KAYNE ANDERSON MLP INVESTMENT COMPANY _____ Shares of Common Stock* (Par Value $0.001 Per Share) FORM OF UNDERWRITING AGREEMENT
Exhibit (h)(1)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY
_____ Shares of Common Stock*
(Par Value $0.001 Per Share)
(Par Value $0.001 Per Share)
FORM OF UNDERWRITING AGREEMENT
Citigroup Global Markets Inc.
UBS Securities LLC
UBS Securities LLC
As
Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company, a Maryland corporation (the “Company”)
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Advisors, L.P., a California limited partnership (the “Adviser”) address
you as underwriters and as the representatives (the “Representatives”) of each of the several
underwriters named on Schedule I hereto (herein collectively called “Underwriters”). The Company
proposes to sell to the Underwriters ___shares of Common Stock, par value $0.001 per share
(“Common Stock”) of the Company (said shares to be issued and sold by the Company being hereinafter
called the “Underwritten Securities”). The Company also proposes to grant to the Underwriters an
option to purchase up to ___additional shares of Common Stock to cover over-allotments (the
“Option Securities”; the Option Securities, together with the Underwritten Securities, being
hereinafter called the “Securities”). Unless otherwise stated, the term “you” as used herein means
each of ___and ___individually on its own behalf and on behalf of the other
Underwriters. Certain terms used herein are defined in Section 18 hereof.
The Company and the Adviser wish to confirm as follows their agreements with you and the other
several Underwriters on whose behalf you are acting in connection with the several purchases of the
Securities by the Underwriters.
| * | Plus an option to purchase from the Company up to ___additional Securities to cover over-allotments. |
The Company has entered into (i) an Investment Management Agreement with the Adviser, dated as
of September 27, 2004; (ii) a Custody Agreement with The Custodial Trust Company dated as of
September 27, 2004; (iii) a Transfer Agency Agreement with American Stock Transfer & Trust Company
dated as of September 27, 2004; (iv) an Administration Agreement with Bear ▇▇▇▇▇▇▇ Funds Management
Inc. dated as of September 27, 2004; and (v) a Fund Accounting Agreement with Ultimus Fund
Solutions, LLC dated as of September 27, 2004; and such agreements are herein referred to as the
“Advisory Agreement,” the “Custodian Agreement,” the “Transfer Agency Agreement,” “Administration
Agreement” and “Accounting Agreement,” respectively. Collectively, the Advisory Agreement, the
Custodian Agreement, the Transfer Agency Agreement, the Administration Agreement and the Accounting
Agreement are herein referred to as the “Company Agreements.” In addition, the Company has adopted
a dividend reinvestment plan (the “Dividend Reinvestment Plan”) pursuant to which the holders of
Common Stock shall have their dividends automatically reinvested in additional Common Stock of the
Company unless they elect to receive such dividends in cash.
1. Representations and Warranties of the Company and the Adviser. The Company and the
Adviser, jointly and severally, represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a registration statement
(file numbers 333-123595 and 811-21593) on Form N-2, including a related preliminary
prospectus (including the statement of additional information incorporated by reference
therein), for registration under the Acts of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a related preliminary
prospectus (including the statement of additional information incorporated by reference
therein), each of which has previously been furnished to you. The Company will next file
with the Commission one of the following: either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement (including the
form of final prospectus (including the statement of additional information incorporated by
reference therein)) or (2) after the Effective Date of such registration statement, a final
prospectus (including the statement of additional information incorporated by reference
therein) in accordance with Rules 430A and 497. In the case of clause (2), the Company has
included in such registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Acts and the Rules and Regulations to be
included in such registration statement and the Prospectus. As filed, such amendment and
form of final prospectus (including the statement of additional information incorporated by
reference therein), or such final prospectus (including the statement of additional
information incorporated by reference therein), shall contain all Rule 430A Information,
together with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional information
and other changes (beyond
that contained in the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. The Company has furnished
the Underwriters with copies of such Registration Statement, each amendment to such
Registration Statement filed with the Commission and each Preliminary Prospectus.
(b) Each Preliminary Prospectus included as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto, or filed pursuant to
Rule 497, complied when so filed in all material respects with the provisions of the Acts
and the Rules and Regulations.
(c) On the Effective Date, the Registration Statement did or will, and when the
Prospectus is first filed (if required) in accordance with Rule 497 and on the Closing Date
(as defined herein) and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a “settlement date”), the Prospectus (and any supplements thereto)
will, and the 1940 Act Notification when originally filed with the Commission and any
amendment or supplement thereto when filed with the Commission did or will, comply in all
material respects with the applicable requirements of the Acts and the Rules and
Regulations and the Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, on the Effective
Date, the Prospectus, if not filed pursuant to Rule 497, will not, and on the date of any
filing pursuant to Rule 497 and on the Closing Date and any settlement date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the Prospectus (or any
supplement thereto), in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus (or any
supplement thereto). The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus.
(d) The Company is a corporation duly organized and validly existing in good standing
under the laws of the State of Maryland with full corporate power and authority to own,
lease and operate its properties and assets and to conduct its business as described in the
Registration Statement and Prospectus, and is duly qualified to conduct business as a
foreign corporation and is in good standing under the laws of each jurisdiction which
requires such qualification. The Company has no subsidiaries.
(e) The Company’s authorized equity capitalization is as set forth in the Prospectus;
the capital stock of the Company conforms to the description thereof
contained in the Registration Statement and the Prospectus; all outstanding shares of
Common Stock have been duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities are duly listed, and admitted and authorized for
trading, subject to official notice of issuance, on the NYSE; the certificates for the
Securities are in valid and sufficient form; the holders of outstanding shares of Common
Stock of the Company are not entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(f) The Company’s registration statement on Form 8-A under the Exchange Act has become
effective.
(g) The Company, subject to the Registration Statement having been declared effective
and the filing of the Prospectus under Rule 497, has taken all required action under the
Acts and the Rules and Regulations to make the public offering and consummate the sale of
the Securities as contemplated by this Agreement.
(h) There are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the Prospectus, or to be
filed as an exhibit thereto, which are not described or filed as required by the Acts or
the Rules and Regulations; and the statements in the Prospectus under the headings “Tax
Matters” and “Description of Capital Stock” fairly summarize the matters therein described.
