Exhibit (h)(i)
LAZARD GLOBAL TOTAL RETURN AND INCOME FUND, INC.
_____ COMMON STOCK
($.001 par value)
UNDERWRITING AGREEMENT
New York, New York
April , 2004
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
H&R Block Financial Advisors, Inc.
Xxxxxxx, Xxxxxx & Co.
Xxxxxx, Xxxxx Xxxxx, Incorporated
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Keybanc Capital Markets, A Division of McDonald Investments Inc.
Xxxxxxxxxxx & Co. Inc.
Xxxxxxx Xxxxx & Associates, Inc.
RBC Capital Markets Corporation
Xxxxxx, Xxxxxxxx & Company, Incorporated
Wedbush Xxxxxx Securities Inc.
As Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Lazard Global Total Return and Income Fund, Inc.,
a Maryland corporation (the "Fund"), and Lazard Asset Management, LLC, a
Delaware limited liability company (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 Fund proposes to sell to the Underwriters _____ shares (the
"Underwritten Securities") of its common stock, par value $.001 per share (the
"Common Stock"). The Fund 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 Underwritten Securities and the
Option Securities are hereinafter collectively referred to as the "Securities."
Unless otherwise stated, the term "you" as used herein means Citigroup Global
Markets Inc. individually on its own behalf and on behalf of the other
Representatives. Certain terms used herein are defined in Section 18 hereof.
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The Fund 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.
The Fund has entered into an Investment Management Agreement with
the Adviser dated as of [_____], 2004, a Custodian Agreement with State Street
Bank and Trust Company dated as of [_____], 2004, and a Transfer Agency and
Service Agreement with EquiServe Trust Company, N.A. and EquiServe, Inc. dated
as of [_____], 2004, and such agreements are herein referred to as the
"Management Agreement," the "Custodian Agreement" and the "Transfer Agency
Agreement," respectively. The Adviser has entered into an After-Market Services
Agreement, dated as of [_____], 2004, and such agreement is herein referred to
as the "After-Market Services Agreement." Collectively, the Management
Agreement, the Custodian Agreement and the Transfer Agency Agreement are herein
referred to as the "Fund Agreements." In addition, the Fund has adopted a
dividend reinvestment plan (the "Dividend Reinvestment Plan") pursuant to which
holders of Common Stock shall have their dividends automatically reinvested in
additional Common Stock of the Fund unless they elect to receive such dividends
in cash.
1. REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE ADVISER. The
Fund 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 Fund has prepared and filed with the Commission a
registration statement (file numbers 333-112768 and 811-21511) on Form
N-2, including a related preliminary prospectus (including the statement
of additional information incorporated by reference therein), for
registration under the Act and the 1940 Act of the offering and sale of
the Securities. The Fund may have filed one or more amendments thereto,
including a related preliminary prospectus (including the statement of
additional information incorporated by reference therein), each of which
has previously been furnished to you. The Fund will next file with the
Commission one of the following: either (1) prior to the Effective Date
of 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 Fund has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the 1940 Act and the Rules
and Regulations to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus
(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
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and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Fund has advised you, prior to the Execution Time,
will be included or made therein.
(b) 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 Act, the 1940 Act and the Rules and
Regulations, and the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 497, will not, and on the date
of any filing pursuant to Rule 497 and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Fund makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Fund by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto). The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus
(c) The Fund has been duly incorporated and is validly existing
in good standing as a corporation under the laws of the State of
Maryland, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which
requires such qualification. The Fund has no subsidiaries.
(d) The Fund's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Fund conforms to the
description thereof contained in the Registration Statement and the
Prospectus; all outstanding 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 and evidence of satisfactory distribution, on the New York Stock
Exchange (the "NYSE"); the certificates for the Securities are in valid
and sufficient form; the holders of outstanding Common Stock 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 Fund are outstanding.
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(e) The Fund's registration statement on Form 8-A under the
Exchange Act has become effective.
(f) The Fund, subject to the Registration Statement having been
declared effective and the filing of the Prospectus under Rule 497, has
taken all required action under the Act, the 1940 Act and the Rules and
Regulations to make the public offering and consummate the sale of the
Securities as contemplated by this Agreement.
(g) 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 Act, the 1940 Act or the
Rules and Regulations; and the statements in the Prospectus under the
headings "Tax Matters" and "Certain Provisions in the Articles of
Incorporation and By-laws" fairly summarize the matters therein
described.
