Exhibit h.1
NUVEEN EQUITY PREMIUM OPPORTUNITY FUND
[.] Common Shares
($.01 par value)
UNDERWRITING AGREEMENT
New York, New York
January [.], 2005
Citigroup Global Markets Inc.
Nuveen Investments, LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Nuveen Equity Premium Opportunity Fund, a
Massachusetts business trust (the "Fund"), Nuveen Asset Management, Inc., a
[Delaware] corporation (the "Investment Adviser"), and Gateway Investment
Advisers, L.P., a Delaware limited partnership (the "Subadviser", and the
Subadviser together with the Investment Adviser, each an "Adviser" and
collectively the "Advisers"), address you as underwriters and as the
representatives (the "Representatives") of each of the several underwriters
named on Schedule I hereto (herein collectively called "Underwriters"). The Fund
proposes to sell to the Underwriters [.] shares (the "Firm Securities") of its
common shares of beneficial interest, par value $.01 per share (the "Common
Shares"). The Fund also proposes to sell to the Underwriters, upon the terms and
conditions set forth herein, up to an additional [.] Common Shares (the "Option
Securities") to cover over-allotments. The Firm Securities and the Option
Securities are hereinafter collectively referred to as the "Securities." Unless
otherwise stated, the term "you" as used herein means Citigroup Global Markets
Inc. individually on its own behalf and on behalf of the other Representatives.
Certain terms used herein are defined in Section 18 hereof.
The Fund and the Advisers wish to confirm as follows their
agreements with you and the other several Underwriters on whose behalf you are
acting in connection with the several purchases of the Securities by the
Underwriters.
The Fund has entered into an Investment Management Agreement with
the Investment Adviser dated as of [.], a Custodian Agreement with State Street
Bank and Trust Company dated as of [.], effective as of [.] and a Shareholder
Transfer Agency and Service Agreement with State Street Bank and Trust Company
dated as of [.], effective as of [.], and
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such agreements are herein referred to as the "Management Agreement," the
"Custodian Agreement" and the "Transfer Agency Agreement," respectively. The
Investment Adviser has entered into an investment sub-advisory agreement with
the Subadviser dated as of [.] and such agreement is herein referred to as the
"Sub-Advisory Agreement." Collectively, (i) the Management Agreement, the
Custodian Agreement and the Transfer Agency Agreement are herein referred to as
the "Fund Agreements." In addition, the Fund has adopted a dividend reinvestment
plan (the "Dividend Reinvestment Plan") pursuant to which holders of Common
Shares shall have their dividends automatically reinvested in additional Common
Shares of the Fund unless they elect to receive such dividends in cash.
1. Representations and Warranties of the Fund and the Advisers.
The Fund, the Investment Adviser and the Subadviser, jointly and severally,
represent and warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The Fund has prepared and filed with the Commission a
Registration Statement (file numbers 333-120613 and 811-21674) on Form
N-2, including a related preliminary prospectus (including the
statement of additional information incorporated by reference
therein), for registration under the Act and the 1940 Act of the
offering and sale of the Securities. The Fund may have filed one or
more amendments thereto, including a related preliminary prospectus
(including the statement of additional information incorporated by
reference therein), each of which has previously been furnished to
you. The Fund will next file with the Commission one of the following:
either (1) prior to the Effective Date of such Registration Statement,
a further amendment to such Registration Statement (including the form
of final prospectus (including the statement of additional information
incorporated by reference therein)) or (2) after the Effective Date of
such Registration Statement, a final prospectus (including the
statement of additional information incorporated by reference therein)
in accordance with Rules 430A and 497. In the case of clause (2), the
Fund has included in such Registration Statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the 1940 Act and the Rules and Regulations to
be included in such Registration Statement and the Prospectus. As
filed, such amendment and form of final prospectus (including the
statement of additional information incorporated by reference therein)
(in the case of clause (1) above), or such final prospectus (including
the statement of additional information incorporated by reference
therein) (in the case of clause (2) above), shall contain all Rule
430A Information, together with all other such required information,
and, except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Fund has advised you, prior to
the Execution Time, will be included or made therein.
(b) Each Preliminary Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment
or supplement thereto, complied when so filed in all material respects
with the provisions of the Act, the 1940 Act and the Rules and
Regulations.
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(c) The Registration Statement, in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the
Prospectus and any amendment or supplement thereto when filed with the
Commission under Rule 497 of the Act Rules and Regulations and the
1940 Act Notification when originally filed with the Commission and
any amendment or supplement thereto when filed with the Commission
complied or will comply in all material respects with the provisions
of the Act, the 1940 Act and the Rules and Regulations and did not or
will not at any such times 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 the case of a prospectus,
in light of the circumstances under which they were made) not
misleading; except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement or
the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Fund in writing by or on behalf of any
Underwriter through you expressly for use therein.
(d) All the outstanding Common Shares of the Fund have been duly
authorized and validly issued, are fully paid and, except as described
in the Registration Statement, nonassessable and are free of any
preemptive or similar rights; the Securities have been duly authorized
and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued,
fully paid and, except as described in the Registration Statement,
nonassessable and free of any preemptive or similar rights and the
capital stock of the Fund conforms to the description thereof in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them).
(e) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of The Commonwealth of
Massachusetts, with full power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them) and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or to qualify does not have a material adverse effect
on the condition (financial or other), business, properties, net
assets or results of operations of the Fund. The Fund has no
subsidiaries.
(f) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, threatened, against the Fund or to which
the Fund or any of its properties is subject, whether or not arising
from transactions in the ordinary course of business, that (i) are
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement to either of them) but are
not described as required by the Act, the 1940 Act or the Rules and
Regulations, (ii) are not described in the Prospectus and could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (iii) are not described in the
Prospectus and could reasonably be expected to have a
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material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Fund.
(g) There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement to either of them) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by
the Act, the 1940 Act or the Rules and Regulations.
(h) The Fund is not in violation of its Declaration of Trust or
By-Laws or in material violation of any material law, ordinance,
administrative or governmental rule or regulation applicable to the
Fund, including, without limitation, the applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated
in connection therewith, or of any material decree of the Commission,
the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official
having jurisdiction over the Fund or in breach or default in any
material respect in the performance of any obligation, agreement or
condition contained in any material bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any of
its properties may be bound.
(i) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement nor any of the
Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby (i) requires any consent,
approval, authorization or other order of or registration or filing
which has not yet been obtained or made with the Commission, the NASD,
any national securities exchange, any arbitrator, any court or any
other governmental, regulatory, self-regulatory or administrative
agency or any official (except compliance with the securities or Blue
Sky laws of various jurisdictions which have been or will be effected
in accordance with this Agreement and except for compliance with the
requirements of the NASD Division of Corporate Finance) or conflicts
or will conflict with or constitutes or will constitute a breach of
the Declaration of Trust or By-Laws of the Fund or (ii) conflicts or
will conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound or materially violates or will materially
violate any material statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
the Fund pursuant to the terms of any 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.
(j) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated therein, (i)
there has been no material adverse change in the condition (financial
or other), business, properties, net assets or results of operations
of the Fund or business prospects (other than as a result of a change
in the financial markets generally)
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of the Fund, whether or not arising in the ordinary course of
business, (ii) there have been no transactions entered into by the
Fund which are material to the Fund other than those in the ordinary
course of its business as described in the Prospectus (and any
amendment or supplement thereto) and (iii) there has been no dividend
or distribution of any kind declared, paid or made by the Fund on any
class of its common stock.
(k) The accountants, PricewaterhouseCoopers LP, who have audited
or shall audit at or prior to the Closing Date the Statement of Assets
and Liabilities and the related Statement of Operations both included
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them), are an independent public accounting
firm as required by the Act, the 1940 Act and the Rules and
Regulations.
(l) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (or
any amendment or supplement to either of them) present fairly the
financial position of the Fund on the basis stated in the Registration
Statement and the Prospectus at the respective dates or for the
respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved except as disclosed therein; and the other financial
and statistical information and data included in the Registration
Statement or the Prospectus (or any amendment or supplement thereto)
are accurately derived from such financial statements and the books
and records of the Fund.
