Exhibit 99.(h)(1)
Xxxxx Xxxxx Tax-Advantaged Global Buy-Write Opportunities Fund
[__________] Common Shares of Beneficial Interest
Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
September [__], 2005
UNDERWRITING AGREEMENT
September [__], 2005
UBS Securities LLC
[other Co-Managers]
as Representatives
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxx Xxxxx Tax-Advantaged Global Buy-Write Opportunities Fund, a
voluntary association with transferable shares organized and existing under and
by virtue of the laws of The Commonwealth of Massachusetts (commonly referred to
as a Massachusetts business trust) (the "Fund"), proposes to issue and sell to
the underwriters named in Schedule A annexed hereto (the "Underwriters") an
aggregate of [________] common shares of beneficial interest (the "Firm
Shares"), par value $0.01 per share (the "Common Shares"), of the Fund. In
addition, solely for the purpose of covering over-allotments, the Fund proposes
to grant to the Underwriters the option to purchase from the Fund up to an
additional [________] Common Shares (the "Additional Shares"). The Firm Shares
and the Additional Shares are hereinafter collectively sometimes referred to as
the "Shares." The Shares are described in the Prospectus which is defined below.
The Fund has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively
called the "Securities Act"), and with the provisions of the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder (collectively
called the "Investment Company Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form N-2 (File Nos.
333-21745 and 811-123961), including a prospectus and a statement of additional
information, relating to the Shares. The Fund has furnished to the
Representatives, for use by the Underwriters and by dealers, copies of one or
more preliminary prospectuses (including a preliminary statement of additional
information) (each thereof, including such preliminary statement of additional
information, being herein called a "Preliminary Prospectus") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it becomes effective (the "Effective Date"), including all
documents filed as a part thereof or incorporated by reference therein, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 497 under the Securities Act and deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act is herein called the "Registration Statement," and the
prospectus (including the statement of additional information), in the form
filed by the Fund with the Commission pursuant to Rule 497 under the Securities
Act or, if no such filing is required, the form of final prospectus (including
the form of final statement of additional information) included in the
Registration Statement at the time it became effective, is herein called the
"Prospectus." In addition, the Fund has filed a Notification of Registration on
Form N-8A (the "Notification") pursuant to Section 8 of the Investment Company
Act. UBS Securities LLC ("UBS Securities" or the "Managing Representative") will
act as managing representative for the Underwriters.
Xxxxx Xxxxx Management, a Massachusetts business trust ("Xxxxx Xxxxx" or
the "Investment Adviser") will act as the Fund's investment adviser pursuant to
an Investment Advisory Agreement by and between the Fund and the Investment
Adviser, dated as of September [____], 2005 (the "Investment Advisory
Agreement"). Parametric Portfolio Associates LLC ("Parametric") and Rampart
Investment Management Company, Inc. ("Rampart", and together with Parametric,
the "Sub-Advisers" and each a "Sub-Adviser", and together with the Investment
Adviser the "Advisers") will act as the Fund's investment sub-advisers each
pursuant to an Investment Sub-Advisory Agreement among the Fund, the Investment
Adviser and the applicable Sub-Adviser, dated as of September [____], 2005 (the
"Sub-Advisory Agreements"). Investors Bank & Trust Company will act as the
custodian (the "Custodian") of the Fund's cash and portfolio assets pursuant to
a Custodian Agreement, dated as of September [____], 2005 (the "Custodian
Agreement"). PFPC Inc. will act as the Fund's transfer agent, registrar, and
dividend disbursing agent (the "Transfer Agent") pursuant to a Transfer Agency
Services Agreement, dated as of September [____], 2005 (the "Transfer Agency
Agreement"). Xxxxx Xxxxx will act as the administrator of the Fund pursuant to
an Administration Agreement, dated as of September [____], 2005 (the
"Administration Agreement"). The Investment Adviser and UBS Securities LLC have
entered into a Shareholder Servicing Agreement dated September [____], 2005 (the
"Shareholder Servicing Agreement"). [The Investment Adviser has also entered
into an Additional Compensation Agreement with [_________], dated September
[____], 2005 (the "Additional Compensation Agreement").] In addition, the Fund
has adopted a dividend reinvestment plan (the "Dividend Reinvestment Plan")
pursuant to which holders of Shares may have their dividends automatically
reinvested in additional Common Shares of the Fund if so elected.
The Fund, the Investment Adviser, the Sub-Advisers and the Underwriters
agree as follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Fund agrees to
sell to the respective Underwriters and each of the Underwriters, severally and
not jointly, agrees to purchase from the Fund the aggregate number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A attached
hereto in each case at a purchase price of $19.10 per Share. The Fund is advised
that the Underwriters intend (i) to make a public offering of their respective
portions of the Firm Shares as soon after the effective date of the Registration
Statement as is advisable and (ii) initially to offer the Firm Shares upon the
terms set forth in the Prospectus. The Underwriters may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as they may determine.
In addition, the Fund hereby grants to the several Underwriters the option
to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Fund, ratably in
accordance with the number of Firm Shares to be purchased by each of them, all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per Share to be paid by the Underwriters to the Fund for the
Firm Shares. This option may be exercised by the Representatives on behalf of
the several Underwriters at any time and from time to time on or before the
forty-fifth day following the date hereof, by written notice to the Fund. Such
notice shall set forth the aggregate number of Additional Shares as to which the
option is being exercised, and the date and time when the Additional Shares are
to be delivered (such date and time being herein referred to as the "Additional
Time of Purchase"); provided, however, that the Additional Time of Purchase
shall not be earlier than the Time of Purchase (as defined below) nor earlier
than the second business day after the date on which the option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares
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(subject, in each case, to such adjustment as the Representatives may determine
to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm Shares
shall be made by the Underwriters to the Fund by Federal Funds wire transfer,
against delivery of the certificates for the Firm Shares to the Representatives
through the facilities of the Depository Trust Company for the respective
accounts of the Underwriters. Such payment and delivery shall be made at a time
mutually agreed upon by the parties on the third business day following the date
of this Underwriting Agreement (unless another date shall be agreed to by the
Representatives and the Fund). The time at which such payment and delivery are
actually made is hereinafter sometimes called the Time of Purchase. Certificates
for the Firm Shares shall be delivered to the Representatives in definitive form
in such names and in such denominations as the Representatives shall specify on
the second business day preceding the Time of Purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by the
Representatives, the Fund agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
Time of Purchase.
