Nuveen Equity Premium and Growth Fund
(a Massachusetts business trust)
[ ] Common Shares of Beneficial Interest
(Par Value $0.01 per Share)
PURCHASE AGREEMENT
November 22, 2005
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Nuveen Investments, LLC
Citigroup Global Markets Inc.
UBS Securities LLC
X.X. Xxxxxxx & Sons, Inc.
Wachovia Capital Markets, LLC
Advest, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
H&R Block Financial Advisors, Inc.
Banc of America Securities LLC
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
Xxxxxxx, Xxxxxx & Co.
Deutsche Bank Securities Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx LLC
KeyBanc Capital Markets, a division of McDonald Investments Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxxxxxxx & Co. Inc.
RBC Capital Markets Corporation
Xxxx Xxxx & Co., Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Wedbush Xxxxxx Securities Inc.
Xxxxx Fargo Securities, LLC
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nuveen Equity Premium and Growth Fund, a Massachusetts business trust (the
"Fund"), its investment adviser, Nuveen Asset Management, a Delaware corporation
(the "Investment Adviser" or "Nuveen") and the Fund's investment sub-adviser,
Gateway Investment Advisers, L.P., a Delaware limited partnership (the
"Sub-Adviser" or "Gateway") (each, an "Adviser" and together, the "Advisers"),
confirm their agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Nuveen Investments, LLC, Citigroup
Global Markets Inc., UBS Securities LLC, X.X. Xxxxxxx & Sons, Inc., Wachovia
Capital Markets, LLC, Advest, Inc., Xxxxxx X. Xxxxx & Co. Incorporated, H&R
Block Financial Advisors, Inc., Banc of America Securities LLC, BB&T Capital
Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc., Xxxxxxx, Xxxxxx & Co.,
Deutsche Bank Securities Inc., Xxxxxx, Xxxxx Xxxxx, Incorporated, J.J.B.
Xxxxxxxx, X.X. Xxxxx, Inc., Xxxxxx Xxxxxxxxxx Xxxxx LLC, KeyBanc Capital
Markets, a division of McDonald Investments Inc., Xxxx Xxxxx Xxxx Xxxxxx,
Incorporated, Xxxxxxxxxxx & Co. Inc., RBC Capital Markets Corporation, Xxxx Xxxx
& Co., Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated, Wedbush Xxxxxx Securities
Inc., Xxxxx Fargo Securities, LLC and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx, Nuveen Investments, LLC, Citigroup Global
Markets Inc., UBS Securities LLC, X.X. Xxxxxxx & Sons, Inc., Wachovia Capital
Markets, LLC, Advest, Inc., Xxxxxx X. Xxxxx & Co. Incorporated, H&R Block
Financial Advisors, Inc., Banc of America Securities LLC, BB&T Capital Markets,
a division of Xxxxx & Xxxxxxxxxxxx, Inc., Xxxxxxx, Xxxxxx & Co., Deutsche Bank
Securities Inc., Xxxxxx, Xxxxx Xxxxx, Incorporated, J.J.B. Xxxxxxxx, X.X. Xxxxx,
Inc., Xxxxxx Xxxxxxxxxx Xxxxx LLC, KeyBanc Capital Markets, a division of
McDonald Investments Inc., Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, Xxxxxxxxxxx &
Co. Inc., RBC Capital Markets Corporation, Xxxx Xxxx & Co., Inc., Xxxxxx,
Xxxxxxxx & Company, Incorporated, Wedbush Xxxxxx Securities Inc. and Xxxxx Fargo
Securities, LLC are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Fund and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of common shares of beneficial interest, par value $0.01 per
share, of the Fund ("Common Shares") set forth in said Schedule A, and with
respect to the grant by the Fund to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of [ ] additional Common Shares for the sole purpose of covering
overallotments, if any. The aforesaid [ ] Common Shares (the "Initial
Securities") to be purchased by the Underwriters and all or any part of the [ ]
Common Shares subject to the option described in Section 2(b) hereof (the
"Option Securities") are hereinafter called, collectively, the "Securities."
The Fund understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-128545 and No.