(i) The execution and delivery of, and the performance by the Company of its
obligations under, this Agreement and the Company Agreements have been duly and validly
authorized by the Company, and this Agreement and the Company Agreements have been duly
executed and delivered by the Company and constitute the valid and legally binding
agreements of the Company, enforceable against the Company in accordance with their terms,
except as rights to indemnity and contribution hereunder and thereunder may be limited by
federal or state securities laws or principles of public policy and subject to the
qualification that the enforceability of the Company’s obligations hereunder and thereunder
may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws relating to or affecting creditors’ rights generally and by general
equitable principles, regardless whether enforcement is considered in a proceeding in
equity or at law.
(j) The Company is duly registered under the 1940 Act as a closed-end, non-diversified
management investment company and the 1940 Act Notification has been duly filed with the
Commission and, at the time of filing thereof and any
amendment or supplement thereto, conformed in all material respects with all
applicable provisions of the 1940 Act and the 1940 Rules and Regulations. The Company is,
and at all times through the completion of the transactions contemplated hereby will be, in
compliance in all material respects with the terms and conditions of the Acts. No person
is serving or acting as an officer, director or investment adviser of the Company except in
accordance with the provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act, and the Advisers Act Rules and Regulations; the Company has not received any
notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the
1940 Act Notification or the Registration Statement.
(k) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein or in the Company Agreements, except such as have been made or obtained under the
Acts and such as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(l) Neither the issuance and sale of the Securities, the execution, delivery or
performance of this Agreement or any of the Company Agreements by the Company, nor the
consummation by the Company of the transactions herein or therein contemplated (i)
conflicts or will conflict with or constitutes or will constitute a breach of the articles
of incorporation (the “Charter”) or bylaws (the “Bylaws”) of the Company, (ii) conflicts or
will conflict with or constitutes or will constitute a breach of or a default under, any
material agreement, indenture, lease or other instrument to which the Company is a party or
by which it or any of its properties may be bound or (iii) violates or will violate any
material statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its properties or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to the terms of any agreement or instrument to which it is a party or by which it
may be bound or to which any of the property or assets of the Company is subject.
(m) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(n) The financial statements, together with related schedules and notes, included or
incorporated by reference in the Prospectus and the Registration Statement present fairly
in all material respects the financial condition, results of operations and cash flows of
the Company as of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Acts and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein); and the other financial and
statistical information and data included in the Registration Statement and the Prospectus
are accurately
derived from such financial statements and the books and records of the Company.
(o) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its property is pending or, to
the best knowledge of the Company, threatened that (i) could reasonably be expected to have
a material adverse effect on the performance of this Agreement or the consummation of any
of the transactions herein contemplated or (ii) could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(p) The Company owns or leases all such properties as are necessary to the conduct of
its operations as presently conducted.
(q) The Company is not (i) in violation of its Charter or Bylaws, (ii) in breach or
default in the performance of the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its property is subject
or (iii) in violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or of any decree of the Commission, the NASD, any
state securities commission, any national securities exchange, any arbitrator, any court or
any other governmental, regulatory, self-regulatory or administrative agency or any
official having jurisdiction over the Company.
(r) PricewaterhouseCoopers LLP, who have audited the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, are an
independent registered public accounting firm with respect to the Company within the
meaning of the 1933 Act and the 1933 Act Rules and Regulations.
(s) The Company has not distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Securities, will not distribute
any offering material in connection with the offering and sale of the Securities other than
the Registration Statement, the Preliminary Prospectus, the Prospectus or other materials
permitted by the Acts or the Rules and Regulations.
(t) There are no transfer taxes or other similar fees or charges under federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(u) The Company has filed all foreign, federal, state and local tax returns that are
required to be filed or has requested extensions thereof (except in any
case in which the failure so to file would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company, whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(v) All advertising, sales literature or other promotional material (including
“prospectus wrappers”, “broker kits”, “road show slides” and “road show scripts”), whether
in printed or electronic form, authorized in writing by or prepared by the Company or the
Adviser for use in connection with the offering and sale of the Securities (collectively,
“sales material”) complied and comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Rules and Regulations and the rules and
interpretations of the NASD and if required to be filed with the NASD under the NASD’s
conduct rules were provided to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, for filing. No sales material contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
(w) The Company’s directors and officers/errors and omissions insurance policy and its
fidelity bond required by Rule 17g-1 of the 1940 Act Rules and Regulations are in full
force and effect; the Company is in compliance with the terms of such policy and fidelity
bond in all material respects; and there are no claims by the Company under any such policy
or fidelity bond as to which any insurance company is denying liability or defending under
a reservation of rights clause; the Company has not been refused any insurance coverage
sought or applied for; and the Company has no reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(x) The Company has such licenses, permits and authorizations of governmental or
regulatory authorities (“permits”) as are necessary to own its property and assets and to
conduct its business in the manner described in the Prospectus; the Company has fulfilled
and performed all its material obligations
with respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the Company under any such permit, subject in each
case to such qualification as may be set forth in the Prospectus; and, except as described
in the Prospectus, none of such permits contains any restriction that is materially
burdensome to the Company.
(y) The Company maintains and will maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with general or specific authorization from the Company’s officers and with the
investment objectives, policies and restrictions of the Company and the applicable
requirements of the 1940 Act, the 1940 Act Rules and Regulations and the Code; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles, to calculate net asset value, to
maintain accountability for assets and to maintain material compliance with the books and
records requirements under the 1940 Act and the 1940 Act Rules and Regulations; (iii)
access to assets is permitted only in accordance with general or specific authorization
from the Company’s officers; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences.
(z) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities, and the Company is not
aware of any such action taken or to be taken by any affiliates of the Company.
(aa) This Agreement and each of the Company Agreements complies in all material
respects with all applicable provisions of the 1940 Act, the 1940 Act Rules and
Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(bb) Except as disclosed in the Registration Statement and the Prospectus, no director
of the Company is an “interested person” (as defined in the ▇▇▇▇ ▇▇▇) of the Company or an
“affiliated person” (as defined in the ▇▇▇▇ ▇▇▇) of any Underwriter listed in Schedule I
hereto.
(cc) The conduct by the Company of its business (as described in the Prospectus) does
not require it to be the owner, possessor or licensee of any patents, patent licenses,
trademarks, service marks or trade names which it does not own, possess or license.
