Exhibit (h)(1)
▇▇▇▇▇ ▇▇▇▇▇ RISK-MANAGED DIVERSIFIED EQUITY INCOME FUND
______ COMMON SHARES OF BENEFICIAL INTEREST
($0.01 par value)
FORM OF UNDERWRITING AGREEMENT
New York, New York
July __, 2007
Citigroup Global Markets Inc.
[Others]
As Representatives of the several Underwriters
listed on Schedule I hereto
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇ Risk-Managed Diversified Equity Income
Fund, a Massachusetts business trust (the "Fund"), ▇▇▇▇▇ ▇▇▇▇▇ Management, a
Massachusetts business trust (the "Investment Adviser"), and Rampart Investment
Management Company, Inc., a Massachusetts corporation (the "Sub-Adviser" and
together with the Investment Adviser, the "Advisers"), address you as
underwriters and as the representatives (the "Representatives") of each of the
several underwriters named in Schedule I hereto (the "Underwriters"). The Fund
proposes to sell to the Underwriters _____ shares of its common shares of
beneficial interest, par value $0.01 per share (the "Common Shares") (said
shares to be issued and sold by the Fund being hereinafter called the
"Underwritten Securities"). The Fund also proposes to grant to the Underwriters
an option to purchase up to _______ additional Common Shares to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called 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 21 hereof.
The Fund has entered into an Investment Advisory Agreement with the
Investment Adviser dated as of ______, 2007, a Custodian Agreement with
Investors Bank & Trust Company dated as of ____, 2007, an Administration
Agreement with the Investment Adviser dated as of ________, 2007, and a Transfer
Agency Agreement with Investors Bank & Trust Company dated as of _____, 2007,
and such agreements are herein referred to as the
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"Management Agreement," the "Custodian Agreement," the "Administration
Agreement," and the "Transfer Agency Agreement", respectively. The Investment
Adviser has entered into a Sub-Advisory Agreement with the Sub-Adviser dated as
of ____, 2007, a Structuring Fee Agreement with Citigroup Global Markets Inc.
dated as of _____, 2007 and an Additional Compensation Agreement with _________
dated as of ____, 2007, and such agreements are herein referred to as the
"Sub-Advisory Agreement," the "Structuring Fee Agreement" and the "____
Additional Compensation Agreement." Collectively, the Management Agreement, the
Custodian Agreement, the Administration 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 and the Advisers, 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 333-141981 and 811-22044) 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. Such
Registration Statement, including any amendments thereto filed prior to the
Execution Time, has become effective. 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 file with
the Commission a final prospectus (including the statement of additional
information incorporated by reference therein) in accordance with Rule 497.
As filed, such final prospectus (including the statement of additional
information incorporated by reference therein) shall contain all
information required by the Act and the 1940 Act and the Rules and
Regulations 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 complied when filed with the
Commission in all material respects with the provisions of the Act, the
1940 Act and the Rules and Regulations, and the Preliminary Prospectus and
the Rule 430A Information, when taken together as a whole, as of the
Execution Time, do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Fund makes no representations or
warranties as to the information contained in or omitted from a Preliminary
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Fund by or on behalf of any
Underwriter specifically for inclusion therein, it being
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understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 9(b)
hereof.
(c) On the Effective Date, the Registration Statement did, and when
the Prospectus is first filed in accordance with Rule 497 and on the
Closing Date (as defined herein) and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a "settlement date"),
the Prospectus (and any supplements thereto) will, and the 1940 Act
Notification when originally filed with the Commission and any amendment or
supplement thereto when filed with the Commission did or will, comply in
all material respects with the applicable requirements of the Act, the 1940
Act and the Rules and Regulations; on the Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the date of any filing pursuant to Rule 497
and on the Closing Date and any settlement date, the Prospectus (together
with any supplement thereto) will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Fund makes no
representations or warranties as to the information -------- -------
contained in or omitted from the Registration Statement, or the Prospectus
(or any supplement thereto), in reliance upon and in conformity with
information furnished in writing to the Fund by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto), it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 9(b)
hereof. The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus.
(d) 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, each Preliminary Prospectus and the Prospectus and is duly
qualified to do business and is in good standing under the laws of each
jurisdiction which requires such qualification. The Fund has no
subsidiaries.
