GOLUB CAPITAL BDC, INC. __________ Shares of Common Stock UNDERWRITING AGREEMENT Dated: ________, 2010
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▇▇▇▇▇
CAPITAL BDC, INC.
__________
Shares of Common Stock
Dated:
________, 2010
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Table
of Contents
Page
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SECTION 1.
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Representations
and Warranties
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3
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SECTION 2.
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Sale
and Delivery to Underwriters; Closing
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21
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SECTION 3.
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Covenants
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23
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SECTION 4.
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Payment
of Expenses
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27
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SECTION 5.
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Conditions
of Underwriters' Obligations
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28
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SECTION 6.
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Indemnification
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32
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SECTION 7.
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Contribution
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34
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SECTION 8.
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Representations,
Warranties and Agreements to Survive Delivery
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36
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SECTION 9.
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Termination
of Agreement
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36
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SECTION 10.
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Default
by One or More of the Underwriters
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37
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SECTION 11.
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Notices
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38
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SECTION 12.
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Parties
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38
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SECTION 13.
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GOVERNING
LAW AND TIME
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39
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SECTION 14.
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Effect
of Headings
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39
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SECTION 15.
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Definitions
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39
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SECTION 16.
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Absence
of Fiduciary Relationship
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45
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EXHIBITS
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Exhibit A
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–
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Underwriters
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Exhibit B
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–
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Initial
Securities to be Sold
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Exhibit C
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–
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List
of Directors and Officers
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Exhibit D
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–
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Form
of Lock-Up Agreement
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Exhibit E
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–
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Form
of Opinion of Dechert
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Exhibit F
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–
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Price-Related
Information
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▇▇▇▇▇
CAPITAL BDC, INC.
____,000 Shares of Common
Stock
________, 2010
▇▇▇▇▇ Fargo Securities,
LLC
UBS Securities LLC,
as representatives of the underwriters
named in Exhibit A
c/o Wells Fargo Securities,
LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Ladies and
Gentlemen:
▇▇▇▇▇ Capital BDC, Inc., a Delaware
corporation (the "Company"), GC Advisors LLC, a Delaware limited
liability company (the
"Adviser") and a registered investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and GC Service Company, LLC, a
Delaware limited liability company (the "Administrator") each confirms with ▇▇▇▇▇ Fargo Securities, LLC ("▇▇▇▇▇
Fargo"), UBS Securities LLC ("UBS") 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 ▇▇▇▇▇ Fargo and UBS are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale
by the Company of a total of __________ shares (the "Initial
Securities") of the
Company's common
stock, par value $.001 per share
(the "Common
Stock"), 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 Company to the Underwriters of the option described in Section 2(b)
hereof to purchase all or any part of ____ additional shares of Common Stock
(the "Option
Securities") to cover
over-allotments, if any. The Initial Securities to be purchased by
the Underwriters and all or any part of the Option Securities are hereinafter
called, collectively, the "Securities." Certain terms used
in this Agreement are defined in Section 15 hereof.
The
Company and the Underwriters agree that up to 5% of the Initial Securities to be
purchased by the Underwriters (the "Reserved Securities")
shall be reserved for sale by the Underwriters to the Company's business
associates and other related persons (the "Reserved Security
Offerees") as part of the distribution of the Securities by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the Financial Industry Regulatory Authority
("FINRA") and all other applicable
laws, rules and regulations. To the extent that any such Reserved
Securities are not orally confirmed for purchase by any such Reserved Security
Offeree before __:00 __.M. (New York City time) on the first trading day on the
Nasdaq Global Market after the date of this Agreement, such Reserved Securities
may, at the sole and absolute discretion of the Representatives, be offered to
the public as part of the public offering contemplated hereby or offered or sold
to any other Reserved Security Offerees.
Prior to
the date of this Agreement (in the case of clauses (a), (b), (c), (d), (e),
(f), (g) and (h)) and the purchase of the Initial Securities by the Underwriters
on the Closing Date referred to in Section 2(c):
(a) On November 19, 2009, ▇▇▇▇▇ Capital
Company IV, LLC, a Delaware limited liability company, ▇▇▇▇▇ Capital V LLC, a
Delaware limited liability company, and ▇▇▇▇▇ Capital Company VI LLC, a Delaware
limited liability company (collectively, the "Capital
Companies "), which
collectively owned all of the outstanding equity interests in ▇▇▇▇▇ Capital Master Funding LLC, a
Delaware limited liability company and wholly owned subsidiary of the Company
("GCMF"), formed ▇▇▇▇▇ Capital BDC LLC, a
Delaware limited liability company, and contributed their respective limited
liability company interests in GCMF into ▇▇▇▇▇ Capital BDC LLC in exchange for a
proportionate number of limited liability company interests in ▇▇▇▇▇ Capital BDC
LLC (the "Contribution
Transaction"),
(b) On November 20, 2009, ▇▇▇▇▇ Capital BDC
filed a Form N-6F with the SEC under the 1940 Act and the 1940 Act Rules and Regulations, pursuant to which the
Company announced its
intention to elect to be
treated as a business
development company ("BDC"),
(c) On February 5, 2010, GEMS Fund, L.P., a
Delaware limited partnership ("GEMS"), entered into a private placement
agreement (the "GC Private
Placement Agreement") with
the Company pursuant to which it agreed to purchase 195 limited liability
company interests in ▇▇▇▇▇ Capital BDC LLC (the
"Private
Placement Units"), at a
purchase price equal to $128,205.13 per Private Placement Unit, in a private
placement transaction (the "GC Private
Placement"),
(d) On April [•], 2010, the Company entered
into private placement purchase agreements (the "Concurrent
Private Placement Agreements") relating to the sale by the Company
and the purchase by certain of the Company's officers and directors, their
immediate family members or entities owned by, or family trusts for the benefit
of such persons, of an aggregate of [•] shares of Common Stock (the
"Concurrent
Private Placement Shares")
for proceeds to the Company of $[•] (the "Concurrent
Private Placement"),
(e) On April [•], 2010, ▇▇▇▇▇ Capital BDC
LLC filed a certificate of conversion with the Secretary of State of the State
of Delaware and otherwise completed all action necessary for the conversion of
▇▇▇▇▇ Capital BDC LLC from a limited liability company to a corporation, the
Company. In connection therewith, the outstanding limited liability
company interests in ▇▇▇▇▇ BDC LLC were converted into[, on a one for one
basis,] shares of Common Stock (the "BDC
Conversion"). For purposes of this
Agreement, unless the context otherwise requires, references to the Company
shall be deemed to include ▇▇▇▇▇ Capital BDC LLC and its consolidated
subsidiaries for periods prior to the consummation of the BDC
Conversion,
(f) On [•], the charter and by-laws of the
Company were filed with the Secretary of State of the State of Delaware,
and
(g) On April [•], 2010, Form N-54A Notification of Election to
be Subject to Sections 55 through 65 of the Investment Company Act of 1940 (File
No. 814-00794) was filed
with the SEC under the
1940 Act and the Rules and Regulations, pursuant to which the
Company elected to be treated as a BDC. The Company will elect
to be taxable as a RIC commencing with its taxable year ending
September 30, 2010,
-2-
all on
the terms contemplated by the Registration Statement, the General Disclosure
Package and the Prospectus. The transactions described above are
hereinafter called, collectively, the "Formation
Transactions").
The
Company has entered into an Investment Advisory Agreement, dated as of April
[•], 2010 (the "Investment Advisory
Agreement"), with the Adviser.
The
Company has entered into an Administration Agreement, dated as of April [•],
2010 (the "Administration
Agreement"), with GC Service Company, LLC.
The
Company has entered into a Trademark License Agreement, dated as of April [•],
2010 (the "License
Agreement"), with ▇▇▇▇▇ Capital Management LLC.
All of
the above agreements, together with the GC Private Placement Agreement and the
Concurrent Private Placement Agreements, are hereinafter called, collectively,
the "Transaction
Agreements".
The
Adviser has entered into a Staffing Agreement, dated as of April [•], 2010 (the
"Staffing
Agreement"), with ▇▇▇▇▇ Capital Incorporated and ▇▇▇▇▇ Capital Management
LLC.
The Company 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.
SECTION
1. Representations
and Warranties.
(a) Representations and
Warranties by the Company, the Adviser and the Administrator. The Company, the Adviser and the
Administrator, jointly and severally, represent and warrant to each Underwriter
as of the Execution Time, 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 Company has prepared and filed with the
Commission a registration statement (file number 333-163279) on Form N-2, including a
related preliminary prospectus for registration under the 1933 Act and the 1940
Act of the offering and sale of the Securities. The Company has filed
one or more amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission a final prospectus in accordance with Rules 430A and
497 of the 1933 Act. The Company has included in such Registration
Statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the 1933 Act, the 1940 Act and the Rules and
Regulations to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus, or
such final prospectus, shall contain all Rule 430A Information, together with
all other such required information and shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein.
-3-
The Securities have been registered
under the 1933 Act pursuant to the Registration Statement. Each of
the Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement or
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
has been issued under the 1933 Act, no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with. On the Effective Date, the Registration
Statement did and when the Prospectus is first filed (if required) in accordance
with Rule 497 and on the Closing Date (as defined in Section 2(c)) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a "settlement
date"), the Prospectus (and any supplements
thereto) will, and the 1940 Act Notification when originally filed with the
Commission and any amendment or supplement thereto when filed with the
Commission did or will, comply in all material respects with the applicable
requirements of the 1933
Act, the 1940 Act and the Rules and Regulations and the
Registration Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and, on the
Effective Date, the Prospectus, if not filed pursuant to Rule 497, will not, and
on the date of any filing pursuant to Rule 497 and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a 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 neither the Company, the Adviser nor the
Administrator makes any
representation or warranty as to the information contained in or omitted from
the Registration Statement, or the Prospectus (or any supplement thereto), in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement thereto), it
being understood and agreed that the only such information furnished by or on
behalf of any Underwriter consists of the information described as such in
Section 6 hereof.
Each of
(i) the General Disclosure Package, when taken together as a whole,
and (ii) each electronic road show when taken together as a whole with the
General Disclosure Package and the price to the public, the number of Initial
Securities and the number of Option Securities to be included on the cover page
of the Prospectus, does not, as of the Applicable Time, 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. The preceding sentence does not
apply to statements in or omissions from the General Disclosure Package in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 6 hereof.
