Shares TORTOISE PIPELINE & ENERGY FUND, INC. COMMON STOCK, PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT
Exhibit h
[___________] Shares
TORTOISE PIPELINE & ENERGY FUND, INC.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
[_______], 2011
[_______], 2011
Xxxxxx Xxxxxxx & Co. LLC
Citigroup Global Markets Inc.
[_______________]
[_______________]
[_______________]
Citigroup Global Markets Inc.
[_______________]
[_______________]
[_______________]
| Individually and acting as Representatives for the Underwriters named in Schedule I hereto |
||
c/o
|
Morgan Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
c/o
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Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
c/o
|
[_______________] | |
| [_______________] | ||
| [_______________] | ||
c/o
|
[_______________] | |
| [_______________] | ||
| [_______________] | ||
c/o
|
[_______________] | |
| [_______________] | ||
| [_______________] |
Ladies and Gentlemen:
Tortoise Pipeline & Energy Fund, Inc., a corporation organized under the laws of the State of
Maryland (the “Fund”), is a newly organized, non-diversified closed-end management investment
company registered under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). The Fund proposes to issue and sell to the several Underwriters named in Schedule I hereto
(each, an “Underwriter” and collectively, the “Underwriters”) [___________] shares of its common
stock, par value $0.001 per share (the “Firm Shares”), for whom Xxxxxx Xxxxxxx & Co. LLC, Citigroup
Global Markets Inc., [______________], [______________] and [______________] are acting as
representatives (collectively, the “Representatives”).
The Fund also proposes to issue and sell to the several Underwriters not more than an
additional [________] shares of its common stock, par value $0.001 per share (the “Additional
Shares”) if and to the extent that you, as managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares granted to the
Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “Shares.” The shares of common stock, par value $0.001 per share,
of the Fund to be outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the “Common Shares.”
Tortoise Capital Advisors, L.L.C. (the “Investment Adviser”) acts as the Fund’s investment
adviser pursuant to an Investment Advisory Agreement between the Investment Adviser and the Fund
(the “Investment Advisory Agreement”).
The Fund has filed with the Securities and Exchange Commission (the “Commission”) a
notification on Form N-8A (the “Notification”) of registration of the Fund as an investment company
and a registration statement on Form N-2, including a prospectus and a statement of additional
information incorporated by reference in the prospectus, relating to the Shares. The registration
statement as amended at the time it becomes effective, including the information (if any) deemed to
be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the
"Registration Statement”; the prospectus in the form first used to confirm sales of Shares,
including the statement of additional information incorporated therein by reference, is hereinafter
referred to as the “Prospectus.” If the Fund has filed an abbreviated registration statement to
register additional Common Shares pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration Statement” shall be
deemed to include such Rule 462 Registration Statement. The Investment Company Act and the
Securities Act are hereinafter referred to collectively as the “Acts,” and the rules and
regulations of the Commission under the Acts and under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) are hereinafter referred to collectively as the “Rules and
Regulations.”
For purposes of this Agreement, “Omitting Prospectus” means any advertisement used in the
public offering of the Shares pursuant to Rule 482 of the Rules and Regulations (“Rule 482”), and
"Time of Sale Prospectus” means each preliminary prospectus, dated [_______], 2011, including the
statement of additional information incorporated therein by reference, each Omitting Prospectus
identified on Schedule II hereto as a Retail Omitting Prospectus and the pricing information set
forth on Schedule IV hereto, all considered together. As used herein, the terms “Registration
Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and Prospectus shall include the
documents, if any,
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incorporated by reference therein, including the statement of additional information.
1. Representations and Warranties of the Fund and the Investment Adviser. The Fund and the
Investment Adviser, jointly and severally, represent and warrant to and agree with each of the
Underwriters that:
(a) Compliance With Registration Requirements.
(i) The Fund meets the requirements for the use of Form N-2 under the Acts.
Each of the Registration Statement and any Rule 462 Registration Statement has
become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462 Registration
Statement has been issued under the Securities Act, or order of suspension or
revocation of registration pursuant to Section 8(e) of the Investment Company
Act, and no proceedings for any such purpose, have been instituted or are
pending or, to the knowledge of the Fund or the Investment Adviser, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
(ii) At the respective times the Registration Statement, any Rule 462
Registration Statement and any post-effective amendment thereto (filed before
the Closing Date) became effective and at the Closing Date, as hereinafter
defined (and, if any Additional Shares are purchased, on the Option Closing
Date), the Registration Statement, the Rule 462 Registration Statement, the
notification on Form N-8A and all amendments and supplements thereto complied
and will comply in all material respects with the requirements of the Securities
Act, the Investment Company Act and the Rules and Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement was
issued and on the Closing Date (and, if any Additional Shares are purchased, on
the Option Closing Date), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with written information furnished to the Fund by or
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on behalf of any Underwriter for use in the Registration Statement or
Prospectus.
(iii) The Time of Sale Prospectus does not, and at the time of each sale of
the Shares in connection with the offering when the Prospectus is not yet
available to prospective purchasers, and at the Closing Date, the Time of Sale
Prospectus will not, include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Time of Sale Prospectus or Prospectus made in reliance
upon and in conformity with written information furnished to the Fund by or on
behalf of any Underwriter for use in the Time of Sale Prospectus or Prospectus.
(iv) Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 497 of the Rules and Regulations, complied when so
filed in all material respects with the Rules and Regulations, and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(v) If a Rule 462 Registration Statement is required in connection with the
offering and sale of the Shares, the Fund has complied or will comply with the
requirements of Rule 111 of the Rules and Regulations relating to the payment of
filing fees thereof.
(vi) At the time of filing the Registration Statement, any 462 Registration
Statement and any post-effective amendments thereto and at the date hereof, the
Fund was not and is not an “ineligible issuer,” as defined in Rule 405 of the
Rules and Regulations.
