owns or leases real property or in which the conduct of
its business requires such qualification, except where
23
the failure to be so qualified would not result in a
material adverse change to the Investment Manager's
business, properties, financial position or results of
operations.
(ii) the Investment Manager is duly registered as
an investment adviser under the Advisers Act and is not
prohibited by the Investment Company Act or the
Advisers Act, or the rules and regulations under such
Acts, from acting as an investment adviser for the Fund
as contemplated in the Prospectus and the Management
Agreement.
(iii) each of this Agreement and the Management
Agreement has been duly authorized, executed and
delivered by the Investment Manager, complies with all
applicable provisions of the Investment Company Act and
the Advisers Act and the rules and regulations under
such Acts and is, assuming due authorization, execution
and delivery by the other parties thereto, a legal,
valid, binding and enforceable obligation of the
Investment Manager, subject to the qualification that
the enforceability of the Investment Manager's
obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other
similar laws of general applicability relating to or
affecting creditors' rights and to general principles
of equity.
(iv) neither the execution nor delivery by the
Investment Manager of this Agreement or the Management
Agreement, nor the performance and consummation by the
Investment Manager of its obligations under this
Agreement or the Management Agreement, nor the
consummation of the transactions contemplated therein
or in the Registration Statement nor the fulfillment of
the terms thereof will materially conflict with, result
in a material breach or material violation of, or
constitute a default or an event of default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of
the Investment Manager under the charter or bylaws of
the Investment Manager or the terms and provisions of
any material agreement, indenture, mortgage, lease or
24
other instrument to which the Investment Manager is a
party or by which it may be bound or to which any of
the property or assets of the Investment Manager is
subject, nor will such action result in any violation
of any order, law, rule or regulation of any court or
governmental agency or body having jurisdiction over
the Investment Manager or any of its properties.
(v) there is no pending or, to the best knowledge
of such counsel, threatened action, suit or proceeding
affecting the Investment Manager or to which the
Investment Manager is a party before or by any court or
governmental agency, authority or body or any
arbitrator which might result in any material adverse
change in the Investment Manager's condition (financial
or other), business prospects, net worth or results of
operations or which might materially and adversely
affect the properties or assets thereof of a character
required to be disclosed in the Registration Statement
or Prospectus.
(vi) no consent, approval, authorization,
notification or order of, or any filing with, any court
or governmental agency or body is required for the
consummation by the Investment Manager of the
transactions contemplated by this Agreement or the
Management Agreement.
(vii) nothing has come to such counsel's attention
that would lead them to believe that the description of
the Investment Manager in the Registration Statement,
on the date it became effective, 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 contained therein not
misleading.
(viii) nothing has come to such counsel's attention
that would lead them to believe that the description of
the Investment Manager in the Prospectus, as of its
date and on the Representation Date or the Expiration
Date, as the case may be, 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, in the light
of the circumstances under which they were made, not
misleading.
25
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Investment Manager and public officials.
Such counsel shall also have stated that, while they have not
themselves checked the accuracy and completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, in the course of their review and discussion of the contents of the
Registration Statement and Prospectus with certain officers and employees of the
Fund, the Investment Manager and their affiliates, no facts have come to their
attention which cause them to believe that the Registration Statement, on the
date it became effective, 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 contained therein not misleading or that the Prospectus, as
of its date and on the Representation Date or the Expiration Date, as the case
may be, 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, in the light of the circumstances under which they were
made, not misleading.