-4-
The
copies of the Registration Statement and any Rule 462(b) Registration Statement
and any amendments thereto and the copies of any Preliminary Prospectus, the
Prospectus and any amendments or supplements thereto delivered and to be
delivered to the Underwriters (electronically or otherwise) in connection with
the offering of the Securities were and will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(2) Investment Company
Act. The Company is a closed-end,
non-diversified management investment company and has elected to be treated as a
BDC under the 1940 Act, has duly filed the 1940 Act Notification with the
Commission and is eligible to make such an election.
(3) Formation
Transactions. The Formation Transactions have been consummated
prior to the Execution Time (and at such times as described in the General
Disclosure Package and the Prospectus) on the terms and in the manner
contemplated by this Agreement, the General Disclosure Package and the
Prospectus.
(4) GC Private
Placement. The offer, issue, sale and delivery of the Private
Placement Units by the Company to GEMS in the GC Private Placement does not
require registration under the 1933 Act, and such offer, issue, sale and
delivery does not violate any provision of the 1940 Act Rules and
Regulations.
(5) Concurrent Private
Placement. The offer, issue, sale and delivery of the
Concurrent Private Placement Shares by the Company to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇ in the Concurrent Private Placement does not require registration under
the 1933 Act, and such offer, issue, sale and delivery does not violate any
provision of the 1940 Act Rules and Regulations.
(6) Independent
Accountants. The
accountants who certified the financial statements and supporting schedules
included in the Registration Statement, the General Disclosure Package
and the Prospectus are independent
public accountants within the meaning of, and as required by, the 1933 Act and
the 1933 Act Regulations.
(7) Financial
Statements. The financial
statements of the Company and GCMF included in the Registration Statement, the
General Disclosure Package and the Prospectus, together with related schedules
and notes, present fairly the financial condition, results of operations and
cash flows of the Company and GCMF as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the
1933 Act and the 1940 Act and have been prepared in conformity with GAAP applied
on a consistent basis throughout the periods involved (except as otherwise noted
therein); and the other financial and statistical information and data included
in the Registration Statement and the Prospectus are accurately derived from
such financial statements and the books and records of GCMF and the Company, as
applicable.
-5-
(8) Supporting Schedules and
Other Financial Data. The supporting schedules, if any,
included in the Registration Statement present fairly, in accordance with GAAP,
the information required to be stated therein. The information in the
General Disclosure Package and the Prospectus under the captions "Summary
Financial and Other Information" and "Selected Financial and Other Information"
presents fairly the information shown therein and has been compiled on a basis
consistent with that of the audited financial statements of GCMF included in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(9) No Material
Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement, the
General Disclosure Package and the
Prospectus (in each case exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), except as otherwise stated therein,
(A) there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material
Adverse Effect"),
(B) there have been no transactions entered into by the Company or any of
its subsidiaries which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(10) Good
Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement and the Transaction Agreements; and
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in the State of Illinois and in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except (solely in the case of jurisdictions
other than the State of Delaware) where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(11) Good
Standing of Subsidiaries. GCMF has been duly
organized and is validly existing as a limited liability company in good standing under the laws of
Delaware, has power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified as a
foreign limited liability
company to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to qualify or to
be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, all of
the issued and outstanding limited liability company interests of
GCMF have been duly
authorized and validly issued, are fully paid and non-assessable and are owned
by the Company free and clear of any Lien; and none of the outstanding
limited liability company
interests of GCMF was
issued in violation of any preemptive rights, rights of first refusal or other
similar rights of any securityholder of such subsidiary or any other
person. The only subsidiary of the Company is GCMF.
-6-
(12) Capitalization. The authorized, issued and outstanding
limited liability company
interests of the
Company as of
December 31, 2009 is as set forth
in the column entitled "Actual" and in the corresponding
line items under the caption
"Capitalization" in the General Disclosure
Package and the
Prospectus. The authorized, issued and outstanding
Capital Stock of the Company as of the date hereof is as set forth in the column entitled
"Pro Forma" and in the corresponding line items
under the caption "Capitalization." After
giving effect to the Concurrent Private Placement and the purchase of the
Initial Securities by the Underwriters on the Closing Date, the authorized,
issued and outstanding Capital Stock of the Company will be as set forth in the
column entitled "Pro Forma as Adjusted" and in the corresponding line items
under the caption "Capitalization." The shares of issued and
outstanding Capital Stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the outstanding shares
of Capital Stock of the Company was issued in violation of any preemptive
rights, rights of first refusal or other similar rights of any securityholder of
the Company or any other person.
(13) Authorization
of Agreements. This Agreement and the
Transaction Agreements have been duly authorized, executed and delivered by the
Company.
(14) Authorization
of Securities. The Securities to be sold
by the Company pursuant to this Agreement have been duly authorized for issuance
and sale pursuant to this Agreement and, when issued and delivered by the
Company against payment of the consideration set forth herein, will be validly
issued, fully paid and non-assessable; no holder of the Securities is or will be
subject to personal liability by reason of being such a holder; and the issuance
and sale of the Securities to be sold by the Company pursuant to this
Agreement are not subject to any
preemptive rights, rights of first refusal or other similar rights of any
securityholder of the Company or any other person.
-7-
(15) Description
of Securities. The Common Stock, the
authorized but unissued Preferred Stock and the Company's charter and
bylaws conform in all material
respects to all of the respective statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus, and such statements conform
to the rights set forth in the respective instruments and agreements defining
the same.
(16) Absence of
Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its Organizational Documents or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any Company Document, except (solely in the
case of Company Documents) for such defaults that would not result in
a Material Adverse Effect. The execution, delivery and performance of
this Agreement, the Transaction Agreements and the consummation of the
transactions contemplated herein and in the Registration Statement, the General
Disclosure Package and the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the General Disclosure Package and the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations under this
Agreement and the Transaction Agreements do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event under, or result in the
creation or imposition of any Lien upon any property or assets of the Company or
any of its subsidiaries pursuant to, any Company Documents, except (solely in the case of Company
Documents) for such conflicts, breaches, defaults or Liens that would
not result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Organizational Documents of the Company or
any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their respective assets, properties or
operations.
(17) Absence of Labor
Dispute. As of the date hereof, the Company and its
subsidiaries do not have, and on the Closing Date the Company and its
subsidiaries will not have, any employees. To the knowledge of the
Company, no labor dispute with the employees of ▇▇▇▇▇ Capital Incorporated and
▇▇▇▇▇ Capital Management LLC exists or, to the knowledge of the Company, is
imminent.
(18) 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 Company, threatened, against or affecting the Company or any of
its subsidiaries which is required to be disclosed in the Registration
Statement, the General Disclosure Package or the Prospectus (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement and the Transaction Agreements or the performance
by the Company of its obligations under this Agreement and the Transaction
Agreements; the aggregate of all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
-8-
(19) Material
Contracts. There are no franchises, mortgages, loan or credit
agreements, bonds, notes, leases, agreements, contracts, indentures, leases or
other instruments or documents that are required to be described in the
Registration Statement or the Prospectus, or to be filed as an exhibit thereto,
which are not described or filed as required by the 1933 Act, the 1940 Act or
the Rules and Regulations.
(20) Accuracy of
Descriptions and Exhibits. The information in
the General Disclosure Package and the Prospectus under the captions "Prospectus
Summary—Our Adviser," "Prospectus Summary—Recent Developments," "Prospectus
Summary—Operating and Regulatory Structure," "Prospectus Summary—Conflicts of
Interests," "Risk Factors," "The BDC Conversion," "Capitalization,"
"Management," "Management Agreements," "Related Party Transactions and Certain
Relationships," "Material U.S. Federal Income Tax Considerations," "Description
of Our Capital Stock," "Regulation" and "Shares Eligible for Future Sale," in
each case to the extent that it constitutes matters of law, summaries of legal
matters, summaries of provisions of the Company's Organizational Documents or
other instruments or agreements, summaries of legal proceedings, or legal
conclusions, is correct in all material respects and all descriptions in the
Registration Statement, the General Disclosure Package and the Prospectus of any
Company Documents are accurate in all material respects.
(21) Possession
of Intellectual Property. The Company and its
subsidiaries own, or have obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents, trademarks (both
registered and unregistered), tradenames, copyrights, trade secrets and other
proprietary information described in the Registration Statement, the General
Disclosure Package and the Prospectus as being licensed by it or which are
necessary for the conduct of its businesses (collectively, "Intellectual
Property"), except where the failure to own, license or have such rights
would not, individually or in the aggregate, have a Material Adverse Effect;
except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, neither the Company nor the Subsidiary has received
notice and is not otherwise aware of any infringement of, or conflict with,
asserted rights of third parties with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any subsidiary, as the
case may be, therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, would
result in a Material Adverse Effect.
-9-
(22) 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,
(B) no authorization, approval, vote or other consent of any holder
of Capital Stock or other securities of the Company or any creditor of the Company,
(C) no waiver or consent under any Subject Instrument, and
(D) no authorization,
approval, vote or other consent of any other person or entity, was necessary or
required for the consummation of the Formation Transactions, or is necessary or
required for the execution, delivery or performance by the Company of this
Agreement and the Transaction 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 and the Transaction
Agreements, in each case on the terms contemplated by the Registration
Statement, the General Disclosure Package and the Prospectus, except such as have been
obtained or such as may be
required under state securities laws.
(23) Possession
of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Company
Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the Company
and its subsidiaries are in compliance with the terms and conditions of all such
Company Governmental
Licenses, except where the failure so to comply would not, individually or in
the aggregate, have a Material Adverse Effect; all of the Company Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Company Governmental Licenses or the failure of
such Company Governmental
Licenses to be in full force and effect would not, individually or in the
aggregate, have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Company Governmental
Licenses which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(24) Title to
Property. The Company owns or leases or has access
to all properties and assets as are necessary to the conduct of its operations
as presently conducted.
(25) Absence of
Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (debt or
equity) registered pursuant to the Registration Statement or included in the
offering contemplated by this Agreement, and there are no persons with co-sale
rights, 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 pursuant to this
Agreement.