(e) The Fund's authorized equity capitalization is as set forth in
each Preliminary Prospectus and the Prospectus; the capital stock of the
Fund conforms in all material respects to the description thereof contained
in each Preliminary Prospectus and the Prospectus; all outstanding Common
Shares have been duly and validly authorized and issued and are fully paid
and nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters pursuant
to this Agreement, will be fully paid and nonassessable; the Securities are
duly listed, and admitted and authorized for trading, subject to official
notice of issuance and evidence of satisfactory distribution, on the NYSE;
the certificates for the Securities are in valid and sufficient form; the
holders of outstanding Common Shares are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set forth in
each Preliminary Prospectus and the Prospectus, no options, warrants or
other rights to purchase,
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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.
(f) The Fund's registration statement on Form 8-A under the Exchange
Act has become effective.
(g) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497, 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.
(h) There are no agreements, contracts, indentures, leases, permits or
other instruments of a character required to be described in the
Registration Statement, any Preliminary Prospectus or the Prospectus, or to
be filed as an exhibit to the Registration Statement, which are not
described or filed as required; the statements in the Registration
Statement, each Preliminary Prospectus and the Prospectus under the
headings "Management of the Fund - Regulatory and Litigation Matters,"
"Description of Shares," "Anti-Takeover and Other Provisions in the
Declaration of Trust" and "Tax Matters," insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal maters, agreements,
documents or proceedings.
(i) 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
or principles of public policy 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.
(j) 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 the Commission. The Fund has not received any notice
from the Commission pursuant to Section 8(e) of the 1940 Act with respect
to the 1940 Act Notification or the Registration Statement.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Fund Agreements, except such as
have been made or obtained under the Act, the 1940 Act, the Exchange Act,
the Advisers Act, the rules and regulations of the NASD and the NYSE, and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities
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by the Underwriters in the manner contemplated herein and in each
Preliminary Prospectus and the Prospectus.
(l) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement or any of the Fund Agreements,
nor the consummation of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof or the adoption of the
Dividend Reinvestment Plan, conflict with, result in a breach or violation
of, or imposition of any lien, charge or encumbrance upon any property or
assets of the Fund pursuant to, (i) the Declaration of Trust or by-laws of
the Fund, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Fund is a party or bound or
to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Fund of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Fund or any of its properties.
(m) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(n) The financial statements, together with related schedules and
notes, included or incorporated by reference in each Preliminary
Prospectus, the Prospectus and the Registration Statement present fairly
the financial condition, results of operations and cash flows of the Fund
as of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and the 1940 Act and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); and the other financial and statistical
information and data included in the Registration Statement, each
Preliminary Prospectus and the Prospectus are accurately derived from such
financial statements and the books and records of the Fund.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Fund
or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of
the transactions herein contemplated or (ii) could reasonably be expected
to have a material adverse effect on the condition (financial or
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 each Preliminary
Prospectus and the Prospectus (exclusive of any supplement thereto).
(p) The Fund owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(q) The Fund is not in violation or default of (i) any provision of
its Declaration of Trust or by-laws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject or (iii) any
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statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Fund or any of its properties.
(r) Since the date as of which information is given in each
Preliminary Prospectus and Prospectus, except as otherwise stated therein,
(i) there has been no material, adverse change in the condition (financial
or other), prospects, earnings, business or properties 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 each
Preliminary Prospectus and the Prospectus 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 Shares.
(s) _______, who have certified the financial statements of the Fund
and delivered their report with respect to the audited financial statements
included or incorporated by reference in the Registration Statement, each
Preliminary Prospectus and the Prospectus, is an independent registered
public accounting firm with respect to the Fund within the meaning of the
Act, the 1940 Act and the Rules and Regulations.
(t) 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 any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, each Preliminary Prospectus, the Prospectus or other materials
permitted by the Act, the 1940 Act or the Rules and Regulations.
(u) All advertising, sales literature or other promotional material
(including "prospectus wrappers", "broker kits", "road show slides" and
"road show scripts"), whether in printed or electronic form, authorized in
writing by or prepared by 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 1940 Act, the Rules and Regulations and the
rules and interpretations of the NASD and if required to be filed with the
NASD under the NASD's conduct rules were provided to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, for filing. No sales material
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(v) The Fund's trustees and officers errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the 1940 Act Rules
and Regulations are in full force and effect; the Fund is in compliance
with the terms of such policy and fidelity bond in all material respects;
and there are no claims by the Fund under any such policy or fidelity bond
as to which any insurance company is denying liability or defending under a
reservation of rights clause; the Fund has not been refused any insurance
coverage sought or applied for; and the Fund has no reason to believe that
it will not be able to renew its existing insurance coverage and fidelity
bond as and when such coverage and fidelity bond expires or to obtain
similar coverage and fidelity bond from
7
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 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 each Preliminary
Prospectus and the Prospectus (exclusive of any supplement thereto).
