EXHIBIT (h)(1)
▇▇▇▇▇ ▇▇▇▇▇ TAX-MANAGED DIVIDEND AND PREMIUM INCOME FUND
__________ Common Shares of Beneficial Interest
$20.00 per Share
UNDERWRITING AGREEMENT
Dated: November [ ], 2006
TABLE OF CONTENTS
Page
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SECTION 1. Representations and Warranties.........................................................................3
SECTION 2. Sale and Delivery to Underwriters; Closing............................................................12
SECTION 3. Covenants of the Fund and the Advisers................................................................14
SECTION 4. Payment of Expenses...................................................................................16
SECTION 5. Conditions of Underwriters' Obligations...............................................................17
SECTION 6. Indemnification.......................................................................................21
SECTION 7. Contribution..........................................................................................24
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................................25
SECTION 9. Termination of Agreement..............................................................................25
SECTION 10. Default by One or More of the Underwriters...........................................................26
SECTION 11. Notices..............................................................................................27
SECTION 12. Parties..............................................................................................27
SECTION 13. GOVERNING LAW AND TIME...............................................................................27
SECTION 14. Effect of Headings...................................................................................27
SECTION 15. Definitions..........................................................................................27
SECTION 16. Absence of Fiduciary Relationship....................................................................30
SECTION 17. Disclaimer of Liability of Trustees and Beneficiaries................................................31
EXHIBITS
Exhibit A -- Initial Securities to be Sold
Exhibit B -- Form of Opinion of Fund Counsel
Exhibit C -- Form of Opinion of Adviser Counsel
Exhibit D -- Form of Opinion of Subadviser Counsel
Exhibit E -- Price-Related Information
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▇▇▇▇▇ ▇▇▇▇▇ TAX-MANAGED DIVIDEND AND PREMIUM INCOME FUND
____,000 Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
November [ ], 2006
Wachovia Capital Markets, LLC
[Co-Managers]
As Representatives of the several Underwriters
c/o Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ ▇▇▇▇▇ Tax-Managed Dividend and Premium Income Fund, a voluntary
association with transferable shares established and existing under the laws of
the Commonwealth of Massachusetts, commonly referred to as a Massachusetts
business trust (the "Fund"), ▇▇▇▇▇ ▇▇▇▇▇ Management, a voluntary association
with transferable shares established and existing under the laws of the
Commonwealth of Massachusetts, commonly referred to as a Massachusetts business
trust (the "Adviser"), Rampart Investment Management Company, Inc., a
Massachusetts corporation (the "Subadviser" and together with the Adviser, the
"Advisers"), confirm their respective agreements with Wachovia Capital Markets,
LLC ("Wachovia") and each of the other Underwriters named in Exhibit A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Wachovia and
____________________ are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Fund of a total of
__________ common shares of beneficial interest, par value $.01 per share (the
"Initial Securities"), and the purchase by the Underwriters, acting severally
and not jointly, of the respective numbers of Initial Securities set forth in
said Exhibit A hereto, and with respect to the grant by the Fund to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of ____ additional common shares
of beneficial interest to cover over-allotments, if any. The Initial Securities
to be purchased by the Underwriters and all or any part of the ____ common
shares of beneficial interest subject to the option described in Section 2(b)
hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities." Certain terms used in this Agreement are defined in Section 15
hereof.
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has entered into (i) an Investment Advisory Agreement with the
Adviser dated as of ______, 2006, (ii) an Administration Agreement with the
Adviser dated as of _________, 2006, (iii) a Letter Agreement, dated as of
______, 2006, whereby the Fund adopts and agrees to become party to that certain
Master Custodian Agreement with Investors Bank & Trust
1
Company and (iv) a Letter Agreement, dated as of _______, 2006, whereby the Fund
adopts and agrees to become party to that certain Amended and Restated Transfer
Agency and Services Agreement with PFPC, Inc. dated as of June 16, 2005, and
such agreements are herein referred to as the "Advisory Agreement," the
"Administration Agreement", the "Custodian Agreement" and the "Transfer Agency
Agreement" respectively, and collectively as the "Fund Agreements."
The Adviser has entered into a Sub-Advisory Agreement with the Subadviser,
dated as of _______, 2006, and such agreement is herein referred to as the
"Sub-Advisory Agreement." The Adviser has also entered into a Structuring Fee
Agreement with Wachovia, dated as of ______, 2006, [and a Structuring Fee
Agreement with __________, dated as of _____, 2006], and such agreement[s] are
herein referred to as "Structuring Fee Agreement[s]," [and an Additional
Compensation Agreement with ______________, dated as of ________, 2006, and such
agreement is herein referred to as "Additional Compensation Agreement"]. In
addition, the Fund has adopted a dividend reinvestment plan pursuant to which
holders of common shares of beneficial interest shall have their dividends
automatically reinvested in additional common shares of beneficial interest of
the Fund unless they elect to receive such dividends in cash, and such plan is
herein referred to as "Dividend Reinvestment Plan."
The Fund has prepared and filed with the Commission a registration
statement (file numbers 333-129692 and 811-21832) on Form N-2, including a
related preliminary prospectus (including the statement of additional
information incorporated by reference therein), for registration under the Act
and the 1940 Act of the offering and sale of the Securities. The Fund may have
filed one or more amendments thereto, including a related preliminary prospectus
(including the statement of additional information incorporated by reference
therein), each of which has previously been furnished to you.
The Fund will next file with the Commission one of the following: either
(1) prior to the effective date of the registration statement, a further
amendment to the registration statement (including the form of final prospectus
(including the statement of additional information incorporated by reference
therein)) or (2) after the effective date of the registration statement, a final
prospectus (including the statement of additional information incorporated by
reference therein) in accordance with Rules 430A and 497. In the case of clause
(2), the Fund has included or incorporated by reference in the Registration
Statement, as amended at the effective date, all information (other than Rule
430A Information) required by the 1933 Act and the 1940 Act and the Rules and
Regulations to be included in the registration statement and the Prospectus. As
filed, such amendment and form of final prospectus (including the statement of
additional information incorporated by reference therein), or such final
prospectus (including the statement of additional information incorporated by
reference therein), shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Applicable Time or, to the extent not
completed at the Applicable Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest preliminary
prospectus) as the Fund has advised you, prior to the Applicable Time, will be
included or made therein.
2
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Advisers. The Fund
and the Advisers, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, as of the Applicable Time, as of the Closing
Date referred to in Section 2(c) hereof, and as of each Option Closing Date (if
any) referred to in Section 2(b) hereof, and agree with each Underwriter, as
follows:
(1) Compliance with Registration Requirements. The Securities have
been duly registered under the 1933 Act and the 1940 Act pursuant to the
Registration Statement. Each of the Initial Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act
and the 1940 Act, and no stop order suspending the effectiveness of the
Initial Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act or the 1940 Act, and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of
the Fund or the Advisers, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Preliminary Prospectus and the Prospectus complied when
filed with the Commission in all material respects with the requirements
of the 1933 Act, the 1940 Act and the Rules and Regulations, and the
Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto delivered to the Underwriters for use in connection
with the offering of the Securities was identical to the electronically
transmitted copy thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
At the respective times the Initial Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became or become effective and at the Closing Date (and, if any Option
Securities are purchased, at the applicable Option Closing Date), the
Initial Registration Statement, any Rule 462(b) Registration Statement
will, and the 1940 Act Notification when originally filed with the
Commission and any amendments and supplements thereto did or will, comply
in all material respects with the requirements of the 1933 Act, the 1940
Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, as of its date, at the Closing Date (and, if any Option
Securities are purchased, at the applicable Option Closing Date), and at
any time when a prospectus is required by applicable law to be delivered
in connection with sales of Securities, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Preliminary Prospectus and the information included on Exhibit E hereto,
all considered together (collectively, the "General Disclosure Package")
did not or will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Fund makes no representations or
warranties as to the information contained in or omitted from the
Preliminary Prospectus or the Prospectus in
3
reliance upon and in conformity with information furnished in writing to
the Fund by or on behalf of any Underwriter specifically for inclusion
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in Section 6(b) hereof.
The Fund's registration statement on Form 8-A under the 1934 Act is
effective.
(2) Independent Accountants. Deloitte & Touche LLP who certified and
audited the financial statements and supporting schedules included in the
Registration Statement, the Preliminary Prospectus and the Prospectus are
independent public accountants as required by the 1933 Act, the 1940 Act
and the Rules and Regulations.