(26) Parties to
Lock-Up Agreements. The Adviser, the
Administrator, GEMS, each of the Company's directors and officers, each holder
of any shares of outstanding Common Stock or other Capital Stock and each holder
of any outstanding warrants, options or other securities convertible into, or
exchangeable or exercisable for, Common Stock or other Capital Stock has
executed and delivered to the Representatives a lock-up agreement in the form of
Exhibit D
hereto. Exhibit C hereto contains a true, complete and
correct list of all directors and officers of the Company. There are no other holders
of Common Stock, Capital Stock or warrants, options or other securities
convertible into, or exchangeable or exercisable for, Common Stock or other
Capital Stock.
-10-
(27) Stop Transfer
Instructions. The Company has, with respect to all Common
Stock (other than Securities to be sold pursuant to this Agreement) and other
Capital Stock and all securities convertible into, or exercisable or
exchangeable for, Common Stock or other Capital Stock owned or held (of record
or beneficially) by any of the persons who, as described in the immediately
preceding paragraph, have entered into lock-up agreements in the form of Exhibit D
hereto, provided written directions to the transfer agent or other registrar to
enter stop transfer instructions and implement stop transfer procedures with
respect to such securities during the Lock-Up Period (as defined in Section
3(i)); and, during the Lock-Up Period, the Company will not cause or permit any
waiver, release, modification or amendment of any such stop transfer
instructions or stop transfer procedures without the prior written consent of
the Representatives.
(28) Nasdaq
Global Market. The outstanding Common
Stock and the Securities to be sold by the Company hereunder have been approved
for listing, subject only to official notice of issuance, on the Nasdaq Global
Market.
(29) FINRA
Matters. All of
the information provided to the Underwriters or to counsel for the Underwriters
by the Company and, to the knowledge of the Company, its officers and directors and the
holders of any securities of the Company in connection with letters, filings or
other supplemental information provided to FINRA pursuant to FINRA Conduct Rule 5100 is
true, complete and correct in all material respects.
(30) Taxes and Tax
Returns. The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns required to be filed or have
requested extensions thereof, and have paid all taxes required to be paid by
them and any other assessment, fine or penalty levied against any of them, 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
and for which appropriate reserves have been included on the books and records
of the Company.
(31) Insurance. The Company and its subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which they are engaged; all policies of insurance and any fidelity or surety
bonds insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; there are no claims by
the Company or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any such subsidiary has
been refused any insurance coverage sought or applied for; and neither the
Company nor any such subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
-11-
(32) Accounting
Controls. The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific authorizations and
with the investment objectives, policies and restrictions of the Company and the
applicable requirements of the 1940 Act, the 1940 Act Rules and Regulations,
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability and to maintain material compliance with the books and records
requirements under the 1940 Act and the 1940 Act Rules and Regulations,
(C) access to assets is permitted only in accordance with management's
general or specific authorization, and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, since the end of
the Company's most recent audited fiscal year, there has been (1) no
material weakness in the Company's internal control over financial reporting
(whether or not remediated) and (2) no change in the Company's internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over financial
reporting.
(33) Compliance with the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the
part of the Company or any of the Company's directors or officers, in their
capacities as such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with
which any of them is required to comply, including Section 402 related to
loans.
(34) Absence of
Manipulation. The Company and its subsidiaries have not taken
and will not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Securities.
(35) Statistical, Demographic or
Market-Related Data. Any statistical, demographic or
market-related data included in the Registration Statement, the General
Disclosure Package or the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate, all such data included in the
Registration Statement, the General Disclosure Package or the Prospectus
accurately reflect the materials upon which it is based or from which it was
derived, and the Company has delivered true, complete and correct copies of such
materials to the Representatives.
-12-
(36) Foreign Corrupt Practices
Act. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that has resulted or
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (collectively, the
"FCPA"),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA, and the Company and its
subsidiaries and, to the knowledge of the Company, its other affiliates (other
than the Underwriters) have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(37) Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder and any
related or similar applicable rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Money Laundering
Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened.
(38) OFAC. Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate (other than the Underwriters)
or person acting on behalf of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department ("OFAC"); and the
Company will not knowingly directly or indirectly use any of the proceeds
received by the Company from the sale of Securities contemplated by this
Agreement, or lend, contribute or otherwise make available any such proceeds to
any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S.
sanctions administered by the OFAC.
-13-
(39) Lending
Relationship. Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, none of the Company, the Adviser nor the Administrator nor GCMF has
any outstanding borrowings from, or is a party to any line of credit, credit
agreement or other credit facility or otherwise has a borrowing relationship
with, any bank or other lending institution affiliated with any of the
Underwriters, and the Company does not intend to use any of the proceeds from
the sale of the Securities to repay any debt owed to any Underwriter or any
affiliate of any Underwriter.
(40) Transfer
Taxes. There are no stock or other transfer taxes, stamp
duties, capital duties or other similar duties, taxes or charges payable in
connection with the execution or delivery of this Agreement by the Company or
the issuance or sale by the Company of the Securities to be sold by the Company
to the Underwriters hereunder.
(41) Related Party
Transactions. There are no business relationships or related
party transactions involving the Company or any of its subsidiaries or, to the
knowledge of the Company, any other person that are required to be described in
the General Disclosure Package or the Prospectus that have not been described as
required.
(42) Portfolio
Companies. The Company has duly authorized, executed and
delivered any agreements pursuant to which it made the investments described in
the General Disclosure Package and the Prospectus under the caption "Portfolio
Companies" (each a "Portfolio Company
Agreement") with corporations or other entities (each a "Portfolio
Company"). Except as otherwise disclosed in the General
Disclosure Package and the Prospectus, and to the Company's knowledge, each
Portfolio Company is current, in all material respects, with all its obligations
under the applicable Portfolio Company Agreements, no event of default (or a
default which with the giving of notice or the passage of time would become an
event of default) has occurred under such agreements, except to the extent
that any such failure to be current in its obligations and any such default
would not reasonably be expected to result in a Material Adverse
Effect.
(43) Offer and Sale of
Securities. The Company has taken all required action under
the 1933 Act, the 1940 Act and the Rules and Regulations to make the public
offering and consummate the sale of the Securities as contemplated by this
Agreement.
(44) Relationships with
Directors, Officers and Stockholders. Except as described in
the Registration Statement, the General Disclosure Package and the Prospectus,
no relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers or stockholders of the Company, on the
other hand, that is required to be described in the Registration Statement, the
General Disclosure Package and the Prospectus, which is not so
described.
-14-
(45) Interested
Persons. Except as disclosed in the Registration Statement and
the Prospectus, no director of the Company is an "interested person" (as defined
in the ▇▇▇▇ ▇▇▇) of the Company or an "affiliated person" (as defined in the
▇▇▇▇ ▇▇▇) of any Underwriter listed in Exhibit A
hereto.
(46) Absence of Prohibited
Offering Material. The Company 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 and the Prospectus or other materials permitted by the
1933 Act, the 1940 Act or the Rules and Regulations.
(47) Sales
Material. All advertising, sales literature or other
promotional material (including "prospectus wrappers," "broker kits," "road show
slides" and "road show scripts"), whether in printed or electronic form,
authorized in writing by or prepared by the Company, the Adviser, the
Administrator or GCMF 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 and the Rules and Regulations and, if required to be
filed with FINRA under FINRA's conduct rules, were provided to ▇▇▇▇▇▇▇▇ Chance
US 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.
(48) Directors' and Officers'
Insurance and Fidelity Bond. On the Closing Date and each
Option Closing Date, the Company's directors' and officers' errors and omissions
insurance policy and its fidelity bond required by Rule 17g-1 of the 1940 Act
Rules and Regulations will be in full force and effect; the Company is in
compliance with the terms of such policy and fidelity bond in all material
respects; and there are no claims by the Company 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 Company has not been refused
any insurance coverage sought or applied for; and the Company has no reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as set forth in or contemplated in the
Registration Statement and the Prospectus (exclusive of any supplement
thereto).
(49) Compliance with RIC
Requirements. As of the Closing Date, the Company will be in
compliance with the requirements of Subchapter M of the Code necessary to
qualify as a RIC. The Company intends to direct the investment of the
net proceeds of the offering of the Securities and to continue to conduct its
activities in such a manner as to continue to comply with the requirements for
qualification and taxation as a RIC under Subchapter M of the
Code. The Company intends to be treated as a RIC under Subchapter M
of the Code for its taxable year ending September 30, 2010.
-15-
(50) DTC
Clearance. The Company has been orally advised by DTC that the
Securities will be eligible for clearance through DTC.
(51) Small Business Investment
Company. LEG Partners III SBIC, L.P. and LEG Partners
Debenture SBIC, L.P. are each licensed to operate as a Small Business Investment
Company ("SBIC") by the U.S.
Small Business Administration ("SBA"). Each
SBIC license of LEG Partners III SBIC, L.P. and LEG Partners Debenture SBIC,
L.P., respectively, is in good standing with the SBA and no adverse regulatory
findings contained in any examinations reports prepared by the SBA regarding LEG
Partners III SBIC, L.P. or LEG Partners Debenture SBIC, L.P. are outstanding or
unresolved. The method of operation of each of LEG Partners III SBIC,
L.P. and LEG Partners Debenture SBIC, L.P. will permit it to continue to meet
the requirements for qualification as an SBIC.
(52) SBA
Debentures. LEG Partners III SBIC, L.P. and LEG Partners
Debenture SBIC, L.P. are eligible to sell securities guaranteed by the SBA in
the amounts and on the terms described in the General Disclosure Package and the
Prospectus. Neither LEG Partners III SBIC, L.P. nor LEG Partners
Debenture SBIC, L.P. is in default under the terms of any debenture which it has
issued to the SBA for guaranty by the SBA or any other material monetary
obligation, and no event, which with the passage of time, notice or both has
occurred, which would be a default or event of default thereunder.