(b) Incorporation of Documents by Reference. The documents incorporated in
the Registration Statement, the Prospectus and the Time of Sale Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Securities Act, the Investment Company Act
and the Rules and Regulations and, when read together with the other information in the
Prospectus, (a) at the time the Registration Statement became
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effective, (b) at the time the Prospectus was issued, (c) at the time the Time of
Sale Prospectus was issued and (d) on the Closing Date, 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.
(c) Independent Accountants. The accountants who certified the statement of
assets and liabilities included in the Registration Statement have confirmed to the Fund
their status as independent public accountants as required by the Securities Act and the
Rules and Regulations, and the Fund and the Adviser have no reason to believe that they
are not independent public accountants.
(d) Financial Statements. The statement of assets and liabilities included
in the Registration Statement, the Prospectus and the Time of Sale Prospectus, together
with the related notes, presents fairly in accordance with generally accepted accounting
principles (“GAAP”) in all material respects the financial position of the Fund at the
date indicated and has been prepared in conformity with GAAP. The supporting schedules,
if any, present fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information included in
the Prospectus and the Time of Sale Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of audited financial
statements included in the Registration Statement.
(e) Expense Summary. The information set forth in the Prospectus in the fee
table contained in the section of the Prospectus entitled “Summary of Fund Expenses” has
been prepared in all material respects in accordance with the requirements of Form N-2,
and interpretations thereunder, and to the extent estimated or projected, such estimates
or projections are reasonably believed to be attainable and reasonably based.
(f) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement, the Prospectus and the Time of Sale
Prospectus, except as otherwise stated therein, (i) there has been no 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
(other than as a result of changes in market conditions generally) (a “Material Adverse
Effect”), (ii) there have been no transactions entered into by the Fund, other than those
in the ordinary course of business, which are material with respect to the Fund, and (iii)
there has been no dividend or distribution of any kind declared, paid or made by the Fund
on any class of its capital stock.
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(g) Good Standing of the Fund. The Fund has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Maryland
and has the corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and the Time of Sale Prospectus and to
enter into and perform its obligations under this Agreement; and the Fund is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse Effect.
(h) No Subsidiaries. The Fund has no subsidiaries.
(i) Investment Company Status. The Fund is duly registered with the
Commission under the Investment Company Act as a nondiversified, closed end management
investment company, and no order of suspension or revocation of such registration has been
issued or proceedings therefor initiated or, to the Fund’s knowledge, threatened by the
Commission.
(j) Officers and Directors. No person is serving or acting as an officer,
director or investment adviser of the Fund except in accordance with the provisions of the
Investment Company Act and the Rules and Regulations and the Investment Advisers Act of
1940, as amended (the “Advisers Act”), and the rules and regulations of the Commission
promulgated under the Advisers Act (the “Advisers Act Rules and Regulations”). Except as
disclosed in the Registration Statement, the Prospectus and the Time of Sale Prospectus,
to the Fund’s knowledge after due inquiry, no director of the Fund is an “Interested
Person” (as defined in the Investment Company Act) of the Fund or an “Affiliated Person”
(as defined in the Investment Company Act) of any Underwriter.
(k) Capitalization. The authorized, issued and outstanding capital stock of
the Fund is as set forth in the Prospectus and the Time of Sale Prospectus as of the date
thereof. All issued and outstanding Common Shares have been duly authorized and validly
issued and are fully paid and non-assessable, and have been offered and sold or exchanged
by the Fund in compliance with all applicable laws (including, without limitation, federal
and state securities laws). None of the outstanding Common Shares of the Fund was issued
in violation of the preemptive or other similar rights of any securityholder of the Fund.
(l) Authorization and Description of Shares. The Shares to be purchased by
the Underwriters from the Fund have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by the Fund
pursuant to this Agreement against
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payment of the consideration set forth herein, will be validly issued, fully paid and
non-assessable. The Common Shares conform to all statements relating thereto contained in
the Prospectus and the Time of Sale Prospectus and such description conforms in all
material respects to the rights set forth in the instruments defining the same; and the
issuance of the Shares is not subject to the preemptive or other similar rights of any
securityholder of the Fund.
(m) Absence of Defaults and Conflicts. The Fund is not (i) in violation of
its charter or bylaws, or (ii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound, or to which any of the
property or assets of the Fund is subject (collectively, “Agreements and Instruments”)
except, with respect to this clause (ii) for such violations or defaults that would not
result in a Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Investment Advisory Agreement, the Custody Agreement between U.S. Bank
National Association (“Custodian”) and the Fund (the “Custodian Agreement”), the Stock
Transfer Agency Agreement between Computershare Trust Company, N.A. (the “Transfer Agent”)
and the Fund (the “Transfer Agency Agreement”), and the Administration Agreement between
U.S. Bancorp Fund Services, LLC (the “Administrator”) and the Fund (the “Administration
Agreement”) (this Agreement, the Investment Advisory Agreement, the Custodian Agreement,
the Transfer Agency Agreement and the Administration Agreement being referred to herein
collectively as the “Fundamental Agreements”) and the consummation of the transactions
contemplated in the Fundamental Agreements, the Plan and in the Registration Statement
(including the issuance and sale of the Shares and the use of the proceeds from the sale
of the Shares as described in the Prospectus and the Time of Sale Prospectus under the
caption “Use of Proceeds”) and compliance by the Fund with its obligations thereunder have
been duly authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Fund pursuant to, the Fundamental Agreements or the Plan (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the provisions
of the charter or bylaws of the Fund or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or
7
operations (except for such violations that would not result in a Material Adverse
Effect). As used herein, a “Repayment Event” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Fund.
(n) 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 or the Investment Adviser,
threatened, against or affecting the Fund, which is required to be disclosed in the
Registration Statement, the Prospectus or the Time of Sale Prospectus (other than as
disclosed therein), or which could reasonably be expected to result in a Material Adverse
Effect, or which 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 hereunder. 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 Registration
Statement, the Prospectus or the Time of Sale Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(o) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the Time of Sale
Prospectus (or the documents incorporated by reference therein) or to be filed as exhibits
thereto by the Acts or by the Rules and Regulations which have not been so described and
filed as required.