(3) Financial Statements. The financial statements of the Fund
included in the Registration Statement, the Preliminary Prospectus and the
Prospectus, together with the related schedules (if any) and notes,
present fairly the financial position of the Fund at the dates indicated
and the results of operations and cash flows of the Fund for the periods
specified; and all such financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved and comply in all material respects with all applicable
accounting requirements under the 1933 Act, the 1940 Act and the Rules and
Regulations. The supporting schedules, if any, included in the
Registration Statement present fairly, in accordance with GAAP, the
information required to be stated therein, and the other financial and
statistical information and data included in the Registration Statement,
the Preliminary Prospectus and the Prospectus are accurately derived from
such financial statements and the books and records of the Fund.
(4) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Preliminary Prospectus and
the Prospectus, except as otherwise stated therein, (A) there has been no
Fund Material Adverse Effect and (B) there have been no transactions
entered into by the Fund which are material with respect to the Fund other
than those in the ordinary course of its business as described in the
Preliminary Prospectus and the Prospectus.
(5) Legal Existence of the Fund. The Fund has been duly created and
is validly existing a voluntary association with transferable shares
established and existing 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 Preliminary
Prospectus and the Prospectus, and to enter into and perform its
obligations under this Agreement and the Fund Agreements; and the Fund is
duly qualified to do business as a foreign trust.
(6) No Subsidiaries. The Fund has no subsidiaries.
(7) Investment Company Status. The Fund is duly registered under the
1940 Act as a closed-end, diversified management investment company under
the 1940 Act, the Rules and Regulations and the 1940 Act Notification has
become effective. The Fund has not received any notice from the Commission
pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement.
4
(8) Officers and Trustees. No person is serving or acting as an
officer, trustee or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the Rules and Regulations and the
Advisers Act. Except as disclosed in the Registration Statement, the
Preliminary Prospectus and the Prospectus, no trustee of the Fund is (A)
an "interested person" (as defined in the ▇▇▇▇ ▇▇▇) of the Fund or (B) an
"affiliated person" (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter. For
purposes of this Section 1(a)(8), the Fund and the Advisers shall be
entitled to rely on representations from such officers and trustees.
(9) Capitalization. The authorized, issued and outstanding common
shares of beneficial interest of the Fund are as set forth in the
Preliminary Prospectus and in the Prospectus. All issued and outstanding
common shares of beneficial interest of the Fund have been duly authorized
and validly issued and are fully paid and non-assessable, except that, as
set forth in the Registration Statement and the Prospectus, shareholders
of a Massachusetts business trust may under certain circumstances be held
personally liable for its obligations and have been offered and sold or
exchanged by the Fund in compliance with all applicable laws (including,
without limitation, federal and state securities laws); none of the
outstanding common shares of beneficial interest of the Fund was issued in
violation of the preemptive or other similar rights of any security holder
of the Fund; 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, except that, as set
forth in the Registration Statement and the Prospectus, shareholders of a
Massachusetts business trust may under certain circumstances be held
personally liable for its obligations; the certificates for the Securities
are in valid and sufficient form;
(10) Power and Authority. The Fund has full power and authority to
enter into this Agreement and the Fund Agreements; the execution and
delivery of, and the performance by the Fund of its obligations under this
Agreement and the Fund Agreements have been duly and validly authorized by
the Fund; the Sub-Advisory Agreement has been duly and validly authorized
by the Fund; this Agreement and the Fund Agreements have been duly
executed and delivered by the Fund and constitute the valid and legally
binding agreements of the Fund, enforceable against the Fund in accordance
with their terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(11) Agreements' Compliance with Law. This Agreement, each of the
Fund Agreements and the Sub-Advisory Agreement complies in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act and the Advisers Act Rules and
Regulations.
(12) Absence of Defaults and Conflicts. The Fund is not (i) in
violation of its Declaration of Trust or bylaws, (ii) in breach or default
in the performance of the terms of any indenture, contract, lease,
mortgage, declaration of trust, note agreement, loan
5
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject or (iii) in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Fund or of any decree of
the Commission, the NASD, any state securities commission, any foreign
securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official having jurisdiction over the Fund.
(13) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Fund, threatened, against or affecting the Fund which is required to
be disclosed in the Preliminary Prospectus and Prospectus (other than as
disclosed therein), or that could reasonably be expected to result in a
Fund Material Adverse Effect, or that could reasonably be expected to
materially and adversely affect the properties or assets of the Fund or
the consummation of the transactions contemplated in this Agreement or the
performance by the Fund of its obligations under this Agreement or the
Fund Agreements; the aggregate of all pending legal or governmental
proceedings to which the Fund is a party or of which any of its property
or assets is the subject which are not described in the Preliminary
Prospectus or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Fund Material Adverse Effect.
(14) Accuracy of Descriptions and Exhibits. The statements set forth
under the headings "Description of Capital Structure " in the Preliminary
Prospectus and the Prospectus, and "Anti-Takeover Provisions in the
Agreement and Declaration of Trust" and "Federal Income Tax Matters" in
the Preliminary Prospectus, the Prospectus and Statement of Additional
Information, insofar as such statements purport to summarize certain
provisions of the 1940 Act, Massachusetts law, the common shares or the
Fund's Declaration of Trust, United States federal income tax law and
regulations or legal conclusions with respect thereto, fairly and
accurately summarize such provisions in all material respects; all
descriptions in the Registration Statement, the Preliminary Prospectus and
the Prospectus of any Fund documents are accurate in all material
respects; and there are no franchises, contracts, indentures, mortgages,
deeds of trust, loan or credit agreements, bonds, notes, debentures,
evidences of indebtedness, leases or other instruments or agreements
required to be described or referred to in the Registration Statement, the
Preliminary Prospectus or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations which have not been so
described and filed as required.
(15) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, and (B) no authorization, approval, vote or other
consent of any other person or entity, is necessary or required for the
performance by the Fund of its obligations under this Agreement or the
Fund
6
Agreements, for the offering, issuance, sale or delivery of the Securities
hereunder, or for the consummation of any of the other transactions
contemplated by this Agreement or the Fund Agreements, in each case on the
terms contemplated by the Registration Statement, the Preliminary
Prospectus and the Prospectus, except such as have been already obtained
and under the 1933 Act, the 1940 Act, the Rules and Regulations, the rules
and regulations of the NASD and the NYSE and such as may be required under
state securities laws.
(16) Non-Contravention. Neither the execution, delivery or
performance of this Agreement, the Fund Agreements nor the consummation by
the Fund of the transactions herein or therein contemplated (i) conflicts
or will conflict with or constitutes or will constitute a breach of the
Declaration of Trust or bylaws of the Fund, (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a default
under, any agreement, indenture, lease or other instrument to which the
Fund is a party or by which it or any of its properties may be bound or
(iii) violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Fund pursuant to
the terms of any agreement or instrument to which the Fund is a party or
by which the Fund may be bound or to which any of the property or assets
of the Fund is subject.
(17) Possession of Licenses and Permits. The Fund has such licenses,
permits, and authorizations of governmental or regulatory authorities
("permits"), if any, as are necessary to own its property and to conduct
its business in the manner described in the Preliminary Prospectus and the
Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Preliminary Prospectus and the
Prospectus; and, except as described in the Preliminary Prospectus and the
Prospectus, none of such permits contains any restriction that is
materially burdensome to the Fund.
(18) Distribution of Offering Material. The Fund has not distributed
and, prior to the later to occur of (i) the Closing Date and (ii)
completion of the distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus, the sales material or other materials
permitted by the Act, the 1940 Act or the Rules and Regulations.
(19) Absence of Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (debt
or equity) (A) registered pursuant to the Registration Statement or
included in the offering contemplated by this Agreement or (B) otherwise
registered by the Fund under the 1933 Act or the 1940 Act. There are no
persons with tag-along rights or other similar rights to have any
securities (debt or equity) included in the offering contemplated by this
Agreement or sold in connection with the sale of Securities by the Fund
pursuant to this Agreement.
7
(20) NYSE. 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.
(21) NASD Matters. All of the information provided to the
Underwriters or to counsel for the Underwriters by the Fund, its officers
and Trustees in connection with letters, filings or other supplemental
information provided to NASD Regulation Inc. pursuant to the NASD's
conduct rules is true, complete and correct.