811-21809) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses, and a notification on Form N-8A of registration of
the Fund as an investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the Commission under
the 1933 Act and the 1940 Act (the "Rules and Regulations"). Promptly after
execution and delivery of this Agreement, the Fund will either (i) prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the Rules and Regulations and paragraph (c) or (h) of Rule 497 ("Rule 497")
of the Rules and Regulations or (ii) if the Fund has elected to rely upon Rule
434 ("Rule 434") of the Rules and Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 497. The
information included in any such prospectus or in any such Term Sheet, as the
case may be, that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective, if applicable, (a) pursuant to paragraph (b) of
Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph
(d) of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, including in each case any statement of additional
information incorporated therein by reference, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration
2
statement filed pursuant to Rule 462(b) of the Rules and Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first filed under paragraph (c) or
(h) of Rule 497 and furnished to the Underwriters for use in connection with the
offering of the Securities, including the statement of additional information
incorporated therein by reference, is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated October 25, 2005 together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Advisers. The Fund
and the Advisers jointly and severally represent and warrant to each Underwriter
as of the date hereof, as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agree with each Underwriter, as follows, except that the
representations and warranties set forth in paragraphs (xiii), (xv) and (xxii)
below are made by the Sub-Adviser based on its reasonable belief after due
inquiry:
(i) Compliance with Registration Requirements. Each of the
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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 has been issued under the 1933 Act, or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act, and no
proceedings for any such purpose have been instituted or are pending or, to
the knowledge of the Fund or an Adviser, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement, the notification on Form N-8A and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act, the 1940 Act and the Rules
and Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Neither
the Prospectus nor any amendments or supplements thereto, on the respective
date of the Prospectus or any such amendment or supplement and at the
Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If Rule 434 is used, the Fund will comply with
the requirements of Rule 434 and the Prospectus shall not be "materially
different," as such term is used in Rule 434, from the prospectus included
in the Registration Statement at the time it became effective.
3
Each preliminary prospectus and the prospectus filed as part of the
effective Registration Statement or as part of any amendment thereto, or
filed pursuant to Rule 497 under the 1933 Act, complied when so filed in
all material respects with the Rules and Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Securities, the Fund has complied or will
comply with the requirements of Rule 111 under the 1933 Act Regulations
relating to the payment of filing fees thereof.
(ii) Independent Registered Public Accounting Firm. The independent
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registered public accounting firm that certified the statement of assets
and liabilities included in the Registration Statement is an independent
registered public accounting firm as required by the 1933 Act and the Rules
and Regulations.
(iii) Financial Statements. The statement of assets and liabilities
--------------------
included in the Registration Statement and the Prospectus, together with
the related notes, presents fairly the financial position of the Fund at
the date indicated; said statement has been prepared in conformity with
generally accepted accounting principles ("GAAP").
(iv) Expense Summary. The information set forth in the Prospectus in
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the Fee Table has been prepared in accordance with the requirements of Form
N-2 and to the extent estimated or projected, such estimates or projections
are reasonably believed to be attainable and reasonably based.
(v) No Material Adverse Change. Since the respective dates as of which
--------------------------
information is given in the Registration Statement and the Prospectus,
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 Fund, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Fund, other than those in the
ordinary course of business, which are material with respect to the Fund,
and (C) there has been no dividend or distribution of any kind declared,
paid or made by the Fund on any class of its capital shares.
(vi) Good Standing of the Fund. The Fund has been duly organized and
-------------------------
is validly existing as a business trust in good standing under the laws of
the state of Massachusetts and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Fund is duly qualified to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify does not have a
Material Adverse Effect on the Fund.
(vii) No Subsidiaries. The Fund has no subsidiaries.
---------------
(viii) Investment Company Status. The Fund is duly registered with the
-------------------------
Commission under the 1940 Act as a closed-end, diversified management
investment company, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or
threatened by the Commission.
(ix) Officers and Trustees. No person is serving or acting as an
---------------------
officer, trustee or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the Rules and Regulations and the
Investment Advisers Act of 1940, as amended (the "Advisers
4
Act"), and the rules and regulations of the Commission promulgated under
the Advisers Act (the "Advisers Act Rules and Regulations"). Except as
disclosed in the Registration Statement and the Prospectus (or any
amendment or supplement to either of them), no trustee of the Fund is (A)
an "interested person" (as defined in the 0000 Xxx) of the Fund or (B) an
"affiliated person" (as defined in the 0000 Xxx) of any Underwriter.
(x) Capitalization. The authorized, issued and outstanding shares of
--------------
beneficial interest of the Fund is as set forth in the Prospectus. All
issued and outstanding common shares of beneficial interest of the Fund
have been duly authorized and validly issued and are fully paid and
non-assessable (except as described in the Registration Statement) and have
been offered and sold or exchanged by the Fund in compliance with all
applicable laws (including, without limitation, federal and state
securities laws); none of the outstanding common shares of beneficial
interest of the Fund was issued in violation of the preemptive or other
similar rights of any securityholder of the Fund.
(xi) Authorization and Description of Securities. The Securities to be
-------------------------------------------
purchased by the Underwriters from the Fund have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Fund pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued and fully
paid and non-assessable (except as described in the Registration
Statement). The Common Shares conform to all statements relating thereto
contained in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same, to the extent such rights are
set forth; no holder of the Securities will be subject to personal
liability by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights of any
securityholder of the Fund.