(p) Possession of Intellectual Property; Fund Name. The Fund owns or
possesses, or can acquire on reasonable terms, adequate licenses, copyrights, know-how
(including trade secrets or confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by the Fund, and the Fund has
not received any notice or is not otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate to
protect the interest of the Fund therein.
(q) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary
8
or required for the performance by the Fund of its obligations hereunder, in
connection with the offering, issuance or sale of the Shares hereunder or the consummation
of the transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the Securities Act, the Investment Company Act, the
Exchange Act, or under the rules of the New York Stock Exchange (“NYSE”) or of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) or state securities laws.
(r) Possession of Licenses and Permits. The Fund possesses such permits,
licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to operate its properties and to conduct the business as contemplated
in the Registration Statement, the Prospectus and the Time of Sale Prospectus. The Fund
is in compliance with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect. All of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a Material Adverse
Effect. The Fund has not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses.
(s) Advertisements. Any advertising, sales literature, other promotional
material (including “prospectus wrappers,” “broker kits,” “road show slides” and “road
show scripts” and “electronic road show presentations”) or any other prospectus authorized
in writing by or prepared by the Fund or the Investment Adviser used in connection with
the public offering of the Shares (collectively, “Sales Material”) does 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, in light of the circumstances under
which they were made, not misleading. Moreover, all Sales Material complied and will
comply in all material respects with the applicable requirements of the Acts, the Rules
and Regulations and the rules and interpretations of the FINRA (except that this
representation and warranty does not apply to statements in or omissions from the Sales
Material made in reliance upon and in conformity with written information relating to any
Underwriter furnished to the Fund by or on behalf of any Underwriter through you expressly
for use therein), including any requirement to file any Omitting Prospectus.
(t) Distribution of Offering Materials. The Fund has not distributed and,
prior to the later of (A) the Closing Date and (B) completion of the distribution of the
Shares, will not distribute any offering material to the public in connection with the
offering and sale of
9
the Shares other than the Registration Statement, any Omitting Prospectus, the
Prospectus and the Time of Sale Prospectus.
(u) Accounting Controls and Disclosure Controls. The Fund maintains a system
of internal accounting controls sufficient to provide reasonable assurances that (1)
transactions are executed in accordance with management’s general or specific
authorization and with the applicable requirements of the Investment Company Act, the
Rules and Regulations, FINRA and the Internal Revenue Code of 1986, as amended (the
“Code”); (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets and to
maintain compliance with the books and records requirements under the Investment Company
Act and the 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 existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Fund has developed and maintains disclosure
controls and procedures (as such term is defined in Rule 30a-3 of the Investment Company
Act) that are effective in ensuring that information required to be disclosed by the Fund
in the reports that it files or submits under the Investment Company Act is recorded,
processed, summarized and reported, within the time periods specified in the rules and
forms of the Commission, including, without limitation, controls and procedures designed
to ensure that information required to be disclosed by the Fund in the reports that it
files or submits under the Investment Company Act is accumulated and communicated to the
Fund’s management, including its principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow timely decisions regarding required
disclosure.
(v) Xxxxxxxx-Xxxxx Act of 2002. The Fund is in compliance in all material
respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations promulgated in connection therewith.
(w) Absence of Undisclosed Payments. Neither the Fund nor, to the Fund’s
knowledge, any employee or agent of the Fund, has made any payment of funds of the Fund or
received or retained any funds, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus and the Time of Sale Prospectus and
which payment has not been so disclosed.
(x) Material Agreements. The Fundamental Agreements have each been duly
authorized by all requisite action on the part of the Fund and executed and delivered by
the Fund, as of the dates noted therein, and
10
each complies with all applicable provisions of the Investment Company Act in all
material respects. The Fund has adopted the Automatic Dividend Reinvestment Plan
described in the Prospectus and the Time of Sale Prospectus (the “Plan”). Assuming due
authorization, execution and delivery by the other parties thereto with respect to this
Agreement and the other Fundamental Agreements and the Plan, each Fundamental Agreement
and the Plan constitutes a valid and binding agreement of the Fund, enforceable in
accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing and
except as rights to indemnification or contribution thereunder may be limited by federal
or state laws.
(y) Registration Rights. There are no persons with registration rights or
other similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Fund under the Securities Act.
(z) NYSE Listing. The Shares have been duly authorized for listing, upon
notice of issuance, on the NYSE, and the Fund’s registration statement on Form 8-A with
respect to the Shares under the Exchange Act has become effective.
(aa) Payment of Taxes. All United States federal income tax returns of the
Fund required by law to be filed have been filed and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid, except assessments that are
being contested in good faith and as to which adequate reserves have been provided. The
Fund has filed all other tax returns that are required to have been filed by it pursuant
to applicable foreign, state, local or other law except insofar as the failure to file
such returns would not result in a Material Adverse Effect, and has paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Fund, except for
such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been provided. The charges, accruals and reserves on the books of the Fund in
respect of any income and corporation tax liability for any years not finally determined
are adequate to meet any assessments or re-assessments for additional tax for any years
not finally determined, except to the extent of any inadequacy that would not result in a
Material Adverse Effect. All material taxes which the Fund is required by law to withhold
or to collect for payment have been duly withheld and collected and have been paid to the
appropriate governmental authority or agency or have been accrued, reserved against and
entered on the books of the Fund.
11
(bb) Insurance. The Fund carries, and is entitled to the benefits of,
insurance, with financially sound and reputable insurers, in such amounts and covering
such risks as are generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and effect. The Fund
has no reason to believe that it will not be able to (A) renew its existing insurance
coverage as and when such policies expire or (B) obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Effect.
(cc) Statistical and Market-Related Data. Any statistical and market-related
data included in the Registration Statement, the Prospectus and the Time of Sale
Prospectus are based on or derived from sources that the Fund believes to be reliable and
accurate, and the Fund has obtained written consent to the use of such data from such
sources.