(m) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497
under the Act Rules and Regulations, has taken all required action
under the Act, the 1940 Act and the Rules and Regulations to make the
public offering and consummate the sale of the Securities as
contemplated by this Agreement.
(n) The execution and delivery of, and the performance by the
Fund of its obligations under, this Agreement and the Fund Agreements
have been duly and validly authorized by the Fund and this Agreement
and the Fund Agreements have been duly executed and delivered by the
Fund and constitute the valid and legally binding agreements of the
Fund, enforceable against the Fund in accordance with their terms,
except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(o) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement to either of them),
subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them), the Fund has not incurred
any liability or obligation, direct or contingent, that is material to
the Fund and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of the
Fund.
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(p) The Fund has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute to the public in either printed or
electronic form any offering material in connection with the offering
and sale of the Securities other than the Registration Statement, the
Preliminary Prospectuses included in each of Pre-Effective Amendment
No. [.] to the Registration Statement, the Prospectus and the
advertisements/sales literature filed by Nuveen Investments, LLC with
the NASD on [.].
(q) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described
in the Prospectus (and any amendment or supplement thereto); the Fund
has fulfilled and performed all its material obligations with respect
to such permits and no event has occurred which allows or, after
notice or lapse of time, would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Prospectus (and any amendment
or supplement thereto); and, except as described in the Prospectus
(and any amendment or supplement thereto), none of such permits
contains any restriction that is materially burdensome to the Fund.
(r) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorization and with the investment policies and
restrictions of the Fund and the applicable requirements of the 1940
Act, the 1940 Act Rules and Regulations and the Internal Revenue Code
of 1986, as amended (the "Code"); (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles, to calculate net asset
value, to maintain accountability for assets and to maintain material
compliance with the books and records requirements under the 1940 Act
and the 1940 Act Rules and Regulations; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded account for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(s) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee
of any patents, patent licenses, trademarks, service marks or trade
names which it does not own, possess or license.
(t) Except as stated in this Agreement and in the Prospectus (and
any amendment or supplement thereto), the Fund has not taken and will
not take, directly or indirectly, any action designed to or which
should reasonably be expected to cause or result in or which will
constitute stabilization or manipulation of the price of the Common
Shares in violation of federal securities laws and the Fund is not
aware of any such action taken or to be taken by any affiliates of the
Fund.
(u) The Fund is duly registered under the 1940 Act as a
closed-end, diversified management investment company and the 1940 Act
Notification has been duly filed with
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the Commission and, at the time of filing thereof and at the time of
filing any amendment or supplement thereto, conformed in all material
respects with all applicable provisions of the 1940 Act and the 1940
Act Rules and Regulations. The Fund has not received any notice from
the Commission pursuant to Section 8(e) of the 1940 Act with respect
to the 1940 Act Notification or the Registration Statement (or any
amendment or supplement to either of them).
(v) All advertising, sales literature or other promotional
material (including "prospectus wrappers" and "broker kits"), whether
in printed or electronic form, authorized in writing by or prepared by
the Fund or the Advisers for use in connection with the offering and
sale of the Securities (collectively, "sales material") complied and
comply in all material respects with the applicable requirements of
the Act, the Act Rules and Regulations and the rules and
interpretations of the NASD and if required to be filed with the NASD
under the NASD's conduct rules were so filed. No sales material
contained or contains an untrue statement of a material fact or
omitted or omits 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.
(w) This Agreement and each of the Fund Agreements complies in
all material respects with all applicable provisions of the 1940 Act,
the 1940 Act Rules and Regulations, the Investment Advisers Act of
1940, as amended (the "Advisers Act"), and the rules and regulations
adopted by the Commission under the Advisers Act (the "Advisers Act
Rules and Regulations").
(x) No holder of any security of the Fund has any right to
require registration of Common Shares or any other security of the
Fund because of the filing of the Registration Statement or
consummation of the transactions contemplated by this Agreement.
(y) The Securities have been duly approved for listing upon
notice of issuance on the New York Stock Exchange (the "NYSE") and the
Fund's Registration Statement on Form 8-A, under the Exchange Act, has
become effective.
(z) The Fund intends to direct the investment of the proceeds of
the offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(aa) The Fund's directors and officers errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the
1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in
all material respects; and there are no claims by the Fund under any
such policy or fidelity bond as to which any insurance company is
denying liability or defending under a reservation of rights clause;
the Fund has not been refused any insurance coverage sought or applied
for; and the Fund has no reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the condition (financial or
8
otherwise), prospects, earnings, business or properties of the Fund,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto)
(bb) Except as set forth in the Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Fund are
outstanding.
(cc) Except as disclosed in the Prospectus, no trustee of the
Fund is an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the
Fund or an "affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any
Underwriter listed in Schedule I hereto.
(dd) Neither the rules of the New York Stock Exchange nor the
laws of the Commonwealth of Massachusetts require that the Common
Shares be represented by certificates.
2. Representations and Warranties of the Advisers. Each of the
Investment Adviser and the Subadviser, severally as to itself only and not
jointly or as to any other party, represents and warrants to each Underwriter as
follows:
(a) Such Adviser is a corporation, limited liability company or
limited liability partnership duly organized and validly existing in
good standing under the laws of its jurisdiction of incorporation or
formation, with full corporate, company or partnership power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement to either of them) and is duly
registered and qualified to conduct business and is in good standing
in each jurisdiction or place where the nature of its properties or
conduct of its business requires such registration or qualification,
except where the failure so to register or to qualify would not have a
material adverse effect on the condition (financial or other),
business, properties, net assets or results of operations of such
Adviser.
(b) Such Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Fund Agreements to which it is a
party or the Sub-Advisory Agreement to which it is a party as
contemplated by the Registration Statement and the Prospectus (or any
amendment or supplement thereto).
(c) Such Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party and the
Sub-Advisory Agreement to which it is a party, the execution and
delivery of, and the performance by such Adviser of its obligations
under, this Agreement, the Fund Agreements to which it is a party and
the Sub-Advisory Agreement to which it is a party have been duly and
validly authorized by such Adviser; and this Agreement, the Fund
Agreements to which it is a party and the Sub-Advisory Agreement to
which it is a party have been duly executed and delivered by
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such Adviser and constitute the valid and legally binding agreements
of such Adviser, enforceable against such Adviser in accordance with
their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of such Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Such Adviser has the financial resources available to it
necessary for the performance of its services and obligations as
contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) and under this Agreement, the Fund
Agreements to which it is a party and the Sub-Advisory Agreement to
which it is a party.
(e) Such Adviser is not in violation of its certificate or
articles of incorporation, by-laws, certificate of formation, limited
liability company agreement, limited liability partnership agreement
or other organizational documents or in violation of the applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith to which it is
subject, in default under any material agreement, indenture or
instrument or in breach or violation of any judgment, decree, order,
rule or regulation of any court or governmental or self-regulatory
agency or body except where such violation or breach would not have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the such Adviser or on the ability of the such Adviser to perform
its obligations under this Agreement, the Management Agreement to
which it is a party or the Sub-Advisory Agreement to which it is a
party.
(f) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), in each
case insofar as such information is set forth in the Registration
Statement or the Prospectus) complied and comply in all material
respects with the provisions of the Act, the 1940 Act, the Advisers
Act, the Rules and Regulations and the Advisers Act 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 (in the case of a
prospectus, in light of the circumstances under which they were made)
not misleading.
(g) There are no legal or governmental proceedings pending or, to
the knowledge of such Adviser, threatened against such Adviser or to
which any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus (or any
amendment or supplement to either of them) but are not described as
required or that reasonably should be expected to result in any
material adverse change in the condition (financial or other),
business, properties, net assets or results of operations of such
Adviser or that reasonably should have a material adverse effect on
the ability of such Adviser to fulfill its obligations hereunder or
under the Fund Agreements to which it is a party or under the
Sub-Advisory Agreement to which it is a party.