(xii) Absence of Defaults and Conflicts. The Fund is not in violation
---------------------------------
of its agreement and declaration of trust or by-laws, each as amended from
time to time, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by which it may
be bound, or to which any of the property or assets of the Fund is subject
(collectively, "Agreements and Instruments") except for such violations or
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Investment
Advisory Agreement dated as of November [ ], 2005 between the Fund and the
Investment Adviser (the "Investment Advisory Agreement"), the Custodian
Contract dated as of August 19, 2002, effective as of November [ ], 2005,
between the Fund and State Street Bank and Trust Company (the "Custodian
Agreement") and the Shareholder Transfer Agency and Service Agreement dated
as of October 7, 2002, effective as of November [ ], 2005, between the
Fund and State Street Bank and Trust Company (the "Transfer Agency
Agreement") and the consummation of the transactions contemplated herein
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Fund with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Fund pursuant to,
the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the agreement and declaration of trust or by-laws of the
Fund, each as amended from time to time, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction
5
over the Fund or any of its assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Fund.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Fund, threatened, against or affecting the Fund, which is required to
be disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect (including the consummation of the transactions contemplated
in this Agreement or the performance by the Fund of its obligations
hereunder). The aggregate of all pending legal or governmental proceedings
to which the Fund is a party or of which any of its property or assets is
the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by the 1933 Act, the 1940 Act
or by the Rules and Regulations which have not been so described and filed
as required.
(xv) Possession of Intellectual Property. The Fund owns or possesses,
-----------------------------------
or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names
or other intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by the Fund, and the Fund
has not received any notice or is not otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of
the Fund therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Fund of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated
by this Agreement, except such as have been already obtained or as may be
required under the 1933 Act, the 1940 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act"), the rules of the New York Stock Exchange
(the "NYSE"), state securities laws, or the filing requirements of the
NASD, Inc., Division of Corporate Finance.
(xvii) Possession of Licenses and Permits. The Fund possesses such
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permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to operate
its properties and to conduct the business as contemplated in the
Prospectus; the Fund is in compliance with the terms and conditions of all
such Governmental Licenses; all of the Governmental Licenses are valid and
in full force and effect; and the Fund has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
6
(xviii) Advertisements. Any advertising, sales literature or other
--------------
promotional material (including "prospectus wrappers," "broker kits," "road
show slides" and "road show scripts") authorized in writing by or prepared
by the Fund or an Adviser and used in connection with the public offering
of the Securities (collectively, "sales material") does not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. All sales material complied and will comply in all material
respects with the applicable requirements of the 1933 Act, the 1940 Act and
the Rules and Regulations and the rules and interpretations of the NASD,
Inc. (the "NASD").
(xix) Subchapter M. The Fund intends to direct the investment of the
------------
proceeds of the offering described in the Registration Statement in such a
manner as to comply with the requirements of Subchapter M of the Internal
Revenue Code of 1986, as amended ("Subchapter M of the Code" and the
"Code," respectively), and intends to qualify as a regulated investment
company under Subchapter M of the Code.
(xx) Distribution of Offering Materials. The Fund has not distributed
----------------------------------
and, prior to the later to occur of (A) the Closing Time and (B) completion
of the distribution of the Common Shares, will not distribute any offering
material in connection with the offering and sale of the Common Shares
other than the Registration Statement, a preliminary prospectus, the
Prospectus or the sales materials.
(xxi) Accounting Controls. The Fund maintains a system of internal
-------------------
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization and with the applicable requirements of the 1940
Act, the Rules and Regulations and the Code; (B) transactions are recorded
as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets and to maintain compliance with the books and
records requirements under the 1940 Act and the Rules and Regulations; (C)
access to assets is permitted only in accordance with the management's
general or specific authorization; and (D) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxii) Absence of Undisclosed Payments. Neither the Fund nor any
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employee or agent of the Fund has made any payment of funds of the Fund or
received or retained any funds, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
(xxiii) Material Agreements. This Agreement, the Investment Advisory
-------------------
Agreement, the Sub-Advisory Agreement dated as of November [ ], 2005
between the Investment Adviser and the Sub-Adviser (the "Sub-Advisory
Agreement", and together with the Investment Management Agreement, the
"Advisory Agreement"), the Custodian Agreement and the Transfer Agency
Agreement have each been duly authorized by all requisite action on the
part of the Fund, executed and delivered by the Fund, as of the dates noted
therein and each complies with all applicable provisions of the 1940 Act.
Assuming due authorization, execution and delivery by the other parties
thereto, each such Agreement constitutes a valid and binding agreement of
the Fund, enforceable in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws, whether statutory or decisional, relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing and except as rights to
indemnification or contribution thereunder may be limited by federal or
state laws.
