CALAMOS GLOBAL DYNAMIC INCOME FUND Auction Rate Cumulative Preferred Shares, Series Liquidation Preference $25,000 per share UNDERWRITING AGREEMENT
Exhibit h.1
Auction Rate Cumulative Preferred Shares, Series
Liquidation Preference $25,000 per share
Liquidation Preference $25,000 per share
Dated: [Date], 2007
Table of Contents
Page | ||||||
SECTION 1.
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Representations and Warranties | 3 | ||||
SECTION 2.
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Sale and Delivery to Underwriters; Closing | 12 | ||||
SECTION 3.
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Covenants of the Fund and the Adviser | 13 | ||||
SECTION 4.
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Payment of Expenses | 16 | ||||
SECTION 5.
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Conditions of Underwriters’ Obligations | 17 | ||||
SECTION 6.
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Indemnification | 19 | ||||
SECTION 7.
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Contribution | 22 | ||||
SECTION 8.
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Representations, Warranties and Agreements to Survive Delivery | 23 | ||||
SECTION 9.
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Termination of Agreement | 23 | ||||
SECTION 10.
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Default by One or More of the Underwriters | 24 | ||||
SECTION 11.
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Notices | 24 | ||||
SECTION 12.
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Parties | 24 | ||||
SECTION 13.
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GOVERNING LAW | 25 | ||||
SECTION 14.
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Effect of Headings | 25 | ||||
SECTION 15.
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Definitions | 25 | ||||
SECTION 16.
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Absence of Fiduciary Relationship | 27 | ||||
EXHIBITS |
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Exhibit A —
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Auction Rate Cumulative Preferred Shares to be Sold | |||||
Exhibit B —
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Form of Opinion of Fund Counsel | |||||
Exhibit C —
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Form of Opinion of Adviser Counsel | |||||
Exhibit D -
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Form of Opinion of Delaware Counsel | |||||
Exhibit E —
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Price-Related Information |
i
Auction Rate Cumulative Preferred Shares
Shares, Series
Liquidation Preference $25,000 Per Share
[ ___], 2007
Wachovia Capital Markets, LLC
[UNDERWRITERS]
[UNDERWRITERS]
As Representatives of the several Underwriters
listed on Exhibit A hereto
listed on Exhibit A hereto
c/o Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Calamos Global Dynamic Income Fund, a Delaware statutory trust (the “Fund”), and
Calamos Advisors LLC, a Delaware limited liability company (the “Adviser”), confirm their
respective agreements with Wachovia Capital Markets, LLC (“Wachovia”) and each of the other
Underwriters named in Exhibit A hereto (collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxxx, [REPRESENTATIVES] are acting as representatives (in such capacity, the
“Representatives”), with respect to the issue and sale by the Fund of a total of
shares of its Series ___Auction Rate Cumulative Preferred Shares, no par value per share, with a
liquidation preference of $25,000 per share (the “Preferred Shares”), and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of Preferred Shares set
forth in said Exhibit A hereto. The Preferred Shares will be authorized by, and subject to the
terms and conditions of, the Statement of Preferences of Auction Rate Cumulative Preferred Shares
(the “Statement”) and the Agreement and Declaration of Trust dated March 30, 2007, as it may be
amended (the “Agreement and Declaration of Trust”) in substantially the forms filed as exhibits or
otherwise included in the Registration Statement referred to in Section 1 of this Underwriting
Agreement (the “Agreement”). Certain terms used in this Agreement are defined in Section 15
hereof.
The Fund understands that the Underwriters propose to make a public offering of the Preferred
Shares as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
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The Fund has entered into (i) an Investment Management Agreement with the Adviser dated as of
June 15, 2007, (ii) a Custody Agreement with The Bank of New York dated as of June 15, 2007, (iii)
a Foreign Custody Agreement with The Bank of New York dated as of June 15, 2007, (iv) a Stock
Transfer Agency Agreement with The Bank of New York dated as of June 15, 2007, (v) an Amended and
Restated Financial Accounting Services Agreement with the Adviser dated as of December 13, 2004, as
effective with respect to the Fund as of June 15, 2007, (vi) a Master Services Agreement with State
Street Bank and Trust Company dated as of March 15, 2004, as effective with respect to the Fund as
of June 15, 2007 and (vii) an Auction Agency Agreement (including the form of Broker-Dealer
Agreement) with The Bank of New York dated July 31, 2003, as effective with respect to the Fund as
of [ ], 2007 and such agreements are herein referred to as the “Advisory Agreement,”
the “Custodian Agreement,” the “Foreign Custody Agreement,” the “Transfer
Agency Agreement,” the “Accounting Agreement,” the “Administration Agreement”
and the “Auction Agency Agreement” respectively. Collectively, the Advisory Agreement, the
Custodian Agreement, the Foreign Custody Agreement, the Transfer Agency Agreement, the Accounting
Agreement, the Administration Agreement and the Auction Agency Agreement are herein referred to as
the “Fund Agreements.”
The Fund has prepared and filed with the Commission a registration statement (file numbers
333-144660 and 811-22047) on Form N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference therein), for registration under the
1933 Act and the 1940 Act of the offering and sale of the Preferred Shares. The Fund may have filed
one or more amendments thereto, including a related preliminary prospectus (including the statement
of additional information incorporated by reference therein), each of which has previously been
furnished to you.
The Fund will next file with the Commission one of the following: either (1) prior to the
effective date of the registration statement, a further amendment to the registration statement
(including the form of final prospectus (including the statement of additional information
incorporated by reference therein)) or (2) after the effective date of the registration statement,
a final prospectus (including the statement of additional information incorporated by reference
therein) in accordance with Rules 430A and 497. In the case of clause (2), the Fund has included or
incorporated by reference in the Registration Statement, as amended at the effective date, all
information (other than Rule 430A Information) required by the 1933 Act and the 1940 Act and the
Rules and Regulations to be included in the registration statement and the Prospectus. As filed,
such amendment and form of final prospectus (including the statement of additional information
incorporated by reference therein), or such final prospectus (including the statement of additional
information incorporated by reference therein), shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the form furnished to you
prior to the Applicable Time or, to the extent not completed at the Applicable Time, shall contain
only such specific additional information and other changes (beyond that contained in the latest
preliminary prospectus) as the Fund has advised you, prior to the Applicable Time, will be included
or made therein.
2
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Adviser. The Fund and the Adviser,
jointly and severally, represent and warrant to each Underwriter as of the date hereof, as of the
Applicable Time, as of the Closing Date referred to in Section 2(b) hereof, and agree with each
Underwriter, as follows:
(1) Compliance with Registration Requirements. The Preferred Shares have been
duly registered under the 1933 Act and the 1940 Act pursuant to the Registration Statement.
Each of the Initial Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and the 1940 Act, and no stop order suspending the
effectiveness of the Initial Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act or the 1940 Act, and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the Fund or the Adviser,
are contemplated by the Commission, and any request on the part of the Commission for
additional information has been complied with. The Preliminary Prospectus and the
Prospectus complied when filed with the Commission in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and Regulations. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto delivered to the
Underwriters for use in connection with the offering of the Preferred Shares each was
identical to the electronically transmitted copy thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
At the respective times the Initial Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became or become effective
and at the Closing Date, the Initial Registration Statement, any Rule 462(b) Registration
Statement will, and the 1940 Act Notification when originally filed with the Commission and
any amendments and supplements thereto did or will, comply in all material respects with the
requirements of the 1933 Act, the 1940 Act and the Rules and Regulations 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, as of its date, at the
Closing Date and at any time when a prospectus is required by applicable law to be delivered
in connection with sales of Preferred Shares, 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 Preliminary Prospectus and the information included on Exhibit E
hereto, all considered together (collectively, the “General Disclosure Package”) did
not or will not contain 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; provided, however,
that the Fund makes no representations or warranties as to the information contained in or
omitted from the Preliminary Prospectus or the Prospectus in reliance upon and in conformity
with information furnished in writing to the Fund by or
on behalf of any Underwriter specifically for inclusion therein, it being understood
and
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agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 6(b) hereof.
(2) Independent Accountants. Deloitte & Touche LLP who certified and audited
the financial statements and supporting schedules included in the Registration Statement and
the Prospectus are independent public accountants as required by the 1933 Act, the 1940 Act
and the Rules and Regulations.