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(h) Since the date as of which information is given in the
Registration Statement and the Prospectus (and any amendment or
supplement to either of them), except as otherwise stated therein, (i)
there has been no material adverse change in the condition (financial
or other), business, properties, net assets or results of operations
or business prospects of such Adviser, whether or not arising from the
ordinary course of business and (ii) there have been no transactions
entered into by such Adviser which are material to such Adviser other
than those in the ordinary course of its business as described in the
Prospectus.
(i) Such Adviser has such licenses, permits and authorizations of
governmental or regulatory authorities ("permits") as are necessary to
own its property and to conduct its business in the manner described
in the Prospectus; such Adviser has fulfilled and performed all its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of such Adviser under any such permit.
(j) This Agreement, the Fund Agreements to which such Adviser is
a party and the Sub-Advisory Agreement to which it is a party comply
in all material respects with all applicable provisions of the 1940
Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
(k) Neither the execution, delivery or performance of this
Agreement or the Fund Agreements by such Adviser which is a party
thereto or the Sub-Advisory Agreement by such Adviser which is a party
thereto, nor the consummation by such Adviser of the transactions
contemplated hereby or thereby (A) requires any consent, approval,
authorization or other order of or registration or filing with the
Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or
any official (except compliance with the securities or Blue Sky laws
of various jurisdictions which have been or will be effected in
accordance with this Agreement and except for compliance with the
filing requirements of the NASD Division of Corporate Finance) or
conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, the certificate or articles of
incorporation, by-laws, certificate of formation, limited liability
company agreement, limited liability partnership agreement or other
organizational documents of such Adviser or (B) conflicts or will
conflict with or constitutes or will constitute a breach of or a
default under, any material agreement, indenture, lease or other
instrument to which such Adviser is a party or by which it or any of
its properties may be bound or materially violates or will materially
violate any material statute, law, regulation or filing or judgment,
injunction, order or decree applicable to such Adviser or any of its
properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
such Adviser pursuant to the terms of any 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 such Adviser is subject.
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(l) Except as stated in this Agreement and in the Prospectus (and
in any amendment or supplement thereto), such Adviser has not taken
and nor will it take, directly or indirectly, any action designed to
or which should reasonably be expected to cause or result in or which
will constitute, stabilization or manipulation of the price of the
Common Shares in violation of federal securities laws and such Adviser
is not aware of any such action taken or to be taken by any affiliates
of such Adviser.
(m) In the event that the Fund or such Adviser makes available
any promotional materials intended for use only by qualified
broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, in each case under its
control or at its direction, such Adviser will install and maintain
pre-qualification and password-protection or similar procedures which
are reasonably designed to effectively prohibit access to such
promotional materials by persons other than qualified broker-dealers
and registered representatives thereof.
(n) The Investment Adviser represents and warrants that Nuveen
Investments, Inc. has executed a license agreement between Nuveen
Investments, Inc. and Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., a New York corporation ("Standard & Poor's"), which
agreement, when executed and delivered by Standard & Poor's, will
license the use of the Standard & Poor's 500 Stock Index as a
component of the Fund and the S&P trade name and trademark rights (the
"S&P License Agreement"), and the S&P License Agreement has been duly
and validly authorized by Nuveen Investments, Inc., and, upon delivery
of the S&P License Agreement by Nuveen Investments Inc. and upon
authorization, execution and delivery by Standard & Poor's, will
constitute the valid and legally binding agreement of Nuveen
Investments, Inc., enforceable against Nuveen Investments, Inc. in
accordance with its terms, and subject to the qualification that the
enforceability of Nuveen Investments, Inc.'s obligations thereunder
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(o) [NASDAQ-100 Index license agreement] [define "License
Agreements"]
3. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Fund agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Fund, at a purchase price of $19.10 per
share, the amount of the Firm Securities set forth opposite such Underwriter's
name in Schedule I hereto (or such number of Firm Securities increased as set
forth in Section 10 hereof).
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
[.] Option Securities at the same purchase price per share as the Underwriters
shall pay for the Firm Securities. Said option may be exercised only to cover
over-allotments in the sale of the Firm Securities by the Underwriters. Said
option may be exercised in whole or in part at any time and from time to time
prior to 9:00 P.M., New York City time on or before the 45th day after the date
of the Prospectus (or if such
12
45th day shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the NYSE is open for trading) upon written or telegraphic notice
by the Representatives to the Fund setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the option
and the settlement date. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Firm Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional shares.
4. Delivery and Payment. (a) Delivery of and payment for the
Firm Securities shall be made at the office of Citigroup Global Markets Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or through the facilities of the
Depository Trust Company or another mutually agreeable facility, at 9:00 A.M.,
New York City time, on January [.], 2005 (the "Closing Date"). The place of
closing for the Firm Securities and the Closing Date may be varied by agreement
between you and the Fund.
(b) Delivery of and payment for the Option Securities (if the
option provided for in Section 3(b) hereof shall have been exercised) shall be
made at the aforementioned office of Citigroup Global Markets Inc., or through
the facilities of the Depository Trust Company or another mutually agreeable
facility, at such time on such date (an "Option Closing Date"), which may not be
the same as the Closing Date, but shall in no event be earlier than the Closing
Date nor earlier than two nor later than three business days after the giving of
the notice hereinafter referred to, as shall be specified in a written notice
from you on behalf of the Underwriters to the Fund of the Underwriters'
determination to purchase a number, specified in said notice, of Option
Securities. The place of closing for any Option Securities and the Option
Closing Date for such Option Securities may be varied by agreement between you
and the Fund.
(c) The Firm Securities and any Option Securities shall be
registered in such names and in such denominations as you shall request prior to
1:00 P.M., New York City time, (i) in respect of the Firm Securities, on the
second business day preceding the Closing Date and (ii) in respect of Option
Securities, on the day of the giving of the written notice in respect of such
Option Securities. The Firm Securities and any Option Securities to be purchased
hereunder shall be delivered to you on the Closing Date or the Option Closing
Date, as the case may be, through the facilities of the Depository Trust Company
or another mutually agreeable facility, against payment of the purchase price
therefor in immediately available funds to the order of the Fund.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public upon the
terms set forth in the Prospectus.
6. Agreements of the Fund and Certain Advisers. The Fund, the
Investment Adviser and the Subadviser, jointly and severally, agree with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective under the Act before the
offering of the Firm Securities may commence, the Fund will
13
use its reasonable best efforts to cause the Registration Statement or
such post-effective amendment to become effective under the Act as
soon as possible. If the Registration Statement has become effective
and the Prospectus contained therein omits certain information at the
time of effectiveness pursuant to Rule 430A of the Act Rules and
Regulations, the Fund will file a Prospectus including such
information pursuant to Rule 497(h) of the Act Rules and Regulations,
as promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the offering
price of the Securities or the date the Prospectus is first used after
the effective date of the Registration Statement. If the Registration
Statement has become effective and the Prospectus contained therein
does not so omit such information, the Fund will file a Prospectus
pursuant to Rule 497(c) or (j) of the Act Rules and Regulations as
promptly as practicable, but no later than the fifth business day
following the date of the later of the effective date of the
Registration Statement or the commencement of the public offering of
the Securities after the effective date of the Registration Statement.
The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement or
such post-effective amendment has become effective or (ii) when the
Prospectus has been timely filed pursuant to Rule 497(c) or Rule
497(h) of the Act Rules and Regulations or the certification permitted
pursuant to Rule 497(j) of the Act Rules and Regulations has been
timely filed, whichever is applicable.