(53) BDC
Election. The Company has elected to be regulated as a
business development company under the 1940 Act and has filed with the
Commission, pursuant to Section 54(a) of the 1940 Act, a duly completed and
executed Form N-54A (the "Company BDC
Election"); the Company has not filed with the Commission any notice of
withdrawal of the BDC Election pursuant to Section 54(c) of the 1940 Act; the
Company's BDC Election remains in full force and effect, and, to the Company's
knowledge, no order of suspension or revocation of such election under the 1940
Act has been issued or proceedings therefore initiated or threatened by the
Commission. The operations of the Company are in compliance in all
material respects with the provisions of the 1940 Act, including the provisions
applicable to business development companies and the 1940 Act Rules and
Regulations, including the provisions applicable to business development
companies.
(54) Directed Share
Program. None of the Reserved Security Offerees is domiciled
outside of the United States. Any Preliminary Prospectus, the
Prospectus and each General Disclosure Package and any amendments or supplements
thereto complied or will comply with any applicable laws, rules and regulations
of any foreign jurisdictions in which any such document has been or will be
distributed in connection with offers and sales of Reserved Securities and no
consent, approval or authorization or order of, or filing or registration with,
any court or governmental agency, body or official (except such as have been
made or obtained, as the case may be) was, is or will be required under the
laws, rules or regulations of any foreign jurisdiction in which any Reserved
Securities have been or will be offered or sold.
-16-
(b) Representations and
Warranties by the Adviser and the Administrator. The Adviser and the
Administrator, jointly and severally, represent and warrant to each Underwriter
as of the Execution Time, 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) Absence of
Manipulation. Each of the Adviser and the Administrator has
not taken, directly or indirectly, any action designed to or that has
constituted or that might reasonably be expected to cause or result, under the
1934 Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(2) No Material Adverse Change
in Business. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure
Package and the Prospectus (in each case exclusive of any amendments or
supplements thereto subsequent to the Execution Time), except as otherwise
stated therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Adviser and the Administrator considered as one enterprise,
whether or not arising in the ordinary course of business and (B) there have
been no transactions entered into by the Adviser or the Administrator which are
material with respect to the Adviser and the Administrator considered as one
enterprise.
(3) Good
Standing. Each of the Adviser and the Administrator has been
duly organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware and has power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement, the General Disclosure Package and the Prospectus
and to enter into and perform its obligations under this Agreement, the
Transaction Agreements, to the extent a party thereto; and the Staffing
Agreement and each of the Adviser and the Administrator is duly qualified as a
limited liability company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(4) Authorization of
Agreements. This Agreement, the Transaction Agreements, to the
extent a party thereto, and the Staffing Agreement have been duly authorized,
executed and delivered by each of the Adviser and the
Administrator.
-17-
(5) Absence of Defaults and
Conflicts. Neither the Adviser nor the Administrator is in
violation of its Organizational Documents or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
Adviser Document or Administrator Document, except for such defaults that would
not result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement, the Transaction Agreements, to the extent a party
thereto, the Staffing Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement, the General Disclosure
Package and the Prospectus (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
General Disclosure Package and the Prospectus under the caption "Use of
Proceeds") and compliance by each of the Adviser and the Administrator with its
obligations under this Agreement, the Transaction Agreements, to the extent a
party thereto, and the Staffing Agreement do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event under, or result in the
creation or imposition of any Lien upon any property or assets of the Adviser or
the Administrator pursuant to, any Adviser Document or Administrator Document,
except for such conflicts, breaches, defaults or Liens that would not result in
a Material Adverse Effect, nor will such action result in any violation of the
provisions of the Organizational Documents of the Adviser or the Administrator,
as applicable, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Adviser or the Administrator
or any of their respective assets, properties or operations.
(6) Absence of Labor
Dispute. As of the date hereof, neither the Adviser nor the
Administrator have, and on the Closing Date, neither the Adviser nor the
Administrator will have, any employees. To the knowledge of the
Adviser and the Administrator, no labor dispute with the employees of ▇▇▇▇▇
Capital Incorporated and ▇▇▇▇▇ Capital Management LLC exists or, to the
knowledge of the Adviser and the Administrator, is imminent.
(7) Absence of
Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Adviser or the
Administrator, threatened, against or affecting the Adviser or the Administrator
which is required to be disclosed in the Registration Statement, the General
Disclosure Package or the Prospectus (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in this
Agreement, the Transaction Agreements, to the extent a party thereto, and the
Staffing Agreement or the performance by each of the Adviser and the
Administrator of its obligations under this Agreement, the Transaction
Agreements, to the extent a party thereto; and the Staffing Agreement the
aggregate of all pending legal or governmental proceedings to which the Adviser
or the Administrator is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement, the
General Disclosure Package and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
-18-
(8) Absence of Misstatements or
Omissions. The description of each of the Adviser and the
Administrator and its business, and the statements attributable to the Adviser
and the Administrator, in the Registration Statement and the Prospectus complied
and comply in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers 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 necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(9) Possession of Intellectual
Property. Each of the Adviser and Administrator owns, or has
obtained valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both registered and
unregistered), tradenames, copyrights, trade secrets and other proprietary
information described in the Registration Statement, the General Disclosure
Package and the Prospectus as being licensed by it or which are necessary for
the conduct of its businesses (collectively, "Adviser/Administrator
Intellectual Property"), except where the failure to own, license or have
such rights would not, individually or in the aggregate, have a Material Adverse
Effect; except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, neither the Adviser nor the Administrator
has received notice and is not otherwise aware of any infringement of, or
conflict with, asserted rights of third parties with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Adviser or the
Administrator, as the case may be, therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, would result in a Material Adverse Effect.
(10) Absence of Further
Requirements. (A) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, (B) no authorization,
approval, vote or other consent of any holder of securities of the Adviser, the
Administrator or any creditor of the Adviser or the Administrator, (C) no waiver
or consent under any Subject Instrument, and (D) no authorization, approval,
vote or other consent of any other person or entity, is necessary or required
for the execution, delivery or performance by each of the Adviser and the
Administrator of this Agreement, the Transaction Agreements, to the extent a
party thereto, and the Staffing Agreement 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, the Transaction Agreements,
to the extent a party thereto, and the Staffing Agreement in each case on the
terms contemplated by the Registration Statement, the General Disclosure Package
and the Prospectus, except such as
have been obtained under the 1933 Act, the 1934 Act, the Rules and
Regulations, the 1940 Act and the 1940 Rules and Regulations or such as may be required under state
securities laws.
-19-
(11) Title to
Property. Each of the Adviser
and the Administrator owns or
leases or has access to all properties and assets as are necessary to the
conduct of its operations as presently conducted.
(12) Possession of Licenses and
Permits. Each of the Adviser and the Administrator possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, the "Adviser/Administrator
Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by them; the Adviser and the Administrator are in compliance with the
terms and conditions of all such Adviser/Administrator Governmental Licenses,
except where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of the Adviser/Administrator
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Adviser/Administrator Governmental Licenses or the failure of
such Adviser/Administrator Governmental Licenses to be in full force and effect
would not, individually or in the aggregate, have a Material Adverse Effect; and
neither the Adviser nor the Administrator has received any notice of proceedings
relating to the revocation or modification of any such Adviser/Administrator
Governmental Licenses which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(13) Investment Company
Act. Neither the Adviser nor the Administrator is, and upon
the sale of the Securities contemplated under this Agreement, the Transaction
Agreements and the Staffing Agreement and the application of the net proceeds
therefrom as described in the General Disclosure Package and the Prospectus
under the caption "Use of Proceeds" will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
1940 Act.
(14) Insurance. Each
of the Adviser and the Administrator are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; all
policies of insurance and any fidelity or surety bonds insuring the Adviser or
the Administrator or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Adviser and the Administrator
are in compliance with the terms of such policies and instruments in all
material respects; there are no claims by the Adviser or the Administrator under
any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither the Adviser
nor the Administrator has been refused any insurance coverage sought or applied
for; and neither the Adviser nor the Administrator has any reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a Material
Adverse Effect.
-20-
(15) Accounting
Controls. Each of the Adviser and the Administrator maintains
a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management's
general or specific authorizations, (B) access to assets is permitted only in
accordance with management's general or specific authorization, and (C) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(16) Advisers
Act. The Adviser is registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act or the
1940 Act Rules and Regulations from acting under the Investment Advisory
Agreement for the Company as contemplated by the Prospectus.
(17) Financial
Resources. Each of the Adviser and the Administrator has the
financial resources available to it necessary for the performance of its
services and obligations as contemplated in the General Disclosure Package, the
Prospectus, this Agreement, the Transaction Agreements, to the extent a party
thereto, and the Staffing Agreement and each of the Adviser and the
Administrator owns, leases or has access to all properties and other assets that
are necessary to the conduct of its business and to perform the services, as
described in the Registration Statement, the General Disclosure Package and the
Prospectus.
(18) Employment
Status. Neither the Adviser nor the Administrator is aware
that (i) any executive, key employee or significant group of employees of
the Company, if any, the Adviser or the Administrator, as applicable, plans to
terminate employment with the Company, the Adviser or the Administrator or
(ii) any such executive or key employee is subject to any non-compete,
nondisclosure, confidentiality, employment, consulting or similar agreement that
would be violated by the present or proposed business activities of the Company,
the Adviser or the Administrator except where such termination or violation
would not reasonably be expected to have an Adviser Material Adverse
Effect.
(19) No
Subsidiaries. Neither the Adviser nor the Administrator has
any subsidiaries.
(c) Certificates.
Any certificate signed by
any officer of the Company, the Adviser, the Administrator or any of their
subsidiaries and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company, the
Adviser or the Administrator, as the case may be, to each Underwriter as
to the matters covered thereby.
SECTION
2. Sale and
Delivery to Underwriters; Closing.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby agrees to sell to the Underwriters, severally
and not jointly, the respective numbers of Initial Securities set forth opposite
the name of the Company in Exhibit B
hereto, and each Underwriter, severally and not jointly, agrees to purchase the
respective number of Initial Securities set forth opposite the name of such
Underwriter on Exhibit A
hereto, plus any additional number
of Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, subject to such
adjustments among the Underwriters as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional
Securities, in each case at a purchase price of $_________ per share (the "Purchase
Price").