(3) Financial Statements. The financial statements of the Fund included in the
Registration Statement, the Preliminary Prospectus and the Prospectus, together with the
related schedules (if any) and notes, present fairly the financial position of the Fund at
the dates indicated and the results of operations and cash flows of the Fund for the periods
specified; and all such financial statements have been prepared in conformity with GAAP
applied on a consistent basis throughout the periods involved and comply with all applicable
accounting requirements under the 1933 Act, the 1940 Act and the Rules and Regulations. The
supporting schedules, if any, included in the Registration Statement present fairly, in
accordance with GAAP, the information required to be stated therein, and the other financial
and statistical information and data included in the Registration Statement, the Preliminary
Prospectus and the Prospectus are accurately derived from such financial statements and the
books and records of the Fund.
(4) No Material Adverse Change in Business or Distribution. Since the
respective dates as of which information is given in the Preliminary Prospectus and the
Prospectus, except as otherwise stated therein, (A) there has been no Fund Material Adverse
Effect, (B) there have been no transactions entered into by the Fund which are material with
respect to the Fund other than those in the ordinary course of its business as described in
the Preliminary Prospectus and the Prospectus and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Fund on any class of its Common
Shares.
(5) Good Standing of the Fund. The Fund has been duly formed and is validly
existing in good standing as a statutory trust under the laws of the State of Delaware and
has power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Preliminary Prospectus and the Prospectus
and to enter into and perform its obligations under this Agreement and the Fund Agreements;
and the Fund is duly qualified to transact business and is in good standing under the laws
of each jurisdiction which requires qualification.
(6) No Subsidiaries. The Fund has no subsidiaries.
(7) Investment Company Status. The Fund is duly registered under the 1940 Act
as a closed-end, diversified management investment company under the 1940 Act and the Rules
and Regulations, and the 1940 Act Notification has been duly filed with the Commission. The
Fund has not received any notice from the Commission pursuant to Section 8(e) of the 1940
Act with respect to the 1940 Act Notification or the Registration Statement.
4
(8) Officers and Trustees. No person is serving or acting as an officer,
trustee or investment adviser of the Fund except in accordance with the provisions of the
1940 Act and the Rules and Regulations and the Advisers Act. Except as disclosed in the
Registration Statement, the Preliminary Prospectus and the Prospectus, no trustee of the
Fund is (A) an “interested person” (as defined in the 1940 Act) of the Fund or (B) an
“affiliated person” (as defined in the 1940 Act) of any Underwriter. For purposes of this
Section 1(a)(8), the Fund and the Adviser shall be entitled to rely on representations from
such officers and trustees.
(9) Capitalization. The Fund’s authorized capitalization is as set forth in
the Preliminary Prospectus and in the Prospectus; the capital stock of the Fund conforms in
all material respects to the description thereof contained in the Preliminary Prospectus and
the Prospectus; all outstanding common shares of beneficial interest, no par value per share
(the “Common Shares”), have been duly and validly authorized and issued and are fully paid
and, except as described in the Preliminary Prospectus and the Prospectus, nonassessable;
the Preferred Shares have been duly and validly authorized, and, when issued and delivered
to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and,
except as described in the Preliminary Prospectus and the Prospectus, nonassessable and free
of any preemptive or similar rights that entitle or will entitle any person to acquire any
Preferred Shares upon issuance thereof by the Fund; the certificates for the Preferred
Shares are in valid and sufficient form; the holders of outstanding Common Shares are not
entitled to preemptive or other rights to subscribe for the Preferred Shares; and, except as
set forth in the Preliminary Prospectus and the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of, or
ownership interests in, the Fund are outstanding.
(10) Power and Authority. The Fund has full power and authority to enter into
this Agreement and the Fund Agreements; the execution and delivery of, and the performance
by the Fund of its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund; and this Agreement and the Fund Agreements have been
duly executed and delivered by the Fund and constitute the valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance with their terms, except
as rights to indemnity and contribution may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund’s obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws relating to or affecting creditors’ rights generally
and by general equitable principles.
(11) Agreements’ Compliance with Law. This Agreement and each of the Fund
Agreements comply in all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(12) Absence of Defaults and Conflicts. The Fund is not (i) in violation of
its Statement, Declaration of Trust or bylaws, (ii) in breach or default in the performance
of
5
the terms of any indenture, contract, lease, mortgage, declaration of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or instrument
to which it is a party or bound or to which its property is subject or (iii) in violation of
any law, ordinance, administrative or governmental rule or regulation applicable to the Fund
or of any decree of the Commission, the NASD, any state securities commission, any foreign
securities commission, any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative agency or any official
having jurisdiction over the Fund, except in the case of (ii) and (iii) for such breaches,
defaults or violations which would not have a Fund Material Adverse Effect.
(13) Absence of Proceedings. There is no action, suit, proceeding, 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 Fund, threatened, against or affecting the
Fund which is required to be disclosed in the Preliminary Prospectus and Prospectus (other
than as disclosed therein), or that could reasonably be expected to result in a Fund
Material Adverse Effect, or that could reasonably be expected to materially and adversely
affect the properties or assets of the Fund or the consummation of the transactions
contemplated in this Agreement or the performance by the Fund of its obligations under this
Agreement or the Fund Agreements; the aggregate of all pending legal or governmental
proceedings to which the Fund is a party or of which any of its property or assets is the
subject which are not described in the Preliminary Prospectus or the Prospectus or to be
filed as an exhibit to the Registration Statement that are not described or filed as
required by the 1933 Act, the 1940 Act or the Rules and Regulations, including ordinary
routine litigation incidental to the business, could not reasonably be expected to result in
a Fund Material Adverse Effect.
(14) Accuracy of Descriptions and Exhibits. The statements set forth under the
headings “Description of Preferred Shares,” “The Auction,” “Certain Provisions of the
Agreement and Declaration of Trust and By-Laws” and “U.S. Federal Income Tax Matters” in the
Preliminary Prospectus and the Prospectus and “Additional Information Concerning the
Auctions for Preferred Shares” and “U.S. Federal Income Tax Matters” in the Statement of
Additional Information, insofar as such statements purport to summarize certain provisions
of the 1940 Act, the Delaware Statutory Trust Act, the Preferred Shares, the Fund’s
Statement and Declaration of Trust, U.S. federal income tax law and regulations or legal
conclusions with respect thereto, fairly and accurately summarize such provisions in all
material respects; all descriptions in the Registration Statement, the Preliminary
Prospectus and the Prospectus of any Fund documents are accurate in all material respects;
and there are no franchises, contracts, indentures, mortgages, deeds of trust, loan or
credit agreements, bonds, notes, debentures, evidences of indebtedness, leases or other
instruments or agreements required to be described or referred to in the Registration
Statement, the Preliminary Prospectus or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required by the 1933 Act, the 1940
Act or the Rules and Regulations which have not been so described and filed as required.
(15) Absence of Further Requirements. (A) No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
6
governmental authority or agency, domestic or foreign, and (B) no authorization,
approval, vote or other consent of any other person or entity, is necessary or required for
the performance by the Fund of its obligations under this Agreement or the Fund Agreements,
for the offering, issuance, sale or delivery of the Preferred Shares hereunder, or for the
consummation of any of the other transactions contemplated by this Agreement or the Fund
Agreements, in each case on the terms contemplated by the Registration Statement, the
Preliminary Prospectus and the Prospectus, except such as have been already obtained and
under the 1933 Act, the 1940 Act, the Rules and Regulations, the rules and regulations of
the NASD and such as may be required under state securities laws.
(16) Non-Contravention. Neither the execution, delivery or performance of this
Agreement and the Fund Agreements nor the consummation by the Fund of the transactions
herein or therein contemplated (i) conflicts or will conflict with or constitutes or will
constitute a breach of the Statement, Declaration of Trust or bylaws of the Fund, (ii)
conflicts or will conflict with or constitutes or will constitute a breach of or a default
under, any agreement, indenture, lease or other instrument to which the Fund is a party or
by which it or any of its properties may be bound or (iii) violates or will violate any
statute, law, regulation or filing or judgment, injunction, order or decree applicable to
the Fund or any of its properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Fund pursuant to the terms of any
agreement or instrument to which the Fund is a party or by which the Fund may be bound or to
which any of the property or assets of the Fund is subject.
