NGP CAPITAL RESOURCES COMPANY (a Maryland corporation) [ ] Shares of Common Stock (Par Value $.001 Per Share) [ ] Shares of Preferred Stock (Par Value $.001 Per Share) and [ ] Warrants to Purchase Common Stock or Preferred Stock UNDERWRITING AGREEMENT
Exhibit
(h)(1)
(a
Maryland corporation)
[ ]
Shares of Common Stock (Par Value $.001 Per Share)
[ ]
Shares of Preferred Stock (Par Value $.001 Per Share)
and
[ ]
Warrants to Purchase Common Stock or Preferred Stock
[Date]
[Name of
Underwriter]
[Address]
Ladies
and Gentlemen:
NGP
Capital Resources Company, a Maryland corporation (the “Company”), confirms its
agreement with
[ ]
(“[ ]”)
and each of the other Underwriters named in Schedule A hereto (collectively, the
“Underwriters”, which term shall also include any underwriter substituted as
hereinafter provided in Section 9 hereof), for whom
[ ] are acting as
representatives (in such capacity, the “Representatives”), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $.001 per share (“Common Stock”), or Preferred Stock, par value $.001
per share (“Preferred Stock”), or both, or Warrants (the “Warrants”) to purchase
Common Stock or Preferred Stock, or both, of the Company set forth in said
Schedule A, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase additional Securities (as hereinafter defined) to cover
overallotments, if any. The Preferred Stock may be offered in the
form of depositary shares (the “Depositary Shares”) represented by depositary
receipts (the “Depositary Receipts”). The Warrants will be issued
under one or more warrant agreements (the warrant agreement relating to any
issue of Warrants to be sold pursuant to this Agreement is referred to herein as
the “Warrant Agreement”) between the Company and the Warrant Agent identified in
such Warrant Agreement (the “Warrant Agent”). The Common Stock and,
if applicable, the Preferred Stock or the Warrants, together, if applicable,
with the Depositary Shares and the Depositary Receipts are hereinafter referred
to as the “Securities.” The aforesaid Securities (the “Initial
Securities”) to be purchased by the Underwriters and all or any part of the
Securities subject to the option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the “Underwritten
Securities”; and “Warrant Securities” shall mean the Common Stock or Preferred
Stock issuable upon exercise of Warrants. The Common Stock, Preferred
Stock and Warrants may be offered either together or separately. Each
issue of Preferred Stock may vary, as applicable, as to the specific number of
shares, title, issuance price, any redemption or sinking fund requirements, any
conversion provisions and any other variable terms as set forth in the
applicable certificate of designation (each, a “Certificate of Designation”)
relating to such Preferred Stock. Each issue of Warrants may vary, as
applicable, as to the title, specific number of shares of Common Stock or
Preferred Stock receivable upon exercise, issuance price, exercise dates,
exercise conditions and any other variable terms as set forth in the applicable
Warrant Agreement relating to such Warrants.
1
The
Company understands that the Underwriters propose to make a public offering of
the Underwritten Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a shelf registration statement on Form N-2 (File No.
333-[ ] covering the
registration of the Underwritten Securities and certain of the Company’s senior
and subordinated debt securities and warrants to purchase senior and
subordinated debt securities under the Securities Act of 1933, as amended (the
“1933 Act”), which registration statement has been declared effective by the
Commission. The Company has also filed with the Commission a
preliminary prospectus supplement, dated
[ ], which contains a
base prospectus, dated
[ ]
(collectively, the “preliminary prospectus”). Promptly after
execution and delivery of this Agreement, the Company will prepare and file a
prospectus in accordance with the provisions of Rule 430C (“Rule 430C”) of the
rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”) and Rule 497 (“Rule 497”) of the 1933 Act
Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement pursuant to Rule 430C
is referred to as “Rule 430C Information.” Unless the context
otherwise requires, such registration statement, including all documents filed
as a part thereof, and including any Rule 430C Information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 497 under the
1933 Act and deemed to be part of the registration statement and also including
any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations (the “Rule 462(b) Registration Statement”), is herein called the
“Registration Statement.” The final prospectus in the form filed by
the Company with the Commission pursuant to Rule 497 under the 1933 Act on or
before the second business day after the date hereof (or such earlier time as
may be required under the 1933 Act), which will include the base prospectus,
dated [ ], together
with a final prospectus supplement, is herein called the
“Prospectus.” For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“XXXXX”).
A Form
N-54A Notification of Election to be Subject to Sections 55 through 65 of the
Investment Company Act of 1940 filed Pursuant to Section 54(a) of the Investment
Company Act (File No. 814-00672) (the “Notification of Election”) was filed with
the Commission on August 16, 2004 under the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (collectively, the “1940
Act”).
The
Company has entered into an Investment Advisory Agreement, dated as of November
9, 2004 (the “Investment Advisory Agreement”), with NGP Investment Advisor, LP,
a Delaware limited partnership registered as an investment adviser (the
“Manager”), under the Investment Advisers Act of 1940, as amended, and the rules
and regulations thereunder (collectively, the “Advisers Act”). In
addition, the Company has adopted a dividend reinvestment plan (the “Dividend
Reinvestment Plan”) pursuant to which holders of Common Stock, subject to the
terms of such plan, shall have their dividends automatically reinvested in
additional Common Stock of the Company unless they elect to receive such
dividends in cash.
2
The
Company has entered into an Administration Agreement, dated as of November 9,
2004 (the “Administration Agreement”), with NPG Administration, LLC, a Delaware
limited liability Company (the “Administrator”).
SECTION
1. Representations and
Warranties.