(dd) To the Company’s knowledge, neither the Company nor any employee or agent of the
Company has made any payment of funds of the Company or received or retained any funds in
violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character required to
be disclosed in the Prospectus.
(ee) Except as disclosed in the Registration Statement and the Prospectus, the Company
(i) does not have any material lending or other relationship with any bank or lending
affiliate of Citigroup Global Markets Inc. and (ii) does not intend to use any of the proceeds from the
sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of
Citigroup Global Markets Inc.
(ff) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply in all material
respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Sections 302 and
906 related to certifications.
(gg) The operations of the Company are and have been conducted at all times in
compliance in all material respects with any applicable financial recordkeeping and
reporting requirements of The Bank Secrecy Act of 1970, as amended (including amendments
pursuant to the International Money Laundering Abatement and Anti-Terrorist Financing Act
of 2001), the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) Neither the Company nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(ii) Neither the Company nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the FCPA, including,
without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company, and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance therewith.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered therein, to each Underwriter.
2. Representations
and Warranties of the Adviser.
The Adviser represents and warrants
to each Underwriter as follows:
(a) The Adviser is a limited partnership duly organized and validly existing in good
standing under the laws of the State of California, with full partnership power and
authority to own, lease and operate its properties and assets and to conduct its business
as described in the Registration Statement and the Prospectus, and is duly qualified to do
business as a foreign limited partnership and is in good standing under the laws of each
jurisdiction which requires such qualification. KAEFTX, L.P., the subsidiary of the
Adviser, is a limited partnership duly organized and validly existing in good standing
under the laws of the State of Texas, with full partnership power and authority to own,
lease and operate its properties and assets.
(b) The Adviser is duly registered with the Commission as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and
Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the
Advisory Agreement for the Company as contemplated by the Prospectus.
(c) The Adviser has full partnership power and authority to enter into this Agreement
and the Advisory Agreement, the execution and delivery of, and the performance by the
Adviser of its obligations under, this Agreement and the Advisory Agreement have been duly
and validly authorized by the Adviser; and this Agreement and the Advisory Agreement have
been duly executed and delivered by the Adviser and constitute the valid and legally
binding agreements of the Adviser, enforceable against the Adviser in accordance with their
terms, except as rights to indemnity and contribution hereunder may be limited by federal
or state securities laws or principals of public policy and subject to the qualification
that the enforceability of the Adviser’s obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors’ rights generally and by general equitable
principles, regardless whether enforcement is considered in a proceeding in equity or at
law.
(d) The Adviser has the financial resources available to it necessary for the
performance of its services and obligations as contemplated in the Prospectus and under
this Agreement and the Advisory Agreement.
(e) The description of the Adviser and its business, and the statements attributable
to the Adviser, in the Registration Statement and the Prospectus complied and comply in all
material respects with the provisions the Acts, the Advisers Act, the Rules and
Regulations, and the Advisers Act Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading.
(f) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Adviser or its property is pending or, to
the best knowledge of the Adviser, threatened that (i) could reasonably be expected to have
a material adverse effect on the ability of the Adviser to fulfill its obligations
hereunder or under the Advisory Agreement or (ii) could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Adviser, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto); and there are no agreements, contracts, indentures,
leases or other instruments relating to the Adviser that are required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the Acts or the Rules
and Regulations.
(g) The Adviser has such licenses, permits and authorizations of governmental or
regulatory authorities (“permits”) as are necessary to own its property and to conduct its
business in the manner described in the Prospectus; the Adviser has fulfilled and performed
all its material obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the Adviser under any such
permit.
(h) This Agreement and the Advisory Agreement comply in all material respects with all
applicable provisions of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act
and the Advisers Act Rules and Regulations.
(i) No consent, approval, authorization, filing with or order of any court or
governmental agency or body or supervisory authority is required in connection with the
transactions contemplated herein or in the Advisory Agreement, other than (a) those that
have been made or obtained under the Acts, (b) those under state securities or blue sky
laws of any jurisdiction in connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated in this Agreement and in the Prospectus, (c)
any necessary
approval of the Corporate Financing Department of NASD Regulation, Inc., and (d) such
other approvals as have been obtained.
(j) Neither the execution, delivery or performance of this Agreement or the Advisory
Agreement, nor the consummation by the Company or the Adviser of the transactions herein or
therein contemplated (i) conflicts or will conflict with or constitutes or will constitute
a breach of the certificate of limited partnership or agreement of limited partnership of
the Adviser, (ii) conflicts or will conflict with or constitutes or will constitute a
breach of or a default under, any material agreement, indenture, lease or other instrument
to which the Adviser is a party or by which it or any of its properties may be bound or
(iii) violates or will violate any material statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Adviser or any of its properties or will
result in the creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Adviser pursuant to the terms of any agreement or instrument to
which the Adviser is a party or by which the Adviser may be bound or to which any of the
property or assets of the Adviser is subject.
(k) The Adviser has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities, and the Adviser is not
aware of any such action taken or to be taken by any affiliates of the Adviser.
(l) In the event that the Company or the Adviser makes available any promotional
materials intended for use only by qualified broker-dealers and registered representatives
thereof by means of an Internet web site or similar electronic means, the Adviser will
install and maintain pre-qualification and password-protection or similar procedures which
are reasonably designed to effectively prohibit access to such promotional materials by
persons other than qualified broker-dealers and registered representatives thereof.
Any certificate signed by any officer of the Adviser and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Adviser, as to matters covered therein, to each Underwriter.
3. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $[•] per share, the number of the Underwritten Securities set forth opposite such
Underwriter’s name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to
[•] Option
Securities at the same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be exercised in
whole or in part at any time on or before the 45th day after the date of the
Prospectus upon written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several Underwriters
are exercising the option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number of shares of
the Option Securities to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
4. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 3(b) hereof shall have been exercised
on or before the third Business Day prior to the Closing Date) shall be made at 10:00 AM, New York
City time, on [•], 2005, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section 10 hereof (such
date and time of delivery and payment for the Securities being herein called the “Closing Date”).