(dd) Lock-Up Agreements. The Fund has obtained for the benefit of the
Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth on Exhibit A
hereto, of those individuals set forth on Schedule III hereto.
(ee) FCPA. Neither the Fund nor any of its affiliates, nor any director,
officer, or employee, nor, to the Fund’s knowledge, any agent or representative of the
Fund or of any of its affiliates, has taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment or giving of
money, property, gifts or anything else of value, directly or indirectly, to any
“government official” (including any officer or employee of a government or
government-owned or controlled entity or of a public international organization, or any
person acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to influence official
action or secure an improper advantage; and the Fund and its affiliates have conducted
their businesses in compliance with applicable anti-corruption laws and have instituted
and maintain and will continue to maintain policies and procedures designed to promote and
achieve compliance with such laws and with the representation and warranty contained
herein.
(ff) USA PATRIOT Act. The operations of the Fund are and have been conducted
at all times in compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering
statutes of jurisdictions where the
12
Fund conducts business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Fund with respect to the Anti-Money Laundering Laws is pending
or, to the best knowledge of the Fund, threatened.
(gg) Sanctioned Countries. (i) The Fund represents that neither the Fund
nor any director, officer, or employee thereof, nor, to the Fund’s knowledge, any agent,
affiliate or representative of the Fund, is an individual or entity (“Person”) that is,
or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or other
relevant sanctions authority (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Company represents and covenants that it will not, directly or indirectly,
use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The Fund represents and covenants that it has not knowingly engaged in, is not
now knowingly engaged in, and will not engage in, any dealings or transactions with any
Person, or in any country or territory, that at the time of the dealing or transaction is
or was the subject of Sanctions.
2. Representations and Warranties of the Investment Adviser. The Investment Adviser
represents and warrants to and agrees with each of the Underwriters that:
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(a) Good Standing of the Investment Adviser. The Investment Adviser has been
duly organized and is validly existing and in good standing as a limited liability company
under the laws of the State of Delaware with full power and authority to own, lease and
operate its properties and to conduct its business as described in the Prospectus and the
Time of Sale Prospectus and is duly qualified as a foreign entity to transact business and
is in good standing in each other jurisdiction in which such qualification is required
except as would not, individually or in the aggregate, result in a material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Investment Adviser, whether or not arising in the ordinary course of
business (an “Adviser Material Adverse Effect”).
(b) Investment Adviser Status. The Investment Adviser is duly registered and
in good standing with the Commission as an investment adviser under the Advisers Act, and
is not prohibited by the Advisers Act, the Investment Company Act, or the rules and
regulations of the Commission under such acts, from acting under the Investment Advisory
Agreement for the Fund as contemplated by the Prospectus and the Time of Sale Prospectus.
(c) Description of Investment Adviser. The description of the Investment
Adviser in the Registration Statement, the Prospectus and the Time of Sale Prospectus
(including any amendment or supplement thereto) complied and will comply in all material
respects with the provisions of the Acts, the Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations and is true and correct and does not and will not
contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) Capitalization. The Investment Adviser has the financial resources
available to it necessary for the performance of its services and obligations as
contemplated in the Prospectus, the Time of Sale Prospectus and in the Fundamental
Agreements and the Plan.
(e) Authorization of Fundamental Agreements; Absence of Defaults and
Conflicts. This Agreement and the Investment Advisory Agreement have each been duly
authorized, executed and delivered by the Investment Adviser, and (assuming the due
authorization, execution and delivery of each other party thereto) each such agreement
constitutes a valid and binding obligation of the Investment Adviser, enforceable in
accordance with its terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally and general equitable
14
principles (whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing and except as rights to indemnification or
contribution thereunder may be limited by federal or state laws; and neither the execution
and delivery of this Agreement or the Investment Advisory Agreement nor the performance by
the Investment Adviser of its obligations hereunder or thereunder will violate the limited
liability company operating agreement and other organizational documents of the Investment
Adviser, or conflict with, or result in a breach of any of the terms and provisions of, or
constitute, with or without the giving of notice or lapse of time or both, a default
under, (i) any agreement or instrument to which the Investment Adviser is a party or by
which it is bound, or (ii) to the Investment Adviser’s knowledge, by any law, order,
decree, rule or regulation applicable to it of any jurisdiction, court, federal or state
regulatory body, administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Investment Adviser or its properties
or operations other than any conflict, breach or default that would not, individually or
in the aggregate, reasonably be expected to result in an Adviser Material Adverse Effect;
and no consent, approval, authorization or order of any court or governmental authority or
agency is required for the consummation by the Investment Adviser of the transactions
contemplated by this Agreement or the Investment Advisory Agreement, except as have been
obtained or will be obtained prior to the Closing Date or may be required under the Acts,
the Exchange Act or state securities laws.
(f) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement, the Prospectus and the Time of Sales
Prospectus, there has not occurred any event which could reasonably be expected to have a
material adverse effect on the ability of the Investment Adviser to perform its respective
obligations under this Agreement and the Investment Advisory Agreement.
(g) 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 Investment Adviser, threatened against
or affecting the Investment Adviser or any “affiliated person” of the Investment Adviser
(as such term is defined in the Investment Company Act) or any partners, directors,
officers or employees of the foregoing, whether or not arising in the ordinary course of
business, which could reasonably be expected to result in an Adviser Material Adverse
Effect, or materially and adversely affect the ability of the Investment Adviser to
function as an investment adviser with respect to the Fund or perform its obligations
under this Agreement or the Investment Advisory Agreement, or which is
15
required to be disclosed in the Registration Statement, the Prospectus and the Time
of Sale Prospectus.
(h) Absence of Violation or Default. The Investment Adviser is not in
violation of its limited liability company operating agreement or other organizational
documents or in default under any agreement, indenture or instrument, except for such
violations or defaults that have not and could not result in an Adviser Material Adverse
Effect.