(17) Possession of Licenses and Permits. The Fund has such licenses, permits,
and authorizations of governmental or regulatory authorities (“permits”) as are necessary to
own its property and to conduct its business in the manner described in the Preliminary
Prospectus and the Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which allows or, after
notice or lapse of time, would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Fund under any such permit, subject in each
case to such qualification as may be set forth in the Preliminary Prospectus and the
Prospectus; and, except as described in the Preliminary Prospectus and the Prospectus, none
of such permits contains any restriction that is materially burdensome to the Fund.
(18) Distribution of Offering Material. The Fund has not distributed and,
prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution
of the Preferred Shares, will not distribute any offering material in connection with the
offering and sale of the Preferred Shares other than the Registration Statement, the
Preliminary Prospectus, the Prospectus, any sales material or other materials permitted by
the Act, the 1940 Act or the Rules and Regulations.
(19) Absence of Registration Rights. There are no persons with registration
rights or other similar rights to have any securities (debt or equity) (A) registered
pursuant to the Registration Statement or included in the offering contemplated by this
Agreement or (B) otherwise registered by the Fund under the 1933 Act or the 1940 Act. There
are no persons with tag-along rights or other similar rights to have any securities
7
(debt or equity) included in the offering contemplated by this Agreement or sold in
connection with the sale of Preferred Shares by the Fund pursuant to this Agreement.
(20) NASD Matters. All of the information provided to the Underwriters or to
counsel for the Underwriters by the Fund, its officers and Trustees in connection with
letters, filings or other supplemental information provided to NASD Regulation Inc. pursuant
to the NASD’s conduct rules is true, complete and correct.
(21) Tax Returns. The Fund has filed all tax returns that are required to be
filed and has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and payable,
except for any such tax, assessment, fine or penalty that is currently being contested in
good faith by appropriate actions and except for such taxes, assessments, fines or penalties
the nonpayment of which would not, individually or in the aggregate, have a Fund Material
Adverse Effect.
(22) Subchapter M. The Fund is currently in compliance with the requirements
of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”) to
qualify as a regulated investment company under the Code and intends to direct the
investment of the net proceeds of the offering of the Preferred Shares in such a manner as
to comply with the requirements of Subchapter M of the Code.
(23) Insurance. The Fund’s trustees and officers/errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the 1940 Act Rules and
Regulations are in full force and effect; the Fund is in compliance with the terms of such
policy and fidelity bond in all material respects; and there are no claims by the Fund under
any such policy or fidelity bond as to which any insurance company is denying liability or
defending under a reservation of rights clause; the Fund has not been refused any insurance
coverage sought or applied for; and the Fund has no reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Fund Material Adverse Effect, except as set forth in or
contemplated in the Preliminary Prospectus and Prospectus (exclusive of any supplement
thereto).
(24) Accounting Controls and Disclosure Controls. The Fund maintains a system
of internal accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorizations
and with the investment objectives, policies and restrictions of the Fund and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the Code; (B)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability to calculate net asset value and
to maintain material compliance with the books and records requirements under the 1940 Act
and the 1940 Act Rules and Regulations; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The
8
Fund employs “disclosure controls and procedures” (as such term is defined in Rule
30a-3 under the 1940 Act); such disclosure controls and procedures are currently in effect.
(25) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure
on the part of the Fund or any of the Fund’s trustees or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act and the rules and regulations
promulgated in connection therewith, including Sections 302 and 906 related to
certifications.
(26) Fund Compliance with Policies and Procedures. The Fund has adopted and
implemented written policies and procedures reasonably designed to prevent violation of the
Federal Securities Laws (as that term is defined in Rule 38a-1 under the 1940 Act) by the
Fund, including policies and procedures that provide oversight of compliance for each
investment adviser, administrator and transfer agent of the Fund.
(27) Absence of Manipulation. The Fund has not taken and will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Preferred Shares, and the Fund is
not aware of any such action taken or to be taken by any affiliates of the Fund, other than
such actions as taken by the Underwriters that are affiliates of the Fund, so long as such
actions are in compliance with all applicable law.
(28) Statistical, Demographic or Market-Related Data. Any statistical,
demographic or market-related data included in the Registration Statement, the Preliminary
Prospectus or the Prospectus is based on or derived from sources that the Fund believes to
be reliable and accurate and all such data included in the Registration Statement, the
Preliminary Prospectus or the Prospectus accurately reflects the materials upon which it is
based or from which it was derived.
(29) Advertisements. All advertising, sales literature or other promotional
material (including “prospectus wrappers”, “broker kits”, “road show slides” and “road show
scripts”), whether in printed or electronic form, authorized in writing by or prepared by or
at the direction of the Fund or the Adviser for use in connection with the offering and sale
of the Preferred Shares (collectively, “sales material”) complied and comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act Rules and
Regulations and the rules and interpretations of the NASD and if required to be filed with
the NASD under the NASD’s conduct rules were provided to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, for filing. No sales material contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Representations and Warranties by the Adviser. The Adviser represents and warrants to
each Underwriter as of the date hereof, as of the Applicable Time, as of the Closing Date, and
agrees with each Underwriter, as follows:
9
(1) Investment Manager Status. The Adviser is duly registered as an investment
adviser under the Advisers Act and it not prohibited by the Advisers Act, the 1940 Act, the
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under
the Advisory Agreement or the Accounting Agreement as contemplated by the Preliminary
Prospectus and the Prospectus.
(2) Capitalization. The Adviser has the financial resources available to it
necessary for the performance of its services and obligations as contemplated in the
Preliminary Prospectus and the Prospectus and under this Agreement and the Advisory
Agreement and the Accounting Agreement.
(3) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Preliminary Prospectus and the Prospectus, except as
otherwise stated therein, (A) there has been no Adviser Material Adverse Effect and (B)
there have been no transactions entered into by the Adviser which are material with respect
to the Adviser other than those in the ordinary course of its business as described in the
Preliminary Prospectus and the Prospectus.
(4) Good Standing. The Adviser has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the State of Delaware and has
power and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement, the Preliminary Prospectus and the Prospectus and
to enter into and perform its obligations under this Agreement and the Fund Agreements to
which it is a party; and the Adviser is duly qualified to transact business and is in good
standing under the laws of each jurisdiction which requires qualification.
(5) Power and Authority. The Adviser has full power and authority to enter
into this Agreement, the Advisory Agreement and the Accounting Agreement; the execution and
delivery of, and the performance by the Adviser of its obligations under this Agreement, the
Advisory Agreement and the Accounting Agreement have been duly and validly authorized by the
Adviser; and this Agreement, the Advisory Agreement and the Accounting Agreement have been
duly executed and delivered by the Adviser and constitute the valid and legally binding
agreements of the Adviser, enforceable against the Adviser in accordance with their terms,
except as rights to indemnity and contribution may be limited by federal or state securities
laws and subject to the qualification that the enforceability of the Adviser’s obligations
hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws relating to or affecting creditors’ rights
generally and by general equitable principles.
(6) Description of the Adviser. The description of the Adviser and its
business and the statements attributable to the Adviser in the Preliminary Prospectus and
Prospectus complied and comply in all material respects with the provisions of the 1933 Act,
the 1940 Act, the Advisers Act, the 1940 Act Rules and Regulations and the Advisers Act
Rules and Regulations and did not and will not contain an untrue statement
10
of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading.
(7) Non-Contravention. Neither the execution, delivery or performance of this
Agreement, the Advisory Agreement or the Accounting Agreement nor the consummation by the
Fund or the Adviser of the transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the Organizational Documents of
the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a breach
of or a default under, any agreement, indenture, lease or other instrument to which the
Adviser is a party or by which it or any of its properties may be bound or (iii) violates or
will violate any statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Adviser or any of its properties or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Adviser
pursuant to the terms of any agreement or instrument to which the Adviser is a party or by
which the Adviser may be bound or to which any of the property or assets of the Adviser is
subject.
(8) Agreements’ Compliance with Laws. This Agreement, the Advisory Agreement
and the Accounting Agreement comply in all material respects with all applicable provisions
of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act, and the Advisers Act
Rules and Regulations.