(h) The execution and delivery of and the performance by the
Fund of its obligations under this Agreement and the Fund Agreements have
been duly and validly authorized by the Fund and this Agreement and the
Fund Agreements have been duly executed and delivered by the Fund and
constitute the valid and legally binding agreements of the Fund,
enforceable against the Fund in accordance with their terms, except as
rights to indemnity and contribution hereunder and thereunder may be
limited by federal or state securities laws and subject to the
qualification that the enforceability of the Fund's obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles.
(i) The Fund is duly registered under the 1940 Act as a
closed-end, diversified management investment company and the 1940 Act
Notification has been duly filed with the Commission. The Fund has not
received any notice from the Commission pursuant to Section 8(e) of the
1940 Act with respect to the 1940 Act Notification or the Registration
Statement.
(j) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Fund Agreements,
except such as have been made or obtained under the Act and the 1940 Act
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.
(k) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the Fund
Agreements by the Fund, nor the consummation by the Fund of the
transactions herein or therein contemplated (i) conflicts or will
conflict with or constitutes or will constitute a breach of the charter
or by-laws of the Fund, (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
Fund 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
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decree applicable to the Fund 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 Fund 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 Fund is subject.
(l) No holders of securities of the Fund have rights to the
registration of such securities under the Registration Statement.
(m) 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 Fund as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and the 1940 Act and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); and the other financial and statistical
information and data included in the Registration Statement and the
Prospectus are accurately derived from such financial statements and the
books and records of the Fund.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Fund or its property is pending or, to the best knowledge of the Fund,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation
of any of the transactions herein contemplated or (ii) could reasonably
be expected to have a material adverse effect on the condition (financial
or otherwise), earnings, business or properties of the Fund, whether or
not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(o) The Fund owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(p) The Fund is not (i) in violation of its charter or by-laws,
(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 Fund 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 Fund.
(q) Since the date as of which information is given in the
Prospectus, except as otherwise stated therein, (i) there has been no
material, adverse change in the condition (financial or other), business,
properties, net assets or results of operations of the Fund, whether or
not arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Fund which are material to the Fund
other than those in
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the ordinary course of its business as described in the Prospectus and
(iii) there has been no dividend or distribution of any kind declared,
paid or made by the Fund on any class of its Common Stock.
(r) Except as disclosed in or contemplated by the Prospectus,
subsequent to the date as of which such information is given in the
Prospectus, the Fund has not incurred any material liability or material
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Fund, and there
has not been any change in the capitalization, or material increase in
the short-term debt or long-term debt, of the Fund, or any material
adverse change, or any development involving or which may reasonably be
expected to involve, a prospective material adverse change, in the
condition (financial or other), assets or results of operations of the
Fund, whether or not arising in the ordinary course of business (other
than as a result of changes in market conditions generally or the market
for securities generally).
(s) Deloitte & Touche LLP, who have audited the financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Fund within the meaning of the Act and the Act Rules and
Regulations.
(t) The Fund has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of
the Securities, will not distribute any offering material in connection
with the offering and sale of the Securities other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or other materials
permitted by the Act, the 1940 Act or the Rules and Regulations.
(u) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution
and delivery of this Agreement or the issuance by the Fund or sale by the
Fund of the Securities.
(v) The Fund 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),
earnings, business or properties of the Fund, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in 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),
earnings, business or properties of the Fund, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto).
(w) All advertising, sales literature or other promotional
material (including "prospectus wrappers", "broker kits", "road show
slides" and "road show scripts"), whether in printed or electronic form,
authorized in writing by or prepared by the Fund or
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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 Act, the 1940
Act, the Rules and Regulations and the rules and interpretations of the
NASD and if required to be filed with the NASD under the NASD's conduct
rules were provided to Xxxxxxx Xxxxxxx & Xxxxxxxx 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.
(x) The Fund'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 Fund is in
compliance with the terms of such policy and fidelity bond in all
material respects; and there are no claims by the Fund under any such
policy or fidelity bond as to which any insurance company is denying
liability or defending under a reservation of rights clause; the Fund has
not been refused any insurance coverage sought or applied for; and the
Fund has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business or
properties of the Fund, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(y) The Fund 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 Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Fund.