(a) Representations and Warranties by the
Company. The Company, the Manager and the Administrator,
jointly and severally, represent and warrant to each Underwriter as of the date
hereof, as of the Applicable Time referred to in Section 1(a)(i) hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration
Requirements. The
Company is eligible to use Form N-2. The Registration Statement (and
the Registration Statement as amended by any post-effective amendment if the
Company shall have made any amendments thereto after the effective date of the
Registration Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement (and the
Registration Statement as amended by any post-effective amendment if the Company
shall have made any amendments thereto after the effective date of the
Registration Statement) has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the
respective times the Registration Statement, the Rule 462(b) Registration
Statement, if any, and any post-effective amendments thereto became effective,
at the Applicable Time and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement complied and
will comply in all material respects with the requirements of the 1933 Act, the
1933 Act Regulations and the 1940 Act and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto (including any prospectus wrapper), at the time the Prospectus or any
such amendment or supplement was issued, and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
The
Prospectus, each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto
complied when so filed in all material respects with the 1933 Act, the 1933 Act
Regulations and the 1940 Act except for any corrections to any preliminary
prospectus that are made in the Prospectus and each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
3
As of the
Applicable Time, the preliminary prospectus supplement, dated
[ ], together with the
prospectus, dated [ ], as
filed with the SEC on [ ],
and the information included on Schedule B hereto (which information the
Representatives have informed the Company is being conveyed orally by the
Underwriters to prospective purchasers at or prior to the Underwriters’
confirmation of sales of Underwritten Securities in the offering), all
considered together (collectively, the “General Disclosure Package”), did not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As used
in this subsection and elsewhere in this Agreement, “Applicable Time” means
[ ] [a.m.][p.m.] (Eastern
time) on [ ] or such other
time as agreed by the Company and the Representatives.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, Prospectus or General
Disclosure Package made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
the General Disclosure Package.
(ii) Independent
Accountants. The
accountants who certified the financial statements included in the Registration
Statement are independent public accountants as required by the 1933 Act, the
1933 Act Regulations and the Securities Exchange Act of 1934, as amended (the
“1934 Act”).
(iii) Financial
Statements. The
financial statements included in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related schedules and
notes, present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
consolidated statement of operations, consolidated statement of stockholders’
equity and consolidated statement of cash flows of the Company and its
consolidated subsidiaries for the periods specified; there are no financial
statements that are required to be included in the Registration Statement, the
General Disclosure Package or the Prospectus that are not included as required;
said financial statements have been prepared in conformity with generally
accepted accounting principles in the United States (“GAAP”) applied on a
consistent basis throughout the periods involved. The “Selected
Financial and Other Data” included in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly, in all material respects,
the information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration Statement,
the General Disclosure Package and the Prospectus. The financial data
set forth in the General Disclosure Package and in the Prospectus under the
caption “Capitalization” fairly presents the information set forth therein on a
basis consistent with that of the audited financial statements and related notes
thereto contained in the Registration Statement.
4
(iv) No Material Adverse Change
in Business. Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
“Material Adverse Effect”), (B) there have been no transactions entered into by
the Company or its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(v)
Good Standing of
the Company. The
Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Investment Advisory Agreement and the Administration
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not reasonably be expected to result in a Material
Adverse Effect.
(vi) Subsidiaries. The
Company’s only subsidiaries are [insert subsidiaries] (each, a “Subsidiary” and
collectively, the “Subsidiaries”). Each of the Subsidiaries has been duly
organized and is validly existing as a corporation, limited liability company or
limited partnership in good standing under the laws of the jurisdiction of its
organization, has power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly qualified
as a foreign corporation, limited liability company or limited partnership to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to be so qualified
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned directly or indirectly by the Company free and clear
of any security interest, mortgage, pledge, lien encumbrance, claim or equity;
none of the outstanding shares of capital stock of any of the Subsidiaries was
issued in violation of the preemptive or other similar rights of any
securityholder of such Subsidiary. Except (a) as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus and (b) portfolio
investments made after [ ],
the Company does not own, directly or indirectly, any shares of stock or any
other equity or debt securities of any corporation or have any equity or debt
interest in any firm, partnership, joint venture, association or other
entity.
(vii) Capitalization. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the General Disclosure Package and the Prospectus in the column entitled
“Actual” under the caption “Capitalization” (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to the Company’s Dividend Reinvestment
Plan or pursuant to reservations, agreements or employee benefit plans, if any,
referred to in the General Disclosure Package or in the Prospectus or pursuant
to the exercise of convertible securities or options, if any, referred to in the
General Disclosure Package or the Prospectus). The shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of preemptive or
other similar rights of any securityholder of the Company.
5
(viii) Authorization of
Agreements. (A) This
Agreement, the Investment Advisory Agreement and the Administration Agreement
have each been duly authorized, executed and delivered by the
Company. The Investment Advisory Agreement and the Administration
Agreement are valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or thereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(B) If
applicable, the Warrant Agreement will have been duly authorized, executed and
delivered by the Company prior to the issuance of any applicable Warrants, and
when executed and delivered by the Warrant Agent, will constitute a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
thereafter in effect relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(C) If
applicable, the Deposit Agreement will have been duly authorized, executed and
delivered by the Company prior to the issuance of any applicable Underwritten
Securities, and when executed by the Depositary, and will constitute a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
thereafter in effect relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(ix) Authorization and
Description of Underwritten Securities. (A) The
Underwritten Securities being sold pursuant to this Agreement, the Warrant
Securities issuable upon exercise of the Warrants, and, if applicable, the
deposit of the Preferred Stock comprising part or all of the Underwritten
Securities by or on behalf of the Company in accordance with the provisions of a
Deposit Agreement (each, a “Deposit Agreement”), among the Company, the
financial institution named in the Deposit Agreement (the “Depositary”) and the
holders of the Depositary Receipts issued thereunder, have been duly authorized
by the Company, and such Underwritten Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, if
applicable, the Warrant Agreement (or will have been so authorized prior to each
issuance of Underwritten Securities) and, when issued and delivered by the
Company pursuant to this Agreement and the Warrant Agreement against payment of
the consideration set forth in this Agreement and the Warrant Agreement, will be
validly issued and fully paid and non-assessable; the Warrant Securities are
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be subject to the effect of (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or thereafter in effect
relating to creditors’ rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought; the Underwritten Securities being sold pursuant to this Agreement and,
if applicable, the Warrant Securities issuable upon exercise of the Warrants and
the Depositary Receipts, conform in all material respects to the statements
relating thereto contained in the Prospectus; and the issuance of the
Underwritten Securities is not subject to preemptive or other similar rights of
any securityholder of the Company.