(i) Xxxxxxxx-Xxxxx Act of 2002. The Investment Adviser is in compliance in
all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations promulgated in connection therewith.
3. Agreements to Sell and Purchase. The Fund hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Fund the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $[_____] a share (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Fund agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to [________]
Additional Shares at the Purchase Price, less an amount per Common Share equal to any dividends
declared by the Fund and payable on the Firm Shares but not payable on the Additional Shares. You
may exercise this right on behalf of the Underwriters in whole or from time to time in part by
giving written notice, substantially in the form of Exhibit C hereto, not later than 45 days after
the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to
be purchased by the Underwriters and the date on which such shares are to be purchased. Each
purchase date must be at least one business day after the written notice is given and may not be
earlier than the closing date for the Firm Shares nor later than ten business days after the date
of such notice. Additional Shares may be purchased as provided in Section 5 hereof solely for the
purpose of covering over-allotments made in connection with the offering of the Firm Shares. On
each day, if any, that Additional Shares are to be purchased (an “Option Closing Date”), each
Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that bears the same
proportion to the total number of Additional Shares to be purchased on such Option Closing Date as
the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
The Fund hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period
16
ending 180 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any Common Shares or any securities convertible into or exercisable or exchangeable for Common
Shares or (2) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or
such other securities, in cash or otherwise or (3) file any registration statement with the
Commission relating to the offering of any Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares. The agreements contained in this paragraph shall
not apply to the Shares to be sold hereunder or any Common Shares issued pursuant to the Plan.
4. Terms of Public Offering. The Fund and the Investment Adviser are advised by you that the
Underwriters propose to make a public offering of their respective portions of the Shares as soon
after the Registration Statement and this Agreement have become effective as in your judgment is
advisable. The Fund and the Investment Adviser are further advised by you that the Shares are to
be offered to the public initially at $[_____] a share (the “Public Offering Price”), and to
certain dealers selected by you at a price that represents a concession not in excess of $[____] a
share under the Public Offering Price.
5. Payment and Delivery. Payment for the Firm Shares shall be made to the Fund in Federal or
other funds immediately available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m. (New York City time), on [______],
2011, or at such other time on the same or such other date, not later than 10 business days after
Closing Date, as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Fund in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m. (New York City time), on the date
specified in the corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than [_______], 2011, as shall be designated in writing
by you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you through the facilities of The Depository Trust &
Clearing Corporation on the Closing Date or an Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable in
17
connection with the transfer of the Shares to the Underwriters duly paid, against payment of
the Purchase Price therefor.
6. Conditions to the Underwriters’ Obligations. The respective obligations of the Fund and
the Investment Adviser and the several obligations of the Underwriters hereunder are subject to the
condition that the Registration Statement shall have become effective not later than [____] [__].m.
(New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Fund or the Investment Adviser, from that set forth in the Time of
Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of each of the Fund and the Investment
Adviser, to the effect that the representations and warranties of the Fund and the
Investment Adviser contained in this Agreement are true and correct as of the Closing Date
and that each of the Fund and the Investment Adviser has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date. Each officer signing and delivering such a
certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) Each of the Investment Adviser and the Fund shall have performed all of their
respective obligations to be performed hereunder on or prior to the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion of Husch
Xxxxxxxxx LLP, counsel for the Fund and the Adviser, dated the Closing Date, in form and
substance acceptable to the Underwriters and their legal counsel. In rendering its
opinion described herein, as to matters of Maryland law, Husch Xxxxxxxxx LLP may rely on
the opinion of Xxxxxxx LLP, so long as a copy of such opinion of Xxxxxxx LLP is delivered
to you and is in form and substance satisfactory to you and your counsel, and such opinion
of Xxxxxxx LLP expressly permits reliance thereon by Husch Xxxxxxxxx LLP for purposes of
rendering the foregoing opinion. The opinion of Husch Xxxxxxxxx LLP described herein
18
shall be rendered to the Underwriters at the request of the Fund and shall so state
therein.
(e) The Underwriters shall have received on the Closing Date the favorable opinion of
Xxxxxxx Xxxxx LLP, counsel for the Underwriters, dated the Closing Date, and covering such
matters as the Underwriters shall reasonably request.
(f) The Underwriters shall have received on the Closing Date a certificate from a
duly authorized officer of the Custodian, certifying that the Custodian Agreement is in
full force and effect and is a valid and binding agreement of the Custodian.
(g) The Underwriters shall have received on the Closing Date a certificate from a
duly authorized officer of the Administrator certifying that the Administration Agreement
is in full force and effect and is a valid and binding agreement of the Administrator.
(h) The Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement and the Time of
Sale Prospectus, provided that the letter delivered on the Closing Date shall use a
“cut-off date” not earlier than the date hereof.
(i) All filings, applications and proceedings taken by the Fund and the Investment
Adviser in connection with the organization and registration of the Fund and the Shares
under the Acts and the applicable Rules and Regulations shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(j) No action, suit, proceeding, inquiry or investigation shall have been instituted
or threatened by the Commission which would adversely affect the Fund’s standing as a
registered investment company under the Investment Company Act or the standing of the
Investment Adviser as a registered investment adviser under the Advisers Act.
(k) The Shares shall have been duly authorized for listing on the New York Stock
Exchange, subject only to official notice of issuance thereof.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date
19
of such documents as you may reasonably request with respect to the good standing of the Fund
and the Investment Adviser, the due authorization and issuance of the Additional Shares to be sold
on such Option Closing Date and other matters related to the issuance of such Additional Shares,
and officers’ certificates and opinions of Husch Xxxxxxxxx LLP, Xxxxxxx LLP and Xxxxxxx Xxxxx LLP
to the effect set forth above, except that such certificates and opinions shall be dated as of the
applicable Option Closing Date and statements and opinions above contemplated to be given as of the
Closing Date shall instead be made and given as of such Option Closing Date.