-21-
(b) In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to ________ Option Securities at a price per share equal to the
Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option
Securities shall be reduced by an amount per share equal to any dividends or
distributions paid by the Company on the Initial Securities but not payable on
such Option Securities. The option hereby granted will expire at
11:59 P.M. (New York City time) on the 30th day after the date hereof and
may be exercised on up to three occasions in whole or in part only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. 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. If the option is exercised as to all or any portion of
the Option Securities, the Company will sell to the Underwriters that
proportion of the total number of Option Securities then being purchased which
the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Exhibit A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to
the total number of Initial Securities, subject in each case to such adjustments
as the Representatives in their discretion shall make to eliminate any
sales or purchases of fractional shares.
(c) Payment of the purchase price for, and
delivery of certificates for, the Initial Securities shall be made at the
offices of ▇▇▇▇▇▇▇▇ Chance US LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Representatives and the Company,
at 10:00 A.M. (New York City time) on ____________, 2010 (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 Company (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 10:00 A.M. (New York City time) at the above-mentioned offices, or at such
other place as shall be agreed upon by the Representatives and the Company, on
each Option Closing Date as specified in the notice from the Representatives to
the Company.
-22-
Payment
shall be made to the Company by wire transfer of immediately available funds to
a single bank account designated by the Company against delivery to the Representatives
for the respective accounts of the Underwriters of the Securities to be
purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial Securities and the
Option Securities, if any, which it has agreed to
purchase. Each of the Representatives, 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.
(d) 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 (New
York 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 Company, the Adviser and the Administrator. The Company, the Adviser
and the Administrator, jointly and severally, covenant with each Underwriter as
follows:
(a) Prior
to the termination of the offering of the Securities, the Company will not file
any amendment of the Registration Statement or supplement to the Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 497, the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to Rule 497 within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 497 or
when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (2) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information, (4) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such qualification and,
if issued, to obtain as soon as possible the withdrawal thereof.
-23-
(b) If,
at any time prior to the filing of the Prospectus pursuant to Rule 497, any
event occurs as a result of which the General Disclosure Package would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under
which they were made at such time not misleading, the Company will (i) notify
promptly the Representatives so that any use of the General Disclosure Package
may cease until it is amended or supplemented; (ii) amend or supplement the
General Disclosure Package to correct such statement or omission; and (iii)
supply any amendment or supplement to you in such quantities as you may
reasonably request.
(c) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the 1933 Act, any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the 1933 Act, the 1940 Act and the Rules and
Regulations, the Company promptly will (1) notify the Representatives of any
such event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 3, an amendment or supplement which
will correct such statement or omission or effect such compliance and (3) supply
any supplemented Prospectus to you in such quantities as you may reasonably
request.
(d) The
Company will furnish to the Representatives and counsel for the Underwriters
signed copies of the Registration Statement (including exhibits thereto) and to
each other Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the 1933 Act, as many copies of each Preliminary Prospectus,
the Prospectus and any supplement thereto as the Representatives may reasonably
request.
(e) The
Company will use its commercially reasonable efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale, or to obtain an
exemption for the Securities to be offered and sold, under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
the Representatives may designate and to maintain such qualifications and
exemptions in effect for so long as required for the distribution of the
Securities (but in no event for less than one year from the date of this
Agreement); provided, however, that the Company 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. In each
jurisdiction in which the Securities have been so qualified or exempt, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification or exemption, as the case may
be, in effect for so long as required for the distribution of the Securities
(but in no event for less than one year from the date of this
Agreement).
(f) The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders 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.
-24-
(g) The
Company will use the net proceeds received by it from the sale of the
Securities, the Concurrent Private Placement Shares and the Private Placement
Units in the manner specified in the General Disclosure Package and the
Prospectus under "Use of Proceeds."
(h) The
Company will use its commercially reasonable efforts to effect the listing of
the Securities on The Nasdaq Global Market.
(i) During
the period beginning on and including the date of this Agreement through and
including the date that is the 180th day after the date of this Agreement (such
period, as the same may be extended pursuant to the provisions set forth in the
next sentence, is hereinafter called the "Lock-Up Period"),
each of the Company, the Adviser and the Administrator will not, without the
prior written consent of the Representatives, directly or
indirectly:
(1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of any Common Stock or other
Capital Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or other Capital Stock,
(2) file
or cause the filing of any registration statement under the 1933 Act with
respect to any Common Stock or other Capital Stock or any securities convertible
into or exercisable or exchangeable for any Common Stock or other Capital Stock
(other than any Rule 462(b) Registration Statement filed to register
Securities to be sold to the Underwriters pursuant to this Agreement),
or
(3) enter
into any swap or other agreement, arrangement or transaction that transfers to
another, in whole or in part, directly or indirectly, any of the economic
consequences of ownership of any Common Stock or other Capital Stock or any
securities convertible into or exercisable or exchangeable for any Common Stock
or other Capital Stock,
whether
any transaction described in (1) or (3) above is to be settled by
delivery of Common Stock, other Capital Stock, other securities, in cash or
otherwise. Moreover, if:
(1) during
the last 17 days of such 180-day restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs, or
(2) prior
to the expiration of such 180-day restricted period, the Company announces that
it will release earnings results or becomes aware that material news or a
material event will occur during the 16-day period beginning on the last day of
such 180-day restricted period,
the
restrictions imposed by this Section 3(i) shall continue to apply until the
expiration of the 18-day period beginning on the date of issuance of the
earnings release or the occurrence of the material news or material event, as
the case may be, unless the Representatives waive, in writing, such
extension.
-25-
Notwithstanding
anything herein to the contrary, this Section 3(i) shall not prohibit (i) the
registration of the Securities and sales to the Underwriters pursuant to this
Agreement and the issuance of Common Stock in the GC Private Placement and the
Concurrent Private Placement or (ii) any issuance of Common Stock pursuant to
the Company's dividend reinvestment plan.
(j) The
Company, the Adviser and the Administrator will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the 1934 Act or otherwise,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(k) The
Company will, for a period of five years following the Execution Time, furnish
to the Representatives all reports or other communications (financial or
other) generally made available to stockholders, and deliver such reports
and communications to the Representatives as soon as they are available, unless
such documents are furnished to or filed with the Commission or any securities
exchange on which any class of securities of the Company is listed and generally
made available to the public, provided that such filings shall be considered
furnished to the Representatives for purposes of this section upon filing
pursuant to the ▇▇▇▇▇ system.
(l) The
Company, the Adviser and the Administrator will comply with all applicable
securities and other applicable laws, rules and regulations, including, without
limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will use their best reasonable
efforts to cause
the Company's, the Adviser's and the Administrator's directors and officers, in
their capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
(m) The
Company, the Adviser and the Administrator will be insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds insuring the
Company, the Adviser, the Administrator or their respective businesses,
properties, assets, employees, officers, trustees, directors, members, managers
and partners will be in full force and effect; the Company, the Adviser and the
Administrator will be in compliance with the terms of such policies and
instruments.
(n) The
Company shall elect to be taxable as a RIC within the meaning of Section 851(a)
of the Code commencing with its taxable year ending September 30, 2010 by timely
filing its 2010 U.S. federal income tax return as a RIC on Internal Revenue
Service Form 1120-RIC, and shall maintain such qualification and election in
effect for each taxable year during which it is a BDC under the ▇▇▇▇
▇▇▇.
(o) The
Company, during a period of two years from the effective date of the
Registration Statement, will use its best reasonable efforts to maintain its
status as a BDC; provided, however, the Company may change the nature of its
business so as to cease to be, or to withdraw its election as, a BDC, with the
approval of the board of directors and a vote of stockholders as required by
Section 58 of the 1940 Act or any successor provision.
-26-
(p) To
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(q) The
Company will comply with the 1933 Act, the 1934 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, the General Disclosure Package and
the Prospectus.
(r) The
Company, the Adviser and the Administrator will use their best reasonable
efforts to perform all of the agreements required of them by this Agreement and
discharge all conditions of theirs to closing as set forth in this
Agreement.
(s) The Company will use its commercially
reasonable efforts to cause
the Securities to be eligible for clearance through DTC.
(t) The
Company, during the period when the Prospectus is required to be delivered under
the 1933 Act, the 1934 Act and the Rules and Regulations will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION
4. Payment of
Expenses.
(a) The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including (i) the
preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
any Preliminary Prospectus, the Prospectus, the 1940 Act Notification and each
amendment or supplement to any of them, (ii) the word processing,
printing and delivery to the Underwriters of this Agreement 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 capital duties, stamp duties or other
duties or taxes payable 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 Company, (v) the qualification or
exemption of the Securities under securities laws in accordance with the
provisions of Section 3(e) 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 Canadian
"wrapper" and any supplements thereto, (vi) the printing and delivery to
the Underwriters of copies of the Registration Statement, any Preliminary
Prospectus and the Prospectus, any sales material and all amendments or
supplements to any of them, as may, in each case, be reasonably requested and
any costs associated with electronic delivery of any of the foregoing by the
Underwriters to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any Canadian "wrapper" 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 FINRA of the terms of the sale of
the Securities, (x) fifty percent (50%) of the the costs and expenses
relating to investor presentations and any roadshow undertaken in connection
with the marketing of Securities, including, without limitation, expenses
associated with the production of roadshow slides and graphics and any
electronic roadshows, fees and expenses of any consultants engaged in connection
with the roadshow presentation or any persons or entities engaged to host any
electronic roadshow, travel and other travel expenses (including the costs and
expenses of any aircraft chartered in connection with the roadshow) and lodging
expense of the representatives and officers of the Company and any such
consultants, (xi) the fees and expenses incurred in connection with the
listing of the Securities on The Nasdaq Global Market, (xii) all costs and
expenses of the Underwriters, including the reasonable fees and disbursements of
counsel for the Underwriters, and all other costs and expenses in connection
with matters related to the Reserved Securities and the establishment and
administration of the program for the sale of the Reserved Securities, and
(xiii) the costs and expenses (including without limitation any damages or other
amounts payable in connection with legal or contractual liability) associated
with reforming any contracts for sale of the Securities made by any Underwriter
where such reformation relates to any inaccuracy or breach of the representation
set forth in the third paragraph of Section 1(a)(1) of this
Agreement.
-27-
(b) Anything
herein to the contrary notwithstanding, the provisions of this Section 4
shall not affect any agreement that the Company has made or may make for the
allocation or sharing of such expenses and costs.