Delivery of the Securities shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the Underwritten Securities and the
Option Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised after the third Business Day
prior to the Closing Date, the Company will deliver the Option Securities (at the expense of the
Company) to the Representatives, c/o Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
on the date specified by the Representatives (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several Underwriters, against payment
by the several Underwriters through the Representatives of the purchase price thereof to or upon
the order of the Company by wire transfer payable in same-day funds to an account specified by the
Company. If settlement for the Option Securities occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Option Securities, and the obligation
of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 7(m) hereof.
5. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Prospectus.
6. Agreements of the Company and the Adviser. The Company and the Adviser, jointly
and severally, agree with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, to become effective. Prior to
the termination of the offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required
under Rule 497, the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Representatives with the
Commission pursuant to Rule 497 within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (2) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to Rule 497 or
when any Rule 462(b) Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required to be
delivered under the 1933 Act, any event occurs as a result of which, in the reasonable
judgment of the Company or in the reasonable opinion of counsel for the Underwriters, the
Prospectus as then supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it shall be necessary
to amend the Registration Statement or supplement the Prospectus to comply with the Acts
and the Rules and Regulations, the Company promptly will (1) notify the Representatives of
any
such event; (2) prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 6, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any supplemented Prospectus
to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company which
will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 under the 1933
Act.
(d) The Company will furnish to the Representatives and counsel for the Underwriters
signed copies of the Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act, as
many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as
the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of Citigroup Global Markets Inc., offer,
sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in privity with the
Company, directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act) any other shares of Common Stock of the Company or any
securities convertible into, or exercisable, or exchangeable for, shares of Common Stock of
the Company; or publicly announce an intention to effect any such transaction for a period
of 90 days following the Execution Time, provided, however, that the Company may
issue and sell Common Stock pursuant to any dividend reinvestment plan of the Company in
effect at the Execution Time.
In the event that either (x) during the last 17 days of the 90-day period referred to
above, the Company issues an earnings release or (y) prior to the expiration of such 90-day
period, the Company announces that it will release earnings results
during the 17-day period beginning on the last day of such 90-day period, the restrictions
described above shall continue to apply until the expiration of the 17-day period beginning
on the date of the earnings release.
(g) The Company will comply with all applicable securities and other applicable laws,
rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and will use
its best efforts to cause the Company’s directors and officers, in their capacities as
such, to comply with such laws, rules and regulations, including, without limitation, the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(h) The Company and the Adviser will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following
matters: (A) the preparation, printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Prospectus and the 1940 Act Notification and each amendment or
supplement to any of them; (B) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, any sales material and
all amendments or supplements to any of them, as may, in each case, be reasonably requested
for use in connection with the offering and sale of the Securities; (C) the preparation,
printing, authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance and sale of
the Securities; (D) the printing (or reproduction) and delivery of this Agreement, any blue
sky memorandum, dealer agreements and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Securities; (E) the
registration of the Securities under the 1933 Act and the listing of the Securities on the
NYSE; (F) any registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such registration and
qualification and the preparation of the blue sky memorandum); (G) any filings required to
be made with the NASD (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such filings); (H) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (I) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (J) all other costs and expenses incident to the performance
by the Company of its obligations hereunder, but not including the fees, expenses, and
costs of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, except as
provided in Sections 6(i)(D), (F) and (G) above and in Section 8 of this Agreement.
(j) The Company will direct the investment of the net proceeds of the offering of the
Securities in such a manner as to comply with the investment objectives, policies and
restrictions of the Company as described in the Prospectus.
(k) The Company and the Adviser will use their reasonable best efforts to perform all
of the agreements required of them by this Agreement and discharge all conditions of theirs
to closing as set forth in this Agreement.
7. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities, as the case may be, shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Adviser contained herein as
of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 hereof, to
the accuracy of the statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company or the Adviser of its obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution
Time, unless the Representatives agree in writing to a later time, the Registration
Statement will become effective not later than (i) 6:00 PM New York City time on the date
of determination of the total public offering price, if such determination occurred at or
prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the total public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 497, the Prospectus,
and any such supplement, will be filed in the manner and within the time period required by
Rule 497; and no stop order suspending the effectiveness of the Registration Statement or
order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings
for that purpose shall have been instituted or threatened, and any request of the
Commission for additional information (to be included in the Registration Statement or
Prospectus or otherwise) shall have been complied with in all material respects.
(b) The Company shall have requested and caused Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
counsel for the Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) Based solely on a review of good standing certificates of the Secretary of
State of California and the State Department of Assessments and Taxation of
Maryland, the Company is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each such jurisdiction;
(ii) The Company is duly registered with the Commission under the 1940 Act as
a closed-end, non-diversified management investment company, and all required
action has been taken by the Company under the Acts and the Rules and Regulations
in connection with the issuance and sale of the Securities to make the public
offering and consummate the sale of the Securities as contemplated by this
Agreement; the provisions of the Charter and the Bylaws of the Company comply as to
form in all material respects with the requirements of the 1940 Act and the 1940
Act Rules and Regulations; and the Company has not received any notice from the
Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act
Notification or the Registration Statement;
(iii) This Agreement has been duly authorized, executed and delivered by the
Company and complies with the provisions of the 1940 Act and the 1940 Act Rules and
Regulations applicable to the Company;
(iv) Each of the Company Agreements has been duly authorized, executed and
delivered by the Company; each the Company Agreements comply in all material
respects with all applicable provisions of the Acts, the Advisers Act, the Rules
and Regulations and the Advisers Act Rules and Regulations; and each of the Company
Agreements constitutes the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their terms, except as rights to
indemnity and contribution may be limited by federal or state securities laws or
principles of public policy and subject to the qualification that the
enforceability of the Company’s obligations thereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors’ rights generally and by general equitable
principles, regardless whether enforcement is considered in a proceeding in equity
or at law;
(v) Neither the issuance and sale of the Securities, the execution, delivery
or performance of this Agreement or any of the Company Agreements by the Company,
nor the consummation by the Company of the transactions herein or therein
contemplated or the adoption of the Company’s Dividend Reinvestment Plan (i) to our
knowledge, conflicts or will conflict with or constitutes or will constitute a
material breach of or a default under, any agreement, indenture, lease or other
instrument to which the Company is a party or by which it or any of its properties
may be bound or (ii) violates or will violate any material statute, law, regulation
or filing or judgment, injunction, order or decree applicable to the Company or any
of its properties or (iii) to our knowledge, will result in the creation or
imposition of any material lien, charge or encumbrance upon any property or assets
of the Company pursuant to the terms of any agreement or instrument to which it is
a party or by which it may be bound or to which any of the property or assets of
the Company is subject;
(vi) To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or its property of a character
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required by the Acts or the Rules and Regulations; and the
statements included in the Prospectus under the headings “Tax Matters” and
“Description of Capital Stock” insofar as they purport to constitute summaries of
legal matters, agreements, documents or proceedings discussed therein, accurately
and fairly summarize such legal matters, agreements, documents or proceedings
described therein in all material prospects;
(vii) No consent, approval, authorization, filing with or order of any federal
or California governmental agency or body or supervisory authority, or to our
knowledge, any California, Maryland, or United States federal court, is required in
connection with the transactions contemplated herein or in the Company Agreements,
other than (a) those that have been made or obtained under the Acts, (b) those
under state securities or blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus (as to which such counsel
expresses no opinion), (c) any necessary approval of the Corporate Financing
Department of NASD Regulation, Inc. (as to which such counsel expresses no
opinion), and (d) such other approvals (specified in such opinion) as have been
obtained;
(viii) The Securities are duly listed, and admitted and authorized for
trading, subject to official notice of issuance, on the NYSE;
(ix) Except as set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(x) No holders of securities of the Company have rights to the registration of
such securities under the Registration Statement; and
(xi) The Registration Statement has become effective under the 1933 Act (which
opinion is based solely on telephonic advice received by such counsel from the
Commission); any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 497 have been made in the manner and within the time period
required by Rule 497; to the knowledge of such counsel, based solely on telephonic
advice received by such
counsel from the Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the Prospectus (other
than the financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion) appear on
their face to comply as to form in all material respects with the applicable
requirements of the Acts and the Rules and Regulations.