6
(B) If
the Underwritten Securities are Common Stock or Preferred Stock convertible into
Common Stock, the shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and non-assessable and such
capital stock conforms in all material respects as to legal matters to the
description thereof in the Prospectus.
(C) If
applicable, the shares of Common Stock issuable upon conversion of any issue of
the Preferred Stock will have been duly authorized and reserved for issuance
upon such conversion by all necessary corporate action and when issued upon such
conversion, will be validly issued, fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be subject to preemptive
rights.
(D) If
applicable, the Warrant Securities issuable upon exercise of the Warrants have
been duly authorized and reserved for issuance upon such exercise by all
necessary corporate action and when issued upon such exercise, will be validly
issued, fully paid and non-assessable, and the issuance of such shares upon such
exercise will not be subject to preemptive rights.
(E) If
applicable, upon execution and delivery thereof pursuant to the terms of the
Deposit Agreement, the persons in whose names the Depositary Receipts are
registered will be entitled to the rights specified therein and in the Deposit
Agreement, except as the enforcement thereof may be subject to the effect of (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
thereafter in effect relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
7
(x)
Absence of Defaults
and Conflicts. Neither
the Company nor any of the Subsidiaries is in violation of its charter, by-laws
or other organizational documents. Further, neither the Company nor
any of the Subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries is subject (collectively,
“Agreements and Instruments”) except for such defaults that would not result in
a Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Deposit Agreement, the Warrant Agreement, if applicable, the
Investment Advisory Agreement and the Administration Agreement and the
consummation of the transactions contemplated herein and therein and in the
Registration Statement and General Disclosure Package (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption “Use of Proceeds”)
and compliance by the Company with its obligations hereunder and thereunder do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
the Subsidiaries pursuant to, the Agreements and Instruments, except for such
conflicts, breaches, defaults or Repayment Events that would not result in a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter, by-laws or other organizational documents of the
Company or any of the Subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of the Subsidiaries or any of their assets, properties or
operations. As used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of the Subsidiaries.
(xi) Absence of
Proceedings. Other
than as disclosed in the Registration Statement, there is no action, suit or
proceeding or, to the knowledge of the Company, inquiry or investigation, before
or brought by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any of the Subsidiaries, which is required to be disclosed in the
Registration Statement, or which would result in a Material Adverse Effect, or
which would materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement, the Deposit
Agreement, the Warrant Agreement, if applicable, the Investment Advisory
Agreement or the Administration Agreement or the performance by the Company of
its obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any of the Subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, would not result in a Material
Adverse Effect.
(xii) Accuracy of
Exhibits. There
are no contracts or documents which are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits thereto
which have not been so described and filed as required.
(xiii) Possession of Intellectual
Property. The
Company and the Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them or proposed
to be operated by them immediately following the offering of the Underwritten
Securities as described in the Prospectus, except where the failure to own or
possess or otherwise be able to acquire such rights in a timely manner would not
otherwise reasonably be expected to result in a Material Adverse Effect, and
neither the Company nor any of the Subsidiaries has received any notice of or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of the Subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would reasonably be expected to result in a Material Adverse
Effect.
8
(xiv) Absence of Further
Requirements. No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the Underwritten
Securities hereunder or the consummation of the transactions contemplated by
this Agreement, the Deposit Agreement, the Warrant Agreement, if applicable, the
Investment Advisory Agreement, the Administration Agreement or the Prospectus
(including the use of the proceeds from the sale of the Underwritten Securities
as described in the Prospectus under the caption “Use of Proceeds”), except (A)
such as have been already obtained under the 1933 Act, the 1933 Act Regulations
or the 1940 Act, (B) such as may be required under state securities laws, and
(C) the filing of the Notification of Election under the 1940 Act, which has
been effected.
(xv) Absence of
Manipulation. Neither
the Company nor any affiliate of the Company has taken, nor will the Company or
any affiliate take, directly or indirectly, any action which is designed to or
which has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Underwritten Securities in violation of any
law, statute, regulation or rule applicable to the Company or its
affiliates.
(xvi) Possession of Licenses and
Permits. The
Company and the Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them or proposed to be
operated by them immediately following the offering of the Underwritten
Securities as described in the Prospectus, except where the failure so to
possess would not reasonably be expected to, singly or in the aggregate, result
in a Material Adverse Effect; the Company and the Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not reasonably be expected to, singly or in the
aggregate, result in a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not reasonably be expected to, singly or in the
aggregate, result in a Material Adverse Effect; and neither the Company nor any
of the Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would reasonably be expected to result in a Material Adverse
Effect.
(xvii) Investment Company
Act. The
Company is not required, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as a
“registered management investment company” under the 1940 Act.
9
(xviii) Registration
Rights. There
are no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(xix) Related Party
Transactions. There
are no business relationships or related party transactions involving the
Company, any of the Subsidiaries or any other person required to be described in
the Prospectus which have not been described as required.
(xx) Notification of
Election. When
the Notification of Election was filed with the Commission, it (A) contained all
statements required to be stated therein in accordance with, and complied in all
material respects with the requirements of, the 1940 Act and (B) did not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xxi) Investment Advisory
Agreement. (A)
The terms of the Investment Advisory Agreement, including compensation terms,
comply in all material respects with all applicable provisions of the 1940 Act
and the Advisers Act and (B) the approvals by the board of directors and the
stockholders of the Company of the Investment Advisory Agreement have been made
in accordance with the requirements of Section 15 of the 1940 Act applicable to
companies that have elected to be regulated as business development companies
under the 1940 Act.