(9) Absence of Proceedings. There is no action, suit, proceeding, 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 Adviser, threatened, against or affecting
the Adviser which is required to be disclosed in the Preliminary Prospectus and Prospectus
(other than as disclosed therein), or that could reasonably be expected to result in an
Adviser Material Adverse Effect, or that could reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Adviser of its obligations under
this Agreement, the Advisory Agreement or the Accounting Agreement; the aggregate of all
pending legal or governmental proceedings to which the Adviser is a party or of which any of
its property or assets is the subject which are not described in the Preliminary Prospectus
or the Prospectus, including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in an Adviser Material Adverse Effect.
(10) Absence of Further Requirements. (A) No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, and (B) no authorization, approval,
vote or other consent of any other person or entity, is necessary or required for the
performance by the Adviser of its obligations under this Agreement, the Advisory Agreement
or the Accounting Agreement, except such as have been already obtained under the 1933 Act,
the 1940 Act, the Rules and Regulations, the rules and regulations of the NASD and such as
may be required under state securities laws.
11
(11) Possession of Permits. The Adviser has such licenses, permits and
authorizations of governmental or regulatory authorities (“permits”) as are necessary to own
its property and to conduct its business in the manner described in the Preliminary
Prospectus and the Prospectus; the Adviser has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the Adviser under any such permit.
(12) Adviser Compliance with Policies and Procedures. The Adviser has adopted
and implemented written policies and procedures under Rule 206(4)-7 of the Advisers Act
reasonably designed to prevent violation of the Advisers Act and the Advisers Act Rules by
the Adviser and its supervised persons.
(13) Absence of Manipulation. The Adviser has not taken and will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Preferred Shares, and the Adviser is
not aware of any such action taken or to be taken by any affiliates of the Adviser, other
than such actions as taken by the Underwriters that are affiliates of the Adviser, so long
as such actions are in compliance with all applicable law.
(c) Certificates. Any certificate signed by any officer of the Fund or the Adviser and
delivered to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Fund or the Adviser, as the case may be, to each Underwriter as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Preferred Shares. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Fund agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Fund, at a purchase price of $ per share, the amount of the Preferred Shares
set forth opposite such Underwriter’s name in Exhibit A hereto. The Fund is advised that the
Underwriters intend to (i) make a public offering of their respective portions of the Preferred
Shares as soon after the Applicable Time as is advisable and (ii) initially to offer the Preferred
Shares upon the terms set forth in the Preliminary Prospectus and the Prospectus.
(b) Payment. Payment of the purchase price for the Preferred Shares, and delivery of the
related closing certificates therefor, shall be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, or at such other place as shall be agreed upon by the Representatives and the Fund, at 10:00
A.M. (Eastern time) on [ _], 2007 (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Fund (such time and date of payment and delivery being herein
called “Closing Date”).
Delivery of the Preferred Shares shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters through the
12
Representatives of the purchase price thereof to or upon the order of the Fund by Federal Funds
wire transfer payable in same-day funds to an account specified by the Fund. Delivery of the
Preferred Shares shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. Xxxxxxxx, individually and not as Representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase price for the
Preferred Shares to be purchased by any Underwriter whose funds have not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Preferred Shares shall be in such
denominations and registered in such names as the Representatives may request in writing at least
one full business day before the Closing Date. The certificates for the Preferred Shares will be
made available for examination and packaging by the Representatives in The City of New York not
later than noon (Eastern Time) on the business day prior to the Closing Date.
SECTION 3. Covenants of the Fund and the Adviser. The Fund and the Adviser, jointly and severally, covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Fund, subject
to Section 3(a)(ii), will comply with the requirements of Rule 430A 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, (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, (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
Preferred Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes, or of any examination pursuant to
Section 8(e) of the 1940 Act concerning the Registration Statement and (v) if the Fund
becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the
offering of the Preferred Shares. The Fund will use its best efforts in connection with the
offering of the Preferred Shares to prevent the issuance of any stop order or the suspension
of any such qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) Filing of Amendments. The Fund 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 either the prospectus
included in the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act or otherwise, or will furnish the Representatives with
copies of any such documents within 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.
13
(c) Delivery of Registration Statements. The Fund has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith) and signed copies of all consents and certificates of experts. 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.
(d) Delivery of Prospectuses. The Fund has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus prepared prior to the date of this
Agreement as such Underwriter reasonably requested, and the Fund hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Fund will furnish to each
Underwriter, without charge, such number of copies of the documents constituting the General
Disclosure Package prepared on or after the date of this Agreement and the Prospectus (and
any amendments or supplements thereto) as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters is or will be, as the case may be, identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Fund will comply with the 1933 Act,
the 1940 Act and the Rules and Regulations so as to permit the completion of the
distribution of the Preferred Shares 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 Preferred Shares (including, without limitation, pursuant to
Rule 172), 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 Fund, to amend the
Registration Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein 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, the 1940 Act or the Rules and Regulations, the Fund will promptly prepare and
file with the Commission, subject to Section 3(b) hereof, 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 Fund 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 Fund will use its best efforts, in cooperation with
the Underwriters, to qualify, if necessary, the Preferred Shares for offering and sale under
the applicable securities laws of states of the United States, the District of
Columbia, Guam, Puerto Rico and the U.S. Virgin Islands as the Representatives may
designate and to maintain such qualifications in effect for a period of not less than one
year from the date of this Agreement; provided, however, that the Fund shall not be
14
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 Fund will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its security holders as soon as
practicable an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Fund will use the net proceeds received by it from the sale
of the Preferred Shares in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Reporting Requirements. The Fund, during the period when the Prospectus is
required to be delivered under the 1933 Act, the 1940 Act or the Rules and Regulations, will
file all documents required to be filed with the Commission pursuant to the 1933 Act, the
1940 Act or the Rules and Regulations within the time periods required by the 1934 Act, the
1940 Act or the Rules and Regulations.
(j) Subchapter M. The Fund will comply with the requirements of Subchapter M of the
Code to qualify as a regulated investment company under the Code.
(k) Absence of Manipulation. Except as stated in this Agreement and the Preliminary
Prospectus and Prospectus, the Fund and the Adviser have not taken and will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Preferred Shares, and the Fund and
the Adviser are not aware of any such action taken or to be taken by any affiliates of the
Fund or the Adviser, other than such actions as taken by the Underwriters that are
affiliates of the Fund or the Adviser, so long as such actions are in compliance with all
applicable law.
(l) Restriction on Sale of Securities. The Fund will not, without the prior written
consent of Wachovia, offer, sell, contract to sell, pledge, or otherwise dispose of, or
enter into any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Fund or any affiliate of the Fund or any person in
privity with the Fund, directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any senior securities other than the
Preferred Shares or any securities convertible into, or exercisable, or exchangeable for,
any senior securities other than the Preferred Shares; or publicly
announce an intention to effect any such transaction for a period of 180 days following
the Execution Time
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(m) Ratings. The Fund will use its reasonable best efforts to cause the Preferred
Shares, prior to the Closing Date, to be assigned a rating of ‘AAA’ by Fitch Ratings
(“Fitch”) and ‘AAA’ by Standard & Poors (“S&P”, and together with Fitch, the “Rating
Agencies”).
(n) Asset Coverage and Basic Maintenance Report. The Fund will furnish to you (i) a
report showing compliance with the asset coverage requirements of the 1940 Act as of the
Closing Date and (ii) a Preferred Shares Basic Maintenance Certificate (as defined in the
Statement) as of a date within seven business days after the Closing Date, each in form and
substance satisfactory to you. Each such report shall assume the receipt of the net
proceeds from the sale of the Preferred Shares.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund 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 word processing, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Preferred Shares, (iii) the preparation,
issuance and delivery of the certificates for the Preferred Shares 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 Preferred Shares to the Underwriters, (iv) the fees and disbursements of the
counsel, accountants and other advisors to the Fund, (v) the qualification of the Preferred Shares
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 supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of each preliminary
prospectus, the documents constituting the General Disclosure Package, the Prospectus and the 1940
Act Notification, any sales material and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky Survey and any
supplements thereto, (viii) the fees and expenses of the custodian, auction agent and
broker-dealers and the transfer agent and registrar for the Preferred Shares, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Preferred Shares, (x) the
transportation and other expenses incurred in connection with presentations to prospective
purchasers of the Preferred Shares, (xi) any expenses and fees for the cost of Rating Agencies and
(xii) all other costs and expenses incident to the performance by the Fund of its obligations
hereunder.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Fund and the Adviser, jointly and severally, agree that they shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel
for the Underwriters.