(c) If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or
Section 9(a) hereof, the Company 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
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company, the Adviser and the Administrator
contained in this Agreement or in certificates of any officer of the Company,
the Adviser, the Administrator or any of their subsidiaries delivered pursuant
to the provisions hereof, to the performance by the Company, the Adviser and the
Administrator of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 497 under
the 1933 Act within the applicable time period prescribed for such filing by the
1933 Act Rules and Regulations; the Registration Statement shall be effective
and no stop order suspending or preventing the use of the Registration
Statement, any Preliminary Prospectus or the Prospectus shall have been
initiated or, to the Company's knowledge, threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction.
(b) The
Representatives shall have received the favorable opinion, dated as of the
Closing Date, of Dechert LLP, counsel for the Company, the Adviser and the
Administrator ("Dechert"), in form
and substance satisfactory to the Representatives, together with signed or
reproduced copies of such opinion for each of the Underwriters,
in the form set forth in Exhibit E hereto
and to such further effect as the Representatives may reasonably
request.
-28-
(c) The
Representatives shall have received from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the
Underwriters, together with signed or reproduced copies of such opinion, dated
as of the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, this Agreement, the Registration Statement,
any Rule 462(b) Registration Statement, the General Disclosure Package and the
Prospectus and any amendments or supplements thereto and such other matters as
the Representatives may reasonably require, and the Company, the Adviser and the
Administrator shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters. In giving such opinion such counsel may rely without
investigation, as to all matters governed by the laws of any jurisdictions other
than the law of the State of New York, the federal law of the United States and
the Delaware Limited Liability Company Act, upon the opinions of counsel
satisfactory to the Representatives.
(d) On
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 Registration Statement, the General
Disclosure Package and the Prospectus (in each case exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business.
(e) On
the Closing Date, the Representatives shall have received a certificate of the
Company's Chief Executive Officer and Chief Financial Officer, dated as of the
Closing Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company 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 Company 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 has been issued and no proceedings for that purpose have
been instituted or are pending or, to their knowledge, are contemplated by the
Commission.
(f) On
the Closing Date, the Representatives shall have received a certificate of the
Adviser's Chief Executive Officer and Chief Financial Officer or equivalent
officer(s), dated as of the Closing Date, to the effect that (i) the
representations and warranties of the Adviser in this Agreement are true and
correct with the same force and effect as though expressly made at and as of the
Closing Date and (ii) the Adviser has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date under or pursuant to this Agreement.
(g) On
the Closing Date, the Representatives shall have received a certificate of the
Administrator's Chief Executive Officer and Chief Financial Officer or
equivalent officer(s), dated as of the Closing Date, to the effect that
(i) the representations and warranties of the Administrator in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date and (ii) the Administrator has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Date under or pursuant to this
Agreement.
-29-
(h) At
the Execution Time, the Representatives shall have received from McGladrey &
▇▇▇▇▇▇, LLP a letter, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information of the Company contained
in the Registration Statement, the General Disclosure Package, the Prospectus
and any amendments or supplements thereto.
(i) On
the Closing Date, the Representatives shall have received from McGladrey &
▇▇▇▇▇▇, 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 (i) of this
Section 5, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Date.
(j) On
the Closing Date, and each Option Closing Date, if any, the Securities shall
have been approved for listing on The Nasdaq Global Market, subject only to
official notice of issuance.
(k) Prior
to the date of this Agreement, the Representatives shall have received an
agreement substantially in the form of Exhibit D hereto
signed by each of the persons mentioned in Section 1(a)(26).
(l) Prior
to the date of this Agreement, FINRA shall have confirmed in writing that it has
no objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(m) Prior
to the purchase of the Initial Securities on the Closing Date, the
Representatives shall have received each of the Transaction Agreements and the
Staffing Agreement executed by the parties thereto and such agreements shall be
in full force and effect.
(n) Concurrently
with the purchase of the Initial Securities on the Closing Date, the Company
shall complete the Concurrent Private Placement on the terms and in the manner
described in the Registration Statement, the General Disclosure Package and the
Prospectus.
(o) 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:
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(1) A
certificate, dated such Option Closing Date, to the effect set forth in, and
signed by the officers specified in Section 5(e) hereof except that the
references in such certificate to the Closing Date shall be changed to refer to
such Option Closing Date.
(2) A
certificate, dated such Option Closing Date, to the effect set forth in, and
signed by the officers specified 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.
(3) A
certificate, dated such Option Closing Date, to the effect set forth in, and
signed by the officers specified in Section 5(g) hereof except that the
references in such certificate to the Closing Date shall be changed to refer to
such Option Closing Date.
(4) The
favorable opinion of Dechert in form and substance satisfactory to the
Representatives and 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.
(5) The
favorable opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, in
form and substance satisfactory to the Representatives and 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.
(6) A
letter from McGladrey & ▇▇▇▇▇▇, 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(h) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than three
business days prior to such Option Closing Date.
(p) On
the Closing Date and each Option Closing Date, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably 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
Company 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.
(q) 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 Company at any time on or prior to Closing Date
or such Option Closing Date, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 hereof and except that, in the case of any termination of this
Agreement, Sections 1, 6, 7, 8 and 16 hereof shall survive such termination
and remain in full force and effect and except that, in the case of the
termination of the obligations of the several Underwriters to purchase any
Option Securities on an Option Closing Date which is after the Closing Date,
this Agreement shall otherwise survive such termination and remain in full force
and effect.
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SECTION
6. Indemnification.
(a) The
Company, the Adviser and the Administrator, jointly and severally, agree to
indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the Securities as originally filed or in any
amendment thereof (and including any post-effective amendment, any Rule 462(b)
Registration Statement and any Rule 430A Information deemed to be included or
incorporated therein), or in any Preliminary Prospectus, the Prospectus, the
Disclosure Package or in any sales material (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein 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 Company;
and
(iii) against any and all expense whatsoever,
as incurred (including the fees and disbursements of counsel chosen by the
Representatives), 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 Company by any Underwriter through the Representatives expressly for use in
the Registration Statement (or any amendment thereto), or the General
Disclosure Package, any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto), it
being understood and agreed upon that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: (i) their names, (ii) the figures appearing in the
first and second sentences
of the second paragraph of
text under the caption "Underwriting—Over-Allotment Option" and (iii) the
second paragraph under the caption "Underwriting—Sales Outside the United
States."
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(b) Each Underwriter severally agrees to
indemnify and hold harmless the Company, the Adviser and the
Administrator, each of their
directors, each of the Company's officers who signed the Registration Statement,
and each person, if any, who controls the Company, the Adviser or the
Administrator 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 the General
Disclosure Package, any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto), it
being understood and agreed upon that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: (i) their names, (ii) the figures appearing in the
first and second sentences
of the second paragraph of
text under the caption "Underwriting—Over-Allotment Option" and (iii) the
second paragraph under the caption "Underwriting—Sales Outside the United
States."
(c) 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 the
Representatives; and counsel to
the Company, the Adviser, the Administrator, each of their directors, each of
the Company's officers who signed the Registration Statement and each person, if
any, who controls the Company, the Adviser or the Administrator within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall be selected by the Company, the Adviser and the
Administrator. 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,
and the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for the Company, the Adviser, the
Administrator, each of their directors, each of the Company's officers who
signed the Registration Statement and each person, if any, who controls the
Company, the Adviser or the Administrator within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, in each case in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
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(d) 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) 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) The
provisions of this Section 6 and in Section 7 hereof shall not affect
any agreements among the Company, the Adviser and the Administrator with respect
to indemnification of each other or contribution between
themselves.
(f) In
addition to and without limitation to the obligations of the Company to
indemnify each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act pursuant to the other provisions of this Section 6, the Company
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
(A) arising out of the violation of any applicable laws, rules or
regulations of any foreign jurisdictions where Reserved Securities have been or
are offered or sold, (B) arising out of any untrue statement or alleged
untrue statement of a material fact contained in any prospectus "wrapper" or
other material prepared by or with the consent of the Company for delivery or
distribution to Reserved Securities Offerees or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(C) arising out of the failure of any Reserved Security Offeree to pay for
or accept delivery of the Reserved Securities which such Reserved Security
Offeree agreed (orally or in writing, including, without limitation, by email,
by notice of acceptance given by means of a website or by any other form of
electronic communication) to purchase, or (D) otherwise arising out of or
in connection with the offering or sale of the Reserved Securities;
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(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 matter referred to in (i) above; provided that (subject to
Section 6(e) above) any such settlement is effected with the written
consent of the Company; and
(iii) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by the Representatives), 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 of any claim whatsoever based upon
any matter referred to in (i) above, to the extent that any such expense is
not paid under (i) or (ii) above.
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 Company, the Adviser and the Administrator 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 Company, the Adviser
and the Administrator 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
Company, the Adviser and the Administrator (treated jointly for this
purpose as one person) 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 Company, the Adviser and the Administrator
(treated jointly for this purpose as one person) 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 Company, the
Adviser and the Administrator 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
Company, the Adviser, the Administrator or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Adviser, the
Administrator 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.
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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 shall have
the same rights to contribution as such Underwriter, and each director of the
Company, the Adviser or the Administrator, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company, the Adviser or the Administrator within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company, the Adviser and the Administrator. 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 Company, the Adviser, the Administrator or any of their
subsidiaries 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 Company, the
Adviser or the Administrator, and shall survive delivery of the Securities to
the Underwriters.
SECTION
9. Termination
of Agreement.
(a) The Representatives may terminate this
Agreement, by notice to the Company, the Adviser or the Administrator, 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 Company, 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 material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
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 material adverse change in the
condition, financial or otherwise, or in the business affairs or business
prospects of the Adviser or the Administrator, whether or not arising in the
ordinary course of business, or (iii) 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
(iv) if trading in any securities of the Company has been suspended or
limited by the Commission or The Nasdaq Global Market, or if trading generally
on the NYSE or The Nasdaq Global Market has been suspended or 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 order of the
Commission, FINRA 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 (v) if a banking moratorium has been
declared by either Federal or New York authorities or (vi) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (vi) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (v) or (vi) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities being delivered at such Closing Date or Option Closing Date on
the terms and in the manner contemplated in the General Disclosure Package and
the Prospectus.