(22) Tax Returns. The Fund has filed all tax returns that are
required to be filed and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such tax,
assessment, fine or penalty that is currently being contested in good
faith by appropriate actions and except for such taxes, assessments, fines
or penalties the nonpayment of which would not, individually or in the
aggregate, have a Fund Material Adverse Effect.
(23) Subchapter M. The Fund is currently in compliance with the
requirements of Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code") to qualify as a regulated investment company under
the Code and intends to direct the investment of the net proceeds of the
offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(24) Insurance. The Fund's trustees and officers/errors and
omissions insurance policy and its fidelity bond required by Rule 17g-1 of
the 1940 Act Rules and Regulations are in full force and effect; the Fund
is in compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy or fidelity bond as to which any insurance company is denying
liability or defending under a reservation of rights clause; the Fund has
not been refused any insurance coverage sought or applied for; and the
Fund has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Fund Material Adverse Effect,
except as set forth in or contemplated in the Preliminary Prospectus and
Prospectus (exclusive of any supplement thereto).
(25) Accounting Controls and Disclosure Controls. The Fund maintains
a system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations and with the investment
objectives, policies and restrictions of the Fund and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the
Code; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability to calculate net asset value and to maintain material
compliance with the books and records requirements under the 1940 Act and
the 1940 Act Rules and Regulations; (C) access to assets is permitted only
in accordance with management's general or specific authorization; and (D)
the recorded accountability for assets is compared with the existing
assets at
8
reasonable intervals and appropriate action is taken with respect to any
differences. The Fund employs "disclosure controls and procedures" (as
such term is defined in Rule 30a-3 under the 1940 Act); such disclosure
controls and procedures are effective.
(26) Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been
no failure on the part of the Fund or any of the Fund's trustees or
officers, in their capacities as such, to comply with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations promulgated in connection
therewith, including Sections 302 and 906 related to certifications.
(27) Fund Compliance Policies and Procedures. The Fund has adopted
and implemented written policies and procedures reasonably designed to
prevent violation of the Federal Securities Laws (as that term is defined
in Rule 38a-1 under the ▇▇▇▇ ▇▇▇) by the Fund, including policies and
procedures that provide oversight of compliance for each investment
adviser, administrator and transfer agent of the Fund.
(28) Absence of Manipulation. The Fund has not taken and will not
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security issued by 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, other than such actions as taken by the Underwriters that are
affiliates of the Fund, so long as such actions are in compliance with all
applicable law.
(29) Statistical, Demographic or Market-Related Data. Any
statistical, demographic or market-related data included in the
Registration Statement, the Preliminary Prospectus or the Prospectus is
based on or derived from sources that the Fund believes to be reliable and
accurate and all such data included in the Registration Statement, the
Preliminary Prospectus or the Prospectus accurately reflects the materials
upon which it is based or from which it was derived.
(30) Advertisements. All advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker kits",
"road show slides" and "road show scripts"), whether in printed or
electronic form, authorized in writing by or prepared by or at the
direction of the Fund or the 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 1933 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.
(b) Representations and Warranties by the Advisers. Each of the Adviser
and the Subadviser, severally as to itself only and not jointly or as to any
other party, represents and
9
warrants to each Underwriter as of the date hereof, as of the Applicable Time,
as of the Closing Date and as of each Option Closing Date (if any), and agrees
with each Underwriter, as follows:
(1) Investment Adviser Status. Such Adviser is duly registered as an
investment adviser under the Advisers Act and is not prohibited by the
Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Advisory Agreement,
the Administration Agreement, the Sub-Advisory Agreement, the Structuring
Fee Agreement[s] [or the Additional Compensation Agreement] to which it is
a party, as contemplated by the Preliminary Prospectus and the Prospectus.
(2) Capitalization. Such Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Preliminary Prospectus and the
Prospectus and under this Agreement, the Advisory Agreement, the
Administration Agreement, the Sub-Advisory Agreement, the Structuring Fee
Agreement[s] [or the Additional Compensation Agreement] to which it is a
party.
(3) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Preliminary Prospectus and
the Prospectus, except as otherwise stated therein, (A) there has been no
Adviser Material Adverse Effect and (B) there have been no transactions
entered into by such Adviser which are material with respect to such
Adviser other than those in the ordinary course of its business as
described in the Preliminary Prospectus and the Prospectus.
(4) Legal Existence of the Adviser and the Sub-Adviser. Such Adviser
has been duly formed and is validly existing in good standing under the
laws of its state of formation, such Sub-Adviser has been duly
incorporated and is validly existing in good standing under the laws of
its state of organization, with full power and authority to own, lease and
operate their properties and to conduct their business as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus, and
is duly qualified to do business and are in good standing under the laws
of each jurisdiction which requires such qualification.
(5) Power and Authority. Such Adviser has full power and authority
to enter into this Agreement, the Advisory Agreement, the Administration
Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement[s]
[and the Additional Compensation Agreement] to which such Adviser is a
party; the execution and delivery of, and the performance by such Adviser
of its obligations under this Agreement, the Advisory Agreement, the
Sub-Advisory Agreement, the Structuring Fee Agreement[s] [and the
Additional Compensation Agreement] to which it is a party have been duly
executed and delivered by such Adviser constitute the valid and legally
binding agreements of such Adviser, enforceable against such Adviser in
accordance with their terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
and subject to the qualification that the enforceability of such Adviser's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
10
(6) Description of the Advisers. The description of such Adviser and
its business and the statements attributable to such Adviser in the
Preliminary Prospectus and Prospectus complied and comply in all material
respects with the provisions of the 1933 Act, the 1940 Act, the Advisers
Act, the 1940 Act Rules and Regulations and the Advisers Act Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(7) Non-Contravention. Neither the execution, delivery or
performance of this Agreement, the Advisory Agreement, the Sub-Advisory
Agreement, the Structuring Fee Agreement[s], [the Additional Compensation
Agreement] to which such Adviser is a party nor the consummation by the
Fund or such Adviser of the transactions herein or therein contemplated
(i) conflicts or will conflict with or constitutes or will constitute a
breach of the charter or bylaws of such Adviser, (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a default
under, any agreement, indenture, lease or other instrument to which such
Adviser is a party or by which it or any of its properties may be bound or
(iii) violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to such Adviser or any of
its properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of such
Adviser pursuant to the terms of any agreement or instrument to which such
Adviser is a party or by which such Adviser may be bound or to which any
of the property or assets of such Adviser is subject.
(8) Agreements' Compliance with Laws. This Agreement, the Advisory
Agreement, the Sub-Advisory Agreement, the Structuring Fee Agreement[s]
[and the Additional Compensation Agreement] comply in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act
Rules and Regulations, the Advisers Act, and the Advisers Act Rules and
Regulations.
(9) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
such Adviser, threatened, against or affecting such Adviser which is
required to be disclosed in the Preliminary Prospectus and Prospectus
(other than as disclosed therein), or that could reasonably be expected to
result in an Adviser Material Adverse Effect, or that could reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by such Adviser of its obligations under this
Agreement, the Advisory Agreement, the Sub-Advisory Agreement, the
Structuring Fee Agreement[s] [or the Additional Compensation Agreement] to
which it is a party; the aggregate of all pending legal or governmental
proceedings to which such Adviser is a party or of which any of its
property or assets is the subject which are not described in the
Preliminary Prospectus or the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in an Adviser Material Adverse Effect.
(10) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or
11
governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by such Adviser of
its obligations under this Agreement, the Advisory Agreement, the
Sub-Advisory Agreement, the Structuring Fee Agreement[s] [or the
Additional Compensation Agreement], except such as have been already
obtained under the 1933 Act, the 1940 Act, the Rules and Regulations, the
rules and regulations of the NASD and the NYSE and such as may be required
under state securities laws.
(11) Possession of Permits. Such Adviser has such licenses, permits
and authorizations of governmental or regulatory authorities ("permits"),
if any, as are necessary to own its property and to conduct its business
in the manner described in the Preliminary Prospectus and the Prospectus;
such Adviser has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of such Adviser
under any such permit.
(12) Adviser Compliance Policies and Procedures. Such Adviser has
adopted and implemented written policies and procedures under Rule
206(4)-7 of the Advisers Act reasonably designed to prevent violation of
the Advisers Act and the Advisers Act Rules by such adviser.