16
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase the Preferred Shares shall be subject to
the accuracy of the representations and warranties on the part of the Fund and the Adviser
contained herein as of the Applicable Time and the Closing Date pursuant to Section 4 hereof, to
the accuracy of the statements of the Fund and the Adviser made in any certificates pursuant to the
provisions hereof, to the performance by the Fund and the Adviser of their respective covenants and
other obligations hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any
Rule 462(b) Registration Statement, has become effective and at Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the
1933 Act or any notice objecting to its use or order pursuant to Section 8(e) of the 1940
Act shall have been issued and proceedings therefor initiated or, to the knowledge of the
Fund, 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 prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 497 or a post-effective amendment
providing such information shall have been filed and declared effective in accordance with
the requirements of Rule 430A.
(b) Opinion of Counsel for Fund. At the Closing Date, the Representatives shall have
received the favorable opinion, dated as of the Closing Date, of Xxxxxx, Price, Xxxxxxx &
Xxxxxxxx, P.C., counsel for the Fund (“Fund Counsel”), in form and substance
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 Exhibit B hereto
and to such further effect as counsel to the Underwriters may reasonably request. Insofar
as the opinion expressed above relates to or is dependent upon matters governed by Delaware
law, Xxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxx, P.C. will be permitted to rely on the opinion of
Xxxxxx, Xxxxxxx, Arsht & Xxxxxxx.
(c) Opinion of Counsel for Underwriters. At Closing Date, the Representatives shall
have received the favorable opinion, dated as of Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, in form and substance satisfactory to the
Representatives. Insofar as the opinion expressed above relates to or is dependent upon
matters governed by Delaware law, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP will be permitted to rely
on the opinion of Xxxxxx, Xxxxxxx, Arsht & Xxxxxxx.
(d) Certificate of the Fund. At the Closing Date 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 (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), any Fund Material
Adverse Effect, and, at the Closing Date, the Representatives shall have received a
certificate of the Chairman, the President, the Chief Executive Officer or an Executive Vice
President or Senior Vice President of the Fund and of the Chief Financial Officer or Chief
Accounting Officer of the Fund, dated as of the Closing Date, to the effect that (i) there
has been no such Fund Material Adverse Effect, (ii) the representations and
17
warranties of
the Fund in this Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the Fund has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date under or pursuant to this Agreement, and (iv) no stop order suspending
the effectiveness of the Registration Statement or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act has been issued, and no proceedings
for that purpose have been instituted or are pending or, to their knowledge, are
contemplated by the Commission.
(e) Opinion of Counsel for the Adviser. At the Closing Date, the Representatives shall
have received the favorable opinion, dated as of the Closing Date, of Xxxxxx, Price, Xxxxxxx
& Xxxxxxxx, P.C., counsel for the Adviser, in form and substance 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 Exhibit C hereto and to such further effect
as counsel to the Underwriters may reasonably request.
(f) Certificate of the Adviser. At the Closing Date 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 (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), any Adviser Material Adverse Effect, and,
at the Closing Date, the Representatives shall have received a certificate of the Chairman,
the President, the Chief Executive Officer or an Executive Vice President or Senior Vice
President of the Adviser and of the Chief Financial Officer or Chief Accounting Officer of
the Adviser, dated as of the Closing Date, to the effect that (i) there has been no such
Adviser Material Adverse Effect, (ii) the representations and warranties of the Adviser in
this Agreement are true and correct with the same force and effect as though expressly made
at and as of the Closing Date, (iii) the Adviser has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to the Closing
Date under or pursuant to this Agreement, and (iv) no stop order suspending the
effectiveness of the Registration Statement or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act has been issued and no proceedings for
that purpose have been instituted or are pending or, to their knowledge, are contemplated by
the Commission.
(g) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a letter, dated the date of
this Agreement and in form and substance 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
of the Fund contained in the Registration Statement or the Prospectus.
(h) Bring-down Comfort Letter. At the Closing Date, the Representatives shall have
received from Deloitte & Touche LLP a letter, dated as of the Closing Date and in form and
substance satisfactory to the Representatives, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of this
18
Section, except
that the specified date referred to shall be a date not more than three business days prior
to the Closing Date.
(i) Asset Coverage and Basic Maintenance Report. The Fund shall have furnished to the
Representatives a report showing compliance with the asset coverage requirements of the 1940
Act and a Preferred Share Basic Maintenance Report (as defined in the Statement), in form
and substance reasonable satisfactory to the Representatives.
(j) Ratings. The Fund shall have delivered and the Underwriter shall have received
evidence satisfactory to the Underwriter that the Preferred Shares are rated ‘AAA’ by Fitch
and ‘AAA’ by S&P as of the Closing Date, and there shall not have been given any notice of
any intended or potential downgrading or of any review for a potential downgrading, in the
rating accorded to the Preferred Shares by either Rating Agency.
(k) Additional Documents. At the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Preferred Shares 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, contained in this Agreement; and
all proceedings taken by the Fund and the Adviser in connection with the issuance and sale
of the Preferred Shares as herein contemplated and in connection with the other transactions
contemplated by this Agreement shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(l) Delivery of Documents. The documents required to be delivered by this Section 5
shall be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the Closing Date.
(m) Termination of Agreement. If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Fund.
SECTION 6. Indemnification.
(a) Indemnification by the Fund and the Adviser. The Fund and the Adviser, jointly and
severally, agree to indemnify and hold harmless each Underwriter 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), 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, any
sales material, the Preliminary Prospectus or the Prospectus (or any amendment or
19
supplement
thereto), or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Fund and the Adviser; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxxxx), 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 Fund or the Adviser by any Underwriter through Wachovia expressly for
use in the Registration Statement (or any amendment thereto), or in any preliminary prospectus, any
sales material, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification by the Underwriters. Each Underwriter severally agrees to indemnify and
hold harmless each of the Fund and the Adviser, each of their directors, trustees, members, each of
their officers who signed the Registration Statement, and each person, if any, who controls the
Fund or the Adviser within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 6, 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), or any preliminary prospectus, any sales material, the Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Fund or the Adviser by such Underwriter through Wachovia
expressly for use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus, any sales material, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto). The Fund and the
Adviser acknowledge that the statements set forth in the last paragraph of the cover page
regarding delivery of the Preferred Shares and, under the heading “Underwriting”, (i) the list of
Underwriters and their respective participation in the sale of the Preferred Shares, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph related to prospectuses
in electronic format in any Preliminary Prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus.
20
(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, 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. Counsel to the
indemnified parties shall be selected as follows: counsel to the Underwriters 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 shall be selected by Xxxxxxxx; counsel to the Fund, its directors, trustees, members,
each of its officers who signed the Registration Statement and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by the Fund; and counsel to the Adviser and each person, if any, who controls such Adviser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by
such Adviser. 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 the fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for the Underwriters 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, the fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Fund, each of their directors, trustees, members, each of
its officers who signed the Registration Statement and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the fees and
expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for the Adviser, and the fees and expenses of more than one counsel, in each case 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.
(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)(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.
21
(e) Other Agreements with Respect to Indemnification and Contribution. The provisions of this
Section 6 and in Section 7 hereof shall not affect any agreements among the Fund and the Adviser
with respect to indemnification of each other or contribution between themselves.
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 Fund and the Adviser on the one hand and the Underwriters on the other
hand from the offering of the Preferred Shares pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Fund and the Adviser 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 Fund and the Adviser on the one hand and the
Underwriters on the other hand in connection with the offering of the Preferred Shares pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Preferred Shares pursuant to this Agreement (before deducting expenses)
received by the Fund and the Adviser and the total sales load 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 Preferred Shares as set forth on such cover.