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(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 except that, in the case of any termination of this
Agreement, Sections 1, 6, 7,
8 and 16 hereof shall survive such termination and remain in full force and
effect and except that, in the case of the termination of the obligations
of the several Underwriters to purchase any Option Securities on an Option
Closing Date which occurs after the Closing Date, this Agreement shall otherwise
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 on 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
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(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 Company
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 in a
termination of the obligation of the Underwriters to purchase and the Company 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, the General
Disclosure Package 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 ▇▇▇▇▇ Fargo Securities, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Equity Syndicate and UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention Syndicate Department; and
notices to the Company, the Adviser or the Administrator shall be directed to it
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION
12. Parties. This Agreement shall each
inure to the benefit of and be binding upon the Underwriters, the Company, the
Adviser, the Administrator 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 Company,
the Adviser, the Administrator and their respective successors and the
controlling persons and officers and directors 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
Company, the Adviser, the Administrator 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.
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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. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
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:
"1933 Act" means the
Securities Act of 1933, as amended.
"1933 Act 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 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" shall mean a notification of registration of the Company as
an investment company that has been elected to be treated as a BDC under the
1940 Act on Form N-54A, as the 1940 Act Notification may be amended from time to
time.
"1940 Act Rules and
Regulations" shall mean the rules and regulations of the Commission under
the 1940 Act.
"Administration
Agreement" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"Administrator" shall
have the meaning as defined in the introductory paragraphs of this
Agreement.
"Administrator
Documents" means any contracts, indentures, mortgages, deeds of trust,
loan or credit agreements, bonds, notes, debentures, evidences of indebtedness,
leases or other instruments or agreements to which the Administrator is a party
or by which the Administrator is bound or to which any of the property or assets
of the Administrator is subject.
"Adviser/Administrator
Governmental Licenses"
shall have the meaning as defined in Section 1(b)(12) of this
Agreement.
"Adviser/Administrator
Intellectual Property"
shall have the meaning as defined in Section 1(b)(9) of this
Agreement.
"Advisers Act" shall
mean the Investment Advisers Act of 1940, as amended.
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"Advisers Act Rules and
Regulations" means the rules and regulations of the Commission under the
Advisers Act.
"Adviser" shall have
the meaning as defined in the introductory paragraphs of this
Agreement.
"Adviser Documents"
means any contracts, indentures, mortgages, deeds of trust, loan or credit
agreements, bonds, notes, debentures, evidences of indebtedness, leases or other
instruments or agreements to which the Adviser is a party or by which the
Adviser is bound or to which any of the property or assets of the Adviser is
subject.
"Applicable Time"
means _____ (New York time) on _____, 2010.
"BDC" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
"BDC Conversion" shall
have the meaning as defined in the introductory paragraphs of this
Agreement.
"Capital Companies"
shall have the meaning as defined in the introductory paragraphs of this
Agreement.
"Capital Stock" means
any Common Stock, Preferred Stock or other capital stock of the
Company.
"Closing
Date" shall have the
meaning as defined in Section 2(c) of this Agreement.
"Code" means the
Internal Revenue Code of 1986, as amended.
"Commission" means the
Securities and Exchange Commission.
"Common
Stock" shall have
the meaning as defined in the introductory paragraphs of this
Agreement.
"Company" shall have the meaning as
defined in the introductory paragraphs of this Agreement. For all
periods prior to the consummation of the BDC Conversion, references to the
"Company" shall be deemed to include ▇▇▇▇▇ Capital BDC LLC and its
subsidiaries.
"Company BDC Election"
shall have the meaning as defined in Section 1(a)(54) of this
Agreement.
"Company Documents"
means any contracts, indentures, mortgages, deeds of trust, loan or credit
agreements, bonds, notes, debentures, evidences of indebtedness, leases or other
instruments or agreements to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject including, all Subject Instruments.
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"Company
Governmental Licenses"
shall have the meaning as defined in Section 1(a)(23) of this
Agreement.
"Concurrent Private
Placement" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"Concurrent Private Placement
Agreements" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"Concurrent Private Placement
Shares" shall have the meaning as defined in the introductory paragraphs
of this Agreement.
"Contribution
Transaction" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"Dechert" shall have
the meaning as defined in Section 5(b) of this Agreement.
"Defaulted
Securities" shall
have the meaning as defined in Section 10 of this Agreement.
"DTC" shall mean The
Depository Trust Company.
"▇▇▇▇▇" means the
Commission's Electronic Data Gathering, Analysis and Retrieval
system.
"Effective Date" shall
mean each date and time that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration Statement
became or become effective.
"Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto.
"Existing Credit
Agreements" means the Variable Funding Note Indenture, dated as of July
27, 2007, among GCMF, U.S. Bank National Association, as indenture trustee, and
the other parties thereto, as amended, supplemented or restated, if applicable,
including any promissory notes, pledge agreements, security agreements,
mortgages, guarantees and other instruments or agreements entered into by the
Company or any of its subsidiaries in connection therewith or pursuant thereto,
in each case as amended, supplemented or restated, if applicable.
"FCPA" shall have the
meaning as defined in Section 1(a)(36) of this Agreement.
"FINRA" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
"Formation
Transactions" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"GAAP" means generally
accepted accounting principles in the United States.
-41-
"GEMS" shall have the
meaning as defined in the introductory paragraphs of this
Agreement.
"GC Private Placement"
shall have the meaning as defined in the introductory paragraphs of this
Agreement.
"GCMF" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
"General Disclosure
Package" shall mean the Preliminary Prospectus that is generally
distributed to investors and used to offer the Securities, and the information
set forth in Exhibit
F.
"Initial
Securities" shall
have the meaning as defined in the introductory paragraphs of this
Agreement.
"Intellectual
Property" shall have
the meaning as defined in Section 1(a)(21) of this Agreement.
"Investment Advisory
Agreement" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"License Agreement"
shall have the meaning as defined in the introductory paragraphs of this
Agreement.
"Lien" means any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
"Lock-Up Period" shall
have the meaning as defined in Section 3(i) of this Agreement.
"Material
Adverse Effect"
shall have the meaning as defined in Section 1(a)(9) of this
Agreement.
"Money Laundering
Laws" shall have the meaning as defined in Section 1(a)(37) of this
Agreement.
"NYSE" means the New
York Stock Exchange.
"OFAC" shall have the
meaning as defined in Section 1(a)(38) of this Agreement.
"Option
Closing Date" shall
have the meaning as defined in Section 2(b) of this Agreement.
"Option
Securities" shall
have the meaning as defined in the introductory paragraphs of this
Agreement.
"Organizational
Documents" means (a) in the case of a corporation, its certificate
of incorporation and by-laws; (b) in the case of a limited liability
company, its certificate of formation or similar organizational documents and
its operating agreement, limited liability company agreement, membership
agreement or other similar agreement; and (c) in the case of any other
entity, the organizational and governing documents of such entity.
-42-
"Portfolio Company"
shall have the meaning as defined in Section 1(a)(43) of this
Agreement.
"Portfolio Company
Agreement" shall have the meaning as defined in Section 1(a)(43) of this
Agreement.
"Preferred Stock"
means the Company's preferred stock, par value $0.001 per share.
"Preliminary
Prospectus" shall mean any preliminary prospectus referred to in
paragraph 1(a)(1) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Private Placement
Units" shall have the meaning as defined in the introductory paragraphs
of this Agreement.
"Prospectus" shall
mean the prospectus and any amendment or supplement thereto relating to the
Securities that is first filed pursuant to Rule 497 after the Execution Time or,
if no filing pursuant to Rule 497 is required, shall mean the form of final
prospectus relating to the Securities included in the Registration Statement at
the Effective Date.
"Purchase Price" shall
have the meaning as defined in Section 2(a) of this Agreement.
"Registration
Statement" shall mean the registration statement referred to in paragraph
1(a)(1) above, including exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time, in the form in which
it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Repayment Event"
means any event or condition which gives the holder of any bond, note, debenture
or other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary of the
Company.
"Representatives" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
"Reserved Securities"
shall have the meaning as defined in the introductory paragraphs of this
Agreement.
"Reserved Security
Offerees" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
-43-
"RIC" means a
regulated investment company within the meaning of Section 851(a) of the
Code.
"Rule 430A
Information" shall mean information with respect to the Securities and
the offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A of the 1933 Act.
"Rule 462(b) Registration
Statement" shall mean a registration statement and any amendments thereto
filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a)(1) hereof.
"Rule 497" refers to
Rule 497(c) or 497(h) under the 1933 Act, as applicable.
"Rules and
Regulations" shall mean, collectively, the 1933 Act Regulations, the 1940
Act Rules and Regulations and the Advisers Act Rules and
Regulations.
"sales material" shall
have the meaning as defined in Section 1(a)(48) of this Agreement.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"
means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated
thereunder or implementing the provisions thereof.
"SBA" shall have the
meaning as defined in Section 1(a)(52) of this Agreement.
"SBIC" shall have the
meaning as defined in Section 1(a)(52) of this Agreement.
"Securities" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
"settlement
date" shall have the
meaning as defined in Section 1(a)(1) of this Agreement.
"Staffing Agreement"
shall have the meaning as defined in the introductory paragraphs of this
Agreement.
"Subject Instruments"
means the Existing Credit Agreements; provided that if any instrument, agreement
or other document filed as an exhibit to the Registration Statement as aforesaid
has been redacted or if any portion thereof has been deleted or is otherwise not
included as part of such exhibit (whether pursuant to a request for confidential
treatment or otherwise), the term "Subject Instruments" shall nonetheless mean
such instrument, agreement or other document, as the case may be, in its
entirety, including any portions thereof which shall have been so redacted,
deleted or otherwise not filed.
"Transaction
Agreements" shall have the meaning as defined in the introductory
paragraphs of this Agreement.
"UBS" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
-44-
"Underwriters" shall have the meaning as
defined in the introductory paragraphs of this Agreement.
"▇▇▇▇▇
Fargo" shall have
the meaning as defined in the introductory paragraphs of this
Agreement.
All
references in this Agreement to the Registration Statement, any Rule 462(b)
Registration Statement, any 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 ▇▇▇▇▇ and all references in this
Agreement to "supplements" to the General Disclosure Package, any Preliminary
Prospectus or the Prospectus shall include, without limitation, any supplements,
"wrappers" or similar materials prepared in connection with any offering, sale
or private placement of any Securities by the Underwriters outside of the United
States.