(xxii) Interested
Persons. Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus (A) no person is serving or acting as an officer, director or
investment adviser of the Company, except in accordance with the provisions of
the 1940 Act and the Advisers Act, and (B) to the knowledge of the Company, no
director of the Company is an “interested person” (as defined in the 0000 Xxx)
of the Company or an “affiliated person” (as defined in the 0000 Xxx) of any of
the Underwriters.
(xxiii) Business Development
Company. (A)
The Company has duly elected to be treated by the Commission under the 1940 Act
as a business development company, such election is effective and all required
action has been taken by the Company under the 1933 Act and the 1940 Act to make
the public offering and consummate the sale of the Underwritten Securities as
provided in this Agreement; (B) the provisions of the corporate charter and
by-laws of the Company, and the investment objectives, policies and restrictions
described in the Prospectus, assuming they are implemented as described, will
comply in all material respects with the requirements of the 1940 Act; and (C)
the operations of the Company are in compliance in all material respects with
the provisions of the 1940 Act applicable to business development
companies.
(xxiv) Employees and
Executives. The
Company is not aware that (A) any executive, key employee or significant group
of employees of the Company, any of the Subsidiaries, the Manager or the
Administrator plans to terminate employment with the Company, any of the
Subsidiaries, the Manager or the Administrator or (B) any such executive or key
employee is subject to any noncompete, nondisclosure, confidentiality,
employment, consulting or similar arrangement that would be violated by the
present or proposed business activities of the Company, any of the Subsidiaries,
the Manager or the Administrator.
10
(xxv) No Extension of
Credit. The
Company has not, directly or indirectly, extended credit, arranged to extend
credit, or renewed any extension of credit, in the form of a personal loan, to
or for any director or executive officer of the Company or any of the
Subsidiaries, or to or for any family member or affiliate of any director or
executive officer of the Company or any of the Subsidiaries.
(xxvi) Accounting
Controls. The
Company has established and maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management’s authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management’s authorization; and (D) the recorded
accountability for inventory assets is compared with the existing inventory
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
(xxvii) Disclosure
Controls. The
Company has established and employs disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is recorded, processed,
summarized and reported, within the time periods specified in the Commission’s
rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate to allow timely decisions
regarding disclosure.
(xxviii) Tax
Returns. The
Company and the Subsidiaries have filed all federal, state, local and foreign
tax returns that are required to have been filed by them pursuant to applicable
foreign, federal, state, local or other law or have duly requested extensions
thereof, except insofar as the failure to file such returns or request such
extensions would not reasonably be expected to result in a Material Adverse
Effect, and have paid all taxes shown as due pursuant to such returns or
pursuant to any assessment received by the Company and the Subsidiaries, except
for such taxes or assessments, if any, as are being contested in good faith and
as to which adequate reserves have been provided or where the failure to pay
would not reasonably be expected to result in a Material Adverse
Effect.
(b) Representations and Warranties of
the Manager and the Administrator. The
Manager and the Administrator, jointly and severally, represent to each
Underwriter as of the date hereof, as of the Applicable Time, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and agrees with each Underwriter as
follows:
(i) No Material Adverse Change
in Business. Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs,
business prospects or regulatory status of the Manager or the Administrator,
whether or not arising in the ordinary course of business, that would reasonably
be expected to result in a Material Adverse Effect.
11
(ii)
Good
Standing. Each
of the Manager and the Administrator has been duly organized and is validly
existing as a limited partnership and a limited liability company, respectively,
in good standing under the laws of the State of Delaware, and has limited
partnership power and authority or limited liability company power and
authority, as applicable, to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; the Manager has limited
partnership power and authority to execute and deliver and perform its
obligations under the Investment Advisory Agreement; the Administrator has
limited liability company power and authority to enter into and perform its
obligations under the Administration Agreement; and each of the Manager and the
Administrator is duly qualified to transact business as a foreign entity and is
in good standing in each other jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of its property or the
conduct of business, except where the failure to qualify or be in good standing
would not otherwise reasonably be expected to result in a Material Adverse
Effect.
(iii) Registration Under Advisers
Act. The
Manager is duly registered with the Commission as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act from
acting under the Investment Advisory Agreement for the Company as contemplated
by the Prospectus. There does not exist any proceeding or, to the Manager’s
knowledge, any facts or circumstances the existence of which could lead to any
proceeding which might adversely affect the registration of the Manager with the
Commission.
(iv) Absence of
Proceedings. There
is no action, suit or proceeding or, to the knowledge of the Manager or the
Administrator, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Manager or the Administrator, threatened, against or affecting
either the Manager or the Administrator, which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which would
reasonably be expected to result in a Material Adverse Effect, or which would
reasonably be expected to materially and adversely affect the consummation of
the transactions contemplated in this Agreement, the Investment Advisory
Agreement or the Administration Agreement; the aggregate of all pending legal or
governmental proceedings to which the Manager or the Administrator is a party or
of which any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to their business, would not reasonably be expected to result in a
Material Adverse Effect.
12
(v)
Absence of
Defaults and Conflicts. Neither
the Manager nor the Administrator is in violation of its limited partnership
agreement or limited liability company operating agreement, as applicable, or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Manager or the Administrator is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Manager or the
Administrator is subject (collectively, the “Manager/Administrator Agreements
and Instruments”), or in violation of any law, statute, rule, regulation,
judgment, order or decree except for such violations or defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Investment Advisory
Agreement and the Administration Agreement and the consummation of the
transactions contemplated herein and therein and in the Registration Statement
and General Disclosure Package (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described in the Prospectus under the caption “Use of
Proceeds”) and compliance by the Manager and the Administrator with their
respective obligations hereunder and under the Investment Advisory Agreement and
the Administration Agreement do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Manager or the
Administrator pursuant to, the Manager/Administrator Agreements and Instruments
except for such violations or defaults that would not reasonably be expected to
result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the limited partnership agreement of the Manager
or the limited liability company operating agreement of the Administrator, or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Manager or the Administrator or any of their
assets, properties or operations.