The relative fault of the Fund and the Adviser 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 Fund, by the Adviser or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Fund, the Adviser 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 Preferred
Shares underwritten by it and distributed to the public were offered to the public exceeds the
22
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
1933 Act) 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 director, trustee,
member, officer, employee and agent of an Underwriter shall have the same rights to contributions
as such Underwriters, and each person who controls the Fund or the Adviser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, each officer of the Fund and the Adviser
and each trustee, director or member of the Fund and the Adviser shall have the same rights to
contribution as the Fund and the Adviser. The Underwriters’ respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Preferred Shares set forth
opposite their respective names in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Fund or signed by or on behalf of the Adviser submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or controlling person, or by or on behalf of the Fund, or by or
on behalf of the Adviser, and shall survive delivery of the Preferred Shares to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Fund or the Adviser, at any time on or prior to the Closing Date (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 Fund Material Adverse Effect or Adviser
Material Adverse Effect, 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 Preferred Shares or to enforce
contracts for the sale of the Preferred Shares, or (iii) if trading in any securities of the Fund
has been suspended or materially limited by the Commission or the NYSE, or if trading generally on
the NYSE or in the Nasdaq National 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 NASD or any other
governmental authority, or a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided in
23
Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 hereof shall survive such termination and remain
in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Date to purchase the Preferred
Shares which it or they are obligated to purchase under this Agreement (the “Defaulted
Shares”), 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 Shares 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:
(a) if the number of Defaulted Shares does not exceed 10% of the number of Preferred
Shares to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Shares exceeds 10% of the number of Preferred Shares to
be purchased on such date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 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, the
Representatives shall have the right to postpone Closing Date for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term “Underwriter” includes any person substituted
for an Underwriter under this Section 10.
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
Wachovia Capital Markets, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Syndicate; notices to the Fund and the Adviser shall be directed to them at c/o Calamos Advisors
LLC, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: General Counsel (fax no.: (000)
000-0000).
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Fund
and the Adviser 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 Fund and the Adviser and their respective successors and the controlling persons
and directors, officers, members and trustees 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
24
the Underwriters, the Fund and the
Adviser 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 Preferred Shares 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.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 15. Definitions. As used in this Agreement, the following terms have the respective meanings set forth
below:
“Advisers Act” means the Investment Advisers Act of 1940, as amended.
“Advisers Act Rules and Regulations” means the rules and regulations of the Commission
under the Advisers Act.
“Adviser Material Adverse Effect” means a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Adviser,
whether or not arising in the ordinary course of business.
“Agreement and Declaration of Trust” means the Declaration of Trust of Calamos Global
Diversified Income & Opportunities Fund dated as of March 30, 2007 and any amendments thereto.
“Applicable Time” means the date and time that this Agreement is executed and
delivered by the parties hereto.
“Commission” means the Securities and Exchange Commission.
“XXXXX” means the Commission’s Electronic Data Gathering, Analysis and Retrieval
System.
“Fund Material Adverse Effect” means a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Fund,
whether or not arising in the ordinary course of business.
“GAAP” means generally accepted accounting principles.
“Initial Registration Statement” means the Fund’s registration statement (File Nos.
333-144660 and 811-22047) on Form N-2 (including the statement of additional information
incorporated by reference therein), as amended (if applicable), at the time it became effective,
including the Rule 430A Information.
25
“NASD” means the National Association of Securities Dealers, Inc., or any successor
entity.
“NYSE” means the New York Stock Exchange.
“Organizational Documents” means (a) in the case of a corporation, its charter and
by-laws; (b) in the case of a limited or general partnership, its partnership certificate,
certificate of formation or similar organizational document and its partnership agreement; (c) in
the case of a limited liability company, its articles of organization, certificate of formation or
similar organizational documents and its operating agreement, limited liability company agreement,
membership agreement or other similar agreement; (d) in the case of a trust, its certificate of
trust, certificate of formation or similar organizational document and its trust agreement or other
similar agreement; and (e) in the case of any other entity, the organizational and governing
documents of such entity.
“preliminary prospectus” means any prospectus (including the statement of additional
information incorporated by reference therein) used in connection with the offering of the
Preferred Shares that was used before the Initial Registration Statement became effective, or that
was used after such effectiveness and prior to the execution and delivery of this Agreement, or
that omitted the Rule 430A Information or that was captioned “Subject to Completion”.
“Preliminary Prospectus” shall mean the preliminary prospectus (including the
statement of additional information incorporated by reference therein) dated , 2007 and any
preliminary prospectus (including the statement of additional information incorporated by reference
therein) included in the Registration Statement at the Applicable Time that omits Rule 430A
Information.
“Prospectus” shall mean the prospectus (including the statement of additional
information incorporated by reference therein) relating to the Preferred Shares that is first filed
pursuant to Rule 497 after the Applicable Time.
“Registration Statement” means the Initial Registration Statement; provided that, if a
Rule 462(b) Registration Statement is filed with the Commission, then the term “Registration
Statement” shall also include such Rule 462(b) Registration Statement.
“Rule 172,” “Rule 497,” “Rule 430A,” “Rule 433” and “Rule
462(b)” refer to such rules under the 1933 Act.
“Rule 430A Information” means the information included in the Prospectus that was
omitted from the Initial Registration Statement at the time it became effective but that is deemed
to be a part of the Initial Registration Statement at the time it became effective pursuant to Rule
430A.
“Rule 462(b) Registration Statement” means a registration statement filed by the Fund
pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to
in Section 1(a)(1) hereof.
26
“Rules and Regulations” means, collectively, the 1933 Act Rules and Regulations and
the 1940 Act Rules and Regulations.
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder or implementing the provisions thereof.
“1933 Act” means the Securities Act of 1933, as amended.
“1933 Act Rules and Regulations” means the rules and regulations of the Commission
under the 1933 Act.
“1934 Act” means the Securities Exchange Act of 1934, as amended.
“1934 Act Rules and Regulations” means the rules and regulations of the Commission
under the 1934 Act.
“1940 Act” means the Investment Company Act of 1940, as amended.
“1940 Act Notification” means a notification of registration of the Fund as an
investment company under the 1940 Act on Form N-8A, as the 1940 Act Notification may be amended
from time to time.
“1940 Act Rules and Regulations” means the rules and regulations of the Commission
under the 1940 Act.
All references in this Agreement to the Registration Statement, the Initial Registration
Statement, any Rule 462(b) Registration Statement, any preliminary prospectus, the 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 XXXXX.
SECTION 16. Absence of Fiduciary Relationship. Each of the Fund and the Adviser acknowledges and agrees that:
(a) Each of the Underwriters is acting solely as an underwriter in connection with the
offering of the Preferred Shares and no fiduciary, advisory or agency relationship between the Fund
or the Adviser, on the one hand, and any of the Underwriters, on the other hand, has been or will
be created in respect of any of the transactions contemplated by this Agreement, irrespective of
whether or not any of the Underwriters have advised or is advising the Fund or the Adviser on other
matters and none of the Underwriters has any obligation to the Fund or the Adviser with respect to
the transactions contemplated by this Agreement except the obligations expressly set forth in this
Agreement;
(b) the public offering price of the Preferred Shares and the price to be paid by the
Underwriters for the Preferred Shares set forth in this Agreement were established by the Fund
following discussions and arms-length negotiations with the Representatives;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
27
(d) in connection with each transaction contemplated by this Agreement and the process leading
to such transactions, each Underwriter is and has been acting solely as principal and not as
fiduciary, advisor or agent of the Fund or the Adviser or any of their respective affiliates;
(e) none of the Underwriters has provided any legal, accounting, regulatory or tax advice to
the Fund or the Adviser with respect to the transactions contemplated by this Agreement and it has
consulted its own legal, accounting, regulatory and tax advisers to the extent it has deemed
appropriate;
(f) it is aware that the Underwriters and their respective affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of the Fund and the
Adviser, and that none of the Underwriters has any obligation to disclose such interests and
transactions to the Fund or the Adviser by virtue of any fiduciary, advisory or agency
relationship; and
(g) it waives, to the fullest extent permitted by law, any claims it may have against any of
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that
none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or
otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on its behalf or on behalf of the Fund or the Adviser.
[Signature Page Follows]
28
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Fund and the Adviser a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters, the Fund and the Adviser in
accordance with its terms.