7
(xxiv) Registration Rights. There are no persons with registration
-------------------
rights or other similar rights to have any securities of the Fund
registered pursuant to the Registration Statement or otherwise registered
by the Fund under the 1933 Act.
(xxv) NYSE Listing. The Securities have been duly authorized for
------------
listing, upon notice of issuance, on the NYSE and the Fund's registration
statement on Form 8-A under the 1934 Act has become effective.
(b) Representations and Warranties by the Advisers. Each of the Investment
Adviser and the Sub-Adviser, severally as to itself only and not jointly as to
any other party, represents and warrants to each Underwriter, and in the case of
paragraph (iii) also represents to the Fund, as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof as follows:
(i) Good Standing of the Advisers. Such Adviser has been duly
-----------------------------
organized and is validly existing and in good standing as a corporation
under the laws of the state of Delaware, in case of the Investment Adviser,
and as a limited liability company under the laws of the state of Delaware,
in case of the Sub-Adviser, with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and each is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect.
(ii) Investment Adviser Status. Such Adviser is duly registered and in
-------------------------
good standing with the Commission as an investment adviser under the
Advisers Act, and is not prohibited by the Advisers Act or the 1940 Act, or
the rules and regulations under such acts, from acting under each Advisory
Agreement to which it is a party, as contemplated by the Prospectus.
(iii) Description of the Advisers. The description of such Adviser in
----------------------------
the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) complied and comply with the provisions of
the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations and is true and correct and does 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.
(iv) Capitalization. Such Adviser has the financial resources
--------------
available to it necessary for the performance of its services and
obligations as contemplated in the Prospectus, this Agreement and under
each Advisory Agreement to which it is a party, and with respect to the
Investment Adviser, the Additional Compensation Agreement between the
Investment Adviser and Xxxxxxx Xxxxx dated November 28, 2005 (the
"Additional Compensation Agreement").
(v) Authorization of Agreements; Absence of Defaults and Conflicts.
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This Agreement, each Advisory Agreement to which such Adviser is a party
and, in the case of the Investment Adviser, the Additional Compensation
Agreement have each been duly authorized, executed and delivered by such
Adviser, and, assuming due authorization, execution and delivery by the
other parties thereto, such Agreements to which such Adviser is a party
constitute valid and binding obligations of the Adviser, enforceable in
accordance with their respective terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws, whether statutory or decisional, relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law); and neither the execution
and delivery of any of this Agreement, any Advisory Agreement, to which
such Adviser is party and, in the case of the Investment Adviser, the
Additional Compensation Agreement, nor the performance by such Adviser of
its obligations hereunder or
8
thereunder will conflict with, or result in a breach of any of the terms
and provisions of, or constitute, with or without the giving of notice or
lapse of time or both, a default under, any agreement or instrument to
which such Adviser is a party or by which it is bound, the organizational
documents of the Adviser, or by any law, order, decree, rule or regulation
applicable to it of any jurisdiction, court, federal or state regulatory
body, administrative agency or other governmental body, stock exchange or
securities association having jurisdiction over the Adviser or its
properties or operations; and no consent, approval, authorization or order
of any court or governmental authority or agency is required for the
consummation by the Adviser of the transactions contemplated by this
Agreement, any Advisory Agreement to which such Adviser is a party, or, in
the case of the Investment Adviser, the Additional Compensation Agreement,
except as have been obtained or may be required under the 1933 Act, the
1940 Act, the 1934 Act, NYSE or state securities laws.
(vi) No Material Adverse Change. Since the respective dates as of
--------------------------
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has not occurred any
event which would reasonably be expected to have a material adverse effect
on the ability of such Adviser to perform its obligations under any of this
Agreement, each Advisory Agreement to which it is party and, in the case of
the Investment Adviser, the Additional Compensation Agreement.
(vii) 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 threatened against or
affecting such Adviser or any parent or subsidiary of the Adviser or any
partners, directors, officers or employees of the foregoing, whether or not
arising in the ordinary course of business, which might reasonably be
expected to result in any material adverse change in the condition,
financial or otherwise, or earnings, business affairs or business prospects
of the Adviser, to materially and adversely affect the properties or assets
of the Adviser or to materially impair or adversely affect the ability of
the Adviser to function as an investment adviser or perform its obligations
under each Advisory Agreement to which it is a party and, in the case of
the Investment Adviser, the Additional Compensation Agreement, or which is
required to be disclosed in the Registration Statement and the Prospectus.
(viii) Absence of Violation or Default. Such Adviser is not in
-------------------------------
violation of its organizational documents or in default under any
agreement, indenture or instrument, where such violation or default would
reasonably be expected to have a material adverse effect on the ability of
such Adviser to perform its obligations under each Advisory Agreement to
which it is a party or, in the case of the Investment Adviser, the
Additional Compensation Agreement.