(vi) Authorization of
Agreements. This
Agreement, the Investment Advisory Agreement and the Administration Agreement
have been duly authorized, executed and delivered by the Manager and the
Administrator, as applicable. This Agreement, the Investment Advisory
Agreement and the Administration Agreement are valid and binding obligations of
the Manager or the Administrator, as applicable, enforceable against them in
accordance with their terms, except as the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or thereafter in effect relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(vii) Absence of Further
Requirements. No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Manager or the Administrator of
their obligations hereunder, in connection with the offering, issuance or sale
of the Underwritten Securities hereunder or the consummation of the transactions
contemplated by this Agreement, the Investment Advisory Agreement, the
Administration Agreement, the General Disclosure Package or the Prospectus
(including the use of the proceeds from the sale of the Underwritten Securities
as described in the Prospectus under the caption “Use of Proceeds”), except (A)
such as have been already obtained under the 1933 Act, the 1933 Act Regulations
or the 1940 Act, (B) such as may be required under state securities laws and (C)
the filing of the Notification of Election under the 1940 Act, which has been
effected.
(viii) Description of Manager and
Administrator. The
description of the Manager and the Administrator contained in the General
Disclosure Package and the Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
13
(ix) Possession of Licenses and
Permits. The
Manager and the Administrator possess such Governmental Licenses issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the failure
so to possess would not reasonably be expected to, singly or in the aggregate,
result in a Material Adverse Effect; the Manager and the Administrator are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not, singly or in the aggregate, result in a Material Adverse
Effect; and neither the Manager nor the Administrator has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to result in a
Material Adverse Effect.
(x)
Stabilization and
Manipulation. Neither
the Manager, the Administrator nor any of their respective partners, officers,
affiliates or controlling persons has taken, directly or indirectly, any action
designed, under the 1934 Act, to result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale of the
Underwritten Securities in violation of any law, statute, regulation or rule
applicable to the Manager, the Administrator or any of their respective
partners, officers, affiliates or controlling persons.
(xi) Employment
Status. The
Manager is not aware that (A) any executive, key employee or significant group
of employees of the Company, if any, any of the Subsidiaries, the Manager or the
Administrator, as applicable, plans to terminate employment with the Company,
any of the Subsidiaries, the Manager or the Administrator or (B) any such
executive or key employee is subject to any non-compete, nondisclosure,
confidentiality, employment, consulting or similar agreement that would be
violated by the present or proposed business activities of the Company, the
Subsidiaries or the Manager except where such termination or violation would not
reasonably be expected to have a Material Adverse Effect.
(xii) Internal
Controls. The
Manager is using its commercially reasonable efforts to implement a system of
internal controls sufficient to provide reasonable assurance that (A)
transactions effectuated by it under the Investment Advisory Agreement are
executed in accordance with its management’s general or specific authorization;
and (B) access to the Company’s assets that are in its possession or control is
permitted only in accordance with its management’s general or specific
authorization.
(xiii) Accounting
Controls. The
Administrator is using its commercially reasonable efforts to operate a system
of internal accounting controls sufficient to provide reasonable assurance that
(A) transactions for which it has bookkeeping and record keeping responsibility
for under the Administration Agreement are recorded as necessary to permit
preparation of the Company’s financial statements in conformity with GAAP and to
maintain financial statements in conformity with GAAP and to maintain
accountability for the Company’s assets and (B) the recorded accountability for
such assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
14
(c) Officer’s
Certificates. Any
certificate signed by any officer of the Company, any of the Subsidiaries, the
Manager or the Administrator delivered to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranty by the Company,
such Subsidiary, the Manager and or the Administrator, as applicable, to each
Underwriter as to the matters covered thereby.
SECTION
2. Sale and
Delivery to Underwriters; Closing.
(a) Initial
Securities. On
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth
in Schedule B, the number of Initial Securities set forth in Schedule A opposite
the name of such Underwriter, plus any additional number of Initial Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof.
(b) Option Securities. In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters, severally and not jointly, to purchase up
to an additional [ ]
Securities at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time on one or
more occasions only for the purpose of covering overallotments which may be made
in connection with the offering and distribution of the Initial Securities upon
notice by the Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (a “Date of Delivery”)
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter bears
to the total number of Initial Securities, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment
of the purchase price for, against delivery of certificates or, if applicable,
Depositary Receipts evidencing the Depositary Shares, for, the Initial
Securities shall be made at the offices of
[ ]
or at such other place as shall be agreed upon by the Representatives and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 9), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called “Closing Time”).
15
In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates or, if applicable, Depositary Receipts evidencing the Depositary
Shares, for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company, against delivery to the
Representatives through the facilities of The Depository Trust Company (“DTC”)
for the respective accounts of the Underwriters of certificates or receipts for
the Underwritten Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. The Representatives, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations;
Registration. The
certificates or receipts for the Initial Securities and the Option Securities,
if any, shall be transferred electronically at the Closing Time or the relevant
Date of Delivery, as the case may be, in such denominations and registered in
such names as the Representatives may request; provided that any such
request must be received in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION
3. Covenants of the
Company. The
Company covenants with each Underwriter as follows:
(a) Compliance with Securities
Regulations and Commission Requests. During
any period that a prospectus relating to the Underwritten Securities is required
to be delivered under the 1933 Act (but in any event through the Closing Date),
the Company, subject to Section 3(b), will comply with the requirements of Rule
415, Rule 430C and Rule 497 and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission relating to the Registration Statement,
(iii) 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, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 497 and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 497 was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. During
any period that a prospectus relating to the Underwritten Securities is required
to be delivered under the 1933 Act (but in any event through the Closing Date),
the Company will use its reasonable efforts to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
16
(b) Filing of
Amendments. During
any period that a prospectus relating to the Underwritten Securities is required
to be delivered under the 1933 Act (but in any event through the Closing Date),
the Company will give the Representatives notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b)) or any amendment, supplement or revision to any preliminary
prospectus (including any prospectus included in the Registration Statement at
the time it became effective) or to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall object. The Company has given the Underwriters
notice of any filings made pursuant to the 1934 Act or the rules and regulations
adopted thereunder within 48 hours prior to the Applicable Time; the Company
will give the Underwriters notice of its intention to make any such filing from
the Applicable Time to the Closing Time and will furnish the Underwriters with
copies of any such documents a reasonable amount of time prior to such proposed
filing.