Payment of the purchase price for the Additional Shares shall be made at
the Additional Time of Purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to the Representatives in definitive form in such names and in such
denominations as the Representatives shall specify no later than the second
business day preceding the Additional Time of Purchase. For the purpose of
expediting the checking of the certificates for the Additional Shares by the
Representatives, the Fund agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
Additional Time of Purchase. The Time of Purchase and the Additional Time of
Purchase are sometimes referred to herein as the Closing Dates.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND, THE INVESTMENT ADVISER AND
THE SUB-ADVISERS. Each of the Fund, the Investment Adviser, Parametric and
Rampart jointly and severally represents and warrants to each Underwriter as
follows:
(a) On (i) the Effective Date and the date on which the Prospectus
is first filed with the Commission pursuant to Rule 497(b), (h) or (j) under the
Securities Act, as the case may be, (ii) the date on which any post-effective
amendment to the Registration Statement (except any post-effective amendment
which is filed with the Commission after the later of (x) one year from the date
of this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) became or becomes effective or any amendment or supplement
to the Prospectus was or is filed with the Commission and (iii) the Closing
Dates, the Registration Statement, the Prospectus and any such amendment or
supplement thereto and the Notification complied or will comply in all material
respects with the requirements of the Securities Act and the Investment Company
Act, as the case may be. On the Effective Date and on the date that any
post-effective amendment to the Registration Statement (except any
post-effective amendment which is filed with the Commission after the later of
(x) one year from the date of this Underwriting Agreement or (y) the date on
which the distribution of the Shares is completed) became or becomes effective,
neither the Registration Statement nor any such amendment did or will contain
any untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in it not
misleading. Except as permitted under Rule 430 under the Securities Act (and
other applicable rules under Regulation C under the Securities Act), the
Preliminary Prospectus dated August [____], 2005 did not, as of such date,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in it, in light
of the circumstances under which they were made, not misleading. At the
Effective Date and, if applicable, the date the Prospectus or any amendment or
supplement to the Prospectus was or is filed with the Commission and at the
Closing Dates, the Prospectus did not or will not, as the case may be, contain
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any untrue statement of a material fact or omit to state a material fact
required to be stated in it or necessary to make the statements in it, in light
of the circumstances under which they were made, not misleading. The foregoing
representations in this Section 3(a) do not apply to statements or omissions
relating to the Underwriters made in reliance on and in conformity with
information furnished in writing to the Fund by the Underwriters expressly for
use in the Registration Statement, the Prospectus, or any amendments or
supplements thereto, as described in Section 9(f) hereof.
(b) The Fund has been duly formed, is validly existing as a business
trust under the laws of the Commonwealth of Massachusetts, with full power and
authority to conduct all the activities conducted by it, to own or lease all
assets owned or leased by it and to conduct its business as described in the
Registration Statement and Prospectus, and the Fund is duly licensed and
qualified to do business and in good standing in each jurisdiction in which its
ownership or leasing of property or its conducting of business requires such
qualification, except where the failure to be so qualified or be in good
standing would not have a material adverse effect on the Fund, and the Fund
owns, possesses or has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other authorizations, whether
foreign or domestic, necessary to carry on its business as contemplated in the
Prospectus. The Fund has no subsidiaries.
(c) The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Common Shares conform in all
material respects to the description of them in the Prospectus. All the
outstanding Common Shares have been duly authorized and are validly issued,
fully paid and nonassessable (except as described in the Registration
Statement). The Shares to be issued and delivered to and paid for by the
Underwriters in accordance with this Underwriting Agreement against payment
therefor as provided by this Underwriting Agreement have been duly authorized
and when issued and delivered to the Underwriters will have been validly issued
and will be fully paid and nonassessable (except as described in the
Registration Statement). No person is entitled to any preemptive or other
similar rights with respect to the Shares.
(d) The Fund is duly registered with the Commission under the
Investment Company Act as a diversified, closed-end management investment
company, and, subject to the filing of any final amendment to the Registration
Statement (a "Final Amendment"), if not already filed, all action under the
Securities Act and the Investment Company Act, as the case may be, necessary to
make the public offering and consummate the sale of the Shares as provided in
this Underwriting Agreement has or will have been taken by the Fund.
(e) The Fund has full power and authority to enter into each of this
Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory
Agreements, the Custodian Agreement, the Transfer Agency Agreement, the
Administration Agreement, and the Dividend Reinvestment Plan (collectively, the
"Fund Agreements") and to perform all of the terms and provisions hereof and
thereof to be carried out by it and (i) each Fund Agreement has been duly and
validly authorized, executed and delivered by or on behalf of the Fund, (ii)
each Fund Agreement does not violate in any material respect any of the
applicable provisions of the Investment Company Act or the Investment Advisers
Act of 1940, as amended, and the rules and regulations thereunder (collectively
called the "Advisers Act"), as the case may be, and (iii) assuming due
authorization, execution and delivery by the other parties thereto, each Fund
Agreement constitutes the legal, valid and binding obligation of the Fund
enforceable in accordance with its terms, (A) subject, as to enforcement, to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general equitable principles (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (B) except as rights to
indemnity thereunder may be limited by federal or state securities laws.
4
(f) None of (i) the execution and delivery by the Fund of the Fund
Agreements, (ii) the issue and sale by the Fund of the Shares as contemplated by
this Underwriting Agreement and (iii) the performance by the Fund of its
obligations under any of the Fund Agreements or consummation by the Fund of the
other transactions contemplated by the Fund Agreements conflicts with or will
conflict with, or results or will result in a breach of, the Declaration of
Trust or the By-laws of the Fund or any agreement or instrument to which the
Fund is a party or by which the Fund is bound, or any law, rule or regulation,
or order of any court, governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic, applicable to the Fund,
other than state securities or "blue sky" laws applicable in connection with the
purchase and distribution of the Shares by the Underwriters pursuant to this
Underwriting Agreement.