7. Covenants of the Fund and the Investment Adviser. In further consideration of the
agreements of the Underwriters herein contained, the Fund and the Investment Adviser, jointly and
severally, covenant and agree with each Underwriter as follows:
(a) To notify you immediately, and confirm such notice in writing, (i) of the
institution of any proceedings pursuant to Section 8(e) of the Investment Company Act and
(ii) of the happening of any event during the period mentioned in Section 7(h) below which
in the judgment of the Fund makes any statement in the Notification, the Registration
Statement the Time of Sale Prospectus, any Omitting Prospectus or the Prospectus untrue in
any material respect or which requires the making of any change in or addition to the
Notification, the Registration Statement, the Time of Sale Prospectus, any Omitting
Prospectus or the Prospectus in order to make the statements therein not misleading in any
material respect. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement or an order pursuant to Section 8(e) of the
Investment Company Act, the Fund will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment.
(b) To furnish to you, without charge, three signed copies of each of the
Notification and the Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of each of the Notification and the
Registration Statement (without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. (New York City time) on the business day next
succeeding the date of this Agreement and during the period mentioned in Section 7(d)
below, as many copies of the Time of Sale Prospectus, Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably request.
(c) Before amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which you
reasonably
20
object, and to file with the Commission within the applicable period specified in
Rule 497 under the Securities Act any prospectus required to be filed pursuant to such
Rule.
(d) To furnish to you a copy of each proposed Omitting Prospectus to be prepared by
or on behalf of, used by, or referred to by the Fund and not to use or refer to any
proposed Omitting Prospectus to which you reasonably object.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur or condition exist as a result of which it is necessary to amend or supplement
the Time of Sale Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition exist as a result
of which the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when
delivered to a prospective purchaser, be misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) The Fund will use the net proceeds received by it from the sale of the Shares in
the manner specified in the Time of Sale Prospectus.
(g) The Fund and the Investment Adviser will not take any action designed to cause or
result in the manipulation of the price of any security of the Fund to facilitate the sale
of Shares in violation of the Acts and the applicable Rules and Regulations, or the
securities or Blue Sky laws of the various states and foreign jurisdictions in connection
with the offer and sale of Shares.
(h) If, during such period after the first date of the public offering of the Shares
as in the opinion of counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel
for the Underwriters, it is necessary to amend or
21
supplement the Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Fund) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(i) To endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request.
(j) To make generally available to the Fund’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Fund occurring after the date of this Agreement which
shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations, including Rule 158, of the Commission thereunder.
(k) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of the obligations of the Fund and the Investment Adviser under this
Agreement, including: (i) the fees, disbursements and expenses of the Fund’s counsel and
the Fund’s accountants in connection with the registration and delivery of the Shares
under the Securities Act and all other fees or expenses in connection with the preparation
and filing of the Notification, the Registration Statement, any preliminary prospectus,
the Time of Sale Prospectus, the Prospectus, and any Omitting Prospectus prepared by or on
behalf of, used by, or referred to by the Fund and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in connection
with the qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(i) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred
22
in connection with the review and qualification of the offering of the Shares by
FINRA, (v) all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Shares and all costs and
expenses incident to listing the Shares on the New York Stock Exchange, (vi) the cost of
printing certificates representing the Shares, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs and expenses of the Fund relating to
investor presentations on any “road show” undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated with
production of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the Fund, travel
and lodging expenses of the representatives and officers of the Fund and any such
consultants, and the cost of any aircraft chartered in connection with the road show, (ix)
the document production charges and expenses associated with printing this Agreement and
(x) all other costs and expenses incident to the performance of the obligations of the
Fund hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 8 entitled
“Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
(l) The Fund will not declare or pay any dividend or other distribution on any of the
Common Shares unless a holder of such Common Shares that was not a holder of record until
the close of business on [_______], 2011 would be entitled to receive the full amount
thereof.
(m) If the Representatives, in their sole discretion, agree to release or waive the
restrictions set forth in a Lock-Up Agreement described in Section 1(dd) hereof for an
officer or director of the Fund and provides the Fund with notice of the impending release
or waiver at least three business days before the effective date of the release or waiver,
the Fund agrees to announce the impending release or waiver by a press release
substantially in the form of Exhibit B hereto through a major news service at least two
business days before the effective date of the release or waiver.
(n) At the time the Fund files its initial tax return, the Fund shall make an
election under Section 851(b) of the Code (or any successor provisions thereto) to be
treated as a regulated investment company for federal income tax purposes.
23
8. Indemnity and Contribution. (a) Each of the Fund and the Investment Adviser, jointly and
severally, agrees to indemnify and hold harmless each Underwriter, each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act and each agent of any Underwriter from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim), caused by any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Omitting Prospectus, any preliminary prospectus (including
any statement of additional information incorporated therein by reference), the Time of Sale
Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished to the Fund in writing by
such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless each of the Fund and the Investment Adviser, its directors and each officer of
the Fund who signs the Registration Statement and each person, if any, who controls the
Fund or the Investment Adviser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from
the Fund and the Investment Adviser to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Fund in writing by such
Underwriter through you expressly for use in the Registration Statement, any preliminary
prospectus (including any statement of additional information incorporated therein by
reference), the Time of Sale Prospectus, any Omitting Prospectus or Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in writing and
the indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such proceeding, any
indemnified party
24
shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all Underwriters and
all persons, if any, who control any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriters within the meaning of Section 405 under the Securities Act or who are agents
of any Underwriters, (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Fund, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Fund within the meaning
of either such Section, and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Investment Adviser, its directors and each person,
if any, who controls the Investment Adviser within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons and affiliates of any
Underwriters, such firm shall be designated in writing by the Representatives. In the
case of any such separate firm for the Fund, and such directors, officers and control
persons of the Fund, such firm shall be designated in writing by the Fund. In the case of
any such separate firm for the Investment Adviser, and such directors and control persons
of the Investment Adviser, such firm shall be designated in writing by the Investment
Adviser. The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which may not be unreasonably withheld), but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
25
settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the
subject matter of such proceeding and 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) To the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Fund and the Investment Adviser on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i)
above but also the relative fault of the Fund and the Investment Adviser on the one hand
and of the Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Fund and the
Investment Adviser on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares (before deducting expenses) received
by the Fund and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate Public Offering Price of the Shares. The relative fault of the Fund and
the Investment Adviser on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Fund or the Investment 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 Underwriters’
respective obligations to contribute pursuant to this Section 8 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint. The
Investment Adviser agrees to pay any amounts that are payable by the Fund pursuant to this
paragraph to the
26
extent that the Fund fails to make all contributions required to be made by the Fund
pursuant to this Section 8.