(c) Delivery of Commission
Filings. The
Company has furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement as
originally filed, and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and conformed copies of all
consents and certificates of experts, and, upon the Representative’s request,
will also deliver to the Representatives, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T, or as filed with the Commission in paper form as permitted by Regulation
S-T.
(d) Delivery of
Prospectuses. The
Company has delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
17
(e) Continued Compliance with Securities
Laws. The
Company will use its commercially reasonable efforts to comply with the 1933 Act
and the 1933 Act Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky
Qualifications. The
Company will use its commercially reasonable efforts, in cooperation with the
Underwriters, to qualify the Underwritten Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Representatives may designate and to maintain such
qualifications in effect for as long as the Representatives reasonably request;
provided, however, that
the Company shall 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 so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(g) Rule 158. The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
reasonably practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) Use of Proceeds. The
Company will use the net proceeds received by it from the sale of the
Underwritten Securities in the manner specified in the General Disclosure
Package and in the Prospectus under “Use of Proceeds.”
(i) Listing. The
Company will use its commercially reasonable efforts to effect and maintain the
quotation of [if applicable, describe Securities] on [describe applicable stock
exchange or quotation service].
18
(j) Restriction on Sale of Underwritten
Securities. During
a period of [ ] days from the date of
the Prospectus, the Company will not, without the prior written consent of the
Representatives, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any Underwritten Securities or any securities convertible into or
exercisable or exchangeable for Underwritten Securities or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of
Underwritten Securities, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Underwritten Securities
or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the registration and sale of Underwritten
Securities to be sold hereunder, (B) the issuance of any Underwritten Securities
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectus, and any registration related thereto, (C) any Underwritten
Securities issued or options to purchase Underwritten Securities granted
pursuant to existing dividend reinvestment plans or employee benefit plans of
the Company referred to in the Prospectus, and any registration related thereto,
(D) any Underwritten Securities issued pursuant to any non-employee director
stock plan or dividend reinvestment plan, and any registration related thereto
or (E) any Underwritten Securities issued to directors in lieu of directors’
fees, and any registration related thereto. Notwithstanding the
foregoing, if: (1) during the last 17 days of such
[ ] -day period the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of such [ ] -day
period, the Company announces that it will release earnings results or becomes
aware that material news or a material event will occur during the 16-day-period
beginning on the last day of such [ ] -day period,
the restrictions imposed in this clause (j) shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
(k) Reporting
Requirements. The
Company, during the period when the Prospectus is required to be delivered under
the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the rules and regulations of the Commission thereunder.
(l) Business Development Company
Status. The
Company, during a period of at least 12 months from the Closing Time, will use
its commercially reasonable efforts to maintain its status as a business
development company; provided,
however, the Company may cease to be, or withdraw its election as, a
business development company, with the approval of the board of directors and a
vote of stockholders as required by Section 58 of the 1940 Act or any successor
provision.
(m) Regulated Investment Company
Status. During
the 12-month period following the Closing Time, the Company will use its
commercially reasonable efforts to qualify and elect to be treated as a
regulated investment company under Subchapter M of the Internal Revenue Code of
1986, as amended (the “Code”) and to maintain such qualification and election in
effect for each full fiscal year during which it is a business development
company under the 1940 Act.
(n) Accounting
Controls. The
Company will use its commercially reasonable efforts to establish and maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) material information relating to the Company and the assets
managed by the Manager is promptly made known to the officers responsible for
establishing and maintaining the system of internal accounting controls; and (B)
any significant deficiencies or weaknesses in the design or operation of
internal accounting controls which could adversely affect the Company’s ability
to record, process, summarize and report financial data, and any fraud whether
or not material that involves management or other employees who have a
significant role in internal controls, are adequately and promptly disclosed to
the Company’s independent auditors and the audit committee of the Company’s
board of directors.
19
SECTION
4. Payment
of Expenses.
(a) Expenses. The
Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and delivery
to the Underwriters of this Agreement, the Warrant Agreement, the Certificate of
Designation, the Deposit Agreement, if applicable, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Underwritten Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Underwritten Securities and any Warrant Securities issuable upon exercise of the
Warrants to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Underwritten Securities and any Warrant Securities to the Underwriters, (iv) the
fees and disbursements of the Company’s, the Manager’s and the Administrator’s
counsel, accountants and other advisors, (v) the qualification of the
Underwritten Securities and any Warrant Securities issuable upon exercise of the
Warrants under securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Underwritten Securities, (ix) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the Underwritten Securities, including without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and 50% of the cost of
aircraft and other transportation chartered in connection with the road show,
(x) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the Financial
Industry Regulatory Authority (“FINRA”) of the terms of the sale of the
Underwritten Securities, (xi) the fees and expenses incurred in connection with
the inclusion of the Underwritten Securities or any Warrant Securities, if
applicable, in [describe applicable stock exchange or quotation service] and
(xii) the costs and expenses (including without limitation any damages or other
amounts payable in connection with legal or contractual liability) associated
with the reforming of any contracts for sale of the Underwritten Securities made
by the Underwriters (which are terminated prior to the Closing Date) caused by a
breach of the representation contained in the fourth paragraph of Section
1(a)(i).
(b) Termination of
Agreement. If
this Agreement is terminated by the Representatives in accordance with the
provisions of Section 5 or Section 8(a)(i) and (iii) hereof, the Company, the
Manager and the Administrator, jointly and severally, shall reimburse the
Underwriters for all of their out-of-pocket expenses incurred, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION
5. Conditions of Underwriters’
Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Company, the Manager and the
Administrator contained in Section 1 hereof or in certificates of any officer of
the Company, the Manager or the Administrator, to the performance by the
Company, the Manager and the Administrator of their respective covenants and
other obligations hereunder, and to the following further
conditions:
20
(a) Effectiveness of Registration
Statement. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A final prospectus containing the Rule 430C Information
shall have been filed with the Commission in accordance with Rule
497.