(g) The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which it or its
property is bound or affected.
(h) No person has any right to the registration of any securities of
the Fund because of the filing of the registration statement.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required by the Fund for the consummation by the Fund of
the transactions to be performed by the Fund or the performance by the Fund of
all the terms and provisions to be performed by or on behalf of it in each case
as contemplated in the Fund Agreements, except such as (i) have been obtained
under the Securities Act, the Investment Company Act, or the Advisers Act, and
(ii) may be required by the New York Stock Exchange or under state securities or
"blue sky" laws, in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(j) The Shares are duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange and the Fund's Registration
Statement on Form 8-A, under the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (collectively called the "Exchange
Act"), has become effective.
(k) Deloitte & Touche LLP, whose report appears in the Prospectus,
are independent public auditors with respect to the Fund as required by the
Securities Act and the Investment Company Act.
(l) The statement of assets and liabilities included in the
Registration Statement and the Prospectus presents fairly in all material
respects, in accordance with generally accepted accounting principles in the
United States applied on a consistent basis, the financial position of the Fund
as of the date indicated.
(m) The Fund 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; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 through an
asset reconciliation procedure or otherwise at reasonable intervals and
appropriate action is taken with respect to any differences.
(n) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(i) there has been no material adverse change in the
5
condition, financial or otherwise, business affairs or business prospects of the
Fund, whether or not arising in the ordinary course of business, (ii) there have
been no transactions entered into by the Fund other than those in the ordinary
course of its business and (iii) there has been no dividend or distribution of
any kind declared, paid or made on any class of its capital shares.
(o) There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending, or, to the knowledge of the Fund,
threatened against or affecting the Fund, which (i) might result in any material
adverse change in the condition, financial or otherwise, business affairs or
business prospects of the Fund or might materially adversely affect the
properties or assets of the Fund or (ii) is of a character required to be
described in the Registration Statement or the Prospectus; and there are no
contracts, franchises or other documents that are of a character required to be
described in, or that are required to be filed as exhibits to, the Registration
Statement that have not been described or filed as required.
(p) Except for stabilization transactions conducted by the
Underwriters, and except for tender offers, Share repurchases and the issuance
or purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected
following the date on which the distribution of the Shares is completed in
accordance with the policies of the Fund as set forth in the Prospectus, the
Fund has not taken and will not take, directly or indirectly, any action
designed or which might be reasonably expected to cause or result in, or which
will constitute, stabilization or manipulation of the price of the Common Shares
in violation of applicable federal securities laws.
(q) The Fund intends to direct the investment of the proceeds of the
offering of the Shares in such a manner as to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code").
(r) No advertising, sales literature or other promotional materials
(excluding road show slides or road show tapes) were authorized or prepared by
or on behalf of the Fund, the Investment Adviser or the Sub-Advisers or any
representative thereof for use in connection with the public offering or sale of
the Shares other than the definitive client brochure and the broker selling memo
which were filed with the NASD on August [15], 2005, [a draft prospecting letter
which was filed with the NASD on [___________], 2005, a draft of a prospecting
letter made available on a password-protected Internet web site maintained by
the Investment Adviser and a road show tape made available for broker use on an
Intranet web site maintained by the Investment Adviser] (collectively, the
"sales materials"); the sales materials and any road show slides or road show
tapes complied and comply in all material respects with the applicable
requirements of the Securities Act and the rules and interpretations of the
NASD; and no broker kits, road show slides, road show tapes or sales materials
authorized or prepared by the Fund or authorized or prepared on behalf of the
Fund by the Investment Adviser or the Sub-Adviser or any representative thereof
for use in connection with the public offering or sale of the Shares contained
or contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading.
In addition, any certificate signed by any officer of the Fund and
delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the Share shall be deemed to be a representation and warranty by
the Fund as to matters covered thereby, to each Underwriter
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTMENT ADVISER AND THE
Sub-Advisers. Each of the Investment Adviser Parametric and Rampart represents
to each Underwriter as follows:
6
(a) Such Adviser has been duly formed, is validly existing as a
business trust under the laws of the Commonwealth of Massachusetts, in the case
of the Investment Adviser, as a limited liability company under the laws of the
State of Delaware, in the case of Parametric, or as a corporation under the laws
of the Commonwealth of Massachusetts, in the case of Rampart, with full power
and authority to conduct all of the activities conducted by it, to own or lease
all of the assets owned or leased by it and to conduct its business as described
in the Registration Statement and Prospectus, and such Adviser is duly licensed
and qualified to do business and in good standing in each jurisdiction in which
it is required to be so qualified, except to the extent that failure to be so
qualified or be in good standing would not have a material adverse affect on the
such Adviser's ability to provide services to the Fund; and such Adviser owns,
possesses or has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary to carry on its business as contemplated in the
Registration Statement and the Prospectus.
(b) Such Adviser is (i) duly registered as an investment adviser
under the Advisers Act and (ii) not prohibited by the Advisers Act or the
Investment Company Act from acting as the investment adviser for the Fund as
contemplated by the Investment Advisory Agreement, the Sub-Advisory Agreements,
the Registration Statement and the Prospectus.
(c) Such Adviser has full power and authority to enter into each of
this Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory
Agreements, the Administration Agreement, the Shareholder Servicing Agreement,
[and the Additional Compensation Agreement], to which such Adviser is a party
(collectively, the "Adviser Agreements"), and to carry out all the terms and
provisions hereof and thereof to be carried out by it; and each Adviser
Agreement has been duly and validly authorized, executed and delivered by such
Adviser; none of the Adviser Agreements violate in any material respect any of
the applicable provisions of the Investment Company Act or the Advisers Act; and
assuming due authorization, execution and delivery by the other parties thereto,
each Adviser Agreement constitutes a legal, valid and binding obligation of such
Adviser, enforceable in accordance with its terms, (i) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (ii)
except as rights to indemnity thereunder may be limited by federal or state
securities laws.