(c) The Dealer Manager shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx (Illinois), counsel for the Dealer Manager, such opinion
or opinions, dated the Representation Date and the Expiration Date, with respect
to the Offer, the Registration Statement, the Prospectus and other related
matters as the Dealer Manager may reasonably require, and the Fund and the
Investment Manager shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Fund shall have furnished to the Dealer Manager
certificates of the Fund, signed by the President, the Treasurer, the Secretary,
or a Vice President of the Fund, dated the Representation Date and the
Expiration Date, to the effect that the signer(s) of such certificate carefully
examined the Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that, to the best knowledge of such signer(s):
(i) the representations and warranties of the Fund in
this Agreement are true and correct in all material respects
26
on and as of the Representation Date or the Expiration Date,
as the case may be, with the same effect as if made on the
Representation Date or the Expiration Date, as the case may
be, and the Fund has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Representation Date or the
Expiration Date, as the case may be;
(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
knowledge, threatened; and
(iii) since the date of the most recent balance sheet
included or incorporated by reference in the Prospectus,
there has been no material adverse change in the condition
(financial or other), earnings, business, prospects, net
worth or results of operations of the Fund (excluding
fluctuations in the Fund's net asset value due to investment
activities in the ordinary course of business), except as
set forth in or contemplated in the Prospectus.
(e) The Investment Manager shall have furnished to the Dealer
Manager certificates of the Investment Manager, signed by the President, the
Treasurer, the Secretary or a Vice President of the Investment Manager, dated
the Representation Date and the Expiration Date, to the effect that the
signer(s) of such certificates has read the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and, to the best
knowledge of such signer(s), the representations and warranties of the
Investment Manager in this Agreement are true and correct in all material
respects on and as of the Representation Date or the Expiration Date, as the
case may be, with the same effect as if made on the Representation Date or the
Expiration Date, as the case may be.
(f) PricewaterhouseCoopers LLP shall have furnished to the
Dealer Manager letters, dated the Representation Date and the Expiration Date,
in form and substance satisfactory to the Dealer Manager, stating in effect
that:
(i) they are independent accountants with respect to
the Fund within the meaning of the Securities Act, the
Investment Company Act and the Rules and Regulations;
27
(ii) in their opinion, the audited financial statements
examined by them and included or incorporated by reference
in the Registration Statement comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the Investment
Company Act and the respective Rules and Regulations with
respect to registration statements on Form N-2;
(iii) they have performed specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, including a reading of the latest
available unaudited financial information of the Fund, a
reading of the minute books of the Fund, and inquiries of
officials of the Fund responsible for financial and
accounting matters and on the basis of such inquiries and
procedures nothing came to their attention that caused them
to believe that at a specified date not more than five
business days prior to the Representation Date or the
Expiration Date, as the case may be, there was any change in
the Common Shares, any decrease in net assets or any
increase in long-term debt of the Fund as compared with
amounts shown in the most recent statement of assets and
liabilities included or incorporated by reference in the
Registration Statement, except as the Registration Statement
discloses has occurred or may occur, or they shall state any
specific changes, increases or decreases;
(iv) in addition to the procedures referred to in
clause (iii) above, they have compared certain dollar
amounts (or percentages as derived from such dollar amounts)
and other financial information regarding the operations of
the Fund appearing in the Registration Statement, which have
previously been specified by the Dealer Manager and which
shall be specified in such letter, and have found such items
to be in agreement with the accounting and financial records
of the Fund.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been (i) any change, increase or decrease specified in the letter or letters
28
referred to in paragraph (f) of this Section 6, or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Fund, the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the reasonable judgment of the Dealer Manager, so
material and adverse as to make it impractical or inadvisable to proceed with
the Offer as contemplated by the Registration Statement and the Prospectus.