(13) Absence of Manipulation. Such Adviser has not taken and will
not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security issued by the
Fund to facilitate the sale or resale of the Securities, and the Adviser
is not aware of any such action taken or to be taken by any affiliates of
the Adviser, other than such actions as taken by the Underwriters that are
affiliates of the Adviser, so long as such actions are in compliance with
all applicable law.
(c) Certificates. Any certificate signed by any officer of the Fund or
such Adviser and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Fund or such
Adviser, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Fund agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at a
purchase price of $____ per share, the amount of the Initial Securities set
forth opposite such Underwriter's name in Exhibit A hereto. The Fund is advised
that the Underwriters intend to (i) make a public offering of their respective
portions of the Securities as soon after the Applicable Time as is advisable and
(ii) initially to offer the Securities upon the terms set forth in the
Preliminary Prospectus and the Prospectus.
12
(b) Option Securities. 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 Initial Securities. Said option may be exercised
only to cover over-allotments in the sale of the Initial Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to 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
Initial Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares. Any such time and date
of delivery (an "Option Closing Date") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Date, as
hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Representatives and the Fund, at
9:00 A.M. (Eastern time) on November __, 2006 (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Fund (such time and date of payment and delivery being herein called
"Closing Date").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Fund, on each Option Closing Date as specified in the notice from the
Representatives to the Fund.
Delivery of the Securities shall be made to the Representatives 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 Federal Funds wire transfer payable in same-day
funds to an account specified by the Fund. Delivery of the Initial Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct. Wachovia,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Date or the relevant Option Closing Date,
as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
13
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Date or the relevant Option Closing Date, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than noon (Eastern time) on
the business day prior to the Closing Date or the relevant Option Closing Date,
as the case may be.
SECTION 3. Covenants of the Fund and the Advisers. The Fund and the
Advisers, jointly and severally, covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Fund, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A and will notify the Representatives immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes, or of any examination pursuant to Section 8(e) of
the 1940 Act concerning the Registration Statement and (v) if the Fund
becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Fund will uses its
best efforts to prevent the issuance of any stop order or the suspension
of any such qualification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) Filing of Amendments. The Fund will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act or otherwise, or will furnish
the Representatives with copies of any such documents within a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Fund has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith)
and signed copies of all consents and certificates of experts. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
14
(d) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
prepared prior to the date of this Agreement as such Underwriter
reasonably requested, and the Fund hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Fund will furnish to
each Underwriter, without charge, such number of copies of the documents
constituting the General Disclosure Package prepared on or after the date
of this Agreement and the Prospectus (and any amendments or supplements
thereto) as such Underwriter may reasonably request. The Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters is or will be, as the case may be, identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Fund will comply
with the 1933 Act, the 1940 Act and the Rules and Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities (including, without limitation, pursuant to
Rule 172), any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or
for the Fund, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act, the 1940 Act or the
Rules and Regulations, the Fund will promptly prepare and file with the
Commission, subject to Section 3(b) hereof, such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements,
and the Fund will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of states of the United
States, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin
Islands as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
date of this Agreement; provided, however, that the Fund shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject.
(g) Rule 158. The Fund will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the
purposes of, and to provide to the Underwriters the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
15
(h) Use of Proceeds. The Fund will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act, the 1940 Act or
the Rules and Regulations, will file all documents required to be filed
with the Commission pursuant to the 1933 Act, the 1940 Act or the Rules
and Regulations within the time periods required by the 1934 Act, the 1940
Act or the Rules and Regulations.
(j) Subchapter M. The Fund will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company
under the Code.
(k) Absence of Manipulation. The Fund and the Advisers have not
taken and will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security
issued by the Fund to facilitate the sale or resale of the Securities, and
the Fund and the Advisers are not aware of any such action taken or to be
taken by any affiliates of the Fund or the Advisers, other than such
actions as taken by the Underwriters that are affiliates of the Fund or
the Advisers, so long as such actions are in compliance with all
applicable law.
(l) Restriction on Sale of Securities. The Fund will not, without
the prior written consent of Wachovia Capital Markets, LLC, 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 Securities or any securities convertible into, or exercisable,
or exchangeable for, Securities; or publicly announce an intention to
effect any such transaction for a period of 180 days following the
Execution Time, provided, however, that the Fund may issue and sell
Securities pursuant to any dividend reinvestment plan of the Fund in
effect at the Execution Time.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the word
processing, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable
16
upon the sale, issuance or delivery of the Securities to the Underwriters, (iv)
the fees and disbursements of the counsel, accountants and other Advisers to the
Fund, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, the documents
constituting the General Disclosure Package, the Prospectus and the 1940 Act
Notification, any sales material and any amendments or supplements thereto,
(vii) the preparation and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplements thereto, (viii) the fees and expenses of the
custodian and the transfer agent and registrar for the Securities, (ix) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the NASD of the terms of the
sale of the Securities, (x) the transportation and other expenses incurred by
Fund and Adviser personnel in connection with presentations to prospective
purchasers of the Securities, (xi) the fees and expenses incurred in connection
with the listing of the Securities on the NYSE and (xii) all other costs and
expenses incident to the performance by the Fund of its obligations hereunder.
To the extent that the foregoing costs and expenses incidental to the
performance of the obligations of the Fund under this Agreement exceed $0.04 per
share, the Adviser will pay all such costs and expenses.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or (v) hereof, the Fund and the Advisers, jointly and severally, agree
that they shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase the Initial 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
Applicable Time, the Closing Date and any Option Closing 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 and the Advisers of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Date (or the applicable Option Closing Date,
as the case may be) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or any
notice objecting to its use or order pursuant to Section 8(e) of the 1940
Act shall have been issued and proceedings therefor initiated or, to the
knowledge of the Fund, threatened by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 497 or a
post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A.
17
(b) Opinion of Counsel for Fund. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for
the Fund ("Fund Counsel"), in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the Underwriters
may reasonably request. The opinion of Fund Counsel shall state that
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, may rely on
such opinion as to matters of Massachusetts law for the purposes of
rendering its opinion referenced in Section 5(c).
(c) Opinion of Counsel for Underwriters. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, in form and substance satisfactory to the
Representatives. Insofar as the opinion expressed above relates to or is
dependent upon matters governed by Massachusetts, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP will be permitted to rely on the opinion of Fund Counsel.
(d) Certificate of the Fund. At the Closing Date or the applicable
Option Closing Date, as the case may be, there shall not have been, since
the date hereof or since the respective dates as of which information is
given in the Prospectus or the General Disclosure Package (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), any Fund Material Adverse Effect, and, at the Closing Date,
the Representatives shall have received a certificate of the Chairman, the
President, the Chief Executive Officer or an Executive Vice President,
Senior Vice President, or such other authorized officer as is acceptable
to the Underwriters, of the Fund and of the Chief Financial Officer or
Chief Accounting Officer, or such other authorized officer as is
acceptable to the Underwriters, of the Fund dated as of the Closing Date,
to the effect that (i) there has been no such Fund Material Adverse
Effect, (ii) the representations and warranties of the Fund in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the Fund has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date under or pursuant
to this Agreement, and (iv) no stop order suspending the effectiveness of
the Registration Statement or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act has been issued, and
no proceedings for that purpose have been instituted or are pending or, to
their knowledge, are contemplated by the Commission.
(e) Opinion of Counsel for the Adviser. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇. Marius, counsel for the Adviser, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit C hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(f) Certificate of the Adviser. At the Closing Date or the
applicable Option Closing Date, as the case may be, there shall not have
been, since the date hereof or since
18
the respective dates as of which information is given in the Prospectus or
the General Disclosure Package (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), any Adviser Material
Adverse Effect, and, at the Closing Date, the Representatives shall have
received a certificate of the Chairman, the President, the Chief Executive
Officer or an Executive Vice President, Senior Vice President, or such
other authorized officer as is acceptable to the Underwriters, of such
Adviser and of the Chief Financial Officer of Chief Accounting Officer, or
such other authorized officer as is acceptable to the Underwriters, of
such Adviser dated as of the Closing Date, to the effect that (i) there
has been no such Adviser Material Adverse Effect, (ii) the representations
and warranties of such Adviser in this Agreement are true and correct with
the same force and effect as though expressly made at and as of the
Closing Date, (iii) such Adviser has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date under or pursuant to this Agreement, and (iv) no
stop order suspending the effectiveness of the Registration Statement or
order of suspension or revocation of registration pursuant to Section 8(e)
of the 1940 Act has been issued and no proceedings for that purpose have
been instituted or are pending or, to their knowledge, are contemplated by
the Commission.