Such counsel shall also state that, although such counsel has not independently verified and
is not passing upon and does not assume responsibility, explicitly or implicitly, for the accuracy,
completeness or fairness of the statements contained in the Registration Statement or Prospectus
(except as to the extent expressly stated in the opinion of such counsel), such counsel has no
reason to believe that on the Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading (in each case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need express no opinion).
In rendering such opinion, Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (A) may state that they
express no opinion as to the laws of any jurisdiction other than the laws of the State of
California and the federal laws of the United States of America, (B) may rely as to matters
involving the laws of the State of Maryland upon the opinion of ▇▇▇▇▇▇▇ LLP referred to in
paragraph (c) of this Section 7 and (C) may rely, as to matters of fact, upon the representations
and warranties made by the Company and the Adviser herein and on certificates and written
statements of officers and employees of and accountants for the Company and the Adviser and of
public officials. Except as otherwise specifically provided herein, when giving their opinions to
their “knowledge”, Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the
attorneys of that firm who have worked on matters for the Company, on certificates or written
statements of officers of the Company and, where appropriate, a review of the Registration
Statement, Prospectus, exhibits to the Registration Statement, the Charter and Bylaws of the
Company and a review of the minute books of the Company and have made no other investigation or
inquiry.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ LLP, special
Maryland counsel to the Company, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and existing under and by
virtue of the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of Maryland;
(ii) The Company has corporate power to own its properties and assets and
conduct its business as described in the Prospectus under the caption “▇▇▇▇▇
▇▇▇▇▇▇▇▇ MLP Investment Company”;
(iii) The Company has the authority to issue the number of shares of Common
Stock set forth in the Prospectus under the caption “Description of Capital Stock -
Capital Stock” and the Company has the number of authorized shares of stock set
forth in the Prospectus under the caption “Capitalization;” the authorized stock of
the Company conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus under the heading “Description of
Capital Stock;” the shares of Common Stock issued and outstanding as of the date
hereof (immediately prior to the issuance of the Securities) have been duly
authorized and validly issued and are fully paid and nonassessable; the sale and
issuance of the Securities have been duly authorized and, when issued and delivered
to and paid for by the Underwriters in accordance with this Agreement and the
resolutions of the Board of Directors of the Company, the Securities will be
validly issued, fully paid and nonassessable; the form of certificate representing
the Securities complies in all material respects with the applicable statutory
requirements of the Maryland General Corporation Law (the “MGCL”) and with any
applicable requirements of the Charter (the “Charter”) of the Company and the
Bylaws (the “Bylaws”) of the Company; and, the Securities are not subject to
preemptive or other similar rights under the MGCL, the Charter or the Bylaws;
(iv) The Company has corporate power to execute and deliver this Agreement and
the Company Agreements and perform the obligations thereunder and each of this
Agreement and the Company Agreements has been duly and validly authorized, executed
and, so far as is known to counsel, delivered by the Company;
(v) The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or constitute a breach of
the Charter or the Bylaws, or any Maryland law or regulation, or, so far as is
known to counsel, any order of any Maryland governmental authority (other than any
law, regulation or order in connection with the securities laws of the State of
Maryland, as to which no opinion is hereby expressed); and
(vi) The statements in the Prospectus under the caption “Description of
Capital Stock” and “Risk Factors – Anti-Takeover Provisions,” insofar as such
statements purport to summarize certain provisions of Maryland law or the Charter
or Bylaws, such statements
constitute a fair summary of such provisions and are accurate in all material
respects.
In rendering such opinion, ▇▇▇▇▇▇▇ LLP may rely, as to matters of fact, upon the
representations and warranties made by the Company and the Adviser herein and on certificates and
written statements of officers and employees of and accountants for the Company and the Adviser and
of public officials. Except as otherwise specifically provided herein, when giving their opinions
to their “knowledge”, ▇▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the attorneys of that firm
who have worked on matters for the Company, on certificates or written statements of officers of
the Company and, where appropriate, a review of the Registration Statement, Prospectus, exhibits to
the Registration Statement, the Charter and Bylaws of the Company and have made no other
investigation or inquiry.