(c) Officer's Certificates. Any certificate signed by any officer of the
Fund or either Adviser delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Fund or such
Adviser, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Fund agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at the
price per share set forth in Schedule B, the number of Initial Securities set
forth in Schedule 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.
9
(b) Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Fund hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional [ ] Common Shares in the aggregate at
the price per share set forth in Schedule B, less an amount per share equal to
any dividends or distributions declared by the Fund and payable on the Initial
Securities but not payable on the Option Securities. The option hereby granted
will expire 45 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering overallotments which may
be made in connection with the offering and distribution of the Initial
Securities upon written notice by the Representatives to the Fund 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 (a "Date of Delivery")
shall be determined by the Representatives, but shall not be earlier than the
second day after the date on which the option is being exercised nor later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the Option Securities, 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 Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as
Xxxxxxx Xxxxx in its discretion shall make to eliminate any sales or purchases
of a fractional number of Option Securities plus any additional number of Option
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(c) Payment. Payment of the purchase price for, and delivery of
certificates, if any, for, the Initial Securities shall be made at the offices
of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Representatives and the Fund, at
10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Fund (such time and date of payment and delivery being
herein called "Closing Time").
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, if any, for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Fund, on each Date of Delivery as specified in the
notice from the Representatives to the Fund.
Payment shall be made to the Fund by wire transfer of immediately available
funds to a bank account designated by the Fund, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates,
if any, for 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. Xxxxxxx Xxxxx, 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
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates, if any, 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
10
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants.
The Fund, the Investment Adviser and, with respect to Section 3(h) only,
the Sub-Adviser, jointly and severally, covenant with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The
--------------------------------------------------------------
Fund, subject to Section 3(b), will comply with the requirements of Rule 430A or
Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Fund will promptly effect the filings
necessary pursuant to Rule 497 and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 497 was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Fund will make every reasonable
effort to prevent the issuance of any stop order, or order of suspension or
revocation of registration pursuant to Section 8(e) of the 1940 Act, and, if any
such stop order or order of suspension or revocation of registration is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Fund will give the Representatives notice of
--------------------
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Fund has furnished or will
-----------------------------------
deliver to the Representatives and counsel to the Underwriters, without charge,
a signed copy of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and a signed copy of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Fund has delivered to each Underwriter,
------------------------
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Fund hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Fund will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
11
(e) Continued Compliance with Securities Laws. If at any time when the
-----------------------------------------
Prospectus (as amended or supplemented) is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Fund, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the Rules
and Regulations, the Fund will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Fund will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Fund will use its best efforts, in
-----------------------
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Fund shall not be obligated
to file any general consent to service of process or to qualify as a foreign
entity 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, the Fund will file such statements
and reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Fund will make generally available to its securityholders
--------
as soon as practicable an earnings statement, if applicable, for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Fund will use the net proceeds received by it from
---------------
the sale of the Securities substantially in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Fund will use its reasonable best efforts to cause the
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Securities to be duly authorized for listing by the NYSE, prior to the date the
Securities are issued.
(j) Restriction on Sale of Securities. During a period of 180 days from the
---------------------------------
date of the Prospectus, the Fund will not, without the prior written consent of
Xxxxxxx Xxxxx, (A) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option, rights or warrant to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares or file any registration statement
under the 1933 Act with respect to any of the foregoing or (B) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Shares, whether any such swap or transaction described in clause (A) or
(B) above is to be settled by delivery of Common Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (1)
the Securities to be sold hereunder or (2) Common Shares issued or, for
avoidance of doubt, purchased in the open market pursuant to any dividend
reinvestment plan.
(k) Reporting Requirements. The Fund, during the period when the Prospectus
----------------------
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the
12
Commission pursuant to the 1940 Act and the 1934 Act within the time periods
required by the 1940 Act and the Rules and Regulations and the 1934 Act and the
rules and regulations of the Commission thereunder, respectively.
(l) Subchapter M. The Fund will use its best efforts to comply with the
------------
requirements of Subchapter M of the Code to qualify as a regulated investment
company under the Code.
(m) No Manipulation of Market for Securities. The Fund will not (a) take,
----------------------------------------
directly or indirectly, any action designed to cause or to result in, or that
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Fund to facilitate the sale or resale of the
Securities in violation of federal or state securities laws, and (b) except for
share repurchases permitted in accordance with applicable laws and purchases of
Securities in the open market pursuant to the Fund's dividend reinvestment plan,
until the Closing Date, or the Date of Delivery, if any, (i) sell, bid for or
purchase the Securities or pay any person any compensation for soliciting
purchases of the Securities or (ii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Fund.