Very truly yours, | ||||
CALAMOS GLOBAL DYNAMIC INCOME FUND | ||||
By | ||||
Name: | ||||
Title: | ||||
CALAMOS ADVISORS LLC | ||||
By | ||||
Name: | ||||
Title: |
29
CONFIRMED AND ACCEPTED, as of the date | ||||
first above written: | ||||
WACHOVIA CAPITAL MARKETS, LLC | ||||
[REPRESENTATIVES] | ||||
By:
|
WACHOVIA CAPITAL MARKETS, LLC | |||
By: |
||||
Authorized Signatory |
For themselves and as Representatives of the Underwriters named in Exhibit A hereto.
1
EXHIBIT A
Number of Preferred | ||||
Name of Underwriter | Shares | |||
Wachovia Capital Markets, LLC |
||||
[other Underwriters] |
||||
Total |
||||
A-1
EXHIBIT B
FORM OF OPINION OF XXXXXX, XXXXX, XXXXXXX & XXXXXXXX, P.C.
1. The Fund has been duly formed and is validly existing in good standing as a statutory trust
under the Delaware Act, with full power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement, the Preliminary Prospectus and
the Prospectus.
2. The Fund is duly registered with the Commission pursuant to Section 8 of the 1940 Act as a
closed-end, diversified management investment company and the 1940 Act Notification has been duly
filed with the Commission; all action has been taken by the Fund as required by the 1933 Act, the
1940 Act, and the Rules and Regulations to permit the Fund to issue and sell the Preferred Shares
to make the public offering and consummate the sale of the Preferred Shares as contemplated by the
Underwriting Agreement; the Underwriting Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act, the 1940 Act, the Advisers Act,
the Rules and Regulations, and the Advisers Act Rules and Regulations; and the Fund has not
received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to
the 1940 Act Notification or the Registration Statement.
3. The Fund’s Declaration of Trust and by-laws comply in all material respects with the 1940
Act and the 1940 Act Rules and Regulations.
4. The Fund has full power and authority to enter into the Underwriting Agreement and the Fund
Agreements; the execution and delivery of, and the performance by the Fund of its obligations under
the Underwriting Agreement and the Fund Agreements have been duly and validly authorized by the
Fund; the Underwriting Agreement and the Fund Agreements constitute valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution thereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of the Fund’s obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors’ rights generally and by general
equitable principles.
5. Neither the issuance and sale of the Preferred Shares in accordance with the Underwriting
Agreement, the execution, delivery or performance of the Underwriting Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the transactions contemplated herein or
therein (i) conflicts or will conflict with or constitutes or will constitute a breach of the
Statement, Declaration of Trust or by-laws of the Fund, (ii) conflicts or will conflict with or
constitutes or will constitute a breach of or a default under, any material contract of the Fund,
as set forth on Schedule I hereto, or (iii) violates or will violate any existing United
States of America or State of Illinois statute, law or regulation (assuming compliance with all
applicable state securities and blue sky laws, and except that, in the published opinion of the
Commission, the indemnification provisions in the Underwriting Agreement and the Fund Agreements,
insofar as they relate to indemnification for liabilities arising under the 1933 Act,
B-1
are against public policy as expressed in the 1933 Act and therefore unenforceable) or
violates any filing or judgment, injunction, order or decree known to us to be applicable to the
Fund or any of its properties or will result in the creation or imposition of any security
interest, lien, charge or encumbrance upon any property or assets of the Fund pursuant to the terms
of any agreement or instrument to which the Fund is a party or by which the Fund may be bound or to
which any of the property or assets of the Fund is subject (except in each case for such conflicts,
violations, breaches or defaults of liens, charges or encumbrances that would not have a material
adverse effect on the ability of the Fund to perform its obligations under the Underwriting
Agreement and the Fund Agreements).
6. None of the offering, issuance, sale or delivery of the Preferred Shares pursuant to the
Underwriting Agreement, or the consummation of any of the other transactions contemplated by the
Underwriting Agreement or the Fund Agreements, in each case on the terms contemplated by the
Registration Statement, the Preliminary Prospectus and the Prospectus, requires any consent,
approval, authorization or other order of or registration or filing with, the Commission, the
National Association of Securities Dealers, Inc., or any national securities exchange, or
governmental body or agency of the United States of America, or State of Illinois or State of
Delaware or, based solely on a review of our litigation docket and based solely on the Docket
Search (as that term is defined in the Xxxxxx Xxxxxxx Opinion), an order of any court or arbitrator
of the United States of America or State of Illinois or any Delaware Court (as that term is defined
in the Xxxxxx Xxxxxxx Opinion), except (1) the absence of which, either individually or in the
aggregate, would not have a material adverse effect on the Fund or the offering of the Securities
as contemplated in the Underwriting Agreement; (2) such as may have been obtained prior to the date
hereof; and (3) such as may be required for compliance with state securities or blue sky laws of
various jurisdictions.
7. The Fund has an authorized, issued and outstanding capitalization as set forth in the
Preliminary Prospectus and the Prospectus and the authorized capitalization of the Fund conforms to
the description thereof contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus; all of the Preferred Shares have been duly authorized and validly issued, and are fully
paid and non-assessable; the Preferred Shares have been duly authorized by all necessary action of
the Fund under the Delaware Act and, when issued to, and paid for by, the Underwriters in
accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable
representing undivided beneficial ownership interests in the assets of the Fund; the form of
certificate that may be used to evidence the Preferred Shares complies in all material respects
with the applicable requirements of the Fund’s Declaration of Trust, the bylaws and the Delaware
Act, in each case as in effect on the date hereof.
8. No holders of Preferred Shares are entitled as such to any preemptive or other rights to
subscribe for any Preferred Shares under any applicable contract, under the Fund’s Declaration of
Trust or the by-laws or under the Delaware Act; and, except as set forth in each Preliminary
Prospectus and the Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Fund are outstanding.
9. The statements set forth under the headings “Description of Preferred Shares,” “The
Auction,” “Certain Provisions of the Agreement and Declaration of Trust and By-Laws,”
B-2
and “U.S. Federal Income Tax Matters” in the Preliminary Prospectus and the Prospectus, and
“Additional Information Concerning the Auctions for Preferred Shares” and “U.S. Federal Income Tax
Matters” in the Statement of Additional Information, insofar as such statements purport to
summarize certain provisions of the 1940 Act, the Delaware Act, the Preferred Shares or the Fund’s
Statement and Declaration of Trust, United States federal income tax law and regulations or legal
conclusions with respect thereto, fairly and accurately summarize such provisions in all material
respects.
10. To the knowledge of such counsel, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Fund or its property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and
there are no agreements, franchises, contracts, indentures, mortgages, loan agreements, notes,
leases, permits or other instruments that are required to be described in the Registration
Statement, the Preliminary Prospectus or the Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required by the 1933 Act, the 1940 Act or the Rules and
Regulations.
11. The Registration Statement has become effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the manner and
within the time period required by Rule 497; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened by the Commission, and the Registration Statement, the
Preliminary Prospectus and the Prospectus (other than the financial statements and other financial
and statistical information contained therein, as to which such counsel need express no statement)
comply as to form in all material respects with the applicable requirements of the Act, the 1940
Act and the Rules and Regulations.
Nothing has come to such counsel’s attention that would lead it to believe that:
(i) the Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (other than the financial
statements and schedules and any other financial or statistical information or calculations
contained therein or incorporated therein by reference and other than any exhibits,
schedules or appendices included or incorporated by reference therein, as to which such
counsel expresses no opinion), or
(ii) the documents included in the General Disclosure Package, all considered together,
as of the Applicable Time, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of circumstances under which they were made, not misleading
(other than the financial statements and schedules and any other financial or statistical
information or calculations contained therein or incorporated therein by reference and other
than any exhibits, schedules or appendices included or incorporated by reference therein, as
to which such counsel expresses no opinion), or
B-3
(iii) the Prospectus, as of its date and as of the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial statements and schedules and
any other financial or statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits, schedules or appendices
included or incorporated by reference therein, as to which such counsel expresses no
opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of the laws of any jurisdiction other than the State of Delaware (other than the Delaware Statutory
Trust Act), State of Illinois, State of New York or the Federal laws of the United States to the
extent they deem proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters,
(B) as to matters involving the application of the Delaware Statutory Trust Act to the extent they
deem proper and specified in such opinion, upon the opinion of Xxxxxx, Xxxxxxx, Arsht & Xxxxxxx or
other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (C) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Fund and public officials. References to the
Preliminary Prospectus and the Prospectus shall also include any supplements thereto at the Closing
Date.