(z) The Fund maintains and will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization and with the investment objective, policies and
restrictions of the Fund and the applicable requirements of the 1940 Act,
the 1940 Act Rules and Regulations and the Internal Revenue Code of 1986,
as amended (the "Code"); (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles, to calculate net asset value, to maintain
accountability for assets and to maintain material compliance with the
books and records requirements under the 1940 Act and the 1940 Act Rules
and Regulations; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(aa) The Fund has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Fund to facilitate
the sale or resale of the Securities, and the Fund is not aware of any
such action taken or to be taken by any affiliates of the Fund.
(bb) This Agreement and each of the Fund 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.
(cc) Except as disclosed in the Prospectus, no director of the
Fund is an "interested person" (as defined in the 0000 Xxx) of the Fund
or an "affiliated person" (as defined in the 0000 Xxx) of any Underwriter
listed in Schedule I hereto.
(dd) The Fund intends to direct the investment of the proceeds
of the offering of the Securities in such a manner as to comply with the
requirements of Subchapter M of the Code.
(ee) The conduct by the Fund 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.
(ff) Except as disclosed in the Registration Statement and the
Prospectus, the Fund (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global
Markets Holdings Inc. and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding debt
owed to any affiliate of Citigroup Global Markets Holdings Inc.
(gg) There is and has been no failure on the part of the Fund
and any of the Fund's directors or officers, in their capacities as such,
to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith (the
"Xxxxxxxx-Xxxxx Act"), including Sections 302 and 906 related to
certifications.
Any certificate signed by any officer of the Fund and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Fund, as to matters covered therein, to each Underwriter.
2. REPRESENTATIONS AND WARRANTIES OF THE ADVISER. The Adviser
represents and warrants to each Underwriter as follows:
(a) The Adviser has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the State
of Delaware, with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification.
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(b) The Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act, the
1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules
and Regulations from acting under the Management Agreement for the Fund
or the After-Market Services Agreement as contemplated by the Prospectus.
(c) The Adviser has full power and authority to enter into this
Agreement, the Fund Agreements to which it is a party, and the
After-Market Services Agreement, the execution and delivery of, and the
performance by the Adviser of its obligations under, this Agreement, the
Fund Agreements to which it is a party, and the After-Market Services
Agreement have been duly and validly authorized by the Adviser; and this
Agreement, the Fund Agreements to which it is a party and the
After-Market Services 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 and
thereunder may be limited by federal or state securities laws and subject
to the qualification that the enforceability of the Adviser's obligations
hereunder and thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) 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, the Fund
Agreements to which it is a party and the After-Market Services
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 of the Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations and did not and
will not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(f) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving 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 Fund Agreements to which it is a party
or the After-Market Services 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 Act, the
1940 Act or the Rules and Regulations.
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(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, the Fund Agreements to which the Adviser is
a party and the After-Market Services 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 is required in connection
with the transactions contemplated herein, in the Fund Agreements by the
Adviser which is a party thereto or the After-Market Services Agreement,
except such as have been made or obtained under the Act and the 1940 Act
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.
(j) Neither the execution, delivery or performance of this
Agreement or any of the Fund Agreements to which the Adviser is a party,
and the After-Market Services Agreement, nor the consummation by the Fund
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 formation or the limited liability company
agreement 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 Fund to
facilitate the sale or resale of the Securities and the Adviser is not
aware of any such action taken or to be taken by any affiliates of the
Adviser.
(l) In the event that the Fund 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
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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
Fund agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Fund, at a purchase price of $_____ per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Fund hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
_____ Option Securities at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time and
from time to time on or before the 45th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Fund setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
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
______, 2004 or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the Fund
or as provided in Section 10 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Fund
by wire transfer payable in same-day funds to an account specified by the Fund.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 3(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Fund will deliver
the Option Securities (at the expense of the Fund) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of
12
the several Underwriters, against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Fund by wire transfer payable in same-day funds to an account specified by the
Fund. If settlement for the Option Securities occurs after the Closing Date, the
Fund will deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 7 hereof.
5. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
6. AGREEMENTS OF THE FUND AND THE ADVISER. The Fund and the
Adviser, jointly and severally, agree with the several Underwriters as follows:
(a) The Fund will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Fund will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Fund has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. 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 Fund will cause the Prospectus, properly completed,
and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to Rule 497 within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Fund will promptly advise the
Representatives (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 Fund of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Fund
will use its best efforts to prevent the issuance of any such stop order
or the 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 Act, any event occurs as
a result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any
13
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 Act, the 1940 Act and the Rules and
Regulations, the Fund 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 Fund will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Fund which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the Prospectus
and any supplement thereto as the Representatives may reasonably request.