(d) Neither (i) the execution and delivery by such Adviser of any
Adviser Agreement nor (ii) the consummation by such Adviser of the transactions
contemplated by, or the performance of its obligations under any Adviser
Agreement conflicts or will conflict with, or results or will result in a breach
of, the Declaration of Trust, in the case of the Investment Adviser, the Limited
Liability Company Operating Agreement, in the case of Parametric, or Articles of
Incorporation, in the case of Rampart, or By-Laws of such Adviser or any
agreement or instrument to which such Adviser is a party or by which such
Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to such Adviser.
(e) No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by such Adviser of its obligations under,
any Adviser Agreement, as the case may be, except such as (i) have been obtained
under the Securities Act, the Investment Company Act, or the Advisers Act, and
(ii) may be required by the New York Stock Exchange or under state securities or
"blue sky" laws, in connection with the purchase and distribution of the Shares
by the Underwriters pursuant to this Underwriting Agreement.
(f) The description of such Adviser and its business and the
statements attributable to such Adviser in the Registration Statement and the
Prospectus comply with the requirements of the
7
Securities Act and the Investment Company Act and do 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.
(g) Except as disclosed, there is no action, suit or proceeding
before or by any court, commission, regulatory body, administrative agency or
other governmental agency or body, foreign or domestic, now pending or, to the
knowledge of such Adviser, threatened against or affecting such Adviser of a
nature required to be disclosed in the Registration Statement or Prospectus or
that might reasonably be expected to result in any material adverse change in
the condition, financial or otherwise, business affairs or business prospects of
such Adviser or the ability of such Adviser to fulfill its respective
obligations under any Adviser Agreement.
(h) Except for stabilization activities conducted by the
Underwriters and except for tender offers, Share repurchases and the issuance or
purchase of Shares pursuant to the Fund's Dividend Reinvestment Plan effected
following the date on which the distribution of the Shares is completed in
accordance with the policies of the Fund as set forth in the Prospectus, such
Adviser has not taken and will not take, directly or indirectly, any action
designed, or which might reasonably be expected to cause or result in, or which
will constitute, stabilization or manipulation of the price of the Common Shares
in violation of applicable federal securities laws.
In the event that the Fund or such Adviser makes available any
promotional materials (other than the sales materials) intended for use only by
qualified broker-dealers and registered representatives thereof by means of an
Internet web site or similar electronic means, such Adviser will install and
maintain pre-qualification and password-protection or similar procedures which
will effectively prohibit access to such promotional materials by persons other
than qualified broker-dealers and registered representatives thereof.
In addition, any certificate signed by any officer of the Investment
Adviser or the Sub-Advisers and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Investment Adviser or the Sub-Advisers, as
applicable, as to matters covered thereby, to each Underwriter.
5. AGREEMENTS OF THE PARTIES.
(a) If the registration statement relating to the Shares has not yet
become effective, the Fund will promptly file a Final Amendment, if not
previously filed, with the Commission, and will use its best efforts to cause
such registration statement to become effective and, as soon as the Fund is
advised, will advise the Managing Representative when the Registration Statement
or any amendment thereto has become effective. If the Registration Statement has
become effective and the Prospectus contained therein omits certain information
at the time of effectiveness pursuant to Rule 430A under the Securities Act, the
Fund will file a 430A Prospectus pursuant to Rule 497(h) under the Securities
Act as promptly as practicable, but no later than the second business day
following the earlier of the date of the determination of the offering price of
the Shares or the date the Prospectus is first used after the Effective Date. If
the Registration Statement has become effective and the Prospectus contained
therein does not so omit such information, the Fund will file a Prospectus
pursuant to Rule 497(b) or a certification pursuant to Rule 497(j) under the
Securities Act as promptly as practicable, but no later than the fifth business
day following the date of the later of the Effective Date or the commencement of
the public offering of the Shares after the Effective Date. In either case, the
Fund will provide the Managing Representative satisfactory evidence of the
filing. The Fund will not file with the Commission any Prospectus or any other
amendment (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which distribution of
8
the Shares is completed) or supplement to the Registration Statement or the
Prospectus unless a copy has first been submitted to the Managing Representative
a reasonable time before its filing and the Managing Representative has not
objected to it in writing within a reasonable time after receiving the copy.
(b) For the period of three years from the date hereof, the Fund
will advise the Managing Representative promptly (i) of the issuance by the
Commission of any order in respect of the Fund, the Investment Adviser or the
Sub-Advisers, which relates to the Fund, or which relates to any material
arrangements or proposed material arrangements involving the Fund, the
Investment Adviser or the Sub-Advisers, (ii) of the initiation or threatening of
any proceedings for, or receipt by the Fund of any notice with respect to, any
suspension of the qualification of the Shares for sale in any jurisdiction or
the issuance of any order by the Commission suspending the effectiveness of the
Registration Statement, (iii) of receipt by the Fund, or any representative or
attorney of the Fund, of any other communication from the Commission relating in
any material way to the Fund, the Registration Statement, the Notification, any
Preliminary Prospectus, the Prospectus or to the transactions contemplated by
this Underwriting Agreement and (iv) the issuance by any court, regulatory body,
administrative agency or other governmental agency or body, whether foreign or
domestic, of any order, ruling or decree, or the threat to initiate any
proceedings with respect thereto, regarding the Fund, which relates in any
material way to the Fund or any material arrangements or proposed material
arrangements involving the Fund. The Fund will make every reasonable effort to
prevent the issuance of any order suspending the effectiveness of the
Registration Statement and, if any such order is issued, to obtain its lifting
as soon as possible.