(g) Opinion of Counsel for the Subadviser. At the Closing Date, the
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for
the Subadviser.
(h) Certificate of the Subadviser. At the Closing Date or the
applicable Option Closing Date, as the case may be, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus or the General Disclosure Package
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), any Adviser Material Adverse Effect, and, at the
Closing Date, the Representatives shall have received a certificate of the
Chairman, the President, the Chief Executive Officer or an Executive Vice
President, Senior Vice President, or such other authorized officer as is
acceptable to the Underwriters, of the Subadviser and of the Chief
Financial Officer of Chief Accounting Officer, or such other authorized
officer as is acceptable to the Underwriters, of the Subadviser, dated as
of the Closing Date, to the effect that (i) there has been no such Adviser
Material Adverse Effect, (ii) the representations and warranties of such
Subadviser in this Agreement are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii) such
Subadviser has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Date
under or pursuant to this Agreement, and (iv) no stop order suspending the
effectiveness of the Registration Statement or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act has
been issued and no proceedings for that purpose have been instituted or
are pending or, to such Subadviser's knowledge, are contemplated by the
Commission.
(i) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Deloitte &
Touche LLP a letter, dated the date of this Agreement and in form and
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the
19
other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information of
the Fund contained in the Registration Statement or the Prospectus.
(j) Bring-down Comfort Letter. At the Closing Date, the
Representatives shall have received from Deloitte & Touche LLP a letter,
dated as of the Closing Date and in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to the Closing Date.
(k) No Objection. Prior to the date of this Agreement, NASD
Regulation Inc. shall have confirmed that it has no objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(l) Conditions to Purchase of Option Securities. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities on any Option Closing
Date that is after the Closing Date, the obligations of the several
Underwriters to purchase the applicable Option Securities shall be subject
to the conditions specified in the introductory paragraph of this Section
5 and to the further condition that, at the applicable Option Closing
Date, the Representatives shall have received:
(1) Officers' Certificate. A certificate, dated such Option
Closing Date, to the effect set forth in, and signed by two of the
officers specified in, Section 5(d) hereof, except that the
references in such certificate to the Closing Date shall be changed
to refer to such Option Closing Date.
(2) Opinion of Counsel for Fund. The favorable opinion of Fund
Counsel in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(3) Opinion of Counsel for Underwriters. The favorable opinion
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
dated such Option Closing Date, relating to the Option Securities to
be purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(4) Opinion of Counsel for the Adviser. The favorable opinion
of ▇▇▇▇▇▇▇▇▇ ▇. Marius, counsel for the Adviser, dated such Option
Closing Date, relating to the Option Securities to be purchased on
such Option Closing Date and otherwise to the same effect as the
opinion required by Section 5(e) hereof.
(5) Certificate of the Adviser. A certificate, dated such
Option Closing Date, to the effect set forth in, and signed by two
of the officers specified
20
in, Section 5(f) hereof, except that the references in such
certificate to the Closing Date shall be changed to refer to such
Option Closing Date.
(6) Opinion of Counsel for the Subadviser. The favorable
opinion of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for
the Subadviser, dated such Option Closing Date, relating to the
Option Securities to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 5(g)
hereof.
(7) Certificate of the Subadviser. A certificate, dated such
Option Closing Date, to the effect set forth in, and signed by two
of the officers specified in, Section 5(h) hereof, except that the
references in such certificate to the Closing Date shall be changed
to refer to such Option Closing Date.
(8) Bring-down Comfort Letter. A letter from Deloitte & Touche
LLP, in form and substance satisfactory to the Representatives and
dated such Option Closing Date, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to
Section 5(j) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Option Closing Date.
(m) Additional Documents. At the Closing Date and at each Option
Closing Date, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, contained in this Agreement; and all proceedings taken by the
Fund and the Advisers in connection with the issuance and sale of the
Securities as herein contemplated and in connection with the other
transactions contemplated by this Agreement shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(n) Delivery of Documents. The documents required to be delivered by
this Section 5 shall be delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, on the Closing Date and at each Option Closing
Date.
(o) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on an Option Closing Date which is after the
Closing Date, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Representatives by
notice to the Fund.
SECTION 6. Indemnification.
(a) Indemnification by the Fund and the Advisers. The Fund and the
Advisers, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any,
21
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any sales material, the Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of
the Fund and the Advisers; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Wachovia), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or the
Advisers by any Underwriter through Wachovia expressly for use in the
Registration Statement (or any amendment thereto), or in any preliminary
prospectus, any sales material, the Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Indemnification by the Underwriters. Each Underwriter severally agrees
to indemnify and hold harmless each of the Fund and the Advisers, each of their
directors, trustees, members, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Fund or the Advisers within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus, any sales material, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Fund or the
22
Advisers by such Underwriter through Wachovia expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus, any sales material, the Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto). The Fund and the 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 paragraph 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 for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. Counsel to the indemnified parties shall be selected as follows:
counsel to the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall be selected by Wachovia; counsel to the Fund, its directors,
trustees, members, each of its officers who signed the Registration Statement
and each person, if any, who controls the Fund within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall be selected by the Fund; and
counsel to each Adviser and each person, if any, who controls such Adviser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall be selected by such Adviser. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
the Underwriters and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for the Fund, each of their directors, trustees,
members, each of its officers who signed the Registration Statement and each
person, if any, who controls the Fund within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
each of the Advisers, and the fees and expenses of more than one counsel, in
each case in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as
23
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification and Contribution. The
provisions of this Section 6 and in Section 7 hereof shall not affect any
agreements among the Fund and the Advisers with respect to indemnification of
each other or contribution between themselves.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Fund and the
Advisers on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Fund and the Advisers on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Advisers on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Fund and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Securities as set forth on
such cover.
The relative fault of the Fund and the Advisers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund, by the Advisers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
24
The Fund, the Advisers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each trustees, officer, employee and agent of an Underwriter
shall have the same rights to contributions as such Underwriters, and each
person who controls the Fund or the Adviser within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, each officer of the Fund and the
Advisers and each trustee, director or member of the Fund and the Advisers shall
have the same rights to contribution as the Fund and the Advisers. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Securities set forth opposite
their respective names in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Fund or signed by or on behalf of the Advisers
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Fund, or by or on behalf of the
Advisers, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Fund or the Advisers, at any time on or prior to the
Closing Date (and, if any Option Securities are to be purchased on an Option
Closing Date which occurs after the Closing Date, the Representatives may
terminate the obligations of the several Underwriters to purchase such Option
Securities, by notice to the Fund, at any time on or prior to such Option
Closing Date) (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus or the General Disclosure Package, any Fund
25
Material Adverse Effect or Adviser Material Adverse Effect, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Fund has been suspended or materially
limited by the Commission or the NYSE, or if trading generally on the NYSE or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8, and 12 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Date or an Option Closing Date to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with
respect to any Option Closing Date which occurs after the Closing Date,
the obligation of the Underwriters to purchase and of the Fund to sell the
Option Securities that were to have been purchased and sold on such Option
Closing Date, shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of an Option Closing Date which is after the
Closing Date, which does not result
26
in a termination of the obligation of the Underwriters to purchase and the Fund
to sell the relevant Option Securities, as the case may be, the Representatives
shall have the right to postpone the Closing Date or the relevant Option Closing
Date, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Wachovia Capital
Markets, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Equity
Syndicate; notices to the Fund and the Adviser shall be directed to them at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., with
a copy to ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; notices to the
Subadviser shall be directed to it at Rampart Investment Management Company,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq..
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Fund and the Advisers and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund and the Advisers and their respective successors and the
controlling persons and directors, officers, members and trustees referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Fund and the Advisers and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 15. Definitions. As used in this Agreement, the following terms
have the respective meanings set forth below:
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Advisers Act Rules and Regulations" means the rules and regulations of
the Commission under the Advisers Act.
27
"Adviser Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Adviser or the Subadviser, as the case may be, whether
or not arising in the ordinary course of business.
"Agreement and Declaration of Trust" means the Declaration of Trust of
▇▇▇▇▇ ▇▇▇▇▇ Tax-Managed Dividend and Premium Income Fund dated as of November 9,
2005.
"Applicable Time" means the date and time that this Agreement is executed
and delivered by the parties hereto.