(n) Rule 462(b) Registration Statement. If the Fund elects to rely upon
----------------------------------
Rule 462(b), the Fund shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement, and the Fund shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration Statement
or give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the 1933 Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates, if
any, for the Securities to the Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the Underwriters, (iv) the fees and disbursements
of the Fund's counsel, the independent registered public accounting firm and
other advisers, (v) the qualification of the Securities, if required, under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of a Blue Sky Survey and any supplement thereto, (vi) the printing and delivery
to the Underwriters of copies of each preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the NASD of the terms of the sale of the Securities, (x) the fees and expenses
incurred in connection with the listing of the Securities on the NYSE and (xi)
the printing of any sales material. Also, the Fund shall pay the Underwriters
$0.00667 per Common Share purchased by the Underwriters pursuant to this
Agreement as partial reimbursement of expenses incurred in connection with the
offering; provided, however, that such partial reimbursement payable by the Fund
shall not exceed 0.03335% of the aggregate price to the public (as set forth in
the Prospectus) of the Initial Securities and any Option Securities that may be
sold to the Underwriters pursuant to Section 2(b) of this Agreement (as used
herein, the "Aggregate Offering Price"). The Advisers have agreed to pay (i) all
of the Fund's organizational costs, and (ii) offering expenses of the Fund
(other than sales load, but including the partial reimbursement of expenses
described above) in excess of $0.04 per Common Share, such amount to be
allocated between Nuveen and Gateway as agreed to by such parties.
13
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9
hereof, the Fund and each of the Advisers, jointly and severally, agree that
they shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Fund and the Advisers
contained in Section 1 hereof or in certificates of any officer of the Fund or
any Adviser delivered pursuant to the provisions hereof, to the performance by
the Fund and the Advisers of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective or will
have become effective by 5:30 p.m., New York City time on the date hereof, and
at Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act, no notice or order pursuant
to Section 8(e) of the 1940 Act shall have been issued, and no proceedings with
respect to either shall have been initiated or, to the knowledge of counsel to
the Underwriters and counsel to the Fund, threatened by the Commission, and any
request on the part of the Commission for additional information shall have been
complied with or waived to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 497 (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A or a certificate must
have been filed in accordance with Rule 497(j)) or, if the Fund has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 497.
(b) Opinions of Counsel for Fund and the Advisers. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of Xxxx, Xxxx & Xxxxx LLC, counsel for the Fund, of Xxxxxxx X. Xxxxxxxxx,
Managing Director, Assistant Secretary and Associate General Counsel for Nuveen,
and of Xxxxxxx Xxxx & Xxxxx LLP, counsel for Gateway, substantially in the form
set forth in Exhibit A, together with signed or reproduced copies of such
letters for each of the other Underwriters or in such other forms and substance
reasonably satisfactory to counsel to the Underwriters.
In rendering its opinion, Xxxx, Xxxx and Xxxxx LLC may limit such opinion
to matters involving the application of laws of The Commonwealth of
Massachusetts, the State of Illinois and the United States. To the extent Xxxx,
Xxxx and Xxxxx LLC deems proper and to the extent specified in such opinion,
such counsel may rely, as to matters involving the application of laws of The
Commonwealth of Massachusetts, upon the opinion of Xxxxxxx XxXxxxxxx LLP or
other counsel of good standing whom they believe to be reliable and who are
satisfactory to the Representatives; provided that (x) such reliance is
expressly authorized by the opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance,
satisfactory to them and their counsel and (y) Xxxx, Xxxx and Xxxxx LLC states
in their opinion that they believe that they and the Underwriters are justified
in relying thereon.
In rendering his opinion, Xxxxxxx X. Xxxxxxxxx may limit opinion to matters
involving the application of the laws of the State of Illinois, the Delaware
General Corporation Law and the laws of the United States and may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
the Investment Adviser as to laws of any jurisdiction other than the United
States, the State of Illinois and the Delaware General Corporation Law, provided
that (x) each such local counsel is acceptable to the Representatives, (y) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to the Representatives and is, in form and
substance,
14
satisfactorily to them and their counsel and (z) counsel shall state
in his view that he believes that he and the Underwriters are justified in
relying thereon.
In rendering its opinion, Xxxxxxx Xxxx & Xxxxx LLP may limit opinion to
matters involving the application of the laws of the States of Delaware and New
York, and the United States, and may rely upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by the Sub-Adviser as to laws
of any jurisdiction other than the United States, provided that (x) each such
local counsel is acceptable to the Representatives, (y) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance,
satisfactorily to them and their counsel and (z) Xxxxxxx Xxxx & Xxxxx LLP shall
state in their view that they believe that they and the Underwriters are
justified in relying thereon.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxxx Chance US LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters to
the effect set forth in clauses (A) (i), (ii), (vi), (vii) (solely as to
preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Fund), (viii) through (x), inclusive, (xii), (xiv)
(solely as to the information in the Prospectus under "Description of Shares")
and the last paragraph of Exhibit A hereto. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Fund and
certificates of public officials.