(e) The Fund, the Investment Adviser and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount of the
underwriting discount or commission applicable to the Common Shares purchased by such
Underwriter hereunder. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Fund and the Investment Adviser
contained in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter, any person controlling any Underwriter, any affiliate of any Underwriter
or any agent of any Underwriter or by or on behalf of the Investment Adviser, their
officers or directors or any person controlling the Investment Adviser or by or on behalf
of the Fund, its officers or directors or any person controlling the Fund and (iii)
acceptance of and payment for any of the Shares.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Fund, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the NYSE Euronext, the NASDAQ Global Market, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Fund shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or clearance services in the
United States shall have occurred, (iv) any moratorium on commercial banking activities
27
shall have been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial markets, currency
exchange rates or controls or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this clause (v), makes it,
in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the
Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you and the Fund for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Fund. In any such case either you or the Fund shall have the
right to postpone the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the
Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date,
the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under this
28
paragraph shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Fund or the Investment Adviser to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the Fund or the Investment
Adviser shall be unable to perform its obligations under this Agreement, the Fund and the
Investment Adviser, jointly and severally, will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Fund, the
Investment Adviser and the Underwriters with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the
purchase and sale of the Shares.
(b) The Fund and the Investment Adviser acknowledge that in connection with the
offering of the Shares: (i) the Underwriters have acted at arms length, are not agents
of, and owe no fiduciary duties to, the Fund, the Investment Adviser or any other person,
(ii) the Underwriters owe the Fund and the Investment Adviser only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the Underwriters may have interests that
differ from those of the Fund and the Investment Adviser. The Fund and the Investment
Adviser waive to the full extent permitted by applicable law any claims any of them may
have against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Waiver of Jury Trial. Each of the Fund and the Investment Adviser hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
29
15. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
16. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed, faxed or sent to you in care of (i) Xxxxxx
Xxxxxxx & Co. LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with
a copy to the Legal Department; (ii) Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel; (iii) [____________]; (iv) [____________]; and (v)
[____________]; and if to the Fund or the Investment Adviser, shall be delivered, mailed or sent to
the Investment Adviser, 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx 00000, Attention: Management
Committee.
[SIGNATURE PAGES FOLLOW]
30
| Very truly yours, TORTOISE PIPELINE & ENERGY FUND, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| TORTOISE CAPITAL ADVISORS, L.L.P. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Tortoise Pipeline & Energy Fund, Inc. Underwriting Agreement
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. LLC
[___________________]
[___________________]
[___________________]
[___________________]
[___________________]
[___________________]
[___________________]
[___________________]
Acting severally on behalf of themselves and the several
Underwriters named in Schedule I hereto
By:
|
Xxxxxx Xxxxxxx & Co. LLC | |||
By: |
||||
| Title: |
Signature Page to Tortoise Pipeline & Energy Fund, Inc. Underwriting Agreement
By:
|
[___________________] | |||
By: |
||||
| Title: |
Signature Page to Tortoise Pipeline & Energy Fund, Inc. Underwriting Agreement
By:
|
[___________________] | |||
By: |
||||
| Title: |
Signature Page to Tortoise Pipeline & Energy Fund, Inc. Underwriting Agreement
By:
|
[___________________] | |||
By: |
||||
| Title: | ||||
By: |
||||
| Title: |
Signature Page to Tortoise Pipeline & Energy Fund, Inc. Underwriting Agreement
By:
|
[___________________] | |||
By: |
||||
| Title: |
Signature Page to Tortoise Pipeline & Energy Fund, Inc. Underwriting Agreement
SCHEDULE I
| Number of Firm | ||||
| Shares To Be | ||||
| Underwriter | Purchased | |||
Xxxxxx Xxxxxxx & Co. LLC |
||||
I-1
| Number of Firm | ||||
| Shares To Be | ||||
| Underwriter | Purchased | |||
Total: |
[___________] | |||
I-2
SCHEDULE II
Omitting Prospectuses
| 1. | Marketing Brochure | |
| 2. | Press release dated [_______], 2011. |
A-1
SCHEDULE III
Directors and Officers Subject to Lock Up Agreements
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
H. Xxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
P. Xxxxxxx Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
H. Xxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
P. Xxxxxxx Xxxxx
A-1
SCHEDULE IV
Pricing Information
Price per Common Share to the public: $[_______]
Number of Common Shares Sold: [___________]
A-1
EXHIBIT A
FORM OF LOCK-UP LETTER
September ___, 2011
Xxxxxx Xxxxxxx & Co. LLC
Citigroup Global Markets Inc.
[___________________]
[___________________]
[___________________]
Citigroup Global Markets Inc.
[___________________]
[___________________]
[___________________]
| c/o | Morgan Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, XX 00000 |
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. LLC, Citigroup Global Markets
Inc.,[___________________],[___________________] and [___________________] (collectively, the
"Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with Tortoise Pipeline & Energy Fund, Inc., a Maryland corporation (the “Company”), providing for
the public offering (the “Public Offering”) by the several Underwriters named therein (the
"Underwriters”), of shares (the “Shares”) of the Common Stock, par value $0.001 per share of the
Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities
so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether
A-1
any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (a) transactions relating to shares of Common Stock or other securities acquired in open
market transactions after the completion of the Public Offering, provided that no filing under
Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with
subsequent sales of Common Stock or other securities acquired in such open market transactions or
(b) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the
transfer of shares of Common Stock, provided that such plan does not provide for the transfer of
Common Stock during the restricted period and no public announcement or filing under the Exchange
Act regarding the establishment of such plan shall be required of or voluntarily made by or on
behalf of the undersigned or the Company. In addition, the undersigned agrees that, without the
prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of any shares of Common Stock or
any security convertible into or exercisable or exchangeable for Common Stock. The undersigned
also agrees and consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the undersigned’s shares of Common Stock except in
compliance with the foregoing restrictions.