(d) You shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.,
General Counsel for the Adviser, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Adviser has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of California, with
partnership power and authority to own, lease and operate its properties and assets
and to conduct its business as described in the Registration Statement and in the
Prospectus, and is duly qualified to do business as a foreign limited partnership
and is in good standing under the laws of each jurisdiction which requires such
qualification; and to my knowledge, KAEFTX, L.P., the subsidiary of the Adviser, is
a limited partnership duly organized and validly existing in good standing under
the laws of the State of Texas, with full partnership power and authority to own,
lease and operate its properties and assets;
(ii) The Adviser is duly registered as an investment adviser under the
Advisers Act and the Advisers Act Rules and Regulations and, is not prohibited by
the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940
Act Rules and Regulations, from acting under the Advisory Agreement as contemplated
by the Prospectus;
(iii) The Adviser has full partnership power and authority to enter into this
Agreement and the Advisory Agreement;
(iv) This Agreement has been duly authorized, executed and delivered by the
Adviser;
(v) The Advisory Agreement has been duly authorized, executed and delivered by
the Adviser and the Advisory Agreement is a valid and legally binding agreement of
the Adviser, enforceable against the Adviser in accordance with its terms except as
rights to indemnity and contribution
may be limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of the Adviser’s
obligations hereunder and thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium and other laws relating to or
affecting creditors’ rights generally and by general equitable principles,
regardless whether enforcement is considered in a proceeding in equity or at law;
(vi) To the knowledge of such counsel, this Agreement and the Advisory
Agreement comply in all material respects with all applicable provisions of the
Acts, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and
Regulations;
(vii) Neither the issuance and sale of the Securities, the execution, delivery
or performance of this Agreement or the Advisory Agreement nor the consummation by
the Adviser of the transactions herein or therein contemplated (i) conflicts or
will conflict with or constitutes or will constitute a breach of or default under
the certificate of limited partnership or agreement of limited partnership, or
other organizational documents, of the Adviser, (ii) conflicts or will conflict
with, or constitutes or will constitute a breach of or default under any agreement,
indenture, lease or other instrument to which the Adviser is a party or by which it
or any of its properties may be bound or (iii) to the knowledge of such counsel,
violates or will violates any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Adviser or any of its properties or
will result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Adviser pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to which any of
the property or assets of the Adviser are subject;
(viii) To the knowledge of such counsel, the description of the Adviser and
its business in the Prospectus complies in all material respects with all
requirements of the Acts and the Rules and Regulations;
(ix) To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Adviser or its property of a character
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required by the Acts or the Rules and Regulations;
(x) To the knowledge of such counsel, no consent, approval, authorization,
filing with or order of any court or governmental agency or
body or supervisory authority is required in connection with the transactions
contemplated herein or in the Advisory Agreement, other than (a) those that have
been made or obtained under the Acts, (b) those under state securities or blue sky
laws of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in this Agreement and in
the Prospectus (as to which such counsel expresses no opinion), (c) any necessary
approval of the Corporate Financing Department of NASD Regulation, Inc. (as to
which such counsel expresses no opinion), and (d) such other approvals (specified
in such opinion) as have been obtained; and
(xi) Such counsel has no reason to believe that on the Effective Date or the
date the Registration Statement was last deemed amended the Registration Statement
contained any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date and on the Closing Date included
or includes any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (in each case, other
than the financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion).
In rendering such opinion, such counsel (A) may state that he expresses no opinion as to the
laws of any jurisdiction other than the laws of the State of California and the federal laws of the
United States of America, (B) may rely, as to matters of fact, upon the representations and
warranties made by the Company and the Adviser herein and on certificates and written statements of
officers and employees of and accountants for the Company and the Adviser and of public officials,
and (C) may state that he is a member of the Bar of the State of California.
(e) The Representatives shall have received on the Closing Date an opinion of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require. In rendering such opinion,
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP (A) may state that they express no opinion as to the laws of
any jurisdiction other than the laws of the State of New York, the laws of the State of
Maryland and the federal laws of the United States of America, (B) may rely as to matters
involving the laws of the State of Maryland upon the opinion of ▇▇▇▇▇▇▇ LLP referred to in
paragraph (c) of this Section 7 and (C) may rely, as to matters of fact, upon the
representations and warranties made by the Company and the Adviser herein and on
certificates and written statements of officers and employees of and accountants for the
Company and the Adviser and of public officials. Except as otherwise specifically provided
herein, when giving their opinions to their “knowledge”, Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
have relied
solely upon an inquiry of the attorneys of that firm who have worked on matters for
the Company, on certificates or written statements of officers of the Company and, where
appropriate, a review of the Registration Statement, Prospectus, exhibits to the
Registration Statement, the Charter and Bylaws of the Company and a review of the minute
books of the Company and have made no other investigation or inquiry.
(f) Each of the Company and the Adviser shall have furnished to the Representatives a
certificate, signed by the Chief Executive Officer and the principal financial or
accounting officer of each of the Company and the Adviser, as the case may be, dated the
Closing Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplements to the Prospectus and this
Agreement and that:
(i) The representations and warranties of the Company and the Adviser in this
Agreement are true and correct on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company and the Adviser have complied with
all the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted by the
Commission or, to the Company’s or the Adviser’s knowledge, threatened by the
Commission; and
(iii) Since the date of the most recent financial statements included in the
Prospectus (exclusive of any supplement thereto) (with respect to the certificate
of the Company) and since the date of the Prospectus (with respect to the
certificate of the Adviser), there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of
the Company or the Adviser, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused PricewaterhouseCoopers LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date, letters,
dated respectively as of the Execution Time and as of the Closing Date, in form and
substance heretofore approved by the Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have been (i) any
material change specified in the letter referred to in paragraph (g) of this Section 7
delivered on the Closing Date from the letter
delivered at the Execution Time or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and the Adviser, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(i) The Securities shall have been listed and admitted and authorized for trading on
the NYSE, and satisfactory evidence of such actions shall have been provided to the
Representatives.
(j) If applicable, the NASD has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and arrangements.
(k) On or prior to the Closing Date, the Representatives shall have received lock-up
agreements substantially in the form of Exhibit A hereto (the “Lock-up Agreements”)
from (i) the Adviser, (ii) the Company’s directors listed on Schedule II hereof and
(iii) certain officers of the Adviser (including all of the officers of the Company) listed
on Schedule II hereof.
(l) Prior to the Closing Date, the Company and the Adviser shall have furnished to the
Representatives such further information, certificates and documents as the Representatives
may reasonably request.