(d) Officers' Certificates. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Fund, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of a duly authorized officer
of the Fund and of the chief financial or chief accounting officer of the Fund
and of the President or a Vice President or Managing Director of each of the
Advisers, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in
Sections 1(a) and (b) hereof, as applicable, are true and correct with the same
force and effect as though expressly made at and as of Closing Time, (iii) each
of the Fund and the Advisers, respectively, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied pursuant to
this Agreement at or prior to Closing Time, (iv) with respect to the certificate
by an officer or Managing Director of each Adviser only, there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of such Adviser, whether or not
arising in the ordinary course of business, and (v) with respect to the Fund
only, no stop order suspending the effectiveness of the Registration Statement,
or order of suspension or revocation of registration pursuant to Section 8(e) of
the 1940 Act, has been issued and no proceedings for any such purpose have been
instituted or are pending or are contemplated by the Commission.
(e) Independent Registered Public Accounting Firm's Comfort Letter. At the
time of the execution of this Agreement, the Representatives shall have received
from PricewaterhouseCoopers LLP a letter dated such date, 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 customarily included in independent registered public
accounting firm's "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from PricewaterhouseCoopers LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the
15
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the NYSE, subject only to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(i) Execution of Additional Compensation Agreement. At Closing Time,
Xxxxxxx Xxxxx shall have received the Additional Compensation Agreement, dated
as of the Closing Date, as executed by the Investment Adviser.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Fund contained herein and the statements in any certificates furnished by
the Fund hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(i) Officers' Certificates. Certificates, dated such Date of Delivery,
----------------------
of a duly authorized officer of the Fund and of the chief financial or
chief accounting officer of the Fund and of the President or a Vice
President or Managing Director of each of the Advisers confirming that the
information contained in the certificate delivered by each of them at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinions of Counsel for the Fund and the Advisers. The favorable
-------------------------------------------------
opinions of counsel for the Fund and the Advisers, substantially in the
form set forth in Exhibit A hereto, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable opinion
---------------------------------------
of Xxxxxxxx Chance US LLP, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from PricewaterhouseCoopers
-------------------------
LLP, in form and substance satisfactory to the Representatives and dated
such Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(f) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
(k) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Fund and the Advisers in connection with the organization and
registration of the Fund under the 1940 Act and the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this Section
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 a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the
16
Representatives by notice to the Fund at any time at or prior to Closing Time or
such Date of Delivery, 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 and
except that Sections 1, 6, 7, 8 and 12 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Advisers, 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
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Fund; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or the
Advisers by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided,
further, that the foregoing indemnity with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus (or any amendment or
supplement to any of the foregoing) shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, claim, damage or liability
purchased Securities, if it is shown that a copy of the Prospectus, as then
amended or supplemented, which would have cured any defect giving arise to such
loss, claim, damage or liability was not sent or delivered to such person by or
on behalf of such Underwriter, if required by law to be so delivered to, at or
prior to the confirmation of the sale of such Securities to such person and such
Prospectus, amendments and supplements have been provided by the Fund to the
Underwriters in the requisite quantity and on a timely basis to permit proper
delivery.
17
(b) Indemnification of the Fund, Advisers, Trustees, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Fund and the Advisers, their respective trustees, directors and shareholders,
each of the Fund's officers who signed the Registration Statement, and each
person, if any, who controls the Fund or the Advisers within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, 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), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the Fund
or the Advisers by such Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Indemnification for Marketing Materials. In addition to the foregoing
indemnification, the Fund and the Advisers also, 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, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 6(a), as limited by
the proviso set forth therein, with respect to any sales material.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Fund and the Advisers. 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 fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties 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.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) (through, if applicable, the provisions of Section 6(b))
effected without its written consent if (i) such settlement is entered into more
than 60 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
18
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
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, in lieu of indemnifying such indemnified party, each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Fund or the Advisers on the one hand and the Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Fund and the Advisers
on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Advisers on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Fund and the total underwriting discount received by the Underwriters
(whether from the Fund or otherwise), in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Fund and the Advisers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Advisers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Advisers and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) 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 trustee and shareholder of the Fund and each director of the
19
Advisers,respectively, each officer of the Fund who signed the Registration
Statement, and each person, if any, who controls the Fund or each of the
Advisers, 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 Fund and the
Advisers, respectively. 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 Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and covenants contained in this Agreement
or in certificates of officers of the Fund or either of the Advisers submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Fund or the Advisers, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Fund, at any time at or prior to Closing Time (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, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Fund or either Adviser, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in the Common Shares of the Fund has been suspended or materially
limited by the Commission or the NYSE, or if trading generally on the American
Stock Exchange or the NYSE or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8 and 12 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time or a Date of
Delivery 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
20
(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
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Fund to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 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 a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Fund to sell the relevant Option Securities, as
the case may be, either the Representatives or the Fund shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives, c/o Merrill Xxxxx & Co., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Equity Capital Markets; and notices to the Fund or
Nuveen shall be directed to Nuveen Asset Management, 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Berkshire; and notices to Gateway
shall be directed to Gateway Investment Advisers, L.P. at Rookwood Tower, 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attention: Xxxxxxxx Xxxxxx.