(w) The Fund possesses all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and the Fund has
not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, permit or authorization
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or 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 each
Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto).
(x) 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 objectives, 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
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
The Fund's internal controls over financial reporting are effective and the
Fund is not aware of any material weakness in its internal control over
financial reporting.
(y) The Fund maintains "disclosure controls and procedures" (as such
term is defined in Rule 30a-3 under the 1940 Act); such disclosure controls
and procedures are effective.
(z) The Fund has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate the
sale or resale of the Securities, and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(aa) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the Act, the 1940 Act,
the Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
8
(bb) Except as disclosed in each Preliminary Prospectus and 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.
(cc) 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.
(dd) The conduct by the Fund of its business (as described in each
Preliminary Prospectus and 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.
(ee) The Fund has filed all foreign, federal, state and local tax
returns required to be filed or has properly requested extensions thereof
(except in any case in which the failure so to file would not have a
material adverse effect on the condition (financial or 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 each Preliminary Prospectus and the Prospectus
(exclusive of any supplement thereto)) and has paid all taxes required to
be paid by it and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or 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 each Preliminary
Prospectus and the Prospectus (exclusive of any supplement thereto); and
the Fund has been and is currently in compliance with the requirements of
Subchapter M of the Code to qualify as a regulated investment company under
the Code.
(ff) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Fund or sale by the Fund of the
Securities.
(gg) Except as disclosed in the Registration Statement, each
Preliminary Prospectus and the Prospectus, the Fund (i) does not have any
material lending or other relationship with any bank or lending affiliate
of Citigroup Global Markets Holdings Inc. and (ii) does not intend to use
any of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of Citigroup Global Markets Holdings
Inc.
(hh) There is and has been no failure on the part of the Fund and any
of the Fund's trustees or officers, in their capacities as such, to comply
with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection
9
therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), including Sections 302 and 906
related to certifications.
(ii) The Fund has adopted and implemented written policies and
procedures reasonably designed to prevent violation of the Federal
Securities Laws (as that term is defined in Rule 38a-1 under the ▇▇▇▇ ▇▇▇)
by the Fund, including policies and procedures that provide oversight of
compliance by each investment adviser, administrator and transfer agent of
the Fund.
Any certificate signed by any officer of the Fund and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Fund, as
to matters covered therein, to each Underwriter.
2. Representations and Warranties of the Advisers. Each of the
Investment Adviser and the Sub-Adviser, severally as to itself only and not
jointly or as to any other party, represents and warrants to, and agrees with,
each Underwriter as follows:
(a) Such Adviser has been duly formed and is validly existing in good
standing under the laws of the jurisdiction of its organization, with full
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, each Preliminary
Prospectus and the Prospectus, and is duly qualified to do business and is
in good standing under the laws of each jurisdiction which requires such
qualification.
(b) The Investment Adviser is duly registered as an investment adviser
under the Advisers Act and the Investment Adviser 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 Management Agreement,
the Sub-Advisory Agreement, the Administration Agreement, the Structuring
Fee Agreement and the ________ Additional Compensation Agreement, and the
Sub-Adviser is duly registered as an investment adviser under the Advisers
Act and the Sub-Adviser 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 Sub-Advisory Agreement, as contemplated
by each Preliminary Prospectus and the Prospectus.
(c) The Investment Adviser has full power and authority to enter into
this Agreement, the Management Agreement, the Sub-Advisory Agreement, the
Administration Agreement, the Structuring Fee Agreement and the ________
Additional Compensation Agreement and the Sub-Adviser has full power and
authority to enter into this Agreement and the Sub-Advisory Agreement; the
execution and delivery of, and the performance by the Investment Adviser of
its obligations under, this Agreement, the Management Agreement, the
Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee
Agreement and the _______ Additional Compensation Agreement have been duly
and validly authorized by the Investment Adviser and the execution and
delivery of, and the performance by the Sub-Adviser of its obligations
under, this Agreement and the Sub-Advisory Agreement, have been duly and
validly authorized by
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the Sub-Adviser; and this Agreement, the Management Agreement, the
Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee
Agreement and the _______ Additional Compensation Agreement have been duly
executed and delivered by the Investment Adviser and this Agreement and the
Sub-Advisory Agreement have been duly executed and delivered by the
Sub-Adviser, and each such agreement constitutes the valid and legally
binding agreement of such Adviser, enforceable against such Adviser in
accordance with its 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 each
Preliminary Prospectus and the Prospectus and under this Agreement, the
Management Agreement, the Sub-Advisory Agreement, the Structuring Fee
Agreement and the ______ Additional Compensation Agreement, as applicable.