(e) The Fund will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Fund be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Fund will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Fund or any affiliate of the Fund or
any person in privity with the Fund), directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other Common
Stock or any securities convertible into, or exercisable, or exchangeable
for, Common Stock; or publicly announce an intention to effect any such
transaction for a period of 180 days following the Execution Time,
PROVIDED, HOWEVER, that the Fund may issue and sell Common Stock pursuant
to any dividend reinvestment plan of the Fund in effect at the Execution
Time.
(g) The Fund will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Xxxxxxxx-Xxxxx Act, and will use its best efforts to
cause the Fund's directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without
limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
14
(h) The Fund 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 Fund to facilitate the sale or resale of the Securities.
(i) The Fund agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus and the 1940 Act Notification and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus, any sales material and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum, dealer agreements and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of
the Securities under the Exchange Act and the listing of the Securities
on the NYSE; (vi) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the NASD
(including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (viii) the transportation
and other expenses incurred by or on behalf of Fund representatives in
connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Fund's accountants and the
fees and expenses of counsel (including local and special counsel) for
the Fund; (x) all other costs and expenses incident to the performance by
the Fund of its obligations hereunder; and (xi) an amount equal to (A)
$20,000 plus (B) $0.0033 per Security for each Security in excess of
2,000,000 sold pursuant to this Agreement, payable no later than 45 days
from the date of this Agreement to the Underwriters in partial
reimbursement of their expenses in connection with the offering. [OPEN
BUSINESS POINT] To the extent that the foregoing costs and expenses
incidental to the performance of the obligations of the Fund under this
Agreement exceed $0.04 per Share, the Adviser will pay all such costs and
expenses.
(j) The Fund will direct the investment of the net proceeds of
the offering of the Securities in such a manner as to comply with the
investment objective, policies and restrictions of the Fund as described
in the Prospectus.
(k) The Fund will comply with the requirements of Subchapter M
of the Code to qualify as a regulated investment company under the Code.
15
(l) The Fund 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 Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Fund and the 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 Fund made
in any certificates pursuant to the provisions hereof, to the performance by the
Fund 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 Fund shall have requested and caused Stroock & Stroock
& Xxxxx LLP, counsel for the Fund, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) The Fund has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the
State of Maryland, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and is
duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires
such qualification; and the Fund has no subsidiaries;
(ii) The Fund is duly registered with the Commission
under the 1940 Act as a closed-end, diversified management
investment company and all action has been taken by the Fund as
required by the Act and the 1940 Act 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 Fund Agreements comply in all
material respects with all applicable provisions of the Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations; and the Fund has not
16
received any notice from the Commission pursuant to Section 8(e)
of the 1940 Act with respect to the 1940 Act Notification or the
Registration Statement;
(iii) This Agreement has been duly authorized, executed
and delivered by the Fund;
(iv) The Fund Agreements have been duly authorized,
executed and delivered by the Fund and constitute the valid and
legally binding agreements of the Fund, enforceable against the
Fund in accordance with their terms, except as rights to indemnity
and contribution hereunder and thereunder may be limited by
federal or state securities laws and subject to the qualification
that the enforceability of the Fund's obligations hereunder and
thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and by general equitable principles;
(v) The Fund's authorized equity capitalization is as
set forth in the Prospectus; the capital stock of the Fund
conforms in all material respects 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 and evidence of satisfactory
distribution, on the NYSE; the form of stock certificate
evidencing the Securities conforms to the requirements of Maryland
General Corporation Law ("MGCL") in all material respects; the
holders of outstanding Common Stock are not entitled to preemptive
or other rights to subscribe for the Securities under the Charter
or Bylaws of the Fund or the MGCL or, to our knowledge, otherwise;
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 Fund are outstanding;
(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 Fund 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 Act, the 1940 Act or the
Rules and Regulations; and the statements included in the
Prospectus under the headings "Tax Matters" and "Certain
Provisions in the Articles of Incorporation and By-Laws" insofar
as such statements summarize legal matters, agreements, documents
or proceedings discussed therein, are accurate and fair summaries
of such legal matters, agreements, documents or proceedings;
17
(vii) The Registration Statement has become effective
under the Act; any required filings of the Prospectus, and any
supplements thereto, pursuant to Rule 497 have been made in the
manner and within the time period required by Rule 497; to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement 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) comply as to form in all material respects
with the applicable requirements of the Act, the 1940 Act and the
Rules and Regulations; and such counsel has no reason to believe
that 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);
(viii) No consent, approval, authorization, filing with or
order of any governmental agency or body or, to our knowledge, any
court, is required in connection with the transactions
contemplated herein or in the Fund Agreements, except such as have
been made or obtained under the Act and the 1940 Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in this Agreement and
in the Prospectus and such other approvals (specified in such
opinion) as have been obtained;
(ix) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement or any of the
Fund Agreements by the Fund, nor the consummation by the Fund of
the transactions herein or therein contemplated or the adoption of
the Fund's Dividend Reinvestment Plan (i) conflicts or will
conflict with or constitutes or will constitute a breach of the
charter or by-laws of the Fund, (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 Fund 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, or regulation or filing or judgment,
injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets
of the Fund 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 Fund is subject; and
18
(x) No holders of securities of the Fund have rights to
the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the Federal laws of the United States, to the extent
they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of officers of the
Fund and public officials. References to the Prospectus in this paragraph
(b) shall also include any supplements thereto at the Closing Date.