(b) The Fund will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request made by
the Commission for amendment of or a supplement to the Registration
Statement, any Preliminary Prospectus or the Prospectus (or any
amendment or supplement to any of the foregoing) or for additional
information, (ii) of the issuance by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD"), any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Preliminary
Prospectus or any sales material (as hereinafter defined), of any
notice pursuant to Section 8(e) of the 1940 Act, of the suspension of
qualification of the Securities for offering or sale in any
jurisdiction, or the initiation or contemplated initiation of any
proceeding for any such purposes, (iii) of receipt by the Fund, the
Advisers, any affiliate of the Fund or the Advisers or any
representative or attorney of the Fund or the Advisers of any other
material communication from the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official relating to
the Fund (if such communication relating to the Fund is received by
such person within three years after the date of this Agreement), the
Registration Statement, the 1940 Act Notification, the Prospectus, any
Preliminary Prospectus, any sales material (as hereinafter defined)
(or any amendment
14
or supplement to any of the foregoing), this Agreement or any of the
Fund Agreements and (iv) within the period of time referred to in
paragraph (f) below, of any material adverse change in the condition
(financial or other), business, prospects, properties, net assets or
results of operations of the Fund or the Advisers or of the happening
of any event which makes any statement of a material fact made in the
Registration Statement, the Prospectus, any Preliminary Prospectus or
any sales material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) untrue or which requires the
making of any additions to or changes in the Registration Statement,
the Prospectus, any Preliminary Prospectus or any sales materials (as
hereinafter defined) (or any amendment or supplement to any of the
foregoing) in order to state a material fact required by the Act, the
1940 Act or the Rules and Regulations to be stated therein or
necessary in order to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made)
not misleading or of the necessity to amend or supplement the
Registration Statement, the Prospectus, any Preliminary Prospectus or
any sales material (as hereinafter defined) (or any amendment or
supplement to any of the foregoing) to comply with the Act, the 1940
Act, the Rules and Regulations or any other law or order of any court
or regulatory body. If at any time the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official shall issue
any order suspending the effectiveness of the Registration Statement,
prohibiting or suspending the use of the Prospectus, any Preliminary
Prospectus or any sales material (as hereinafter defined) (or any
amendment or supplement to any of the foregoing) or suspending the
qualification of the Securities for offering or sale in any
jurisdiction, the Fund will use its reasonable best efforts to obtain
the withdrawal of such order at the earliest possible time.
(c) The Fund will furnish to you, without charge, three signed
copies of the Registration Statement and the 1940 Act Notification as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto (except any
post-effective amendment required by Rule 8b-16 of the 1940 Act Rules
and Regulations which is filed with the Commission after the later of
(x) one year from the date of this Agreement and (y) the date on which
the distribution of the Securities is completed) and will also furnish
to you, without charge, such number of conformed copies of the
Registration Statement as originally filed and of each amendment
thereto (except any post-effective amendment required by Rule 8b-16 of
the 1940 Act Rules and Regulations which is filed with the Commission
after the later of (x) one year from the date of this Agreement and
(y) the date on which the distribution of the Securities is
completed), with or without exhibits, as you may reasonably request.
(d) The Fund will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, any
Preliminary Prospectus or any sales material (as hereinafter defined)
(or any amendment or supplement to any of the foregoing) of which you
shall not previously have been advised or to which you shall
reasonably object within a reasonable time after being so advised or
(ii) so long as, in the opinion of counsel for the Underwriters, a
Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports
pursuant to the Exchange Act, without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Fund has delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each form of any Preliminary
Prospectus. The Fund consents to the use, in accordance
15
with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Securities are offered by the
several Underwriters and by dealers, prior to the date of the
Prospectus, of each Preliminary Prospectus so furnished by the Fund.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time, for such period as in the
opinion of counsel for the Underwriters a prospectus is required by
the Act to be delivered in connection with sales of Securities by any
Underwriter or dealer, the Fund will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
reasonably request. The Fund consents to the use of the Prospectus
(and of any amendments or supplements thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the several
Underwriters and by all dealers to whom Securities may be sold, both
in connection with the offering or sale of the Securities and for such
period of time thereafter as the Prospectus is required by law to be
delivered in connection with sales of Securities by any Underwriter or
dealer. If during such period of time any event shall occur that in
the judgment of the Fund or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading or if it is necessary to supplement or
amend the Prospectus to comply with the Act, the 1940 Act, the Rules
and Regulations or any other law, rule or regulation, the Fund will
forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate amendment or supplement
thereto and will expeditiously furnish to the Underwriters and
dealers, without charge, such number of copies thereof as they shall
reasonably request. In the event that the Prospectus is to be amended
or supplemented, the Fund, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by
the proposed amendment or supplement.
(g) The Fund will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of
the Securities for offering and sale by the several Underwriters and
by dealers under the securities or Blue Sky laws of such jurisdictions
as you may designate and will file such consents to service of process
or other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the
Fund be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject
it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so subject.
(h) The Fund will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) of the Act and
Rule 158 of the Act Rules and Regulations.
16
(i) The Fund will comply with the undertaking set forth in
paragraph [6 of Item 33 of Part C] of the Registration Statement.
[check]
(j) During the period of five years hereafter, the Fund will
furnish to you (i) as soon as available, a copy of each report of the
Fund mailed to shareholders or filed with the Commission and (ii) from
time to time such other information concerning the Fund as you may
reasonably request.
(k) The Fund agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by the Fund
of its obligations hereunder: (i) the preparation, printing or
reproduction, filing (including, without limitation, the filing fees
prescribed by the Act, the 1940 Act and the Rules and Regulations) and
distribution of the Registration Statement (including exhibits
thereto), the Prospectus, each Preliminary Prospectus and the 1940 Act
Notification and all amendments or supplements to any of them, (ii)
printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the Registration Statement, the Prospectus, each Preliminary
Prospectus, any sales material and all amendments or supplements to
any of them as may be reasonably requested for use in connection with
the offering and sale of the Securities, (iii) the preparation,
printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp taxes and transfer agent and
registrar fees payable in connection with the original issuance and
sale of such Securities, (iv) the registrations or qualifications of
the Securities for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 6(g) hereof
(including the reasonable fees, expenses and disbursements of counsel
for the Underwriters relating to the preparation, printing or
reproduction and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification), (v) the
transportation and other expenses incurred by or on behalf of Fund
representatives in connection with presentations to prospective
purchasers of the Securities, (vi) the fees and expenses of the Fund's
independent registered public accounting firm, counsel for the Fund
and of the transfer agent, (vii) the expenses of delivery to the
Underwriters and dealers (including postage, air freight and the cost
of counting and packaging) of copies of the Prospectus, the
Preliminary Prospectus, any sales material and all amendments or
supplements to the Prospectus as may be requested for use in
connection with the offering and sale of the Securities, (viii) the
printing (or reproduction) and delivery of this Agreement, any dealer
agreements, the preliminary and supplemental Blue Sky Memoranda and
all other company-authorized agreements or other documents printed (or
reproduced) and delivered in connection with the offering of the
Securities, (ix) the filing fees and the fees and expenses of counsel
for the Underwriters in connection with any filings required to be
made with the NASD and incurred with respect to the review of the
offering of the Securities by the NASD, (x) the registration of the
Securities under the Exchange Act and the listing of the Securities on
the NYSE and (xi) an amount equal to (A) $20,000 plus (B) $0.0033 per
Security for each Security in excess of 2,000,000 sold pursuant to
this Agreement, payable no later than 45 days from the date of this
Agreement to the Underwriters in partial reimbursement of their
expenses (but not including reimbursement for the cost of one
tombstone advertisement in a newspaper that is one quarter of a
newspaper page or less in size) in connection with the offering.
Notwithstanding the foregoing, in the event that the sale of the Firm
Securities is not
17
consummated pursuant to Section 3 hereof, the Advisers will pay the
costs and expenses of the Fund set forth above in clauses (i) through
(x) of this Section 6(k), and reimbursements of Underwriter expenses
in connection with the offering shall be made in accordance with
Section 8 hereof.
(l) The Fund will direct the investment of the net proceeds of
the offering of the Securities in such a manner as to comply with the
investment objectives, policies and restrictions of the Fund as
described in the Prospectus.
(m) The Fund will file the requisite copies of the Prospectus
with the Commission in a timely fashion pursuant to Rule 497(c) or
Rule 497(h) of the Act Rules and Regulations, whichever is applicable
or, if applicable, will file in a timely fashion the certification
permitted by Rule 497(j) of the Act Rules and Regulations and will
advise you of the time and manner of such filing.