SECTION 12. Parties.
This Agreement shall each inure to the benefit of and be binding upon the
Underwriters, the Fund, the Advisers and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Advisers and their respective successors and the
controlling persons and officers, trustees, shareholders 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 Fund, the Advisers and their respective partners and
successors, and said controlling persons and officers, trustees, shareholders
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. NO FIDUCIARY RELATIONSHIP.
The Fund acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public
offering price of the Securities and any related discounts and commissions, is
an arm's-length commercial transaction between the Fund, on the one hand, and
the several Underwriters, on the other hand, (ii) in connection with the
offering contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Fund or its stockholders, creditors, employees or any other
party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Fund with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Fund on other matters)
21
and no Underwriter has any obligation to the Fund with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (iv) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Fund, and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Fund has consulted its own legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 15. Disclaimer of Liability of Trustees and Beneficiaries.
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of State of The Commonwealth of Massachusetts, and notice
hereby is given that this Agreement is executed on behalf of the Fund by an
officer or trustee of the Fund in his or her capacity as an officer or trustee
of the Fund and not individually and that the obligations under or arising out
of this Agreement are not binding upon any of the trustees, officers or
shareholders individually but are binding only upon the assets and properties of
the Fund.
SECTION 16. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
[Signatures on Following Pages]
22
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 Fund and each of the Advisers in accordance with its terms.
Very truly yours,
NUVEEN EQUITY PREMIUM AND
GROWTH FUND
By:
-------------------------------------
Name:
Title:
NUVEEN ASSET MANAGEMENT
By:
-------------------------------------
Name:
Title:
GATEWAY INVESTMENT ADVISERS, LP.
By:
-------------------------------------
Name:
Title:
23
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
NUVEEN INVESTMENTS, LLC
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
X.X. XXXXXXX & SONS, INC.
WACHOVIA CAPITAL MARKETS, LLC
ADVEST, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
H&R BLOCK FINANCIAL ADVISORS, INC.
BANC OF AMERICA SECURITIES LLC
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC.
XXXXXXX, XXXXXX & CO.
DEUTSCHE BANK SECURITIES INC.
XXXXXX, XXXXX XXXXX, INCORPORATED
J.J.B. XXXXXXXX, X.X. XXXXX, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXXXXXXX & CO. INC.
RBC CAPITAL MARKETS CORPORATION
XXXX XXXX & CO., INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
WEDBUSH XXXXXX SECURITIES INC.
XXXXX FARGO SECURITIES, LLC
By: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
-------------------------------------
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
24
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..............................................
Nuveen Investments, LLC. ..................................
Citigroup Global Markets Inc. .............................
UBS Securities LLC. .......................................
X.X. Xxxxxxx & Sons, Inc. .................................
Wachovia Capital Markets, LLC. ............................
Advest, Inc. ..............................................
Xxxxxx X. Xxxxx & Co. Incorporated. .......................
H&R Block Financial Advisors, Inc. ........................
Banc of America Securities LLC. ...........................
BB&T Capital Markets, a division of Xxxxx &
Xxxxxxxxxxxx, Inc. .......................................
Xxxxxxx, Xxxxxx & Co. .....................................
Deutsche Bank Securities Inc. .............................
Xxxxxx, Xxxxx Xxxxx, Incorporated. ........................
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. .........................
Xxxxxx Xxxxxxxxxx Xxxxx LLC. ..............................
KeyBanc Capital Markets, a division of
McDonald Investments Inc. ................................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated. .....................
Xxxxxxxxxxx & Co. Inc. ....................................
RBC Capital Markets Corporation. ..........................
Xxxx Xxxx & Co., Inc. .....................................
Xxxxxx, Xxxxxxxx & Company, Incorporated. .................
Wedbush Xxxxxx Securities Inc. ............................
Xxxxx Fargo Securities, LLC. ..............................
Total..................................................
Sch A-1
SCHEDULE B
Nuveen Equity Premium and Growth Fund
Common Shares of Beneficial Interest
(Par Value $0.01 per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $20.00.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $19.10, being an amount equal to the initial
public offering price set forth above less $0.90 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Fund
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