(e) The description of such Adviser and its business, and the
statements attributable to such Adviser, in the Registration Statement,
each Preliminary Prospectus and 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 necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving such
Adviser or its property is pending or, to the best knowledge of such
Adviser, threatened that (i) is required to be described in each
Preliminary Prospectus and the Prospectus that is not so described as
required, (ii) could reasonably be expected to have a material adverse
effect on the ability of such Adviser to fulfill its obligations hereunder
or under the Management Agreement, the Sub-Advisory Agreement, the
Administration Agreement, the Structuring Fee Agreement and the ______
Additional Compensation Agreement, as applicable or (iii) could reasonably
be expected to have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of such Adviser,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in each Preliminary
Prospectus and the Prospectus (exclusive of any supplement thereto); and
there are no agreements, contracts, indentures, leases, permits or other
instruments relating to such Adviser that are required to be described in
the Registration Statement, each Preliminary Prospectus or the Prospectus
or to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act, the 1940 Act or the Rules and
Regulations.
(g) Since the date as of which information is given in each
Preliminary Prospectus and the Prospectus, except as otherwise stated
therein, (i) there has been no material, adverse change in the condition
(financial or other), prospects, earnings,
11
business or properties 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 each
Preliminary Prospectus and the Prospectus.
(h) Such Adviser possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and has not
received any notice of proceedings relating to the revocation or
modification of any such license, certificate, permit or authorization
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of such Adviser, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in each
Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto).
(i) This Agreement, the Management Agreement, the Sub-Advisory
Agreement, the Administration Agreement, the Structuring Fee Agreement and
the _______ Additional Compensation Agreement comply in all material
respects with all applicable provisions of the Act, the 1940 Act, the Rules
and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein or in the Management Agreement, the
Sub-Advisory Agreement, the Administration Agreement, the Structuring Fee
Agreement and the _______ Additional Compensation Agreement, except such as
have been made or obtained under the Act and the 1940 Act, the Exchange
Act, the Advisers Act, the rules and regulations of the NASD and the NYSE,
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in each Preliminary
Prospectus and the Prospectus.
(k) Neither the execution, delivery or performance of this Agreement
or the Management Agreement, the Sub-Advisory Agreement, the Administration
Agreement, the Structuring Fee Agreement and the _______ Additional
Compensation Agreement, as applicable, nor the consummation of the
transactions herein or therein contemplated, nor the fulfillment of the
terms hereof or thereof, conflict with, result in a breach or violation of,
or imposition of any lien, charge or encumbrance upon any property or
assets of either Adviser pursuant to, (i) the organizational documents of
such Adviser, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which such Adviser is a
party or bound or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to such Adviser
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over such Adviser or any
of its properties.
(l) Such Adviser has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the
12
Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Fund to facilitate the sale or resale of the
Securities, 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 related to the Securities or the transactions
contemplated hereby intended for use only by registered broker-dealers and
registered representatives thereof by means of an Internet web site or
similar electronic means, 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 registered broker-dealers and registered
representatives thereof.
Any certificate signed by any officer of such Adviser and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by such
Adviser, as to matters covered therein, to each Underwriter.
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 $______ per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(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 Underwritten Securities. Said option may
be exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in
part at any time on or before the 45th day after the date of the Prospectus
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 Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional
shares.
4. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 3(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on ________,
2007 or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Fund or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the
13
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Fund by wire transfer payable in same-day funds to
an account specified by the Fund. Delivery of the Underwritten Securities and
the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Fund will deliver the
Option Securities (at the expense of the Fund) to the Representatives, at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Fund by wire transfer payable in
same-day funds to an account specified by the Fund. If settlement for the Option
Securities occurs after the Closing Date, the Fund will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 7 hereof.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. Agreements of the Fund and the Advisers. The Fund and the Advisers,
jointly and severally, agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Fund will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement
unless the Fund has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you
reasonably object. The Fund will cause the Prospectus, properly completed,
and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable paragraph of
Rule 497 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Fund will
promptly advise the Representatives (i) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 497 or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (ii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Fund of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Fund
will use its best efforts to prevent the issuance of any such stop order or
the occurrence of any such suspension or objection to
14
the use of the Registration Statement and, upon such issuance, occurrence
or notice of objection, to obtain as soon as possible the withdrawal of
such stop order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or
new registration statement declared effective as soon as practicable.