"Commission" means the Securities and Exchange Commission.
"▇▇▇▇▇" means the Commission's Electronic Data Gathering, Analysis and
Retrieval System.
"Fund Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Fund, whether or not arising in the ordinary course of
business.
"GAAP" means generally accepted accounting principles.
"Initial Registration Statement" means the Fund's registration statement
(File Nos. 333-129692 and 811-21832) on Form N-2 (including the statement of
additional information incorporated by reference therein), as amended (if
applicable), at the time it became effective, including the Rule 430A
Information.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means (a) in the case of a corporation, its
charter and bylaws; (b) in the case of a limited or general partnership, its
partnership certificate, certificate of formation or similar organizational
document and its partnership agreement; (c) in the case of a corporation, its
articles of organization, certificate of formation or similar organizational
documents and its operating agreement, corporation agreement, membership
agreement or other similar agreement; (d) in the case of a trust, its agreement
and declaration of trust, certificate of trust, certificate of formation or
similar organizational document and its trust agreement or other similar
agreement; and (e) in the case of any other entity, the organizational and
governing documents of such entity.
"preliminary prospectus" means any prospectus (including the statement of
additional information incorporated by reference therein) used in connection
with the offering of the Securities that was used before the Initial
Registration Statement became effective, or that was used after such
effectiveness and prior to the execution and delivery of this Agreement, or that
omitted the Rule 430A Information or that was captioned "Subject to Completion".
"Preliminary Prospectus" shall mean the preliminary prospectus (including
the statement of additional information incorporated by reference therein) dated
November__, 2006 and any
28
preliminary prospectus (including the statement of additional information
incorporated by reference therein) included in the Registration Statement at the
Applicable Time that omits Rule 430A Information.
"Prospectus" shall mean the prospectus (including the statement of
additional information incorporated by reference therein) relating to the
Securities that is first filed pursuant to Rule 497 after the Applicable Time.
"Registration Statement" means the Initial Registration Statement;
provided that, if a Rule 462(b) Registration Statement is filed with the
Commission, then the term "Registration Statement" shall also include such Rule
462(b) Registration Statement.
"Rule 172," "Rule 497," "Rule 430A," "Rule 433" and "Rule 462(b)" refer to
such rules under the 1933 Act.
"Rule 430A Information" means the information included in the Prospectus
that was omitted from the Initial Registration Statement at the time it became
effective but that is deemed to be a part of the Initial Registration Statement
at the time it became effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" means a registration statement filed
by the Fund pursuant to Rule 462(b) for the purpose of registering any of the
Securities under the 1933 Act, including the Rule 430A Information.
"Rules and Regulations" means, collectively, the 1933 Act Rules and
Regulations and the 1940 Act Rules and Regulations.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules
and regulations promulgated thereunder or implementing the provisions thereof.
"1933 Act" means the Securities Act of 1933, as amended.
"1933 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1933 Act.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1934 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1934 Act.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1940 Act Notification" means a notification of registration of the Fund
as an investment company under the 1940 Act on Form N-8A, as the 1940 Act
Notification may be amended from time to time.
"1940 Act Rules and Regulations" means the rules and regulations of the
Commission under the 1940 Act.
29
All references in this Agreement to the Registration Statement, the
Initial Registration Statement, any Rule 462(b) Registration Statement, any
preliminary prospectus, the Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to ▇▇▇▇▇.
SECTION 16. Absence of Fiduciary Relationship. Each of the Fund and the
Advisers acknowledges and agrees that:
(a) Each of the Underwriters is acting solely as an underwriter in
connection with the public offering of the Securities and no fiduciary, advisory
or agency relationship between the Fund or the Advisers, on the one hand, and
any of the Underwriters, on the other hand, has been or will be created in
respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not any of the Underwriters have advised or is advising the Fund
or the Advisers on other matters and none of the Underwriters has any obligation
to the Fund or the Advisers with respect to the transactions contemplated by
this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid
by the Underwriters for the Securities set forth in this Agreement were
established by the Fund following discussions and arms-length negotiations with
the Representatives;
(c) it is capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions contemplated by
this Agreement;
(d) in connection with each transaction contemplated by this Agreement and
the process leading to such transactions, each Underwriter is and has been
acting solely as principal and not as fiduciary, Adviser or agent of the Fund or
the Advisers or any of their respective affiliates;
(e) none of the Underwriters has provided any legal, accounting,
regulatory or tax advice to the Fund or the Advisers with respect to the
transactions contemplated by this Agreement and it has consulted its own legal,
accounting, regulatory and tax advisers to the extent it has deemed appropriate;
(f) it is aware that the Underwriters and their respective affiliates are
engaged in a broad range of transactions which may involve interests that differ
from those of the Fund and the Advisers, and that none of the Underwriters has
any obligation to disclose such interests and transactions to the Fund or the
Advisers by virtue of any fiduciary, Advisory or agency relationship; and
(g) in connection with each transaction contemplated by this Agreement and
the process leading to such transactions, it waives, to the fullest extent
permitted by law, any claims it may have against any of the Underwriters for
breach of fiduciary duty or alleged breach of fiduciary duty and agrees that
none of the Underwriters shall have any liability (whether direct or indirect,
in contract, tort or otherwise) to it in respect of such a fiduciary duty claim
or to any person asserting a fiduciary duty claim on its behalf or on behalf of
the Fund or the Advisers.
30
SECTION 17. Disclaimer of Liability of Trustees and Beneficiaries. A copy
of the Agreement and Declaration of Trust of each of the Fund and the Adviser is
on file with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Underwriting Agreement is executed on behalf of
the Fund and the Adviser, respectively, by an officer or Trustee of the Fund or
the Adviser, as the case may be, in his or her capacity as an officer or Trustee
of the Fund or the Adviser, as the case may be, and not individually and that
the obligations under or arising out of this Underwriting Agreement are not
binding upon any of the Trustees, officers or shareholders individually but are
binding only upon the assets and properties of the Fund or the Adviser, as the
case may be.
[SIGNATURE PAGE FOLLOWS]
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Fund and the Advisers a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Fund and the Advisers in
accordance with its terms.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇ TAX-MANAGED PREMIUM DIVIDEND
& INCOME FUND
By
--------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By
--------------------------------------
Name:
Title:
RAMPART INVESTMENT MANAGEMENT COMPANY,
INC.
By
--------------------------------------
Name:
Title:
32
CONFIRMED AND ACCEPTED, as of the
date first above written:
WACHOVIA CAPITAL MARKETS, LLC
[CO-MANAGERS]
By: WACHOVIA CAPITAL MARKETS, LLC
By
--------------------------------------
Authorized Signatory
For themselves and as Representatives of the Underwriters named in Exhibit A
hereto.
33
EXHIBIT A
Number of Initial
Name of Underwriter Securities
------------------- ----------
Wachovia Capital Markets, LLC............................
[OTHER UNDERWRITERS].....................................
------------------
Total....................................................
==================
A-1
EXHIBIT B
FORM OF OPINION OF FUND COUNSEL
(a) The Fund has been duly created and is validly existing a
voluntary association with transferable shares established and
existing 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 Preliminary
Prospectus and the Prospectus, and to enter into and perform its
obligations under this Agreement and the Fund Agreements; and the
Fund is duly qualified to do business as a foreign trust.
(b) The Fund has full power and authority to enter into the
Underwriting Agreement and the Fund Agreements; the execution and
delivery of, and the performance by the Fund of its obligations
under the
Underwriting Agreement and the Fund Agreements have been
duly and validly authorized by the Fund; the Sub-Advisory Agreement
has been duly and validly authorized by the Fund; the
Underwriting
Agreement and the Fund Agreements have been duly executed and
delivered by the Fund and constitute the valid and legally binding
agreements of the Fund, enforceable against the Fund in accordance
with their terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and
subject to the qualification that the enforceability of the Fund's
obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles.
(c) Each of the Fund Agreements constitutes the valid and
binding obligation of the Fund enforceable against the Fund in
accordance with its terms, except as rights to indemnity and
contribution in the Fund Agreements 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
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors' rights generally and by general principles
of equity.