(c) If not delivered prior to the date of this Underwriting
Agreement, the Fund will deliver to the Managing Representative, without charge,
a signed copy of the Registration Statement and the Notification and of any
amendments (except any post-effective amendment which is filed with the
Commission after the later of (x) one year from the date of this Underwriting
Agreement or (y) the date on which the distribution of the Shares is completed)
to either the Registration Statement or the Notification (including all exhibits
filed with any such document) and as many conformed copies of the Registration
Statement and any amendments thereto (except any post-effective amendment which
is filed with the Commission after the later of (x) one year from the date of
this Underwriting Agreement or (y) the date on which the distribution of the
Shares is completed) (excluding exhibits) as the Managing Representative may
reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an underwriter or a dealer, the Fund will deliver, without charge,
to the Representatives, the Underwriters and any dealers, at such office or
offices as the Representatives may designate, as many copies of the Prospectus
as the Representatives may reasonably request, and, if any event occurs during
such period as a result of which it is necessary to amend or supplement the
Prospectus, in order to make the statements therein, in light of the
circumstances under which they were made, not misleading in any material
respect, or if during such period it is necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Investment Company Act, the
Fund promptly will prepare, submit to the Managing Representative, file with the
Commission and deliver, without charge, to the Underwriters and to dealers
(whose names and addresses the Managing Representative will furnish to the Fund)
to whom Shares may have been sold by the Underwriters, and to other dealers on
request, amendments or supplements to the Prospectus so that the statements in
such Prospectus, as so amended or supplemented, will not, in light of the
circumstances under which they were made, be misleading in any material respect
and will comply with the Securities Act and the Investment Company Act. Delivery
by the Underwriters of any such amendments or supplements to the Prospectus will
not constitute a waiver of any of the conditions in Section 6 hereof.
9
(e) The Fund will make generally available to holders of the Fund's
securities, as soon as practicable but in no event later than the last day of
the 18th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement, if applicable, satisfying the
provisions of the last paragraph of Section 11(a) of the Securities Act and, at
the option of the Fund, Rule 158 under the Securities Act.
(f) If the transactions contemplated by this Underwriting Agreement
are consummated, the Fund shall pay all costs and expenses incident to the
performance of the obligations of the Fund under this Underwriting Agreement (to
the extent such expenses do not, in the aggregate, exceed $0.04 per Share),
including but not limited to costs and expenses of or relating to (i) the
preparation, printing and filing of the Registration Statement and exhibits to
it, each Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto, (ii) the issuance of the Shares and the preparation and
delivery of certificates for the Shares, (iii) the registration or qualification
of the Shares for offer and sale under the securities or "blue sky" laws of the
jurisdictions referred to in the foregoing paragraph, including the fees and
disbursements of counsel for the Underwriters in that connection, and the
preparation and printing of any preliminary and supplemental "blue sky"
memoranda, (iv) the furnishing (including costs of design, production, shipping
and mailing) to the Underwriters and dealers of copies of each Preliminary
Prospectus relating to the Shares, the sales materials, the Prospectus, and all
amendments or supplements to the Prospectus, and of the other documents required
by this Section to be so furnished, (v) the filing requirements of the NASD, in
connection with its review of the financing, including filing fees paid by
counsel for the Underwriters in that connection, (vi) all transfer taxes, if
any, with respect to the sale and delivery of the Shares to the Underwriters,
(vii) the listing of the Shares on the New York Stock Exchange and (viii) the
transfer agent for the Shares. To the extent the foregoing costs and expenses
incident to the performance of the obligations of the Fund under this
Underwriting Agreement exceed, in the aggregate, $0.04 per Share, Xxxxx Xxxxx or
an affiliate will pay all such excess costs and expenses. The Fund, the
Investment Adviser and the Sub-Advisers may otherwise agree among themselves as
to the payment of the foregoing expenses, whether or not the transactions
contemplated by this Underwriting Agreement are consummated, provided, however,
that in no event shall the Underwriters be obligated to pay any of the foregoing
expenses.
(g) If the transactions contemplated by this Underwriting Agreement
are not consummated, except as otherwise provided herein, no party will be under
any liability to any other party, except that (i) if this Underwriting Agreement
is terminated by (x) the Fund, the Investment Adviser or the Sub-Advisers
pursuant to any of the provisions hereof or (y) by the Representatives or the
Underwriters because of any inability, failure or refusal on the part of the
Fund, the Investment Adviser or the Sub-Advisers to comply with any material
terms or because any of the conditions in Section 6 are not satisfied, the
Investment Adviser or the Sub-Advisers or such Adviser's affiliates and the
Fund, jointly and severally, will reimburse the Underwriters for all
out-of-pocket expenses (including the reasonable fees, disbursements and other
charges of their counsel) reasonably incurred by them in connection with the
proposed purchase and sale of the Shares and (ii) no Underwriter who has failed
or refused to purchase the Shares agreed to be purchased by it under this
Underwriting Agreement, in breach of its obligations pursuant to this
Underwriting Agreement, will be relieved of liability to the Fund, the
Investment Adviser, the Sub-Advisers and the other Underwriters for damages
occasioned by its default.
(h) Without the prior written consent of the Managing
Representative, the Fund will not offer, sell or register with the Commission,
or announce an offering of, any equity securities of the Fund, within 180 days
after the Effective Date, except for the Shares as described in the Prospectus
and any issuances of Common Shares pursuant to the Dividend Reinvestment Plan
and except in connection with any offering of preferred shares of beneficial
interest as contemplated by the Prospectus.
10
(i) The Fund will use its best efforts to list the Shares on the New
York Stock Exchange prior to the date the Shares are issued and comply with the
rules and regulations of such exchange.
(j) The Fund will direct the investment of the net proceeds of the
offering of the Shares in such a manner as to comply with the investment
objective and policies of the Fund as described in the Prospectus.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Shares are subject to the accuracy on the date of
this Underwriting Agreement, and on each of the Closing Dates, of the
representations of the Fund, the Investment Adviser and the Sub-Advisers in this
Underwriting Agreement, to the accuracy and completeness of all material
statements made by the Fund, the Investment Adviser or the Sub-Advisers or any
of their respective officers in any certificate delivered to the Managing
Representative or its counsel pursuant to this Underwriting Agreement, to
performance by the Fund, the Investment Adviser and the Sub-Advisers of their
respective obligations under this Underwriting Agreement and to each of the
following additional conditions:
(a) The Registration Statement must have become effective by 5:30
p.m., New York City time, on the date of this Underwriting Agreement or such
later date and time as the Managing Representative consents to in writing. The
Prospectus must have been filed in accordance with Rule 497(b) or (h) or a
certificate must have been filed in accordance with Rule 497(j), as the case may
be, under the Securities Act.