(h) Prior to the Representation Date, the Fund and the
Investment Manager shall have furnished to the Dealer Manager such further
information, certificates and documents as the Dealer Manager may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
or waived by the Dealer Manager, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects satisfactory in form and substance to the Dealer Manager and its
counsel, this Agreement and all obligations of the Dealer Manager hereunder may
be canceled at, or at any time prior to, the Expiration Date by the Dealer
Manager. Notice of such cancellation shall be given to the Fund in writing or by
telephone confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Fund and the Manager, jointly and severally,
will indemnify and hold harmless the Dealer Manager, the directors, officers,
employees and agents of the Dealer Manager and each person, if any, who controls
the Dealer Manager within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any and all amounts paid in settlement of, any action, suit or proceeding
between any of the indemnified parties and any indemnifying parties or between
any indemnified party and any third party, or otherwise, or any claim asserted),
as and when incurred to which the Dealer Manager, or any such person, may become
subject under the Securities Act, the Exchange Act, the Investment Company Act,
the Advisers Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
29
Prospectus or Offering Materials, or any amendment or supplement to the
Registration Statement, the Prospectus or Offering Materials, or in any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Registration Statement, the Prospectus, or in any application
or other document executed by or on behalf of the Fund or based on written
information furnished by or on behalf of the Fund filed with the Commission,
(ii) the omission or alleged omission to state in such document a material fact
required to be stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by the Dealer Manager in connection with, or relating in any manner to, the
Rights or the Shares or the offering contemplated hereby, and which is included
as part of or referred to in any loss, claim, liability, expense or damage
arising out of or based upon matters covered by clause (i) or (ii) above
(provided that neither the Fund nor the Manager shall be liable under this
clause (iii) to the extent it is finally judicially determined by a court of
competent jurisdiction that such loss, claim, liability, expense or damage
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Dealer Manager through its bad faith, willful misconduct, gross
negligence or intentional failure to perform substantially the obligations and
duties of the Dealer Manager under this Agreement); provided that neither the
Fund nor the Manager will be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Shares in the public
offering to any person by the Dealer Manager and is based on an untrue statement
or omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to the Dealer Manager furnished in writing
to the Fund by the Dealer Manager expressly for inclusion in the Registration
Statement or the Prospectus. This indemnity agreement will be in addition to any
liability that the Fund or the Manager might otherwise have.
(b) The Dealer Manager will indemnify and hold harmless the
Fund and the Investment Manager, each person, if any, who controls the Fund or
the Investment Manager within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each trustee of the Fund and each officer of the
Fund who signs the Registration Statement to the same extent as the foregoing
indemnity from the Fund or the Manager to the Dealer Manager, but only insofar
as losses, claims, liabilities, expenses or damages arise out of or are based on
any untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to the Dealer Manager
30
furnished in writing to the Fund by the Dealer Manager expressly for use in the
Registration Statement or Prospectus, such information being as set forth in
Section 7(h) hereof. This indemnity will be in addition to any liability that
the Dealer Manager might otherwise have; provided, however, that in no case
shall the Dealer Manager be liable or responsible for any amount in excess of
the fees and commissions received by the Dealer Manager.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 7, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provision of this Section 7 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
disbursements and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on the advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party (3) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
31
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 7 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding. Notwithstanding any
other provision of this Section 7(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for
fees, disbursements and other charges of counsel, such indemnifying party agrees
that it shall be liable for any settlement effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraph of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Fund, the Investment Manager or
the Dealer Manager, the Fund, the Investment Manager and the Dealer Manager will
32
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Fund and the Investment Manager from persons other than the Dealer
Manager, such as persons who control the Fund or the Investment Manager within
the meaning of the Securities Act or the Exchange Act, officers of the Fund who
signed the Registration Statement and trustees of the Fund, who may also be
liable for contribution) to which the Fund, the Investment Manager and the
Dealer Manager may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Fund and the Investment Manager on
the one hand and the Dealer Manager on the other. The relative benefits received
by the Fund and the Investment Manager (treated jointly for this purpose as one
person) on the one hand and the Dealer Manager on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the Offering (before
deducting expenses) received by the Fund bear to the total fees received by the
Dealer Manager, in each case as set forth on the cover page of the Prospectus.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only such relative benefits
referred to in the foregoing sentence but also the relative fault of the Fund
and the Investment Manager (treated jointly for this purpose as one person) on
the one hand and the Dealer Manager on the other hand with respect to the
statements or omissions which resulted in such loss, claim, liability, expense
or damage in respect thereof, as well as any other relevant equitable
considerations with respect to the Offering. Such relative fault of the parties
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund, the Investment
Manager or the Dealer Manager, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Fund, the Investment Manager and the Dealer Manager
agree that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 7(d) shall be deemed to include, for
33
purposes of this Section 7(d) any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(d), the Dealer
Manager shall not be required to contribute any amount in excess of the fees
received by it and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7(d), any person who controls a
party to this Agreement within the meaning of the Securities Act will have the
same rights to contribution as that party, and each trustee of the Fund and each
officer of the Fund who signed the Registration Statement will have the same
rights to contribution as the Fund, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 7(d), will notify such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7(d). Except for a
settlement entered into pursuant to the last sentence of Section 7(c) hereof, no
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent shall not be unreasonably
withheld).