(n) Except as provided in this Agreement or pursuant to any
dividend reinvestment plan of the Fund in effect on the date hereof,
neither the Fund nor the Advisers will sell, contract to sell or
otherwise dispose of or hedge, any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or
grant any options or warrants to purchase Common Shares, for a period
of 180 days after the date of the Prospectus, without the prior
written consent of Citigroup Global Markets Inc.
(o) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Advisers have taken, nor will any of them
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Shares.
(p) The Fund will use its reasonable best efforts to have the
Common Shares listed, subject to notice of issuance, on the NYSE
concurrently with the effectiveness of the Registration Statement and
to comply with the rules and regulations of such exchange.
(q) The Investment Adviser hereby agrees and covenants to waive
receipt of a portion of its fees or other payments from the Fund to
which would otherwise be entitled in the amounts and for the time
periods set forth in the Prospectus.
(r) Nuveen Investments, Inc. will have fully executed License
Agreements prior to the Closing Date.
7. Conditions to the Obligations of the Underwriters. The
several obligations of the Underwriters to purchase any Securities hereunder are
subject to the accuracy of and compliance with the representations, warranties
and agreements of and by the Fund and the Advisers contained herein on and as of
the date hereof, the date on which the Registration Statement becomes or became
effective, the date of the Prospectus (and of any amendment or supplement
thereto), the Closing Date and, with respect to any Option Securities, any
Option Closing Date; to the accuracy and completeness of all statements made by
the Fund, the Advisers
18
or any of their officers in any certificate delivered to the Representatives or
their counsel pursuant to this Agreement and to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Securities may commence, the Registration Statement or such
post-effective amendment shall have become effective not later than
5:30 p.m., New York City time, on the date hereof or at such later
date and time as shall be consented to in writing by you and all
filings, if any, required by Rules 497 and 430A under the Act Rules
and Regulations shall have been timely made; no order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceeding for that purpose shall have been instituted or, to the
knowledge of the Fund, the Advisers or any Underwriter, threatened by
the Commission and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) You shall have received on the Closing Date an opinion of
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLC, special counsel for the Fund and the
Investment Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Fund is a business trust duly established, validly
existing and in good standing under the laws of The Commonwealth
of Massachusetts with full power and authority to own, lease and
operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any
amendment or supplement thereto through the date of the opinion)
and is duly registered and qualified to conduct its business and
is in good standing in each jurisdiction where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or to qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net
assets or results of operations of the Fund;
(ii) The authorized and outstanding capital stock of the
Fund is as set forth in the Registration Statement and Prospectus
(or any amendment or supplement thereto through the date of the
opinion); and the description of the authorized capital stock of
the Fund contained in the Prospectus (or any amendment or
supplement thereto through the date of the opinion) under the
caption "Description of Shares" conforms in all material respects
as to legal matters to the terms thereof contained in the Fund's
Declaration of Trust;
(iii) All of the shares of capital stock of the Fund
outstanding prior to the issuance of the Securities have been
duly authorized and validly issued and are fully paid and
nonassessable, except that, as described in the Prospectus under
the heading, "Certain Provisions in the Declaration of Trust,"
shareholders of the Fund may under certain circumstances be held
personally liable for its obligations;
19
(iv) The Securities have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and not subject to any preemptive
rights that entitle or will entitle any person to acquire any
Securities upon the issuance thereof by the Fund, except that, as
described in the Prospectus under the heading, "Certain
Provisions in the Declaration of Trust," shareholders of the Fund
may under certain circumstances be held personally liable for its
obligations;
(v) The Fund has the power and authority to enter into this
Agreement and the Fund Agreements and to issue, sell and deliver
the Securities to the Underwriters as provided herein and this
Agreement and each of the Fund Agreements have been duly
authorized, executed and delivered by the Fund;
(vi) Assuming due authorization, execution and delivery by
the other parties thereto and that the performance of the Fund
Agreements by such other parties will not violate law, agreements
to which such other parties or their properties are subject or
orders applicable to such other parties, the Fund Agreements
constitute the valid, legal and binding agreements of the Fund,
enforceable against the Fund in accordance with their terms,
subject to the qualification that the enforceability of the
Fund's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to
or affecting creditors' rights generally and by general equitable
principles, whether enforcement is considered in a proceeding in
equity or at law;
(vii) The Fund Agreements comply in all material respects
with all applicable provisions of the Act, the 1940 Act, the
Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations;
(viii) The Fund is not in violation of its Declaration of
Trust or By-Laws or, to the best knowledge of such counsel after
reasonable inquiry, is not in material default in the performance
of any material obligation, agreement or condition contained in
any bond, debenture, note or other evidence of indebtedness,
except as may be disclosed in the Prospectus (and any amendment
or supplement thereto);
(ix) No consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state
securities commission, any national securities exchange, any
arbitrator, any court or any other governmental body, agency or
regulatory, self-regulatory or administrative agency or any
official is required on the part of the Fund (except as have been
obtained under the Act and the Exchange Act or such as may be
required under state securities or Blue Sky laws governing the
purchase and distribution of the Securities) for the valid
issuance and sale of the Securities to the Underwriters as
contemplated by this Agreement, performance of the Fund
Agreements or this Agreement by the Fund, the consummation by the
Fund of the transactions contemplated thereby or hereby or the
adoption of the Fund's Dividend Reinvestment Plan;
20
(x) Neither the offer, sale or delivery of the Securities,
the execution, delivery or performance of this Agreement or the
Fund Agreements, compliance by the Fund with the provisions
hereof or thereof, consummation by the Fund of the transactions
contemplated hereby or thereby nor the adoption of the Fund's
Dividend Reinvestment Plan violates the Declaration of Trust or
By-Laws of the Fund or any material agreement, indenture, lease
or other instrument to which the Fund is a party or by which it
or any of its properties is bound that is an exhibit to the
Registration Statement or that is known to such counsel after
reasonable inquiry or, to the best of such counsel's knowledge
after reasonable inquiry, will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Fund, nor, to the best of such
counsel's knowledge after reasonable inquiry, will any such
action result in any violation of any existing material law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or
decree known to such counsel after reasonable inquiry, applicable
to the Fund or any of its properties, except that, in the
published opinion of the Commission, the indemnification
provisions in this Agreement and the Fund Agreements, insofar as
they relate to indemnification for liabilities arising under the
Act, are against public policy as expressed in the Act and
therefore unenforceable;
(xi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to
the best knowledge of such counsel after reasonable inquiry, no
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
before or contemplated by the Commission; and any filing of the
Prospectus and any amendments or supplements thereto required
pursuant to Rule 497 of the Act Rules and Regulations prior to
the date of such opinion has been made in accordance with Rule
497;
(xii) The Fund is duly registered with the Commission under
the 1940 Act as a closed-end, diversified management investment
company and all action has been taken by the Fund as required by
the Act and the 1940 Act and the Rules and Regulations in
connection with the issuance and sale of the Securities to make
the public offering and consummate the sale of the Securities as
contemplated by this Agreement;
(xiii) The statements made in the Registration Statement and
the Prospectus (and any amendment or supplement thereto through
the date of the opinion) under the caption "Tax Matters" and
"Certain Provisions in the Declaration of Trust" have been
reviewed by such counsel and to the extent they describe or
summarize tax laws, doctrines or practices of the United States,
legal matters, agreements, documents or proceedings discussed
therein present a fair and accurate description or summary
thereof as of the date of the opinion;
(xiv) The statements in the Registration Statement and
Prospectus (and any amendment or supplement thereto through the
date of the opinion), insofar as they are descriptions of
contracts, agreements or other legal documents or refer to
21
statements of law or legal conclusions, are accurate and present
fairly the information required to be shown;
(xv) The Registration Statement and the Prospectus (and any
amendment or supplement thereto through the date of the opinion)
comply as to form in all material respects with the requirements
of the Act, the 1940 Act and the Rules and Regulations (except
that no opinion need be expressed as to the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein);
(xvi) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the
Prospectus (or any amendment or supplement thereto through the
date of the opinion), there are no actions, suits or other legal
or governmental proceedings pending or expressly threatened
against the Fund (through the date of the opinion) and (B) there
are no material agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto through the date of the opinion) or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xvii) To the best knowledge of such counsel after
reasonable inquiry, the Fund is not in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Fund or of any decree of the Commission, the
NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Fund; and
(xviii) The Securities are duly authorized for listing,
subject to official notice of issuance, on the NYSE and the
Fund's Registration Statement on Form 8-A under the Exchange Act
is effective.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to
determine independently and does not assume any responsibility for,
the accuracy or completeness of the statements in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto), such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and
discussion of the contents thereof, and nothing has come to the
attention of such counsel that has caused it to believe that the
Registration Statement, at the time the Registration Statement became
effective or the Prospectus, as of its date and as of the Closing
Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading or that
any amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need
22
express no view with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data
included in, or omitted from, the Registration Statement or the
Prospectus (or any amendment or supplement thereto)).