If the undersigned is an officer or director of the Company, (i) the Representatives agree
that, at least three business days before the effective date of any release or waiver of the
foregoing restrictions in connection with a transfer of shares of Common Stock, the Representative
will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the
Underwriting Agreement to announce the impending release or waiver by press release through a major
news service at least two business days before the effective date of the release or waiver. Any
release or waiver granted by the Representatives hereunder to any such officer or director shall
only be effective two business days after the publication date of such press release. The
provisions of this paragraph will not apply if (a) the release or waiver is effected solely to
permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by
the same terms described in this letter to the extent and for the duration that such terms remain
in effect at the time of the transfer.
If:
(1) during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
A-2
(2) prior to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period;
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written confirmation from the Company or the
Representatives that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-3
Executed and delivered as of the date first written above.
| Very truly yours, | ||||
A-4
EXHIBIT B
FORM OF WAIVER OF LOCK-UP
_____________, 20__
[Name and Address of
Officer or Director
Requesting Waiver]
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection with the offering by Tortoise Pipeline &
Energy Fund, Inc. (the “Company”) of _____ shares of common stock, $0.001 par value (the “Common
Stock”), of the Company and the lock-up letter dated ____, 2011 (the “Lock-up Letter”), executed by
you in connection with such offering, and your request for a [waiver] [release] dated ____, 20__,
with respect to ____ shares of Common Stock (the “Shares”).
Xxxxxx Xxxxxxx & Co. LLC, [_______], [_______], [_______] and [______] hereby agree to [waive]
[release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the
Shares, effective _____, 20__; provided, however, that such [waiver] [release] is conditioned on
the Company announcing the impending [waiver] [release] by press release through a major news
service at least two business days before effectiveness of such [waiver] [release]. This letter
will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force
and effect.
[SIGNATURE PAGES FOLLOWS]
C-1
| Very truly yours, | ||||||
| Xxxxxx Xxxxxxx & Co. LLC | ||||||
| [_____________________] | ||||||
| [_____________________] | ||||||
| [_____________________] | ||||||
| [_____________________] | ||||||
| Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto | ||||||
| By: | Xxxxxx Xxxxxxx & Co. LLC | |||||
| By: | ||||||
| Title: |
B-1
| By: | [__________________] | |||||
| By: | ||||||
| Title: |
B-2
| By: | [__________________] | |||||
| By: | ||||||
| Title: |
B-3
| By: | [__________________] | |||||
| By: | ||||||
| Title: | ||||||
| By: | ||||||
| Title: |
B-4
| By: | [__________________] | |||||
| By: | ||||||
| Title: |
FORM OF PRESS RELEASE
Tortoise Pipeline & Energy Fund, Inc.
[Date]
[Date]
Tortoise Pipeline & Energy Fund, Inc. (the “Company”) announced today that Xxxxxx Xxxxxxx & Co.
LLC, [_______], [_______], [_______] and [_______], the lead book-running managers in the Fund’s
recent public sale of _____ shares of common stock is [waiving][releasing] a lock-up restriction
with respect to ____ shares of the Fund’s common stock held by [certain officers or directors] [an
officer or director] of the Fund. The [waiver][release] will take effect on ____, 20__ , and the
shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other
jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the
United States absent registration or an exemption from registration under the United States
Securities Act of 1933, as amended.
B-5
EXHIBIT C
FORM OF
OPTION EXERCISE NOTICE
OPTION EXERCISE NOTICE
[________], 2011
Tortoise Pipeline & Energy Fund, Inc.
Tortoise Capital Advisors, L.L.P.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Tortoise Capital Advisors, L.L.P.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Ladies and Gentlemen:
We refer to the Underwriting Agreement dated [_____], 2011 (the “Underwriting Agreement”)
among Tortoise Pipeline & Energy Fund, Inc., Tortoise Capital Advisors, L.L.P. and Xxxxxx Xxxxxxx &
Co. LLC, [___________________], [___________________], [___________________] and
[___________________], as representatives of the several Underwriters listed in Schedule I thereto;
capitalized terms being used herein as therein defined. We hereby exercise an option to purchase
[______________] Additional Shares, on the basis of the representations and warranties contained in
the Underwriting Agreement, and subject to its terms and conditions. Such Additional Shares will
be purchased on [_________], 2011 (which shall be an Option Closing Date) at the offices of Xxxxxxx
Xxxxx LLP, New York, New York, at 10:00 a.m. (New York City time). [This option exercise is
without prejudice to the Underwriters’ right under the Underwriting Agreement to exercise one or
more options covering some or all of the remaining Additional Shares.]
[SIGNATURE PAGES FOLLOWS]
C-1
| Very truly yours, | ||||||
| Xxxxxx Xxxxxxx & Co. LLC | ||||||
| [_____________________] | ||||||
| [_____________________] | ||||||
| [_____________________] | ||||||
| [_____________________] | ||||||
| Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto | ||||||
| By: | Xxxxxx Xxxxxxx & Co. LLC | |||||
| By: | ||||||
| Title: |
C-2
| By: | [__________________] | |||||
| By: | ||||||
| Title: |
C-3
| By: | [__________________] | |||||
| By: | ||||||
| Title: |
C-4
| By: | [__________________] | |||||
| By: | ||||||
| Title: | ||||||
| By: | ||||||
| Title: |
C-5
| By: | [__________________] | |||||
| By: | ||||||
| Title: |
C-6