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Fund and the
Investment Manager contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of the Dealer Manager, (ii) acceptance of Shares and payment therefore or (iii)
any termination of this Agreement.
(f) Notwithstanding any other provisions in this Section 7, no
party shall be entitled to indemnification or contribution under this Agreement
against any loss, claim, liability, expense or damage arising by reason of such
person's willful misfeasance, bad faith or gross negligence in the performance
of its duties hereunder, or by reason of such person's intentional failure to
perform such person's obligations and duties hereunder.
(g) The Fund and the Investment Manager agree to indemnify
each Soliciting Dealer and controlling persons to the same extent and subject to
34
the same conditions and to the same agreements, including with respect to
contribution, provided for in subsections 7(a), 7(b), 7(c), 7(d), 7(e), and
7(f).
(h) The Fund and the Investment Manager acknowledge that the
statements under the caption "THE OFFER-Distribution Arrangements" in the
Prospectus constitute the only information furnished in writing to the Fund by
the Dealer Manager expressly for use in such document, and the Dealer Manager
confirms that such statements are correct in all material respects.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The respective agreements, representations, warranties, indemnities and other
statements of the Fund or its officers, of the Investment Manager and of the
Dealer Manager set forth in or made pursuant to this Agreement shall survive the
Expiration Date and will remain in full force and effect, regardless of any
investigation made by or on behalf of Dealer Manager or the Fund or any of the
officers, directors or controlling persons referred to in Section 7 hereof, and
will survive delivery of and payment for the Shares pursuant to the Offer. The
provisions of Sections 5 and 7 hereof shall survive the termination or
cancellation of this Agreement.
9. TERMINATION OF AGREEMENT.
(a) This Agreement shall be subject to termination in the
absolute discretion of the Dealer Manager, by notice given to the Fund prior to
the expiration of the Offer, if prior to such time (i) financial, political,
economic, currency, banking or social conditions in the United States shall have
undergone any material change the effect of which on the financial markets makes
it, in the Dealer Manager's judgment, impracticable or inadvisable to proceed
with the Offer, (ii) there has occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the Dealer Manager's
judgment, impracticable or inadvisable to proceed with the Offer, (iii) trading
in the Common Shares shall have been suspended by the Commission or the New York
Stock Exchange, (iv) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or (v) a banking moratorium shall
have been declared either by Federal or New York State authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 5.
35
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Dealer Manager, will be mailed,
delivered or telegraphed and confirmed to PaineWebber Incorporated, Attn:
Corporate Finance Department, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000; or if sent to the Fund or the Investment Manager will be mailed, or
delivered or telegraphed and confirmed to them at: INVESCO Funds Group Inc.,
Attn. Xxxx Xxxxx, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Facsimile No.:
(000) 000-0000.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and will inure
to the benefit of the officers and directors and controlling persons referred to
in Section 7 hereof, and no other person will have any right or obligation
hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. LIMITATION OF LIABILITY. Consistent with the Fund's Declaration
of Trust, notice is hereby given and the parties hereto acknowledge and agree
that this Agreement is executed on behalf of the Trustees of the Fund as
Trustees and not individually and that the obligations of the Fund under this
Agreement are not binding upon any of the Trustees or shareholders of the Fund
individually but are binding only against the assets and property of the Fund.