(c) You shall have received on the Closing Date an opinion of
Xxxxxx X. Xxxx, 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 formed and is validly
existing in good standing as a limited liability company under the
laws of the State of Delaware, with full power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus, and
is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which
requires such qualification.
(ii) The Adviser is duly registered under the Advisers
Act as an investment adviser and is not prohibited by the Advisers
Act, the 1940 Act, the Advisers Act Rules and Regulations or the
1940 Act Rules and Regulations from acting under the Fund
Agreements to which it is a party for the Fund, or under the
After-Market Services Agreement, as contemplated by the
Prospectus;
(iii) The Adviser has full power and authority to enter
into this Agreement, the Fund Agreements to which the Adviser is a
party and the After-Market Services Agreement;
(iv) This Agreement has been duly authorized, executed
and delivered by the Adviser;
(v) The Fund Agreements to which the Adviser is a party
and the After-Market Services Agreement have been duly authorized,
executed and delivered by the Adviser and this Agreement, the Fund
Agreements to which the Adviser is a party, and the After-Market
Services Agreement are each 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 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 Adviser's obligations thereunder
and hereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws
19
relating to or affecting creditors' rights generally and by
general equitable principles;
(vi) This Agreement, the Fund Agreements to which the
Adviser is a party, and the After-Market Services Agreement comply
in all material respects with all applicable provisions of the
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and
the Advisers Act Rules and Regulations;
(vii) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement, the Fund
Agreements to which the Adviser is a party, or the After-Market
Services Agreement, nor the consummation by the Adviser of the
transactions herein or therein contemplated (A) conflicts or will
conflict with, or constitutes or will constitute a breach of or
default under, the certificate of formation or the limited
liability company agreement, or other organizational documents, of
the Adviser or (B) conflicts or will conflict with, or constitutes
or will constitute a material breach of or material 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 will result in the creation or
imposition of any material lien, charge or encumbrance upon any
material property or material assets of the Adviser, nor will any
such action result in any material violation of any law of the
State of New York, the Delaware General Corporation Law, the
Delaware Limited Liability Company Act, the 1940 Act, the Advisers
Act or any regulation or judgment, injunction, order or decree
applicable to the Adviser or any of its properties;
(viii) The description of the Adviser and its business in
the Prospectus complies in all material respects with all
requirements of the Act, the 1940 Act and the Rules and
Regulations;
(ix) To the best knowledge of such counsel after
reasonable inquiry, other than as described or contemplated in the
Registration Statement and the Prospectus, there are no actions,
suits or other legal or governmental proceedings pending or
threatened against the Adviser or to which the Adviser or any of
its property is subject which are required to be described in the
Registration Statement and the Prospectus;
(x) The Adviser owns, possesses or has obtained and
currently maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations as are necessary for it
to carry on its business as contemplated in the Registration
Statement and the Prospectus;
(xi) No material consent, approval, authorization or
order of or registration or filing with any court, regulatory
body, administrative or other governmental body, agency or
official is required on the part of the Adviser for the
performance of this Agreement, the Fund Agreements to which it is
a party, or the After-Market Services Agreement by the Adviser or
for the consummation by
20
the Adviser of the transactions contemplated hereby or thereby,
except such as have been made or obtained under the Act, the 1940
Act and the Advisers Act an such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus and such
other approvals as have been obtained; and
(xii) Such counsel shall also state that he 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 may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the State of New York or the Federal laws of the
United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of officers of the Fund or the Adviser and public
officials. References to the Prospectus in this paragraph (c) shall also
include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and
the Fund and the Adviser shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(e) Each of the Fund and the Adviser shall have furnished to
the Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of each
of the Fund 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 Fund 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 Fund and the Adviser have complied with
21
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 or, to the Fund's or the Adviser's
knowledge, threatened; and
(iii) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto) (with respect to the certificate of the Fund) and since
the date of the Prospectus (with respect to the certificate of the
Adviser), there has been no material adverse effect on the
condition (financial or otherwise), earnings, business or
properties of the Fund 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).