(b) If, at any time when a prospectus relating to the Securities is
required to be filed or delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the Prospectus
to comply with the Act, the 1940 Act and the Rules and Regulations, the
Fund promptly will (i) notify the Representatives of any such event; (ii)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 6, an amendment or supplement which will
correct such statement or omission or effect such compliance; and (iii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Fund will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Fund which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel for the
Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Fund will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities; 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
that 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.
(f) The Fund will not, without the prior written consent of Citigroup
Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of, or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Fund or any affiliate of the Fund or any person in
privity with the Fund, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other Common Shares or any
securities
15
convertible into, or exercisable, or exchangeable for, Common Shares; or
publicly announce an intention to effect any such transaction for a period
of 180 days after the date of this Agreement, provided, however, that the
Fund may issue and sell Common Shares pursuant to any dividend reinvestment
plan of the Fund in effect at the Execution Time.
(g) The Fund will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will use its best efforts to cause the Fund's
trustees and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(h) The Fund and the Advisers will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Fund to
facilitate the sale or resale of the Securities.
(i) The Fund agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the
Prospectus and the 1940 Act Notification and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus, any sales material and all amendments or supplements to any of
them, as may, in each case, 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 or transfer taxes in connection with the
original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum,
dealer agreements and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the NYSE; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification); (vii) any filings required to be made
with the NASD (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Fund
representatives in connection with presentations to prospective purchasers
of the Securities; (ix) the fees and expenses of the Fund's accountants and
the fees and expenses of counsel (including local and special counsel) for
the Fund; (x) all other costs and expenses incident to the performance by
the Fund of its obligations hereunder; and (xi) an amount equal to $0.005
per Common Share for each Common Share 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 in connection with
the offering. To the extent that the foregoing costs and expenses
incidental to the performance of the obligations of the Fund under this
Agreement, as
16
well as the Fund's other costs associated with the offering of the
Securities (other than the sales load) exceed $0.04 per Security, the
Investment Adviser or an affiliate will pay all such costs and expenses.
(j) 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 each Preliminary Prospectus and the Prospectus.
(k) The Fund will comply with the requirements of Subchapter M of the
Code to qualify as a regulated investment company under the Code.
(l) The Fund and the Advisers will use their reasonable best efforts
to perform all of the agreements required of them by this Agreement and
discharge all conditions of theirs to closing as set forth in this
Agreement.
7. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund and the Advisers
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 4 hereof, to the accuracy of the statements of the Fund
and the Advisers made in any certificates pursuant to the provisions hereof, to
the performance by the Fund or the Advisers of their obligations hereunder and
to the following additional conditions:
(a) The Prospectus and any supplements thereto have been filed in the
manner and within the time period required by Rule 497; and no stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use or order pursuant to Section 8(e) of the 1940 Act
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been complied with in all
material respects.
(b) The Fund shall have requested and caused ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Fund, to have furnished to the
Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) 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 each
Preliminary Prospectus and the Prospectus, and is duly qualified to do
business and is in good standing under the laws of each jurisdiction
which requires such qualification. The Fund has no subsidiaries;
(ii) 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 the Commission; all action has
been taken by the Fund as required by the Act, the 1940 Act and the
Rules and Regulations in connection
17
with the issuance and consummation and sale of the Securities as
contemplated by this Agreement; this Agreement and each of the Fund
Agreements complies 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; and the Fund
has not received any notice from the Commission pursuant to Section
8(e) of the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement;
(iii) This Agreement has been duly authorized, executed and
delivered by the Fund;
(iv) Each of the Fund Agreements has been duly authorized,
executed and delivered by the Fund, and constitutes a valid and
legally binding agreement of the Fund, enforceable against the Fund in
accordance with its 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;
(v) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the
Fund Agreements, nor the consummation of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof or
thereof or the adoption of the Dividend Reinvestment Plan, conflict
with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Fund pursuant
to, (i) the Declaration of Trust or by-laws of the Fund, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Fund is a party or bound or to
which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Fund of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Fund or any
of its properties;
(vi) The Fund's authorized equity capitalization is as set forth
in each Preliminary Prospectus and the Prospectus; the capital stock
of the Fund conforms in all material respects to the description
thereof contained in the Registration Statement, each Preliminary
Prospectus and the Prospectus; all outstanding Common Shares have been
duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution, on the NYSE; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding Common Shares
are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in each Preliminary Prospectus
and the Prospectus, no options, warrants or other rights to purchase,
agreements or other
18
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;