36
If the foregoing is in accordance with your understanding of our
agreement, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Fund, the
Investment Manager and the Dealer Manager.
Very truly yours,
INVESCO GLOBAL HEALTH SCIENCES FUND
By: ____________________________________
Name:
Title:
INVESCO FUNDS GROUP, INC.
By: ____________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PAINEWEBBER INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
EXHIBIT A
INVESCO GLOBAL HEALTH SCIENCES FUND
Rights Offering for Shares of Beneficial Interest
SOLICITING DEALER AGREEMENT
THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
June 18, 1999. UNLESS EXTENDED
To Securities Dealers and Brokers:
INVESCO Global Health Sciences Fund (the "Fund") is issuing to its
shareholders of record ("Record Date Shareholders") as of the close of business
on May 25, 1999 (the "Record Date") non-transferable rights ("Rights") to
subscribe for an aggregate of up to 6,081,223 shares (the "Shares") of
beneficial interest, par value $0.01 per share (the "Common Shares"), of the
Fund upon the terms and subject to the conditions set forth in the Fund's
Prospectus (the "Prospectus") dated May 25, 1999 (the "Offer"). Each such Record
Date Shareholder is being issued one Right for each five full Common Shares
owned on the Record Date. The Rights entitle the Record Date Shareholder, during
the Subscription Period (as hereinafter defined) to acquire at the Subscription
Price (as hereinafter defined), one Share for each Right held in the primary
subscription. No fractional Shares will be issued. The Subscription Price will
be __________________. The Subscription Period will commence on May 25, 1999 and
end on the Expiration Date. (With respect to the Offer, the term "Expiration
Date" means 5:00 p.m., New York City time, on June 18, 1999, unless and until
the Fund shall, in its sole discretion, have extended the period for which the
Offer is open, in which event the term "Expiration Date" with respect to the
Offer will mean the latest time and date on which the Offer, as so extended by
the Fund, will expire.) Any Record Date Shareholder who fully exercises all
Rights issued to such shareholder (other than those Rights that cannot be
exercised because they represent the right to acquire less than one Share) is
entitled to subscribe for Shares which were not otherwise subscribed for by
others on primary subscription (the "Over-Subscription Privilege"). Shares
acquired pursuant to the Over-Subscription Privilege are subject to allocation,
as more fully discussed in the Prospectus.
For the duration of the Offer, the Fund has authorized and the
Dealer Manager has agreed to reallow Solicitation Fee to any qualified broker or
dealer executing a Soliciting Dealer Agreement who solicits the exercise of
Rights and the Over-Subscription Privilege in connection with the Offer and who
complies with the procedures described below (a "Soliciting Dealer"). Upon
timely delivery to EquiServe, Inc., the Fund's Subscription Agent for the Offer,
of payment for Shares purchased pursuant to the exercise of Rights and the
Over-Subscription Privilege and of properly completed and executed documentation
as set forth in this Soliciting Dealer Agreement, a Soliciting Dealer will be
entitled to receive the Solicitation Fee equal to 2.50% of the Subscription
Price per Share so purchased; provided, however, that no payment shall be due
with respect to the issuance of any Shares until payment therefor is actually
received. A qualified broker or dealer is a broker or dealer which is a member
of a registered national securities exchange in the United States or the
National Association of Securities Dealers, Inc. ("NASD") or any foreign broker
or dealer not eligible for membership who agrees to conform to the Rules of Fair
Practice of the NASD, including Sections 2730, 2740, 2420 and 2750 thereof, in
making solicitations in the United States to the same extent as if it were a
member thereof.