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EXHIBIT C
FORM OF OPINION OF XXXXXX, XXXXX, XXXXXXX & XXXXXXXX, P.C.
1. The Adviser has been duly formed and is validly existing in good standing as a limited
liability company under the Delaware Limited Liability Company Act, with full power and authority
to own, lease and operate its properties and to conduct its business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus. The Adviser is duly
qualified to do business and is in good standing under the laws of the State of Illinois.
2. The Adviser is duly registered with the Commission as an investment adviser under the
Advisers Act, and is not prohibited by the Advisers Act, the 1940 Act or the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under the Advisory Agreement and the
Accounting Agreement and, to the best of such counsel’s knowledge after reasonable inquiry, there
does not exist any proceeding which should reasonably be expected to adversely affect the
registration of the Adviser with the Commission.
3. The Adviser has full power and authority to enter into the Underwriting Agreement, the
Advisory Agreement and the Accounting Agreement; the execution and delivery of, and the performance
by the Adviser of its obligations under the Underwriting Agreement, the Advisory Agreement and the
Accounting Agreement have been duly and validly authorized by the Adviser; the Underwriting
Agreement, the Advisory Agreement and the Accounting Agreement constitute valid and legally binding
agreements of the Adviser, enforceable against the Adviser in accordance with their terms, except
as rights to indemnity and contribution thereunder may be limited by federal or state securities
laws and subject to the qualification that the enforceability of the Adviser’s obligations
hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws relating to or affecting creditors’ rights generally and by
general equitable principles.
4. The Underwriting Agreement, the Advisory Agreement and the Accounting Agreement comply in
all material respects with all applicable provisions of the Advisers Act, the 1940 Act and the
Advisers Act Rules and Regulations and the 1940 Act Rules and Regulations.
5. Neither the execution, delivery or performance of the Underwriting Agreement, the Advisory
Agreement and the Accounting Agreement to which the Adviser is a party nor the consummation by the
Adviser of the transactions therein contemplated herein or therein (i) conflicts or will conflict
with or constitutes or will constitute a breach of the charter or by-laws of the Adviser, (ii)
conflicts or will conflict with or constitutes or will constitute a breach of or a default under,
any material contract of the Adviser, as set forth on Schedule I hereto, or (iii) violates
or will violate any applicable federal or State of Illinois law, statute, rule or regulation or the
Delaware Limited Liability Company Act or any judgment, order, writ or decree known to us, of any
governmental authority or administrative agency of the United States of America or the State of
Illinois or under the Delaware Limited Liability Company Act or will result in the creation or
imposition of any security interest, lien, charge or encumbrance upon any property or assets of the
Adviser pursuant to the terms of any agreement or instrument to which the Adviser is a party or by
which the Adviser may be bound or to which any of the property or assets of the Adviser is subject
(except in each case for such conflicts, violations, breaches or defaults or
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liens, charges of encumbrances that would not have a material adverse effect on the ability of
the Adviser to perform its obligations under the Underwriting Agreement and the Adviser
Agreements).
6. The description of the Adviser and its business in the Preliminary Prospectus and the
Prospectus complies in all material respects with all requirements of the 1933 Act, the 1940 Act
and the Rules and Regulations.
7. (A) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency, domestic or foreign, and
(B) no authorization, approval, vote or other consent of any other person or entity, is necessary
or required for the performance by the Adviser of its obligations under the Underwriting Agreement,
the Advisory Agreement or the Accounting Agreement, for the offering, issuance, sale or delivery of
the Securities hereunder, or for the consummation of any of the other transactions contemplated by
the Underwriting Agreement, the Advisory Agreement or the Accounting Agreement, in each case on the
terms contemplated by the Registration Statement, the Preliminary Prospectus and the Prospectus,
except such as have been already obtained under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of the NASD and such as may be required under state
securities laws.
8. To the knowledge of such counsel, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Adviser or its property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and
there are no agreements, franchises, contracts, indentures, mortgages, loan agreements, notes,
leases, permits or other instruments that are required to be described in the Registration
Statement, the Preliminary Prospectus or the Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required by the 1933 Act, the 1940 Act or the Rules and
Regulations.
Nothing has come to such counsel’s attention that would lead it to believe that:
(i) the Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (other than the financial
statements and schedules and any other financial or statistical information or calculations
contained therein or incorporated therein by reference and other than any exhibits,
schedules or appendices included or incorporated by reference therein, as to which such
counsel expresses no opinion), or
(ii) the documents included in the General Disclosure Package, all considered together,
as of the Applicable Time, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of circumstances under which they were made, not misleading
(other than the financial statements and schedules and any other financial or statistical
information or calculations contained therein or incorporated therein by
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reference and other than any exhibits, schedules or appendices included or incorporated
by reference therein, as to which such counsel expresses no opinion), or
(iii) the Prospectus, as of its date and as of the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial statements and schedules and
any other financial or statistical information or calculations contained therein or
incorporated therein by reference and other than any exhibits, schedules or appendices
included or incorporated by reference therein, as to which such counsel expresses no
opinion).
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the State of Delaware, State of Illinois, State of New York
or the Federal laws of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Fund and public officials.
References to the Preliminary Prospectus and the Prospectus shall also include any supplements
thereto at the Closing Date.
C-3
EXHIBIT D
FORM OF OPINION OF XXXXXX, XXXXXXX, ARSHT & XXXXXXX
1. The Fund has been duly formed and is validly existing in good standing as a statutory trust
under the Delaware Act. The Fund has the statutory trust power and authority to own property and
conduct its business as described in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
2. Under the Delaware Act, the Agreement and Declaration of Trust and the Statement of
Preferences of Auction Rate Cumulative Preferred Shares (the “Governing Instruments”), the
execution and delivery of the Underwriting Agreement and each of the Fund Agreements by the Fund,
and the performance by the Fund of its obligations thereunder, have been duly authorized by all
requisite statutory trust action on the part of the Fund.
3. The Common Shares have been duly authorized for issuance by the Fund, are validly issued
and, subject to the qualifications below, fully paid and non-assessable beneficial interests in the
Series. The holder of the Common Shares will be, subject to the terms of the Governing Instrument,
entitled to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of Delaware.
4. The Preferred Shares have been duly authorized for issuance by the Fund and, when issued
and delivered against payment therefor in accordance with the terms, conditions, requirements and
procedures set forth in the Underwriting Agreement, will be validly issued and, subject to the
qualifications below, fully paid and non-assessable beneficial interests in the Series. The
holders of Preferred Shares will be, subject to the terms of the Governing Instruments, entitled to
the same limitation of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
5. Under the Government Instruments and the Delaware Act, the issuance of the Preferred Shares
is not subject to preemptive rights.
6. The form of Preferred Shares Certificate complies with all applicable requirements of the
Delaware Act.
7. No authorization, approval, consent or order of any governmental authority or agency of the
State of Delaware or an order of any Delaware Court, is required to be obtained by the Fund solely
as a result of the issuance and sale of the Preferred Shares, the consummation by the Fund of the
transactions contemplated by the Underwriting Agreement and the Fund Agreements or the performance
by the Fund of its obligations thereunder.
8. The execution and delivery by the Fund of the Underwriting Agreement and the Fund
Agreements, the consummation by the Fund of the transactions contemplated by the Underwriting
Agreement and the Fund Agreements, the performance by the Fund of its obligations thereunder, the
issuance and sale by the Fund of the Preferred Shares will not violate
D-1
(i) the Certificate of Trust or the Governing Instruments or (ii) any applicable Delaware law
or administrative regulation.
9. There is not in any Delaware Court any action, suit or proceeding pending against the Fund.
D-2
EXHIBIT E
PRICE-RELATED INFORMATION
Final Term Sheet
Liquidation preference: $25,000, plus any accumulated unpaid dividends
Initial dividend rate: [ ]
Initial dividend period: [ ]
E-1