In rendering such opinion, such counsel may limit such opinion to
matters involving the application of the laws of The Commonwealth of
Massachusetts and the United States. To the extent they deem proper
and to the extent specified in such opinion, such counsel may rely, as
to matters involving the application of laws of The Commonwealth of
Massachusetts, upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other
counsel of good standing whom they believe to be reliable and who are
satisfactory to the Representatives; provided that (X) such reliance
is expressly authorized by the opinion so relied upon and a copy of
each such opinion is delivered to the Representatives and is, in form
and substance, satisfactory to them and their counsel and (Y) ▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇ LLC states in their opinion that they believe that they
and the Underwriters are justified in relying thereon. References to
the Prospectus in this paragraph (b) shall also include any
supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of
[▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇], [Managing Director, Assistant Secretary and
General Counsel] for the Investment Adviser and Nuveen Investments,
Inc., dated the Closing Date and addressed to you, as Representatives
of the several Underwriters, to the effect that: [check]
(i) The Investment Adviser is a corporation duly
incorporated and validly existing in good standing under the laws
of the State of [Delaware] with full corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) and is duly
registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or to qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net
assets or results of operations of the Investment Adviser;
(ii) The Investment Adviser is duly registered with the
Commission under the Advisers Act as an investment adviser and is
not prohibited by the Advisers Act, the 1940 Act or the Rules and
Regulations under such acts from acting for the Fund under the
Management Agreement as contemplated by the Prospectus (and any
amendment or supplement thereto);
(iii) The Investment Adviser has corporate power and
authority to enter into this Agreement, the Management Agreement
and the Sub-Advisory Agreement and this Agreement, the Management
Agreement and the Sub-Advisory Agreement have been duly
authorized, executed and delivered by the Investment Adviser and
each of the Management Agreement and the Sub-Advisory Agreement
is a valid, legal and binding agreement of the Investment
Adviser, enforceable against the Investment Adviser in accordance
with its terms, subject to the qualification that the
enforceability of the Investment Adviser's
23
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles;
(iv) Each of the Management Agreement and the Sub-Advisory
Agreement complies in all material respects with all applicable
provisions of the Advisers Act, the 1940 Act and the Advisers Act
Rules and Regulations and the 1940 Act Rules and Regulations;
(v) Neither the execution and delivery by the Investment
Adviser of this Agreement, the Management Agreement or the
Sub-Advisory Agreement nor the consummation by the Investment
Adviser of the transactions contemplated hereunder or thereunder
constitutes or will constitute a breach of or a default under the
Certificate of Incorporation or By-Laws of the Investment Adviser
or any material agreement, indenture, lease or other instrument
to which the Investment Adviser is a party or by which it or any
of its properties is bound that is known to such counsel after
reasonable inquiry, or will result in the creation or imposition
of any material lien, charge or encumbrance upon any property or
assets of the Investment Adviser, nor will any such action result
in any violation of any existing material law, regulation, ruling
(assuming compliance with all applicable state securities and
Blue Sky laws), judgment, injunction, order or decree known to
such counsel after reasonable inquiry, applicable to the Fund or
any of its properties;
(vi) The description of the Investment Adviser and its
business in the Prospectus (and any amendment or supplement
thereto) complies in all material respects with all requirements
of the Act, the 1940 Act and the Rules and Regulations;
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the
Prospectus (and any amendment or supplement thereto), there are
no actions, suits or other legal or governmental proceedings
pending or threatened against the Investment Adviser or to which
the Investment Adviser or any of its property is subject which
are required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto);
(viii) The Investment Adviser owns, possesses or has
obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations as
are necessary for the Investment Adviser to carry on its business
as contemplated in the Prospectus (and any amendment or
supplement thereto);
(ix) No material consent, approval, authorization or order
of or registration or filing with any court, regulatory body,
administrative or other governmental body, agency or official is
required on the part of the Investment Adviser for the
performance of this Agreement, the Management Agreement or
24
the Sub-Advisory Agreement by the Investment Adviser or for the
consummation by the Investment Adviser of the transactions
contemplated hereby or thereby; and
(x) Nuveen Investments, Inc. has the power and authority to
enter into the License Agreements, and the License Agreements
have been duly authorized, executed and delivered by Nuveen
Investments, Inc.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), such counsel
has participated in the preparation of the Registration Statement and
the Prospectus, including review and discussion of the contents
thereof and nothing has come to its attention that has caused it to
believe that the Registration Statement at the time it became
effective or the Prospectus, as of its date and as of the Closing
Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of
the circumstances under which they were made) not misleading or that
any amendment or supplement to the Prospectus, as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in, or
omitted from, the Registration Statement or the Prospectus (or any
amendment or supplement thereto)).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of
Illinois, the Delaware General Corporation Law statute and the laws of
the United States and may rely upon an opinion or opinions, each dated
the Closing Date, of other counsel retained by the Investment Adviser
as to laws of any jurisdiction other than the United States, the State
of Illinois and the Delaware General Corporation Law statute, provided
that (X) each such local counsel is acceptable to the Representatives,
(Y) such reliance is expressly authorized by each opinion so relied
upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance, satisfactory to them
and their counsel and (Z) counsel shall state in his view that he
believes that he and the Underwriters are justified in relying
thereon.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Subadviser, dated
the Closing Date and addressed to you, as Representatives of the
several Underwriters, to the effect that:
(i) The Subadviser is a limited partnership duly formed and
validly existing in good standing under the laws of the State of
Delaware with full company power and authority to own, lease and
operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any
amendment or supplement thereto through the date of the opinion)
and is
25
duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of
its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or to qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net
assets or results of operations of the Subadviser;
(ii) The Subadviser is duly registered with the Commission
under the Advisers Act as an investment adviser and is not
prohibited by the Advisers Act, the 1940 Act or the rules and
regulations promulgated by the Commission under such acts from
acting for the Fund under the Sub-Advisory Agreement as
contemplated by the Prospectus (and any amendment or supplement
thereto through the date of the opinion);
(iii) The Subadviser has company power and authority to
enter into this Agreement and the Sub-Advisory Agreement and this
Agreement and the Sub-Advisory Agreement have been duly
authorized, executed and delivered by the Subadviser and the
Sub-Advisory Agreement is the valid, legal and binding agreement
of the Subadviser, enforceable against the Subadviser in
accordance with its terms, subject to the qualification that the
enforceability of the Subadviser's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally
and by general equitable principles;
(iv) The Sub-Advisory Agreement complies in all material
respects with all applicable provisions of the Advisers Act, the
1940 Act and the Advisers Act Rules and Regulations and the 1940
Act Rules and Regulations;
(v) Neither the execution and delivery by the Subadviser of
this Agreement or the Sub-Advisory Agreement nor the consummation
by the Subadviser of the transactions contemplated hereunder or
thereunder constitutes or will constitute a breach of or a
default under the certificate of limited partnership or limited
partnership agreement of the Subadviser or any material
agreement, indenture, lease or other instrument to which the
Subadviser is a party or by which it or any of its properties is
bound that is known to such counsel after reasonable inquiry, or
will result in the creation or imposition of any material lien,
charge or encumbrance upon any property or assets of the
Subadviser, nor will any such action result in any violation of
any existing material law, regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky
laws), judgment, injunction, order or decree known to such
counsel after reasonable inquiry, applicable to the Subadviser or
any of its properties;
(vi) The description of the Subadviser and its business in
the Prospectus (and any amendment or supplement thereto through
the date of the opinion) complies in all material respects with
all requirements of the Act, the 1940 Act and the Rules and
Regulations;
26
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the
Prospectus (and any amendment or supplement thereto through the
date of the opinion), there are no actions, suits or other legal
or governmental proceedings pending or threatened against the
Subadviser or to which the Subadviser or any of its property is
subject that are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto
through the date of the opinion);
(viii) The Subadviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for
the Subadviser to carry on its business as contemplated in the
Prospectus (and any amendment or supplement thereto through the
date of the opinion); and
(ix) No material consent, approval, authorization or order
of or registration or filing with any court, regulatory body,
administrative or other governmental body, agency or official is
required on the part of the Subadviser for the performance of
this Agreement or the Sub-Advisory Agreement by the Subadviser or
for the consummation by the Subadviser of the transactions
contemplated hereby or thereby.