(b) Opinions of Counsel for
Company. At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Xxxxxxxx & Xxxxxx LLP, counsel for the Company,
and Xxxxxxx LLP, special Maryland counsel for the Company, in each case in form
and substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibits A and B hereto. Such
counsel may state that, insofar as such opinion involves factual matters, they
have relied upon certificates of officers of the Company and/or any of the
Subsidiaries and certificates of public officials.
(c) Opinion of Counsel for
Underwriters. At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of [____________________], counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States upon the
opinions of counsel reasonably satisfactory to the Representatives, including
counsel of the Company. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and/or any of the
Subsidiaries and certificates of public officials.
(d) Officers’
Certificates. (i)
At Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the president of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to their knowledge, contemplated by the
Commission.
21
(ii) At
Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs, business prospects
or regulatory status of the Manager or the Administrator, whether or not arising
in the ordinary course of business, that would reasonably be expected to result
in a Material Adverse Effect (collectively, with respect to each of the Manager
and the Administrator, a “Managers Material Adverse Effect”), and the
Representatives shall have received a certificate of a vice president (or other
authorized officer) and the chief financial or chief accounting officer (or
other authorized officer) of each of the Manager and the Administrator, dated as
of Closing Time, to the effect that (i) there has been no such Managers Material
Adverse Effect, (ii) the representations and warranties of the Manager and
Administrator in Sections 1(a) and 1(b) hereof are true and correct with the
same force and effect as though expressly made at and as of Closing Time, (iii)
the Manager and the Administrator have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or prior
to Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) Accountant’s Comfort
Letter. At
the time of the execution of this Agreement, the Representatives shall have
received from PricewaterhouseCoopers LLP a letter, in form and substance
reasonably satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort
Letter. At
Closing Time, the Representatives shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to Closing Time.
(g) Approval of
Listing. At
Closing Time, the [if applicable, describe Securities] shall have been approved
for inclusion in [describe applicable stock exchange or quotation service],
subject only to official notice of issuance.
(h) No Objection. FINRA
has confirmed that it has not raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(i) Lock-up
Agreements. At
the date of this Agreement, the Representatives shall have received an agreement
substantially in the form of Exhibit C hereto signed by the persons listed on
Schedule C hereto.
(j) Conditions to Purchase of Option
Securities. In
the event that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company, the Manager and the Administrator
contained herein and the statements in any certificates furnished by the
Company, the Manager and the Administrator hereunder shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
22
(i) Officers’
Certificates. (A)
A certificate, dated such Date of Delivery, of the president of the Company and
of the chief financial or chief accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section 5(d)(i)
hereof remains true and correct as of such Date of Delivery.
(B) A
certificate, dated such Date of Delivery, of a vice president (or other
authorized officer) and the chief financial or chief accounting officers (or
other authorized officer) of each of the Manager and the Administrator
confirming that the certificates delivered at the Closing Time pursuant to
Section 5(d)(ii) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for
Company. The
favorable opinion of Xxxxxxxx & Xxxxxx LLP, counsel for the Company, and
Xxxxxxx LLP, special Maryland counsel for the Company, in each case in form and
substance reasonably satisfactory to the Representatives, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinions required by Section
5(b) hereof.
(iii) Opinion of Counsel for
Underwriters. The
favorable opinion of [____________________], counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down Comfort
Letter. A
letter from PricewaterhouseCoopers LLP, in form and substance reasonably
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the “specified
date” in the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(k) Additional
Documents. At
Closing Time and at each Date of Delivery, counsel for the Underwriters shall
have been furnished with such documents as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Underwritten
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company, the
Manager and the Administrator in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(l) Termination of
Agreement. If
any condition specified in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities, on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Representatives by notice
to the Company at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1, 6
and 7 shall survive any such termination and remain in full force and
effect.
23
SECTION
6. Indemnification.
(a) (1) Indemnification of
Underwriters by the Company and the Manager. The
Company and the Manager, jointly and severally, agree to indemnify
and hold harmless each Underwriter, its affiliates, as such term is defined in
Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430C Information (including the information on Schedule B
hereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or in the General Disclosure Package, or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written consent of
the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430C Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or the
General Disclosure Package.
(2) Indemnification of Underwriters by
the Administrator. The Administrator agrees to indemnify and
hold harmless each Underwriter, its Affiliates, its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
24
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430C Information (including the information on Schedule B
hereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or in the General Disclosure Package, or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading to the extent the loss, liability, claim, damage and
expense relates to information concerning the Administrator;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission related to the Administrator or any such alleged untrue statement or
omission related to the Administrator; provided that (subject to
Section 6(d) below) any such settlement is effected with the written consent of
the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission related to the Administrator, or any such alleged untrue statement or
omission related to the Administrator, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430C Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or the
General Disclosure Package.
(b) Indemnification of Company,
Directors, Officers, Manager and Administrator. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers, each person, if any, who controls the Company,
the Manager or the Administrator within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, the Manager and the
Administrator against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430C Information, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or in the
General Disclosure Package in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
25
(c) Actions against Parties;
Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder (an “Action”), but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a)(1) or (2) above, counsel to the indemnified
parties shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such Action; provided ,however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one Action or
separate but similar or related Actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party. Notwithstanding anything to
the contrary herein, neither the assumption of the defense of any such Action
nor the payment of any fees or expenses related thereto shall be deemed to be an
admission by the indemnifying party that it has obligation to indemnify any
person pursuant to this Agreement.
(d) Settlement Without Consent if
Failure to Reimburse. If
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(1)(ii) or 6(a)(2)(ii) 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 the 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.