(b) No order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or, to the knowledge of counsel to the Underwriters, threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) must be complied with or waived to the reasonable satisfaction of the
Managing Representative.
(c) Since the dates as of which information is given in the
Registration Statement and the Prospectus, (i) there must not have been any
material change in the Common Shares or liabilities of the Fund except as set
forth in or contemplated by the Prospectus; (ii) there must not have been any
material adverse change in the general affairs, prospects, management, business,
financial condition or results of operations of the Fund, the Investment Adviser
or the Sub-Advisers whether or not arising from transactions in the ordinary
course of business as set forth in or contemplated by the Prospectus; (iii) the
Fund must not have sustained any material loss or interference with its business
from any court or from legislative or other governmental action, order or
decree, whether foreign or domestic, or from any other occurrence not described
in the Registration Statement and Prospectus; and (iv) there must not have
occurred any event that makes untrue or incorrect in any material respect any
statement or information contained in the Registration Statement or Prospectus
or that is not reflected in the Registration Statement or Prospectus but should
be reflected therein in order to make the statements or information therein (in
the case of the Prospectus, in light of the circumstances in which they were
made) not misleading in any material respect; if, in the judgment of the
Managing Representative, any such development referred to in clause (i), (ii),
(iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares pursuant to this Underwriting
Agreement by the Underwriters, at the initial public offering price of the
Shares.
(d) On the Closing Date, the Shares must have been approved for
listing on the NYSE, subject only to official notice of issuance.
11
(e) The Managing Representative must have received on each Closing
Date a certificate, dated such date, of the President or a Vice-President and
the chief financial or accounting officer of each of the Fund, the Investment
Adviser and each Sub-Adviser certifying (in their capacity as such officers and,
with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and
such Adviser, as the case may be) that (i) the signers have carefully examined
the Registration Statement, the Prospectus, and this Underwriting Agreement,
(ii) the representations of the Fund (with respect to the certificates from such
Fund officers), the representations of the Investment Adviser (with respect to
the certificates from such officers of the Investment Adviser) and the
representations of each Sub-Adviser (with respect to the certificates from such
officers of each Sub-Adviser) in this Underwriting Agreement are accurate on and
as of the date of the certificate, (iii) (A) there has been no material adverse
change in the condition, financial or otherwise, business affairs or business
prospects of the Fund (with respect to the certificates from such Fund
officers), and (B) there has been no material adverse change in the condition,
financial or otherwise, business affairs or business prospects of the Investment
Adviser (with respect to the certificates from such officers of the Investment
Adviser) or each Sub-Adviser (with respect to the certificates from such
officers of each Sub-Adviser), whether or not in the ordinary course of
business, (iv) with respect to the Fund only, to the knowledge of such officers
after reasonable investigation, no order suspending the effectiveness of the
Registration Statement, prohibiting the sale of any of the Shares or otherwise
having a material adverse effect on the Fund has been issued and no proceedings
for any such purpose are pending before or threatened by the Commission or any
other regulatory body, whether foreign or domestic, (v) to the knowledge of the
officers of each of the Investment Adviser and each Sub-Adviser, after
reasonable investigation, no order having a material adverse effect on the
ability of such Adviser to fulfill its obligations under this Underwriting
Agreement, the Shareholder Servicing Agreement, [the Additional Compensation
Agreement,] the Investment Advisory Agreement or the Sub-Advisory Agreements
(with respect to the certificates from such officers of the Investment Adviser)
and this Underwriting Agreement or the Sub-Advisory Agreements, (with respect to
the certificates from such officers of each Sub-Adviser), as the case may be,
has been issued and no proceedings for any such purpose are pending before or
threatened by the Commission or any other regulatory body, whether foreign or
domestic, and (vi) each of the Fund (with respect to the certificates from such
Fund officers), the Investment Adviser (with respect to the certificates from
such officers of the Investment Adviser) and each Sub-Adviser (with respect to
the certificates from such officers of each Sub-Adviser) has performed all of
its respective agreements that this Underwriting Agreement requires it to
perform by such Closing Date (to the extent not waived in writing by the
Managing Representative).
(f) The Managing Representative must have received on each Closing
Date the opinions dated such Closing Date substantially in the form of Schedules
B, C, and D to this Underwriting Agreement from the counsel identified in each
such Schedules.
(g) The Managing Representative must have received on each Closing
Date from Xxxxxxxx Chance US LLP an opinion dated such Closing Date with respect
to the Fund, the Shares, the Registration Statement and the Prospectus, this
Underwriting Agreement and the form and sufficiency of all proceedings taken in
connection with the sale and delivery of the Shares. Such opinion and
proceedings shall fulfill the requirements of this Section 6(g) only if such
opinion and proceedings are satisfactory in all respects to the Managing
Representative. The Fund, the Investment Adviser and the Sub-Advisers must have
furnished to such counsel such documents as counsel may reasonably request for
the purpose of enabling them to render such opinion.
(h) The Managing Representative must have received on the date this
Underwriting Agreement is signed and delivered by you a signed letter, dated
such date, substantially in the form of Schedule E to this Underwriting
Agreement from the firm of accountants designated in such Schedule. The Managing
Representative also must have received on each Closing Date a signed letter from
such
12
accountants, dated as of such Closing Date, confirming on the basis of a review
in accordance with the procedures set forth in their earlier letter that nothing
has come to their attention during the period from a date not more than five
business days before the date of this Underwriting Agreement, specified in the
letter, to a date not more than five business days before such Closing Date,
that would require any change in their letter referred to in the foregoing
sentence.
(i) The Managing Representative must have received on the Closing
Date the Shareholder Servicing Agreement as executed by Xxxxx Xxxxx. [[ ]
must have received on the Closing Date the Additional Compensation
Agreement as executed by Xxxxx Xxxxx.]