(vii) There is no pending or, to the knowledge of such counsel,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in each
Preliminary Prospectus and the Prospectus, and there are no
agreements, contracts, indentures, leases, permits or other
instruments of a character required to be described in the
Registration Statement, each Preliminary Prospectus or the Prospectus,
or to be filed as an exhibit to the Registration Statement, which are
not described or filed as required; and the statements included in
each Preliminary Prospectus and the Prospectus under the headings
"Description of Capital Structure", "Federal Income Tax Matters" and
"Taxes", insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or
proceedings;
(viii) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements,
except such as have been made or obtained under the Act, the 1940 Act,
the Exchange Act, the Advisers Act, the rules and regulations of the
NASD and the NYSE and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner contemplated in
this Agreement and in each Preliminary Prospectus and the Prospectus;
(ix) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement; and
(x) The Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 497 have been made in the manner and within
the time period required by Rule 497; to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement, each Preliminary Prospectus
and the Prospectus (other than the financial statements and other
financial and statistical information contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
1940 Act and the Rules and Regulations; and such counsel has no reason
to believe that (a) the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) the
Preliminary Prospectus and the price to the public, the number of
19
Underwritten Securities and the number of Option Securities to be
included on the cover page of the Prospectus, when taken together as a
whole, as of the time of the pricing of the offering of the
Underwritten Securities, included any untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (c) the Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Massachusetts or the Federal laws of the United States, to
the extent they deem proper and specified in such opinion, upon the opinion
of ________________________ or other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters, and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Fund and public
officials. References to the 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
___________________________, ___________________ of the Investment Adviser,
dated the Closing Date and addressed to the Representatives, to the effect
that:
(i) The Investment Adviser 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 each Preliminary Prospectus and the Prospectus, and is
duly qualified to do business and is in good standing under the laws
of each jurisdiction which requires such qualification;
(ii) The Investment 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 Management Agreement,
the Sub-Advisory Agreement, the Administration Agreement, the
Structuring Fee Agreement and the __________________ Additional
Compensation Agreement as contemplated by each Preliminary Prospectus
and the Prospectus;
(iii) The Investment Adviser has full power and authority to
enter into this Agreement, the Management Agreement, the Sub-Advisory
Agreement, the Administration Agreement, the Structuring Fee
Agreement, and the ________________ Additional Compensation Agreement;
20
(iv) This Agreement has been duly authorized, executed and
delivered by the Investment Adviser;
(v) The Management Agreement, the Sub-Advisory Agreement, the
Administration Agreement, the Structuring Fee Agreement and the
______________ Additional Compensation Agreement have been duly
authorized, executed and delivered by the Investment Adviser and the
Management Agreement, the Sub-Advisory Agreement, the Administration
Agreement, the Structuring Fee Agreement and the __________________
Additional Compensation Agreement are each a valid and legally 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
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;
(vi) This Agreement, the Management Agreement, the Sub-Advisory
Agreement, the Administration Agreement, the Structuring Fee Agreement
and the _____________ Additional Compensation Agreement 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;
(vii) Neither the execution, delivery or performance of this
Agreement or the Management Agreement, the Sub-Advisory Agreement, the
Administration Agreement, the Structuring Fee Agreement and the
_______ Additional Compensation Agreement nor the consummation of the
transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or thereof, conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Investment Adviser pursuant to, (i) the
organizational documents of the Investment Adviser, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Investment Adviser is a party or
bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Adviser
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Investment Adviser or any of its properties;
(viii) The description of the Investment Adviser and its business
in each Preliminary Prospectus and the Prospectus complies in all
material respects with the provisions of the Act, the 1940 Act and the
Rules and Regulations;
(ix) There is no pending or, to the knowledge of such counsel,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Investment Adviser or its property of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in each Preliminary Prospectus and the
21
Prospectus, and there are no agreements, contracts, indentures,
leases, permits or other instruments of a character required to be
described in the Registration Statement, each Preliminary Prospectus
or the Prospectus, or to be filed as an exhibit to the Registration
Statement, which are not described or filed as required;
(x) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Management
Agreement, the Sub-Advisory Agreement, the Administration Agreement,
the Structuring Fee Agreement and the ___________ Additional
Compensation Agreement, except such as have been made or obtained
under the Act, the 1940 Act, the Exchange Act and the Advisers Act,
the rules and regulations of the NASD and the NYSE and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and each Preliminary Prospectus; and
(xi) Such counsel has no reason to believe that (a) the
Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, (b) the Preliminary Prospectus and the price
to the public, the number of Underwritten Securities and the number of
Option Securities to be included on the cover page of the Prospectus,
when taken together as a whole, as of the time of the pricing of the
offering of the Underwritten Securities, included any untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (c) the
Prospectus as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Massachusetts or the Federal laws of the United States, to
the extent they deem proper and specified in such opinion, upon the opinion
of ________________________ or other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters, and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Investment Adviser
and public officials. References to the Prospectus in this paragraph (c)
shall also include any supplements thereto at the Closing Date.