The Fund has authorized and the Dealer Manager has agreed to reallow
Solicitation Fee payable to the undersigned Soliciting Dealer and the Fund has
agreed to indemnify such Soliciting Dealer on the terms set forth in the Dealer
Manager Agreement, dated May 25, 1999, among PaineWebber Incorporated as the
dealer manager (the "Dealer Manager"), the Fund and others (the "Dealer Manager
Agreement"). Solicitation and other activities by Soliciting Dealers may be
undertaken only in accordance with the applicable rules and regulations of the
Securities and Exchange Commission and only in those states and other
jurisdictions where such solicitations and other activities may lawfully be
undertaken and in accordance with the laws thereof. Compensation will not be
paid for solicitations in any state or other jurisdiction in which the opinion
of counsel to the Fund or counsel to the Dealer Manager, such compensation may
not lawfully be paid. No Soliciting Dealer shall be paid Solicitation Fees with
respect to Shares purchased pursuant to an exercise of Rights and the
Over-Subscription Privilege for its own account or for the account of any
affiliate of the Soliciting Dealer, except that the Dealer Manager shall receive
the Solicitation Fees with respect to Shares purchased pursuant to an exercise
of Rights and the Over-Subscription Privilege for its own account provided that
such Shares are offered and sold by the Dealer Manager to its clients. No
Soliciting Dealer or any other person is authorized by the Fund or the Dealer
Manager to give any information or make any representations in connection with
the Offer other than those contained in the Prospectus and other authorized
A-2
solicitation material furnished by the Fund through the Dealer Manager. No
Soliciting Dealer is authorized to act as agent of the Fund or the Dealer
Manager in any connection or transaction. In addition, nothing herein contained
shall constitute the Soliciting Dealers partners with the Dealer Manager or with
one another, or agents of the Dealer Manager or of the Fund, or create any
association between such parties, or shall render the Dealer Manager or the Fund
liable for the obligations of any Soliciting Dealer. The Dealer Manager shall be
under no liability to make any payment to any Soliciting Dealer, and shall be
subject to no other liabilities to any Soliciting Dealer, and no obligations of
any sort shall be implied.
In order for a Soliciting Dealer to receive Solicitation Fees, the
Subscription Agent must have received from such Soliciting Dealer no later than
5:00 p.m., New York City time, on the Expiration Date, either (i) a properly
completed and duly executed Subscription Certificate with respect to Shares
purchased pursuant to the exercise of Rights and the Over-Subscription Privilege
and full payment for such Shares; or (ii) a Notice of Guaranteed Delivery
guaranteeing delivery to the Subscription Agent by close of business on the
third business day after the Expiration Date, of (a) full payment for such
Shares and (b) a properly completed and duly executed Subscription Certificate
with respect to Shares purchased pursuant to the exercise of Rights.
Solicitation Fees will only be paid after receipt by the Subscription Agent of a
properly completed and duly executed Soliciting Dealer Agreement and a
Subscription Certificate designating the Soliciting Dealer in the applicable
portion hereof. In the case of a Notice of Guaranteed Delivery, Solicitation
Fees will only be paid after delivery in accordance with such Notice of
Guaranteed Delivery has been effected. Solicitation Fees will be paid by the
Dealer Manager (through the Subscription Agent) to the Soliciting Dealer by
check to an address designated by the Soliciting Dealer below on or before the
tenth business day following the day of final payment for Shares as set forth in
the Prospectus.
All questions as to the form, validity and eligibility (including
time of receipt) of this Soliciting Dealer Agreement will be determined by the
Fund, in its sole discretion, which determination shall be final and binding.
Unless waived, any irregularities in connection with a Soliciting Dealer
Agreement or delivery thereof must be cured within such time as the Fund shall
determine. None of the Fund, the Dealer Manager, the Subscription Agent, the
Information Agent for the Offer, Shareholder Communications Corp., or any other
person will be under any duty to give notification of any defects or
irregularities in any Soliciting Dealer Agreement or incur any liability for
failure to give such notification.