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement will comply only if they are in form
and scope reasonably satisfactory to counsel for the Underwriters, provided that
any such documents, forms of which are annexed hereto, shall be deemed
satisfactory to such counsel if substantially in such form.
7. TERMINATION. This Underwriting Agreement may be terminated by the
Managing Representative by notifying the Fund at any time:
(a) before the later of the effectiveness of the Registration
Statement and the time when any of the Shares are first generally offered
pursuant to this Underwriting Agreement by the Managing Representative to
dealers by letter or telegram;
(b) at or before any Closing Date if, in the sole judgment of the
Managing Representative, payment for and delivery of any Shares is rendered
impracticable or inadvisable because (i) trading in the equity securities of the
Fund is suspended by the Commission or by the principal exchange that lists the
Shares, (ii) trading in securities generally on the New York Stock Exchange or
the Nasdaq Stock Market shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange or
over-the-counter market, (iii) additional material governmental restrictions,
not in force on the date of this Underwriting Agreement, have been imposed upon
trading in securities or trading has been suspended on any U.S. securities
exchange, (iv) a general banking moratorium has been established by U.S. federal
or New York authorities or (v) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national emergency or war
or other calamity, terrorist activity or crisis shall have occurred the effect
of any of which is such as to make it, in the sole judgment of the Managing
Representative, impracticable or inadvisable to market the Shares on the terms
and in the manner contemplated by the Prospectus; or
(c) at or before any Closing Date, if any of the conditions
specified in Section 6 have not been fulfilled when and as required by this
Underwriting Agreement.
8. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters fails
(other than for a reason sufficient to justify the termination of this
Underwriting Agreement) to purchase on any Closing Date the Shares agreed to be
purchased on such Closing Date by such Underwriter or Underwriters, the Managing
Representative may find one or more substitute underwriters to purchase such
Shares or make such other arrangements as the Managing Representative deems
advisable, or one or more of the remaining Underwriters may agree to purchase
such Shares in such proportions as may be approved by the Managing
Representative, in each case upon the terms set forth in this Underwriting
Agreement. If no such arrangements have been made within 36 hours after such
Closing Date, and
13
(a) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date does not exceed 10% of the Shares that the
Underwriters are obligated to purchase on such Closing Date, each of the
nondefaulting Underwriters will be obligated to purchase such Shares on the
terms set forth in this Underwriting Agreement in proportion to their respective
obligations under this Underwriting Agreement, or
(b) the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date exceeds 10% of the Shares to be purchased by
all the Underwriters on such Closing Date, the Fund will be entitled to an
additional period of 24 hours within which to find one or more substitute
underwriters reasonably satisfactory to the Managing Representative to purchase
such Shares on the terms set forth in this Underwriting Agreement.
Upon the occurrence of the circumstances described in the foregoing
paragraph (b), either the Managing Representative or the Fund will have the
right to postpone the applicable Closing Date for not more than five business
days in order that necessary changes and arrangements (including any necessary
amendments or supplements to the Registration Statement or the Prospectus) may
be effected by the Managing Representative and the Fund. If the number of Shares
to be purchased on such Closing Date by such defaulting Underwriter or
Underwriters exceeds 10% of the Shares that the Underwriters are obligated to
purchase on such Closing Date, and none of the nondefaulting Underwriters or the
Fund makes arrangements pursuant to this Section within the period stated for
the purchase of the Shares that the defaulting Underwriters agreed to purchase,
this Underwriting Agreement will terminate without liability on the part of any
nondefaulting Underwriter, the Fund, the Investment Adviser, or the Sub-Advisers
except as provided in Sections 5(g) and 9 hereof. Any action taken under this
Section will not affect the liability of any defaulting Underwriter to the Fund,
the Investment Adviser or the Sub-Advisers or to any nondefaulting Underwriters
arising out of such default. A substitute underwriter will become an Underwriter
for all purposes of this Underwriting Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) Each of the Fund, the Investment Adviser, Parametric and
Rampart, jointly and severally, agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and their successors and assigns of all of
the foregoing persons from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the
Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act,
the common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Fund) or in a Prospectus (the term "Prospectus" for the purpose of this Section
9 being deemed to include any Preliminary Prospectus, the sales materials, the
Prospectus and the Prospectus as amended or supplemented by the Fund), or arises
out of or is based upon any omission or alleged omission to state a material
fact required to be stated in either such Registration Statement or Prospectus
or necessary to make the statements made therein (with
14
respect to the Prospectus, in light of the circumstances under which they were
made) not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter to the Fund,
the Investment Adviser or the Sub-Advisers expressly for use with reference to
any Underwriter in such Registration Statement or such Prospectus or arises out
of or is based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information (with respect
to the Prospectus, in light of the circumstances under which they were made) not
misleading, provided, however, that the indemnity agreement contained in this
subsection (a) with respect to any Preliminary Prospectus or amended Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such loss, damage, expense, liability or claim purchased the Shares which is the
subject thereof if the Prospectus corrected any such alleged untrue statement or
omission and if such Underwriter failed to send or give a copy of the Prospectus
to such person at or prior to the written confirmation of the sale of such
Shares to such person, unless the failure is the result of noncompliance by the
Fund with Section 5(d) hereof.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Fund, the Investment Adviser or either Sub-Adviser
pursuant to the foregoing paragraph, such Underwriter or such person shall
promptly notify the Fund, the Investment Adviser or the Sub-Advisers in writing
of the institution of such Proceeding and the Fund, the Investment Adviser or
the Sub-Advisers shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Fund, the Investment Adviser or the Sub-Advisers shall not relieve
the Fund, the Investment Adviser or the Sub-Advisers from any liability which
the Fund, the Investment Adviser or the Sub-Advisers may have to any Underwriter
or any such person or otherwise. Such Underwriter or such person shall have the
right to employ its or their own counsel in any such case, but the reasonable
fees and expenses of such counsel shall be at the expense of such Underwriter or
of such person unless the employment of such counsel shall have been authorized
in writing by the Fund, the Investment Adviser or the Sub-Advisers as the case
may be, in connection with the defense of such Proceeding or the Fund, the
Investment Adviser or the Sub-Advisers shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them, which
are different from, additional to or in conflict with those available to the
Fund, the Investment Adviser or the Sub-Advisers (in which case the Fund, the
Investment Adviser or the Sub-Advisers shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such reasonable fees and expenses shall be borne by the
Fund, the Investment Adviser or the Sub-Advisers and paid as incurred (it being
understood, however, that the Fund, the Investment Adviser or the Sub-Advisers
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). Neither the Fund, the Investment Adviser nor
the Sub-Advisers shall be liable for any settlement of any Proceeding effected
without its written consent but if settled with the written consent of the Fund,
the Investment Adviser or the Sub-Advisers, the Fund, the Investment Adviser or
the Sub-Advisers, as the case may be, agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party agrees that
it shall be liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened 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 on claims that are the subject
15
matter of such Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Fund, the Investment Adviser and the Sub-Advisers, and each of
their respective shareholders, partners, managers, members, trustees, directors
and officers, and any person who controls the Fund, the Investment Adviser or
the Sub-Advisers within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation), which, jointly or severally,
the Fund, the Investment Adviser or the Sub-Advisers or any such person may
incur under the Securities Act, the Exchange Act, the Investment Company Act,
the Advisers Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of such Underwriter to the
Fund, the Investment Adviser or the Sub-Advisers expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Fund) or in a Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading (with respect to the
Prospectus, in light of the circumstances under which they were made).