(d) You shall have received on the Closing Date an opinion of
_______________, _________ for the Sub-Adviser, dated the Closing Date and
addressed to the Representatives, to the effect that:
22
(i) The Sub-Adviser has been duly formed and is validly existing
in good standing as a corporation 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
each Preliminary Prospectus and the Prospectus, and is duly qualified
to do business and is in good standing under the laws of each
jurisdiction which requires such qualification;
(ii) The Sub-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 Sub-Advisory Agreement as
contemplated by each Preliminary Prospectus and the Prospectus;
(iii) The Sub-Adviser has full power and authority to enter into
this Agreement and the Sub-Advisory Agreement;
(iv) This Agreement has been duly authorized, executed and
delivered by the Sub-Adviser;
(v) The Sub-Advisory Agreement has been duly authorized, executed
and delivered by the Sub-Adviser and the Sub-Advisory Agreement is a
valid and legally binding agreement of the Sub-Adviser, enforceable
against the Sub-Adviser in accordance with its terms subject to the
qualification that the enforceability of the Sub-Adviser'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;
(vi) This Agreement and the Sub-Advisory Agreement 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;
(vii) Neither the execution, delivery or performance of this
Agreement or the Sub-Advisory Agreement nor the consummation of the
transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or thereof, conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Sub-Adviser pursuant to, (i) the
organizational documents of the Sub-Adviser, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Sub-Adviser is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Sub-Adviser of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Sub-Adviser or any of
its properties;
23
(viii) The description of the Sub-Adviser and its business in
each Preliminary Prospectus and the Prospectus complies in all
material respects with all requirements of the Act, the 1940 Act and
the Rules and Regulations;
(ix) There is no pending or, to the knowledge of such counsel,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Sub-Adviser or its property of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in each
Preliminary Prospectus or the Prospectus, and there are no agreements,
contracts, indentures, leases, permits or other instruments of a
character required to be described in the Registration Statement, each
Preliminary Prospectus or the Prospectus, or to be filed as an exhibit
to the Registration Statement, which are not described or filed as
required;
(x) No consent, approval, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein or in the Sub-Advisory Agreement,
except such as have been made or obtained under the Act, the 1940 Act,
the Exchange Act and the Advisers Act, the rules and regulations of
the NASD and the NYSE and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in each Preliminary Prospectus and
the Prospectus; and
(xi) Such counsel has no reason to believe that (a) the
Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, (b) the Preliminary Prospectus and the price
to the public, the number of Underwritten Securities and the number of
Option Securities to be included on the cover page of the Prospectus,
when taken together as a whole, as of the time of the pricing of the
offering of the Underwritten Securities, included any untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (c) the
Prospectus as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Massachusetts or the Federal laws of the United States, to
the extent they deem proper and specified in such opinion, upon the opinion
of ________________________ or other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters, and (B) as to matters of fact, to the extent they deem
proper, on certificates
24
of responsible officers of the Sub-Adviser and public officials. References
to the Prospectus in this paragraph (d) shall also include any supplements
thereto at the Closing Date.
(e) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Preliminary Prospectus and the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Fund and the Advisers shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) Each of the Fund and the Advisers shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President or Executive Vice President and the principal financial or
accounting officer of each of the Fund and the Advisers, as the case may
be, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, each
Preliminary Prospectus and the Prospectus, any amendments or supplements
thereto and this Agreement and that:
(i) The representations and warranties of the Fund or the
Advisers, as the case may be, in this Agreement are true and correct
on and as of the Closing Date with the same effect as if made on the
Closing Date and the Fund or the Advisers, as the case may be, have
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or, to
the Fund's or each of the Adviser's knowledge, as the case may be,
threatened; and
(iii) Since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto) (with
respect to the certificate of the Fund) and since the date of the
Prospectus (exclusive of any supplements thereto) (with respect to the
certificate of the Advisers), there has been no material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund or each of the Advisers, as the
case may be, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in each
Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto).