(m) In the event that the Underwriters exercise their option provided in Section 3(b)
hereof to purchase all or any portion of the Option Securities, the representations and
warranties of the Company and the Adviser contained herein and the statements in any
certificates furnished by the Company and the Adviser hereunder shall be true and correct
as of each settlement date and, at the relevant settlement date, the Representatives shall
have received:
(i) A certificate, dated such settlement date, signed by the Chief Executive
Officer and the principal financial or accounting officer of each of the Company
and the Adviser confirming that the certificate delivered at the Closing Date
pursuant to Section 7(f) hereof remains true and correct as of such settlement
date.
(ii) The favorable opinions of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel
to the Company, ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, and of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Esq., general counsel of the Adviser, each in form and substance
satisfactory to the counsel for the Underwriters, dated such settlement date,
relating to the Option Securities
to be purchased on such settlement and otherwise to the same effect as the
opinions required by Sections 7(b), 7(c) and 7(d) hereof, respectively.
(iii) The favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ llp,
counsel for the Underwriters, dated such settlement date, relating to the Option
Securities to be purchased on such settlement date and otherwise to the same effect
as the opinion required by Section 7(e) hereof.
(iv) A letter from PricewaterhouseCoopers LLP in form and substance
satisfactory to the Representatives and dated such settlement date, substantially
the same in form and substance as the letter furnished to the Representatives
pursuant to Section 7(g), except that the “specified date” in the letter furnished
pursuant to this paragraph shall be a date not more than three days prior to such
settlement date.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 7 shall be delivered at the office of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., on the Closing Date.
8. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because of any termination pursuant to Section 11
hereof or because of any refusal, inability or failure on the part of the Company or the Adviser to
perform any agreement herein or comply with any provision hereof other than by reason of a default
by any of the Underwriters, the Company will reimburse the Underwriters severally through
Citigroup Global Markets Inc. on demand for all out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the proposed purchase and sale
of the Securities.
9. Indemnification and Contribution.
(a) The Company and the Adviser, jointly and severally, agree to indemnify and hold
harmless each of you and each other Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within the meaning
of either the 1933 Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or
several (including reasonable costs of investigation), to which they or any of them
may become subject under the 1933 Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the registration
statement for the Securities as originally filed or in any amendment thereof (and including
any post-effective amendment, any Rule 462(b) Registration Statement and any Rule 430A
Information deemed to be included or incorporated therein), or in the Prospectus, any
Preliminary Prospectus, any sales material (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the Company and the Adviser will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished to the Company and
the Adviser by or on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability which the
Company and the Adviser may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless
each of the Company and the Adviser, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company or the Adviser within
the meaning of either the 1933 Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Adviser to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company or the Adviser by
or on behalf of such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company and the
Adviser acknowledge that the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading “Underwriting”, (i) the list of
Underwriters and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any Preliminary
Prospectus and the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 9 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof; but
the failure so to notify the indemnifying party (i) will not relieve the indemnifying party
from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or parties
except as set forth below) and to control such action; provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (A) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest, (B)
the actual or potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to the
indemnifying party, (C) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after
notice of the institution of such action or (D) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 9
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company, the Adviser and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively “Losses”) to
which the Company, the Adviser and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company and
the Adviser on the one hand (treated jointly for this purpose as one person) and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, the Adviser and
the Underwriters severally shall contribute
in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and the Adviser on the one hand (treated
jointly for this purpose as one person) and of the Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the Adviser
(treated jointly for this purpose as one person) shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Company and the Adviser on the
one hand (treated jointly for this purpose as one person) or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company, the
Adviser and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each person who controls an Underwriter within the meaning
of either the 1933 Act or the Exchange Act and each director, officer, employee and agent
of an Underwriter shall have the same rights to contribution as such Underwriter, and each
person who controls the Company or the Adviser within the meaning of either the 1933 Act or
the Exchange Act, each officer of the Company and the Adviser who shall have signed the
Registration Statement and each director of the Company and the Adviser shall have the same
rights to contribution as the Company and the Adviser, subject in each case to the
applicable terms and conditions of this paragraph (d). The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to the respective number of
Securities set forth opposite their names in Schedule I (or such numbers of Securities
increased as set forth in Section 10 hereof) and not joint.
(e) No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability from claimants on claims
that are the subject matter of such action, suit or proceeding.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified
party is entitled to indemnification or contribution under this Section 9
shall be paid by
the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 9 and the representations and warranties of the
Company and the Adviser set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, the Adviser or their
shareholders, trustees, directors, managers, members or officers or any person controlling
the Company or the Adviser (control to be determined within the meaning of the 1933 Act or
the Exchange Act), (ii) acceptance of any Securities and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any Underwriter or to the Company,
the Adviser or their shareholders, trustees, directors, managers, members or officers or
any person controlling any Underwriter, the Company or the Adviser shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained in this
Section 9.
10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the number of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate number of Securities set forth
opposite the names of all the remaining Underwriters or in such other proportion as Citigroup Global Markets Inc.
may specify in accordance with the Citigroup Global Markets Inc. Master Agreement Among Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate number of Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate number of Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the Company or the
Adviser. In the event of a default by any Underwriter as set forth in this Section 10, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder. The term “Underwriter”
as used in this Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company, purchases Securities
which a defaulting Underwriter agreed, but failed or refused, to purchase.
11. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, without liability on the part of the Underwriters to the Company
or the Adviser, by notice given to the Company or the Adviser prior to delivery
of and payment for
the Securities, if at any time prior to such time (i) trading in
the Company’s Common Stock shall have been suspended by the Commission or the NYSE or trading in
securities generally on the NYSE shall have been suspended or limited or minimum prices shall have
been established on the NYSE, (ii) a banking moratorium shall have been declared either by federal
or New York State authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or other calamity or
crisis the effect of which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of each of the Company and the
Adviser or its officers and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or the Adviser or any of the officers, trustees, directors, employees,
agents or controlling persons referred to in Section 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. No Fiduciary Duty. The Company hereby acknowledges that (a) the Representatives
are acting as principal and not as an agent or fiduciary of the Company and (b) its engagement of
the Representatives in connection with the offering of Securities is as independent contractors and
not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making
its own judgments in connection with the offering of Securities (irrespective of whether the
Representatives have advised or are currently advising the Company on related or other matters).
14. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel,
Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or,
if sent to the Company or the Adviser, will be mailed, delivered or telefaxed to the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Capital Advisors, L.P. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Capital Advisors, L.P., 1800 Avenue of the Stars, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
15. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, trustees, directors, employees,
agents and controlling persons referred to in Section 9 hereof, and no other person will have any
right or obligation hereunder.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
18. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
19. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“1933 Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“1933 Act Rules and Regulations” shall mean the rules and regulations of the
Commission under the 1933 Act.
“1940 Act” shall mean the Investment Company Act of 1940, as amended.
“1940 Act Rules and Regulations” shall mean the rules and regulations of the
Commission under the 1940 Act.
“1940 Act Notification” shall mean a notification of registration of the Company as an
investment company under the 1940 Act on Form N-8A, as the 1940 Act Notification may be
amended from time to time.
“Acts” shall mean, collectively, the 1933 Act and the 1940 Act.
“Advisers Act” shall mean the Investment Advisers Act of 1940, as amended.
“Advisers Act Rules and Regulations” shall mean the rules and regulations of the
Commission under the Advisers Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or obligated by
law to close in New York City.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” shall mean the Securities and Exchange Commission.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Act Rules and Regulations” shall mean the rules and regulations of the
Commission under the Exchange Act.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
“NASD” means the National Association of Securities Dealers, Inc.
“NYSE” means the New York Stock Exchange, Inc.
“Preliminary Prospectus” shall mean any preliminary prospectus (including the
statement of additional information incorporated by reference therein) referred to in
Section 1(a) above and any preliminary prospectus (including the statement of additional
information incorporated by reference therein) included in the Registration Statement at
the Effective Date that omits Rule 430A Information.
“Prospectus” shall mean the prospectus and any amendment or supplement thereto
(including the statement of additional information incorporated by reference therein)
relating to the Securities that is first filed pursuant to Rule 497 after the Execution
Time or, if no filing pursuant to Rule 497 is required, shall mean the form of final
prospectus (including the statement of additional information incorporated by reference
therein) relating to the Securities included in the Registration Statement at the Effective
Date.
“Registration Statement” shall mean the registration statement referred to in Section
1(a) above, including exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement, as the
case may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
“Rule 430A” and “Rule 462” refer to such rules under the 1933 Act.
“Rule 430A Information” shall mean information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A.
“Rule 462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
“Rule 497” refers to Rule 497(c) or 497(h) under the 1933 Act, as applicable.
“Rules and Regulations” shall mean, collectively, the 1933 Act Rules and Regulations
and the 1940 Act Rules and Regulations.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Adviser and the several Underwriters.
| Very truly yours, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP INVESTMENT COMPANY |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL ADVISORS, L.P. By ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Investment Management, Inc., its General Partner |
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| By: | ||||
| Name: | ||||
| Title: | ||||
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
| CITIGROUP GLOBAL MARKETS INC. UBS SECURITIES LLC |
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as Representatives of the several Underwriters listed in Schedule I hereto |
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| By: | Citigroup Global Markets Inc. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE I
| Underwriter | Number of Underwriters Securities to be Purchased | ||||
|
Citigroup Global Markets Inc.
|
[ ] | ||||
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UBS Securities LLC
|
[ ] | ||||
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▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
|
[ ] | ||||
|
RBC Capital Markets Corporation
|
[ ] | ||||
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
|
[ ] | ||||
|
Wachovia Capital Markets, LLC
|
[ ] | ||||
SCHEDULE II
List of (i) directors of the Company, and (ii) certain officers of Adviser (including all of the
officers of the Company), who will execute Lock-up Agreements
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EXHIBIT A
Form of Lock-up Agreement
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company
Public Offering of Common Stock
Public Offering of Common Stock
, 2005
Citigroup Global Markets Inc.
UBS Securities LLC
UBS Securities LLC
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MLP Investment Company, a Maryland corporation
(the “Company”), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Advisors, L.P., a California limited partnership (the
“Adviser”), and each of you as representatives of a group of underwriters named therein (the
“Underwriters”), relating to an underwritten public offering (the “Public Offering”) of common
stock, $0.001 par value (the “Common Stock”), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or exchangeable or
exercisable for any shares of Common Stock, enter into a transaction that would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any
of the economic consequences of ownership of Common Stock, whether any of these transactions are to
be settled by delivery of Common Stock or other securities, in cash or otherwise, or publicly
disclose the intention to make any offer, sale, pledge or disposition, or to enter into any
transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of
Citigroup Global Markets Inc. for a period of 90 days after the date of this Prospectus (as defined in the
Underwriting Agreement) (such period, the “Lock-Up Period”). Citigroup Global Markets Inc. in their sole
discretion may release any of the securities subject to lock-up agreements at any time without
notice. In the event that either (x) during the last 17 days of the Lock-Up Period, the Company
issues an earnings release or (y) prior to the expiration of the Lock-Up Period, the Company
announces that the Company will release earnings results during the 17-day period beginning on the
last day of the Lock-Up
Period, the restrictions described above shall continue to apply until the
expiration of the 17-day period beginning on the date of the earnings release.
Notwithstanding the foregoing, the undersigned may transfer any shares of Common Stock owned
by him or her or any interest therein (i) for estate-planning purposes to (x) a trust under which
the distribution of the shares of Common Stock transferred thereto may be made only to
beneficiaries who are the undersigned, his or her spouse, his or her parents, members of his or her
immediate family or his or her lineal descendants (collectively, “Permitted Family Members”), (y) a
corporation the stockholders of which are only the undersigned or Permitted Family Members or (z) a
partnership the partners of which are only the undersigned or Permitted Family Members or (ii) in
case of the death of the undersigned, by will or by the laws of intestate succession, to his or her
executors, administrators, testamentary trustees, legatees or beneficiaries (each such person to
which a transfer is permitted pursuant to clauses (i) and (ii) immediately above is hereinafter
referred to as a “Permitted Transferee”); provided, however, that in each such
case, the shares of Common Stock transferred shall be subject to all provisions of this agreement
as though the undersigned were still the holder of such shares of Common Stock; and
provided further, that the Permitted Transferee must execute and deliver to
Citigroup Global Markets Inc. an agreement stating that the Permitted Transferee is receiving and holding such
shares of Common Stock in the same manner as the person making the transfer.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise automatically
be terminated.
| Yours very truly, | ||||
| Signature: | ||||
| Print Name: | ||||