A-3
The acceptance of Solicitation Fees from the Fund by the undersigned
Soliciting Dealer shall constitute a representation by such Soliciting Dealer to
the Fund that: (i) it has received and reviewed the Prospectus; (ii) in
soliciting purchases of Shares pursuant to the exercise of the Rights and the
Over-Subscription Privilege, it has complied with the applicable requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
applicable rules and regulations thereunder, any applicable securities laws of
any state or jurisdiction where such solicitations were made, and the applicable
rules and regulations of any self-regulatory organization or registered national
securities exchange; (iii) in soliciting purchases of Shares pursuant to the
exercise of the Rights and the Over-Subscription Privilege, it has not
published, circulated or used any soliciting materials other than the Prospectus
and any other authorized solicitation material furnished by the Fund through the
Dealer Manager; (iv) it has not purported to act as agent of the Fund or the
Dealer Manager in any connection or transaction relating to the Offer; (v) the
information contained in this Soliciting Dealer Agreement is, to its best
knowledge, true and complete; (vi) it is not affiliated with the Fund; (vii) it
will not accept Solicitation Fees paid by the Fund pursuant to the terms hereof
with respect to Shares purchased by the Soliciting Dealer pursuant to an
exercise of Rights and the Over-Subscription Privilege for its own account;
(viii) it will not remit, directly or indirectly, any part of Solicitation Fees
paid by the Fund pursuant to the terms hereof to any beneficial owner of Shares
purchased pursuant to the Offer; (ix) it has agreed to the amount of the
Solicitation Fees and the terms and conditions set forth herein with respect to
receiving such Solicitation Fees, and (x) it will not engage in short sales of
the Common Shares during the Offering Period. By returning a Soliciting Dealer
Agreement and accepting Solicitation Fees, a Soliciting Dealer will be deemed to
have agreed to indemnify the Fund and the Dealer Manager against losses, claims,
damages and liabilities to which the Fund may become subject as a result of the
breach of such Soliciting Dealer's representations made herein and described
above. In making the foregoing representations, Soliciting Dealers are reminded
of the possible applicability of the antimanipulation rules under the Exchange
Act if they have bought, sold, dealt in or traded in any Shares for their own
account since the commencement of the Offer.
Upon expiration of the Offer, no Solicitation Fees will be payable
to Soliciting Dealers with respect to Xxxxxx purchased thereafter.
A-4
Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Dealer Manager Agreement or, if not defined
therein, in the Prospectus.
This Soliciting Dealer Agreement will be governed by the laws of the
State of New York.
Please execute this Soliciting Dealer Agreement below accepting the
terms and conditions hereof and confirming that you are a member firm of the
NASD or a foreign broker or dealer not eligible for membership who has conformed
to the Rules of Fair Practice of the NASD, including Sections 2730, 2740, 2420
and 2750 thereof, in making solicitations of the type being undertaken pursuant
to the Offer in the United States to the same extent as if you were a member
thereof, and certifying that you have solicited the purchase of the Shares
pursuant to exercise of the Rights, all as described above, in accordance with
the terms and conditions set forth in this Soliciting Dealer Agreement. Please
forward two executed copies of this Soliciting Dealer Agreement to PaineWebber
Incorporated, Attn: Xxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000; (Tel. No.: (000) 000-0000 Facsimile No.: (000) 000-0000). A signed copy
of this Soliciting Dealer Agreement will be promptly returned to the Soliciting
Dealer at the address set forth below.
Very truly yours,
PaineWebber Incorporated
By: _________________________________
Name:
Title:
PLEASE COMPLETE THE INFORMATION BELOW
__________________________________ ________________________________________
Printed Firm Name Address
_____________________________________________________________________________
Contact at Soliciting Dealer
__________________________________ ________________________________________
Authorized Signature Area Code and Telephone Number
A-5
__________________________________ ________________________________________
Name and Title Facsimile Number
Dated: ___________________________
Payment of the Solicitation Fee
shall be mailed by check to the
following address:
__________________________________
__________________________________
__________________________________