(g) The Fund shall have requested and caused ______ to have furnished
to the Representatives, at the Execution Time and at the Closing Date,
letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
1940 Act and the Rules and Regulations and stating in effect that:
25
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement,
Preliminary Prospectus and the Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act, the 1940 Act and the Rules and
Regulations; and
(ii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Fund) set forth in the Registration
Statement, each Preliminary Prospectus and the Prospectus, including
the information set forth under the captions "Summary of Fund
Expenses" in the Prospectus, agrees with the accounting records of the
Fund, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (g) of this Section 7 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), prospects, earnings,
business or properties of the Fund and each of the Advisers, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in each Preliminary Prospectus and the Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof), each Preliminary Prospectus and the Prospectus (exclusive of any
supplement thereto).
(i) 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.
(j) Prior to the Closing Date, the Fund and the Advisers shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(k) If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at
26
any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Fund in writing or by telephone or
facsimile confirmed in writing.
(l) The documents required to be delivered by this Section 7 shall be
delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on 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 Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof 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 Advisers 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 and the Advisers,
jointly and severally, agree to indemnify and hold harmless each 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, 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 for the registration of the Securities as originally filed or in any
amendment thereof (and including any post-effective amendment, any Rule 462(b)
Registration Statement and any Rule 430A Information deemed to be included or
incorporated therein), or in any Preliminary Prospectus, the Prospectus, any
sales material or in any amendment thereof or supplement thereto, 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 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 and the Advisers 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 and the
Advisers by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Fund and the Advisers may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless each of the Fund and the Advisers, each of its directors, each of
its officers who signs the Registration Statement, and each person who controls
the Fund or the Advisers within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Fund and the
Advisers to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Fund or the Advisers by or on
behalf of
27
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 statements set forth in the [last
paragraph of the cover page regarding delivery of the Securities and, under the
heading "Underwriting", (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraphs related to stabilization,
syndicate covering transactions and penalty bids] in any Preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters specifically 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
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
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), (b) or
(c) of this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Fund, the Advisers and the Underwriters
severally agree to contribute to the aggregate losses,
28
claims, 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 (treated jointly
for this purpose as one person) 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 (treated jointly for this
purpose as one person) 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 (treated jointly for this purpose as one person) shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by the Fund, 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 and the
Advisers on the one hand (treated jointly for this purpose as one person) 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 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 (d), 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 or
trustee 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 (d).
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) 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
29
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, the Fund or the Advisers. In the event of a default by any
Underwriter as set forth in this Section 10, 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.
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
Advisers prior to delivery of and payment for the Securities, if at any time
prior to such time (a) 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, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities or (c) 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 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 each Preliminary Prospectus or the
Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
each of the Fund and the Advisers or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Fund or the Advisers or any of the officers, directors, trustees,
employees, agents or controlling persons referred to in Section 9 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Fund or the Advisers, will be mailed,
delivered or telefaxed to the Fund (fax no.: (__) ______) and confirmed to it at
___________, attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
30
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. Waiver of Jury Trial. Each of the Fund, the Investment Adviser,
the Sub-Adviser and the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
17. 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.
18. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) among the Fund, the Advisers and the
Underwriters, or any of them, with respect to the subject matter thereof.
19. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
20. No Fiduciary Duty. Each of the Fund and Advisers hereby
acknowledges that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arm's-length commercial transaction between the Fund and
Advisers, on the one hand, and the Underwriters and any affiliate, through which
they may be acting, on the other, (b) the Underwriters are acting as principal
and not as an agent or fiduciary of the Fund or Advisers and (c) the Fund's and
Advisers' engagement of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, each of the Fund and Advisers agrees that it is
solely responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Fund or Advisers on related or other matters). Each of the Fund and
Advisers agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or
similar duty to the Fund or Advisers, in connection with such transaction or the
process leading thereto.
21. 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.
"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.
31
"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 of 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.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean the preliminary prospectus
(including the statement of additional information incorporated by
reference therein) dated June ___, 2007 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.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that is
filed with the Commission pursuant to Rule 497 and deemed part of such
registration statement pursuant to Rule 430A, as amended at the Execution
Time 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 ▇▇▇▇.
▇▇
"▇▇▇▇ ▇▇▇▇" 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.
33
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,
▇▇▇▇▇ ▇▇▇▇▇ RISK-MANAGED DIVERSIFIED
EQUITY INCOME FUND
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
RAMPART INVESTMENT MANAGEMENT
COMPANY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
34
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Citigroup Global Markets Inc.
[Others]
By: Citigroup Global Markets Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Citigroup Global Markets Inc.
TOTAL