(d) The execution and delivery by the Fund of the
Underwriting
Agreement, each of the Fund Agreements and the performance by the
Fund of its obligations under the
Underwriting Agreement, each of
the Fund Agreements, each in accordance with its terms, do not and
will not (i) conflict with the Declaration of Trust or bylaws of the
Fund, (ii) constitute a violation of, or a default under, any
applicable contract, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its properties may be
bound or (iii) violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any
of its properties or cause the creation of any security interest or
lien upon any of the property of the Fund pursuant to any applicable
contract.
B-1
(e) (A) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person
or entity, is necessary or required for the performance by the Fund
of its obligations under the
Underwriting Agreement or the Fund
Agreements, for the offering, issuance, sale or delivery of the
Securities hereunder, or for the consummation of any of the other
transactions contemplated by the Underwriting Agreement or the Fund
Agreements, in each case on the terms contemplated by the
Registration Statement, the Preliminary Prospectus and the
Prospectus, except such as have been already obtained and under the
1933 Act, the 1940 Act, the Rules and Regulations, the rules and
regulations of the NASD and the NYSE and such as may be required
under state securities laws.
(f) Neither the execution, delivery or performance of the
Underwriting Agreement, the Fund Agreements nor the consummation by
the Fund of the transactions herein or therein contemplated (i)
conflicts or will conflict with or constitutes or will constitute a
breach of the Declaration of Trust or bylaws of the Fund, (ii)
conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any agreement, indenture, lease or
other instrument to which the Fund is a party or by which it or any
of its properties may be bound or (iii) violates or will violate any
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Fund or any of its properties or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant to the
terms of any agreement or instrument to which the Fund is a party or
by which the Fund may be bound or to which any of the property or
assets of the Fund is subject.
(g) No governmental approval, which has not been obtained or
taken and is not in full force and effect, is required to authorize,
or is required in connection with, the execution and delivery of the
Underwriting Agreement, any of the Fund Agreements or the
enforceability of any of the Fund Agreements against the Fund.
(h) Neither the execution, delivery nor performance by the
Fund of its obligations under the Underwriting Agreement, the Fund
Agreements nor compliance by the Fund with the terms and provisions
thereof will contravene any applicable order.
(i) The Fund is registered with the Commission pursuant to
Section 8 of the 1940 Act as a diversified, closed-end management
investment company; and the Fund has not received any notice from
the Commission with respect to the 1940 Act Notification or the
Registration Statement; and the Fund's Declaration of Trust and
bylaws comply in all material respects with the 1940 Act and the
1940 Act Rules and Regulations.
(j) The Fund has an authorized, issued and outstanding
capitalization as set forth in the Preliminary Prospectus and the
Prospectus (without giving
B-2
effect to the issuance and sale of the Securities to the
Underwriters pursuant to the Underwriting Agreement) and the
authorized capitalization of the Fund conforms to the description
thereof contained in the Registration Statement, the Preliminary
Prospectus and the Prospectus; all of the outstanding common shares
of beneficial interest have been duly authorized and validly issued,
and are fully paid and non-assessable, except that, as set forth in
the Registration Statement and the Prospectus, shareholders of a
Massachusetts business trust may under certain circumstances be held
personally liable for its obligations and have been offered and sold
or exchanged by the Fund in compliance with all applicable laws
(including, without limitation, federal and state securities laws);
the Securities have been duly authorized by all necessary action of
the Fund under Massachusetts law and, when issued to and paid for by
the Underwriters in accordance with the Underwriting Agreement, will
be validly issued, fully paid and non-assessable except that, as set
forth in the Registration Statement and the Prospectus, shareholders
of a Massachusetts business trust may under certain circumstances be
held personally liable for its obligations and have been offered and
sold or exchanged by the Fund in compliance with all applicable laws
(including, without limitation, federal and state securities laws)
representing undivided beneficial ownership interests in the assets
of the Fund; the form of certificate that may be used to evidence
the common shares of beneficial interest complies in all material
respects with the applicable requirements of the Fund's Declaration
of Trust, the bylaws, the laws of the Commonwealth of Massachusetts
and the rules of the NYSE, in each case as in effect on the date
hereof.
(k) No holders of outstanding common shares of beneficial
interest are entitled as such to any preemptive or other rights to
subscribe for any common shares of beneficial interest under any
applicable contract, under the Fund's Declaration of Trust or the
bylaws or under laws of the Commonwealth of Massachusetts.
(l) The statements set forth under the headings "Description
of Capital Structure" in the Preliminary Prospectus and the
Prospectus, "Anti-Takeover Provisions in the Agreement and
Declaration of Trust" and "Federal Income Tax Matters" in the
Preliminary Prospectus, the Prospectus and Statement of Additional
Information, insofar as such statements purport to summarize certain
provisions of the 1940 Act, laws of the Commonwealth of
Massachusetts, the common shares of beneficial interest or the
Fund's Declaration of Trust, United States federal income tax law
and regulations or legal conclusions with respect thereto, fairly
and accurately summarize such provisions in all material respects.
(m) To counsel's knowledge there are no legal or governmental
proceedings pending or threatened to which the Fund is a party that
are required to be described in the Registration Statement, the
Preliminary Prospectus or the Prospectus and are not so described
therein, and no contract, indenture, lease, agreement or other
document is required to be described in the Registration
B-3
Statement, the Preliminary Prospectus or Prospectus or to be filed
as an exhibit to the Registration Statement that is not described
therein or filed as required.
(n) Such counsel has been orally advised that the Registration
Statement has become effective under the 1933 Act and, to the best
knowledge of such counsel after reasonable inquiry, no stop order
suspending the effectiveness of the Registration Statement or order
pursuant to Section 8(e) of the 1940 Act has been issued and no
proceedings for that purpose are pending before or contemplated by
the Commission. The filing of the Preliminary Prospectus or the
Prospectus pursuant to Rule 497 under the Act Rules and Regulations
has been made in the manner and within the time period required by
Rule 497(h) of the Act Rules and Regulations.
(o) The Registration Statement, the Preliminary Prospectus and
the Prospectus and the 1940 Act Notification (in each case, other
than the financial statements and the other financial and/or
statistical information contained therein or incorporated therein by
reference and other than any exhibits, schedules or appendices
included or incorporated by reference therein, as to which such
counsel expresses no opinion) appear on their face to be
appropriately responsive in all material respects with the
applicable requirements of the Act, the Act Rules and Regulations,
the 1940 Act and the 1940 Act Rules and Regulations.
Nothing has come to such counsel's attention that would lead it to believe
that:
(1) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(2) the Preliminary Prospectus, as of the Applicable Time, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of circumstances under which they were made, not misleading,
or
(3) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (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 State of
New York, the Commonwealth of Massachusetts, the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Preliminary Prospectus or the
Prospectus shall also include any supplements thereto at the Closing Date.
B-4
EXHIBIT C
FORM OF OPINION OF ADVISER'S COUNSEL
(a) The Adviser has been duly formed and is validly existing in good
standing under the laws of its state of formation, with full power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the Preliminary
Prospectus and the Prospectus, and is duly qualified to do business and is
in good standing under the laws of each jurisdiction which requires such
qualification.
(b) The Adviser is duly registered with the Commission as an
investment adviser under the Advisers Act, and is not prohibited by
the Advisers Act, the 1940 Act or the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under
the Advisory Agreement, the Sub-Advisory Agreement, the Structuring
Fee Agreement[s] or [the Additional Compensation Agreement] and, to
the best of such counsel's knowledge after reasonable inquiry, there
does not exist any proceeding which should reasonably be expected to
adversely affect the registration of the Adviser with the
Commission;
(c) The Adviser has full power and authority to enter into the
Underwriting Agreement, the Advisory Agreement, the Administration
Agreement, the Sub-Advisory Agreement, the Structuring Fee
Agreement[s] [and the Additional Compensation Agreement]; the
execution and delivery of, and the performance by such Adviser of
its obligations under the Underwriting Agreement, the Advisory
Agreement, the Sub-Advisory Agreement, the Structuring Fee
Agreement[s] [and the Additional Compensation Agreement] have been
duly executed and delivered by such Adviser constitute the valid and
legally binding agreements of such Adviser, enforceable against such
Adviser in accordance with their terms, except as rights to
indemnity and contribution hereunder may be limited by federal or
state securities laws and subject to the qualification that the
enforceability of such Adviser's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(d) Each of the Advisory Agreement and the Sub-Advisory
Agreement complies in all material respects with all applicable
provisions of the Advisers Act, the 1940 Act and the Advisers Act
Rules and Regulations and the 1940 Act Rules and Regulations;
(e) Neither the execution, delivery or performance of the
Underwriting Agreement, the Advisory Agreement, the Sub-Advisory
Agreement, the Structuring Fee Agreement[s], [the Additional
Compensation Agreement] to
C-1
which such Adviser is a party nor the consummation by such Adviser
of the transactions therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the
charter or bylaws of such Adviser, (ii) conflicts or will conflict
with or constitutes or will constitute a breach of or a default
under, any agreement, indenture, lease or other instrument to which
such Adviser is a party or by which it or any of its properties may
be bound or (iii) violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to such Adviser or any of its properties or will result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of such Adviser pursuant to
the terms of any agreement or instrument to which such Adviser is a
party or by which such Adviser may be bound or to which any of the
property or assets of such Adviser is subject;
(f) The description of the Adviser and its business in the
Preliminary Prospectus and the Prospectus complies in all material
respects with all requirements of the Act, the 1940 Act and the
Rules and Regulations.