SECTION
16. Absence of Fiduciary
Relationship. The Company, the Adviser and the Administrator
each 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 Company, the Adviser and the Administrator 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 has advised or is
advising the Company, the Adviser or the Administrator on other matters, and
none of the Underwriters has any obligation to the Company, the Adviser or the
Administrator 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 Company, the Adviser and the Administrator 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 of the Underwriters is and has been acting
solely as principal and not as fiduciary, adviser or agent of the Company, the
Adviser, the Administrator or any of their respective affiliates, stockholders
(or other equity holders), creditors or employees or any other
party;
(e) none
of the Underwriters has provided any legal, accounting, regulatory or tax advice
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 Company, the Adviser and the Administrator and that none of the
Underwriters has any obligation to disclose such interests and transactions to
the Company, the Adviser or the Administrator by virtue of any fiduciary,
advisory or agency relationship or otherwise; and
-45-
(g) it
waives, to the fullest extent permitted by law, any claims it may have against
any of the Underwriters for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that none of the Underwriters shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to it in respect of
such a fiduciary duty claim or to any person asserting a fiduciary duty claim on
its behalf or in right of it or the Company, the Adviser, the Administrator or
any stockholders, employees or creditors of the Company, the Adviser or the
Administrator.
[Signature Page
Follows]
-46-
If the foregoing is in accordance with
your understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Company, the Adviser and the
Administrator in accordance with its terms.
|
Very
truly yours,
▇▇▇▇▇
CAPITAL BDC, INC.
By
_______________________
Name:
Title:
GC
ADVISORS LLC
By
_______________________
Name:
Title:
GC
SERVICE COMPANY, LLC
By
_______________________
Name:
Title:
|
|
-47-
CONFIRMED
AND ACCEPTED, as of the
date
first above written:
▇▇▇▇▇
FARGO SECURITIES, LLC
By
_______________________
Name:
Title:
UBS SECURITIES LLC
By
_______________________
Name:
Title:
By
_______________________
Name:
Title:
For themselves and as Representatives of
the Underwriters named in Exhibit A hereto.
-48-
EXHIBIT A
|
Name
of Underwriter
|
Number of
Initial
Securities
|
|
▇▇▇▇▇ Fargo
Securities, LLC
|
|
|
UBS Securities
LLC
BMO
Capital Markets
Corp.
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Company,
Incorporated
|
|
|
RBC Capital Markets
Corporation
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LLC
|
|
|
Total
|
A-1
EXHIBIT B
|
Number of
Initial
Securities to be
Sold
|
|
|
Company
|
B-1
EXHIBIT C
LIST OF
DIRECTORS AND OFFICERS
|
Name
|
Position
|
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Chairman
of the Board
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Chief
Executive Officer and Director
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Director
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇
|
Director
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Chief
Financial Officer and Treasurer
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Chief
Compliance Officer
|
C-1
EXHIBIT D
FORM OF
LOCK-UP AGREEMENT
▇▇▇▇▇ Capital BDC, Inc.
Public
Offering of Common Stock
Dated as of __________,
2010
▇▇▇▇▇ Fargo Securities,
LLC
UBS Securities LLC,
as representatives of the
underwriters
c/o Wells Fargo Securities,
LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
This agreement is being delivered to you
in connection with the proposed Underwriting Agreement (the "Underwriting
Agreement") between ▇▇▇▇▇
Capital BDC, Inc., a Delaware corporation (the "Company"), GC Advisors LLC, a Delaware limited
liability company (the
"Adviser"), and GC Service Company LLC, a
Delaware limited liability company (the "Administrator") and ▇▇▇▇▇ Fargo Securities, LLC ("▇▇▇▇▇
Fargo"), UBS Securities LLC ("UBS") and each of the other Underwriters
named in Exhibit A therein, relating to a proposed
underwritten public offering of Common Stock (the "Common
Stock") of the
Company.
In order to induce you and the other
Underwriters to enter into the Underwriting Agreement, and in light of
the benefits that the offering of the Common Stock will confer upon the
undersigned in its capacity as a securityholder and/or an officer, director or
employee of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each Underwriter that, during the period beginning on and including the
date of the Underwriting Agreement through and including the date that is the
180th day after the date of the Underwriting Agreement, the undersigned will
not, without the prior written consent of ▇▇▇▇▇ Fargo and UBS, directly or
indirectly:
(i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of any shares of the Company's
Common Stock or preferred stock or other capital stock (collectively, "Capital Stock") or
any securities convertible into or exercisable or exchangeable for Common Stock
or other Capital Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or
D-1
(ii) enter
into any swap or other agreement, arrangement or transaction that transfers to
another, in whole or in part, directly or indirectly, any of the economic
consequences of ownership of any Common Stock or other Capital Stock or any
securities convertible into or exercisable or exchangeable for any Common Stock
or other Capital Stock,
whether
any transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock, other Capital Stock, other securities, in cash or
otherwise. Moreover, if:
|
|
(1)
|
during the last 17 days of such
180-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs,
or
|
|
|
(2)
|
prior to the expiration of such
180-day restricted period, the Company announces that it will release
earnings results or becomes aware that material news or a material event
will occur during the 16-day period beginning on the last day of such
180-day restricted period,
|
the restrictions imposed by this
agreement shall continue to apply until the expiration of the 18-day period
beginning on the date of issuance of the earnings release or the occurrence of
the material news or material event, as the case may be, unless ▇▇▇▇▇
Fargo and UBS waive, in writing,
such extension.
The
undersigned hereby acknowledges and agrees that written notice of any extension
of the 180-day restricted period pursuant to the provisions of the previous
paragraph will be delivered by ▇▇▇▇▇ Fargo and UBS to the Company, the Adviser
or the Administrator and that any such notice properly delivered will be deemed
to have been given to, and received by, the undersigned. The
undersigned further agrees that, prior to engaging in any transaction or taking
any other action that is subject to the terms of this agreement during the
period from and including the date of this agreement through and including the
34th
day following the expiration of the 180-day restricted period, the undersigned
will give prior notice thereof to the Company and will not consummate any such
transaction or take any such action unless it has received written confirmation
from the Company that such restricted period (as the same may have been extended
pursuant to the previous paragraph) has expired.
Notwithstanding the provisions set forth
in the second preceding paragraph, the undersigned may, without the prior
written consent of ▇▇▇▇▇ Fargo and UBS, transfer any Common Stock or other Capital Stock or any securities
convertible into or exchangeable or exercisable for Common Stock or other
Capital Stock
(1) if the undersigned is a natural
person, as a bona fide gift or gifts, or by will or intestacy, or as may be
required by court order or by action of law, to any member of the immediate
family (as defined below) of the undersigned or to a trust the beneficiaries of
which are exclusively the undersigned or members of the undersigned's immediate
family, or as a bona fide gift or gifts to a charity or educational institution,
and
D-2
(2) if the undersigned is a
partnership or a limited liability company, to a partner or member, as the case
may be, of such partnership or limited liability company if, in any such case,
such transfer is not for value,
provided,
however, that in the case
of any transfer described in clause (1) or (2) above, it shall be a
condition to the transfer that (A) the transferee executes and delivers to
▇▇▇▇▇ Fargo and UBS, acting on behalf of the Underwriters, not later than one
business day prior to such transfer, a written agreement, in substantially the
form of this agreement (it being understood that any references to "immediate
family" in the agreement executed by such transferee shall expressly refer only
to the immediate family of the undersigned and not to the immediate family of
the transferee) and otherwise satisfactory in form and substance to ▇▇▇▇▇ Fargo
and UBS, and (B) such transfer is not reported or required to be reported
in any public report or filing with the Securities and Exchange Commission or
otherwise, and the undersigned does not otherwise voluntarily effect any public
filing or report regarding such transfer during such 180-day restricted period
(as the same may be extended as described above). For purposes of
this paragraph, "immediate family" shall mean a spouse, child, grandchild or
other lineal descendant (including by adoption), father, mother, brother or
sister of the undersigned.
The undersigned further agrees that
(i) it will not, during such 180-day restricted period (as the same
may be extended as described above), make any demand or request for or
exercise any right with respect to the registration under the 1933 Act,
of any Common Stock or other
Capital Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or other Capital Stock, and (ii) the Company may, with
respect to any Common Stock or other Capital Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or other Capital Stock
owned or held (of record or beneficially) by the undersigned, cause the transfer
agent or other registrar to enter stop transfer instructions and implement stop
transfer procedures with respect to such securities during such 180-day
restricted period (as the same may be extended as described above).
In
addition, the undersigned hereby waives any and all notice requirements and
rights with respect to the registration of any securities pursuant to any
agreement, instrument, understanding or otherwise, including any registration
rights agreement or similar agreement, to which the undersigned is a party or
under which the undersigned is entitled to any right or benefit and any
tag-along rights, co-sale rights or other rights to have any securities (debt or
equity) included in the offering contemplated by the Underwriting Agreement or
sold in connection with the sale of Common Stock pursuant to the Underwriting
Agreement, provided that such waiver shall apply only to the public offering of
Common Stock pursuant to the Underwriting Agreement and each registration
statement filed under the 1933 Act in connection therewith.
The undersigned hereby represents and
warrants that the undersigned has full power and authority to enter into this
agreement and that this agreement has been duly authorized (if the undersigned
is not a natural person), executed and delivered by the undersigned and is a
valid and binding agreement of the undersigned. This agreement and
all authority herein conferred are irrevocable and shall survive the death or
incapacity of the undersigned (if a natural person) and shall be binding upon
the heirs, personal representatives, successors and assigns of the
undersigned.
D-3
The
undersigned acknowledges and agrees that whether or not any public offering of
Common Stock actually occurs depends on a number of factors, including market
conditions.
[Signature
Page Immediately Follows]
D-4
IN
WITNESS WHEREOF, the undersigned has executed and delivered this agreement as of
the date first set forth above.
|
Yours very
truly,
__________________________________ Print
Name:
|
|
D-5
EXHIBIT E
FORM OF
OPINION OF DECHERT
E-1
EXHIBIT F
PRICE-RELATED
INFORMATION
Public
offering price: $___________ per share
Securities
offered: _____
F-1