Such counsel shall also state that although counsel has not
undertaken, except as otherwise indicated in its opinion, to determine
independently and does not assume any responsibility for, the accuracy
or completeness of the statements in the Registration Statement and
the Prospectus (and any amendment or supplement thereto through the
date of the opinion), such counsel has reviewed the Registration
Statement and Prospectus and has made certain inquiries of the Fund
and the Investment Adviser and nothing has come to its attention that
has caused it to believe that the Registration Statement at the time
it became effective or the Prospectus, as of its date and as of the
Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Prospectus, as
of the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and the
notes thereto and the schedules and other financial and statistical
data included in, or omitted from, the Registration Statement or the
Prospectus (or any amendment or supplement thereto through the date of
the opinion)).
In rendering such opinion, counsel may limit such opinion to
matters involving the application of the laws of the State of Delaware
and the United States and may rely upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by the Subadviser as
to laws of any jurisdiction other than the United States, provided
that (X) each such local counsel is acceptable to the Representatives,
(Y) such reliance is expressly authorized by each opinion so relied
upon and a copy of each such opinion is
27
delivered to the Representatives and is, in form and substance,
satisfactory to them and their counsel and (Z) counsel shall state in
their view that they believe that they and the Underwriters are
justified in relying thereon.
(e) That you shall have received on the Closing Date, an opinion,
dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may require and the Fund, the Advisers and
their respective counsels shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters.
(f) That you shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from PricewaterhouseCoopers LP, independent
certified public accountants, substantially in the forms heretofore
approved by you.
(g) (i) No order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus (or
any amendment or supplement thereto) or any Preliminary Prospectus or
any sales material shall have been issued and no proceedings for such
purpose or for the purpose of commencing an enforcement action against
the Fund, the Advisers or, with respect to the transactions
contemplated by the Prospectus (or any amendment or supplement
thereto) and this Agreement, any Underwriter, may be pending before
or, to the knowledge of the Fund, the Advisers or any Underwriter or
in the reasonable view of counsel to the Underwriters, shall be
threatened or contemplated by the Commission at or prior to the
Closing Date and that any request for additional information on the
part of the Commission (to be included in the Registration Statement,
the Prospectus or otherwise) be complied with to the satisfaction of
the Representatives, (ii) there shall not have been any change in the
capital stock of the Fund nor any material increase in debt of the
Fund from that set forth in the Prospectus (and any amendment or
supplement thereto) and the Fund shall not have sustained any material
liabilities or obligations, direct or contingent, other than those
reflected in the Prospectus (and any amendment or supplement thereto);
(iii) since the date of the Prospectus there shall not have been any
material adverse change in the condition (financial or other),
business, prospects, properties, net assets or results of operations
of the Fund or the Advisers; (iv) the Fund and the Advisers must not
have sustained any material loss or interference with its business
from any court or from legislative or other governmental action, order
or decree or from any other occurrence not described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto); and (v) all of the representations and warranties
of the Fund and the Advisers contained in this Agreement shall be true
and correct on and as of the date hereof and as of the Closing Date as
if made on and as of the Closing Date.
(h) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change or any development involving a
prospective change in or affecting the condition (financial or other),
business, prospects, properties, net assets or
28
results of operations of the Fund or the Advisers not contemplated by
the Prospectus (and any amendment or supplement thereto), which in
your opinion, as Representatives of the several Underwriters, would
materially, adversely affect the market for the Securities or (ii) any
event or development relating to or involving the Fund, the Advisers
or any officer or trustee or director of the Fund or the Advisers
which makes any statement of a material fact made in the Prospectus
(or any amendment or supplement thereto) untrue or which, in the
opinion of the Fund and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the
Prospectus (or any amendment or supplement thereto) in order to state
a material fact required by the Act, the 1940 Act, the Rules and
Regulations or any other law to be stated therein or necessary in
order to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made) not misleading,
if amending or supplementing the Prospectus (or any amendment or
supplement thereto) to reflect such event or development would, in
your opinion, as Representatives of the several Underwriters,
materially, adversely affect the market for the Securities.
(i) That neither the Fund nor the Advisers shall have failed at
or prior to the Closing Date to have performed or complied with any of
the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
(j) That you shall have received on the Closing Date a
certificate, dated such date, of the president, any managing director
or any vice president and of the controller, treasurer or assistant
treasurer of each of the Fund, the Investment Adviser and the
Subadviser certifying that (i) the signers have carefully examined the
Registration Statement, the Prospectus (and any amendments or
supplements thereto) and this Agreement (with respect to the
certificates of such officers of the Fund, the Investment Adviser and
the Subadviser), (ii) the representations and warranties of the Fund
(with respect to the certificates from such Fund officers) and the
representations of the Advisers (with respect to the certificates from
such officers of the Advisers) in this Agreement are true and correct
on and as of the date of the certificate as if made on such date,
(iii) since the date of the Prospectus (and any amendment or
supplement thereto) there has not been any material adverse change in
the condition (financial or other), business, prospects (other than as
a result of a change in the financial markets generally), properties,
net assets or results of operations of the Fund (with respect to the
certificates from such Fund officers) or the Advisers (with respect to
the certificates from such officers of the Advisers), (iv) with
respect to the certificates from such Fund officers and the
certificates from such officers of the Investment Adviser and the
Subadviser, to the knowledge of such officers after reasonable
investigation, no order suspending the effectiveness of the
Registration Statement or prohibiting the sale of any of the
Securities or having a material adverse effect on the Fund has been
issued and no proceedings for any such purpose are pending before or
threatened by the Commission or any court or other regulatory body,
the NASD, any state securities commission, any national securities
exchange, any arbitrator or any other governmental, regulatory,
self-regulatory or administrative agency or any official, (v) each of
the Fund (with respect to certificates from such Fund officers) and
the Advisers (with respect to certificates from such officers of the
Advisers) has performed and complied with all agreements that this
Agreement requires it to perform by such Closing Date, (vi) neither
the Fund (with respect to the
29
certificate from such officers of the Fund) nor the Advisers (with
respect to the certificate from such officers of the Advisers) has
sustained any material loss or interference with its business from any
court or from legislative or other governmental action, order or
decree or from any other occurrence not described in the Registration
Statement and the Prospectus and any amendment or supplement thereto
and (vii) with respect to the certificate from such officers of the
Fund, there has not been any change in the capital stock of the Fund
nor any material increase in the debt of the Fund from that set forth
in the Prospectus (and any amendment or supplement thereto) and the
Fund has not sustained any material liabilities or obligations, direct
or contingent, other than those reflected in the Prospectus (and any
amendment or supplement thereto).
(k) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(l) That the Fund and the Advisers shall have furnished to you
such further certificates, documents and opinions of counsel as you
shall reasonably request (including certificates of officers of the
Fund and the Advisers).
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel acting in
good faith.