(g) (A) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person
or entity, is necessary or required for the performance by such
Adviser of its obligations under the Underwriting Agreement, the
Advisory Agreement, the Sub-Advisory Agreement, the Structuring Fee
Agreement[s] [or the Additional Compensation Agreement], except such
as have been already obtained under the 1933 Act, the 1940 Act, the
Rules and Regulations, the rules and regulations of the NASD and the
NYSE and such as may be required under state securities laws.
(h) To the best of such counsel's knowledge after reasonable
inquiry, there is not pending or, to the best of such counsel's
knowledge, after due inquiry, threatened any action, suit,
proceeding, inquiry or investigation, to which the Adviser is a
party, or to which the property of the Adviser is subject, before or
brought by any court or governmental body, domestic or foreign,
which might reasonably be expected to result in any Material Adverse
Effect, materially and adversely affect the properties or assets of
the Adviser or materially impair or adversely affect the ability of
the Adviser to function as an investment adviser or perform its
obligations under the Advisory Agreement or the Sub-Advisory
Agreement, or which is required to be disclosed in the Registration
Statement, the Preliminary Prospectus and the Prospectus but are not
disclosed as required;
(i) To the best of such counsel's knowledge, after due
inquiry, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement, or to be
filed as exhibits thereto, other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in
all respects; and
C-2
(j) The Adviser has all material permits, licenses, franchises
and authorizations of governmental or regulatory authorities as are
necessary to own its properties and to conduct its business in the
manner described in the Prospectus (and any amendment or supplement
thereto), and to perform its obligations under the Advisory
Agreement and the Sub-Advisory Agreement.
Nothing has come to such counsel's attention that would lead it to
believe that:
(1) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(2) the Preliminary Prospectus, as of the Applicable Time, contained
an 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
circumstances under which they were made, not misleading, or
(3) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
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 State of
New York and the Commonwealth of Massachusetts, the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Preliminary Prospectus and the
Prospectus shall also include any supplements thereto at the Closing Date.
C-3
EXHIBIT D
FORM OF OPINION OF SUBADVISER'S COUNSEL
(k) The Subadviser is duly incorporated and validly existing in good
standing under the laws of the Commonwealth of Massachusetts, with all
necessary power and authority to own, lease and operate its properties and
to conduct its business as described in the Preliminary Prospectus and the
Prospectus. The Subadviser is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure to so register and
qualify does not have a material adverse effect on the ability of the
Subadviser to perform its obligations under the Underwriting Agreement and
the Sub-Advisory Agreement;
(l) The Subadviser is duly registered with the Commission as
an investment adviser under the Advisers Act, and is not prohibited
by the Advisers Act, the 1940 Act or the Advisers Act Rules and
Regulations or the 1940 Act Rules and Regulations from acting under
the Underwriting Agreement, the Sub-Advisory Agreement; and, to the
best of such counsel's knowledge after reasonable inquiry, there
does not exist any proceeding which should reasonably be expected to
adversely affect the registration of the Subadviser with the
Commission;
(m) The Subadviser has corporate power and authority to enter
into the Underwriting Agreement and the Sub-Advisory Agreement, and
the Underwriting Agreement and the Sub-Advisory Agreement have been
duly authorized, executed and delivered by the Subadviser, and each
of the Underwriting Agreement and the Sub-Advisory Agreement is a
valid and legally binding agreement of the Subadviser, enforceable
against the Subadviser in accordance with its terms except as rights
to indemnity and contribution in the Underwriting Agreement or the
Sub-Advisory Agreement may be limited by federal or state securities
laws or principles of public policy and subject to the qualification
that the enforceability of the Subadviser's obligations thereunder
may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general principles of equity
(whether enforcement is considered in a proceeding in equity or at
law);
(n) The Sub-Advisory Agreement to which the Subadviser is a
party complies in all material respects with all applicable
provisions of the Advisers Act, the 1940 Act and the Advisers Act
Rules and Regulations and the 1940 Act Rules and Regulations.
(o) Neither the execution, delivery or performance of the
Underwriting Agreement or the Sub-Advisory Agreement nor the
consummation by the Subadviser of the transactions therein
contemplated (i) conflicts with or will conflict with or constitutes
or will constitute a breach of the charter or bylaws of the
Subadviser, (ii) conflicts with or will conflict with or constitutes
or will
D-1
constitute a breach of or a default under, any agreement, indenture,
lease or other instrument to which such Subadviser is a party or by
which it or any of its properties may be bound or (iii) violates or
will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to such Subadviser or any of
its properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
such Subadviser pursuant to the terms of any agreement or instrument
to which such Subadviser is a party or by which such Subadviser may
be bound or to which any of the property or assets of such
Subadviser is subject;
(p) The description of the Subadviser and its business in the
Preliminary Prospectus and the Prospectus complies in all material
respects with all requirements of the Act, the 1940 Act and the
Rules and Regulations.
(q) (A) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign, and (B) no
authorization, approval, vote or other consent of any other person
or entity, is necessary or required for the performance by such
Subadviser of its obligations under the Underwriting Agreement or
the Sub-Advisory Agreement, except such as have been already
obtained under the 1933 Act, the 1940 Act, the Rules and
Regulations, the rules and regulations of the NASD and the NYSE and
such as may be required under state securities laws.
(r) To the best of such counsel's knowledge after reasonable
inquiry, there is not pending or, to the best of such counsel's
knowledge, after due inquiry, threatened any action, suit,
proceeding, inquiry or investigation, to which the Subadviser is a
party, or to which the property of the Subadviser is subject, before
or brought by any court or governmental body, domestic or foreign,
which might reasonably be expected to result in any Material Adverse
Effect, materially and adversely affect the properties or assets of
the Subadviser or materially impair or adversely affect the ability
of the Subadviser to function as an investment adviser or perform
its obligations under the Sub-Advisory Agreement, or which is
required to be disclosed in the Registration Statement, the
Preliminary Prospectus and the Prospectus but are not disclosed as
required;
(s) To the best of such counsel's knowledge, after due
inquiry, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments relating to the
Subadviser required to be described or referred to in the
Registration Statement, or to be filed as exhibits thereto, other
than those described or referred to therein or filed or incorporated
by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all respects; and perform its
obligations under the Sub-Advisory Agreement.
(t) The Subadviser has all material permits, licenses,
franchises and authorizations of governmental or regulatory
authorities as are necessary to own its properties and to conduct
its business in the manner described in the
D-2
Preliminary Prospectus and the Prospectus (and any amendment or
supplement thereto), and to perform its obligations under the
Sub-Advisory Agreement.
Nothing has come to such counsel's attention that would lead it to believe that:
(1) the Registration Statement, at the time the Registration
Statement became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(2) the Preliminary Prospectus, as of the Applicable Time, contained
an 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
circumstances under which they were made, not misleading, or
(3) the Prospectus, as of its date and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
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 State of
New York and the Commonwealth of Massachusetts, the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Fund and public officials. References to the Preliminary Prospectus and the
Prospectus shall also include any supplements thereto at the Closing Date.
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EXHIBIT E
PRICE-RELATED INFORMATION
▇▇▇▇▇ ▇▇▇▇▇ TAX-MANAGED DIVIDEND AND PREMIUM INCOME FUND
Public offering price: $___________ per share
Underwriting discounts and commissions: $___________ per share
Proceeds, before expenses to the Fund: $___________ per share
Shares offered: _____
Over-allotment option: _____
E-1