(f) The Fund shall have requested and caused Deloitte & Touche
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.
(g) 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 (f) 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 Fund 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).
(h) 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.
(i) Prior to the Closing Date, the Fund and the Adviser shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
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
22
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 Fund 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 Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing
Date.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Fund or the 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 Fund will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Fund and the
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 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 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, (with respect to the Prospectus and the
Preliminary Prospectus, in light of the circumstances under which they were
made) 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 or liability; PROVIDED,
HOWEVER, that the Fund 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 Fund or 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 Fund or the
Adviser may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless each of the Fund and the Adviser, each of its
directors, each of its members or officers who signs the Registration Statement,
and each person who controls the Fund or the Adviser
23
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Fund and the Adviser to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Fund 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 Fund 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"
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 it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party.
(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 Fund, 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 Fund,
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
Fund 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
24
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Fund, the 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 Fund 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 Fund 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
Fund 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 Fund, 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Fund or the Adviser within the meaning of either the Act or the Exchange
Act, each officer of the Fund and the Adviser who shall have signed the
Registration Statement and each director of the Fund and the Adviser shall have
the same rights to contribution as the Fund and the Adviser, subject in each
case to the applicable terms and conditions of this paragraph (d). 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.
(e) 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 Fund 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 Fund, the Adviser or their shareholders,
trustees, directors, managers, members or officers or any person controlling the
Fund or the Adviser (control to be determined within the meaning of the Act or
the Exchange
25
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
Fund, the Adviser or their shareholders, trustees, directors, managers, members
or officers or any person controlling any Underwriter, the Fund 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 amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Fund or the Adviser. In the event of a default by any Underwriter as set forth
in this Section 10 which does not result in a termination of this Agreement, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Fund and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, without liability on the part
of the Underwriters to the Fund or the Adviser, by notice given to the Fund or
the Adviser prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Fund'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 either of the exchanges, (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 Fund 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 Fund or the Adviser or any of the officers, directors, managers, members,
employees, agents or controlling persons referred to in Section 9 hereof, and
will survive
26
delivery of and payment for the Securities. The provisions of Sections 8 and 9
hereof shall survive the termination or cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel; or, if sent to the Fund or the Adviser, will
be mailed, delivered or telefaxed to Lazard Global Total Return and Income Fund,
Inc. (fax no.: (000) 000-0000) and confirmed to it at 00 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of the Legal Department.
14. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, managers, members, employees, agents and controlling
persons referred to in Section 9 hereof, and no other person will have any right
or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. 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.
17. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"1940 Act Rules and Regulations" shall mean the rules and
regulations of the Commission under the 1940 Act.
"1940 Act Notification" shall mean a notification of registration
of the Fund as an investment company under the 1940 Act on Form N-8A, as
the 1940 Act Notification may be amended from time to time.
"Act" shall mean the Securities Act of 1933, as amended..
"Act Rules and Regulations" shall mean the rules and regulations
of the Commission under the Act.
"Advisers Act" shall mean the Investment Advisers Act of 1940, as
amended.
27
"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 day on which the NYSE is not open for regular trading or on which
banking institutions or trust companies are authorized or obligated by
law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
(including the statement of additional information incorporated by
reference therein) referred to in paragraph 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 paragraph 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 Act.
28
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Rule 497" refers to Rule 497(c) or 497(h) under the Act, as
applicable.
"Rules and Regulations" shall mean, collectively, the Act Rules
and Regulations and the 1940 Act Rules and Regulations.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Fund, the Adviser and the several Underwriters.
Very truly yours,
LAZARD GLOBAL TOTAL RETURN AND
INCOME FUND, INC.
By:
---------------------------------------
Name:
Title:
LAZARD ASSET MANAGEMENT LLC
By:
---------------------------------------
Name:
Title:
30
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By:
---------------------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE
PURCHASED
Citigroup Global Markets Inc...................
-------------
Total.............................
=============