Any certificate or document signed by any officer of the Fund or
the Advisers and delivered to you, as Representatives of the
Underwriters or to Underwriters' counsel, shall be deemed a
representation and warranty by such party to each Underwriter as to
the statements made therein.
The several obligations of the Underwriters to purchase any
Option Securities hereunder are subject to (i) the accuracy of and
compliance with the representations, warranties and agreements of and
by the Fund and the Advisers contained herein on and as of the Option
Closing Date, as though made on any Option Closing Date, the date on
which the Registration Statement becomes or became effective and the
date of the Prospectus (and any amendment or supplement thereto) (ii)
satisfaction on and as of any Option Closing Date of the conditions
set forth in this Section 7 except that, if any Option Closing Date is
other than the Closing Date, the certificates, opinions and letters
referred to in paragraphs (b), (c), (d), (e), (f), (j), (k) and this
paragraph shall be dated the Option Closing Date in question and the
opinions and letters called for by paragraphs (b), (c), (d), (e), (f),
and this paragraph shall be revised to reflect the sale of Option
Securities, (iii) the accuracy and completeness of all statements made
by the Fund, the Advisers or any of their officers in any certificate
delivered to the Representatives or their counsel pursuant to this
Agreement and (iv) the absence of circumstances on or prior to the
Option Closing Date which would permit termination of this Agreement
pursuant to Section 11 hereof if they existed on or prior to the
Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the
30
Underwriters set forth in Section 7 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Fund or the Advisers to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Fund will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
9. Indemnification and Contribution. (a) The Fund, the
Investment Adviser and the Subadviser, jointly and severally, agree to indemnify
and hold harmless each of you and each other Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several (including
reasonable costs of investigation), to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any Preliminary
Prospectus, any sales material (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, any Preliminary
Prospectus or any sales material (or any amendment or supplement to any of the
foregoing), in light of the circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Fund will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein; provided, further, that the
foregoing indemnity with respect to the Registration Statement, the Prospectus
or any Preliminary Prospectus (or any amendment or supplement to any of the
foregoing) shall not inure to the benefit of any Underwriter from whom the
person asserting any loss, claim, damage or liability purchased Securities, if
it is shown that a copy of the Prospectus, as then amended or supplemented,
which would have cured any defect giving rise to such loss, claim, damage or
liability was not sent or delivered to such person by or on behalf of such
Underwriter, if required by law to be so delivered to, at or prior to the
confirmation of the sale of such Securities to such person and such Prospectus,
amendments and supplements have been provided by the Fund to the Underwriters in
the requisite quantity and on a timely basis to permit proper delivery. This
indemnity agreement will be in addition to any liability which the Fund, the
Investment Adviser or the Subadviser may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Fund and the Advisers, each of its directors,
trustees, each of its officers who signs the Registration Statement, and each
person who controls the Fund or the Advisers within the meaning of the Act or
the Exchange Act, to the same extent as the indemnity from the Fund, the
Investment Adviser and the Subadviser to each Underwriter as set forth in
Section 9(a) hereof, but only with respect to written information relating to
such Underwriter furnished to the Fund
31
by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Fund and the Advisers acknowledge that the names of the
underwriters and number of Shares listed opposite such names in the first
paragraph under the caption "Underwriting" in the Prospectus, as well as, under
the same caption, the last sentence of the second paragraph, the first sentence
of the eleventh paragraph, the first sentence of the thirteenth paragraph and
the eighteenth paragraph, constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then the Fund, the Advisers and the
Underwriters shall contribute to the aggregate losses, claims,
32
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Fund, the Advisers and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Fund and the Advisers on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Fund,
the Advisers and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Fund and the Advisers on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Fund and the Advisers shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
the Fund and the Advisers, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Fund or the
Advisers on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Fund, the Advisers and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (f), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Fund or the Advisers within the meaning of either
the Act or the Exchange Act, each officer of the Fund and the Advisers who shall
have signed the Registration Statement and each director of the Fund and the
Advisers shall have the same rights to contribution as the Fund and the
Advisers, subject in each case to the applicable terms and conditions of this
paragraph (f). The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective number of Firm Securities
set forth opposite their names in Schedule I (or such numbers of Firm Securities
increased as set forth in Section 10 hereof) and not joint.
(e) Any losses, claims, damages or liabilities for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages or liabilities are incurred. The indemnity and
contribution agreements contained in this Section 9 and the representations and
warranties of the Fund and the Advisers set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
the Fund, the Advisers or their shareholders, trustees, directors, managers,
members or officers or any person controlling
33
the Fund or the Advisers (control to be determined within the meaning of the Act
or the Exchange Act), (ii) acceptance of any Securities and payment therefor
hereunder and (iii) any termination of this Agreement. A successor to any
Underwriter or to the Fund, the Advisers or their shareholders, trustees,
directors, managers, members or officers or any person controlling any
Underwriter, the Fund or the Advisers shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters or in
such other proportion as you may specify in accordance with the Citigroup Global
Markets Inc. Master Agreement Among Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the Fund.
In the event of a default by any Underwriter as set forth in this Section 10
which does not result in a termination of this Agreement, the Closing Date shall
be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder. The
term "Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
the approval of the Fund, purchases Firm Securities which a defaulting
Underwriter agreed, but failed or refused, to purchase.
11. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, without liability on the part
of the Underwriters to the Fund or the Advisers, by notice given to the Fund or
the Investment Adviser prior to delivery of and payment for the Securities, if
at any time prior to such time (i) trading in the Fund's Common Shares shall
have been suspended by the Commission or the NYSE or trading in securities
generally on the NYSE shall have been suspended or limited or minimum prices
shall have been established on the NYSE, (ii) a commercial banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets in the United States
is such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto). Notice of
such termination may be given to the Fund or the Advisers by telegram, facsimile
or telephone and shall be subsequently confirmed by letter.
34
12. Representations and Indemnities to Survive. The provisions
of Sections 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Miscellaneous. Except as otherwise provided in Sections 6,
10 and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (a) if to the Fund or the Investment
Advisor, c/o Nuveen Investments at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. Berkshire, (b) if to the Subadviser, at the offices of
Gateway Investment Advisers, L.P. at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or (c) if to you, as Representatives of
the Underwriters, at the office of Citigroup Global Markets Inc. at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Fund, the Advisers, their trustees, directors and
officers and the other controlling persons referred to in Section 9 hereof and
their respective successors and assigns to the extent provided herein and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" or the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any
Securities in his status as such purchaser.
A copy of the Declaration of Trust of the Fund is on file with
the Secretary of State of The Commonwealth of Massachusetts. This Agreement has
been executed on behalf of the Fund by the vice-president of the Fund in such
capacity and not individually and the obligations of the Fund under this
Agreement are not binding upon such officer, any of the trustees or the
shareholders individually but are binding only upon the assets and property of
the Fund.
14. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, trustees, directors, employees, agents and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
35
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration
of the Fund as an investment company under the 1940 Act on Form N-8A,
as the 1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended
"Advisers Act Rules and Regulations" shall mean the rules and
regulations adopted by the Commission under the Advisers Act
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 1(a) above and any
preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus (including the statement
of additional information incorporated by reference therein) relating
to the Securities that is first filed pursuant to Rule 497 after the
Execution Time or, if no filing pursuant to Rule 497 is required,
shall mean the form of final prospectus (including the statement of
additional information incorporated by reference therein) relating to
the Securities included in the Registration Statement at the Effective
Date.
36
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A.
"Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the Registration Statement
referred to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules
and Regulations and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Advisers and the several Underwriters.
Very truly yours,
NUVEEN EQUITY PREMIUM OPPORTUNITY FUND
By:
--------------------------------------
Name:
Title:
NUVEEN ASSET MANAGEMENT, INC.
By:
--------------------------------------
Name:
Title:
GATEWAY INVESTMENT ADVISERS, L.P.
By:
--------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
-----------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
Number of Firm Securities
Underwriters to be Purchased
-------------------------------------- -------------------------
Citigroup Global Markets Inc.......... [.]
Nuveen Investments, LLC .............. [.]
-------------------------
TOTAL: [.]
-------------------------