26
(e) Acknowledgement by the Company, the
Manager and the Administrator. The
Company, the Manager and the Administrator also acknowledge and agree that (i)
the purchase and sale of any Underwritten Securities pursuant to this Agreement,
including the determination of the public offering price of the Underwritten
Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the
Underwriters of such Underwritten Securities, on the other hand, (ii) in
connection with the public offering of the Underwritten Securities and the
process leading to such transaction the Underwriters will act solely as
principals and not as agents or fiduciaries of the Company or its stockholders,
creditors, employees or any other party, (iii) the Underwriters will not assume
an advisory or fiduciary responsibility in favor of the Company with respect to
the offering of Underwritten Securities contemplated hereby or the process
leading thereto (irrespective of whether the Underwriters have advised or are
currently advising the Company on other matters) and the Underwriters will not
have any obligation to the Company with respect to the Offering except the
obligations expressly set forth herein, (iv) the Underwriters and their
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (v) the Underwriters have
not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to the offering of the Underwritten Securities and the
Company has consulted and will consult its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
SECTION
7. Contribution. If
the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Manager and the Administrator on
the one hand and the Underwriters on the other hand from the offering of the
Underwritten Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, the Manager and the
Administrator on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The
relative benefits received by the Company, the Manager and the Administrator on
the one hand and the Underwriters on the other hand in connection with the
offering of the Underwritten Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Underwritten Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Underwritten Securities as set forth on the cover of the
Prospectus.
The
relative fault of the Company, the Manager and the Administrator on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Manager and the Administrator or by
the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
27
The
Company, the Manager, the Administrator and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Underwritten Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each Underwriter’s Affiliates and selling agents shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company, and each person, if any, who controls the Company,
Manager or Administrator within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company, Manager or Administrator, as the case may be. The
Underwriters’ respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Securities set forth opposite
their respective names in Schedule A hereto and not joint.
Notwithstanding
any other provision of Section 6 and this Section 7, no party shall be entitled
to indemnification or contribution under this Agreement in violation of Section
17(i) of the 1940 Act.
SECTION
8. Termination of
Agreement.
(a) Termination;
General. The
Representatives may terminate this Agreement, by notice to the Company, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Subsidiaries considered as one enterprise, the Manager or the Administrator,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to market
the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) if trading in any securities of the Company
has been suspended or materially limited by the Commission or The NASDAQ Global
Select Market or The NASDAQ Global Market, or (iv) if trading generally on the
American Stock Exchange or the New York Stock Exchange or in The NASDAQ Global
Market or The NASDAQ Global Select Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (v) a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, or (vi) if a banking moratorium has been declared by either
Federal or New York authorities.
28
(b) Liabilities. 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
4 hereof, and provided further that Sections 1, 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION
9. Default
by One or More of the Underwriters
. If
one or more of the Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Underwritten Securities which it or they are obligated to
purchase under this Agreement (the “Defaulted Securities”), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(i) if the
number of Defaulted Securities does not exceed 10% of the number of Underwritten
Securities to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(ii) if the
number of Defaulted Securities exceeds 10% of the number of Underwritten
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing Time,
which does not result in a termination of the obligation of the Underwriters to
purchase and the Company to sell the relevant Option Securities, as the case may
be, either the Representatives or the Company shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement, the General Disclosure Package or the Prospectus or in
any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this
Section 9.
29
SECTION
10. Tax
Disclosure. Notwithstanding
any other provision of this Agreement, from the commencement of discussions with
respect to the transactions contemplated hereby, the Company (and each employee,
representative or other agent of the Company) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure (as
such terms are used in Sections 6011, 6111 and 6112 of the U.S. Code and the
Treasury Regulations promulgated thereunder) of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided relating to such tax treatment and tax
structure.
SECTION
11. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
the Representatives at
[ ],
with a copy to
[ ];
and notices to the Company, the Manager and Administrator shall be directed to
them at 0000 XxXxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, attention: Xxxx
X. Xxxxxx, with a copy to Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, attention: Xxx Xxxxxxxxxxx and Xxxxxx X.
Xxxxxxxx.
SECTION
12. Parties. This
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company,
the Manager and the Administrator and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the Underwriters, the
Company, the Manager and the Administrator and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION
13. GOVERNING
LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
SECTION
14. TIME. TIME
SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
30
SECTION
15. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION
16. Effect of
Headings. The
Section headings herein are for convenience only and shall not affect the
construction hereof.
31
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Underwriters,
the Company, the Manager and the Administrator in accordance with its
terms.
Very
truly yours,
|
|
COMPANY:
|
|
By
|
|
Name:
|
|
Title:
|
|
MANAGER:
|
|
NGP
INVESTMENT ADVISOR, LP
|
|
By:
NGP Administration, LLC, its general partner
|
|
By
|
|
Name:
|
|
Title:
|
|
ADMINISTRATOR:
|
|
NGP
ADMINISTRATION, LLC
|
|
By
|
|
Name:
|
|
Title:
|
CONFIRMED
AND ACCEPTED,
as
of the date first above written:
[NAME OF
REPRESENTATIVES]
By
|
|
Authorized
Signatory
|
For
themselves and as Representatives of the other
Underwriters
named in Schedule A hereto.
SCHEDULE
A
Name of Underwriter
|
Number of Shares of
Common Stock
|
Number of Shares of Preferred
Stock
|
Number of Warrants
|
|||
Sch
A-1
SCHEDULE
B
[ ]
Shares of Common Stock (Par Value $.001 Per Share)
[ ]
Shares of Preferred Stock (Par Value $.001 Per Share)
and
[ ]
Warrants to Purchase Common Stock or Preferred Stock
1. The
public offering price per share for the Underwritten Securities, determined as
provided in said Section 2, shall be
$[ ].
2. The
purchase price per share for the Underwritten Securities to be paid by the
several Underwriters shall be
$[ ], being an amount equal to
the public offering price set forth above less $• per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
overallotment option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities.
Sch
B-1
SCHEDULE
C
List of
persons and entities
subject
to lock-up
[To
Come]
Sch
C-1