If any Proceeding is brought against the Fund, the Investment
Adviser, the Sub-Advisers or any such person in respect of which indemnity may
be sought against any Underwriter pursuant to the foregoing paragraph, the Fund,
the Investment Adviser, either Sub-Adviser or such person shall promptly notify
such Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Fund, the Investment Adviser, the
Sub-Advisers or any such person or otherwise. The Fund, the Investment Adviser,
the Sub-Advisers or such person shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Fund, the Investment Adviser, the Sub-Advisers or such person, as
the case may be, unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them, which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Fund, the Investment
Adviser, the Sub-Advisers and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
16
effected without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened 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 on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund, the Investment Adviser and the
Sub-Advisers on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Fund, the Investment Adviser and the Sub-Advisers on the
one hand and of the Underwriters on the other in connection with the statements
or omissions, which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Fund, the Investment Adviser and the Sub-Advisers on
the one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Fund and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares. The
relative fault of the Fund, the Investment Adviser and the Sub-Advisers on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Fund, the Investment Adviser or the Sub-Advisers or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any Proceeding.
(d) The Fund, the Investment Adviser, the Sub-Advisers 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 (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the fees and commissions received by such Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Fund
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
17
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, or by or on behalf of the
Fund, the Investment Adviser or the Sub-Advisers, its shareholders, partners,
advisers, members, trustees, directors or officers or any person who controls
the Fund, the Investment Adviser or the Sub-Advisers within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery of the
Shares. The Fund, the Investment Adviser, the Sub-Advisers and each Underwriter
agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Fund, the Investment Adviser or the
Sub-Advisers, against any of the Fund's, the Adviser's or the Sub-Advisers'
shareholders, partners, managers, members, trustees, directors or officers in
connection with the issuance and sale of the Shares, or in connection with the
Registration Statement or Prospectus.
(f) The Fund, the Investment Adviser and the Sub-Advisers each
acknowledge that the statements with respect to (1) the public offering of the
Shares as set forth on the cover page of and (2) stabilization and selling
concessions and reallowances of selling concessions and payment of fees to
Underwriters that meet certain minimum sales thresholds under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing to the Fund by the Underwriters expressly for use in such document. The
Underwriters severally confirm that these statements are correct in all material
respects and were so furnished by or on behalf of the Underwriters severally for
use in the Prospectus.
(g) Notwithstanding any other provisions in this Section 9, no party
shall be entitled to indemnification or contribution under this Underwriting
Agreement against any loss, claim, liability, expense or damage arising by
reason of such person's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties in the performance of its duties hereunder. The
parties hereto acknowledge that the foregoing provision shall be applicable
solely as to matters arising under Section 17(i) of the Investment Company Act,
and shall not be construed to impose any duties or obligations upon any such
parties under this Agreement other than as specifically set forth herein (it
being understood that the Underwriters have no duty hereunder to the Fund to
perform any due diligence investigation).
10. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department, if to the Fund or the Investment Adviser, shall be
sufficient in all respects if delivered or sent to the Fund or the Investment
Adviser, as the case may be, at the offices of the Fund and the Investment
Adviser at Xxxxx Xxxxx Management, 000 Xxxxx Xxxxxx, Xxxxxx, XX 00000, if to
Parametric, shall be sufficient in all respects if delivered or sent to
Parametric Portfolio Associates LLC, 0000 Xxxxxxxx Xxxxxx X., Xxxxxxx,
Xxxxxxxxxx 00000, and, if to Rampart, shall be sufficient in all respects if
delivered or sent to Rampart Investment Management Company Inc., Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Fund and UBS
18
Securities each consent to the jurisdiction of such courts and personal service
with respect thereto. The Fund and UBS Securities hereby consent to personal
jurisdiction, service and venue in any court in which any Claim arising out of
or in any way relating to this Agreement is brought by any third party against
UBS Securities or any indemnified party. Each of UBS Securities, the Fund (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates), the Investment Adviser (on its behalf and, to the
extent permitted by applicable law, on behalf of its unitholders and affiliates)
and the Sub-Advisers (on its behalf and, to the extent permitted by applicable
law, on behalf of its shareholders and affiliates) waives all right to trial by
jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. Each
of the Fund, the Investment Adviser and the Sub-Advisers agree that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Fund, the Investment Adviser and
the Sub-Advisers, as the case may be, and may be enforced in any other courts in
the jurisdiction of which the Fund, the Investment Adviser and the Sub-Advisers,
as the case may be, is or may be subject, by suit upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Fund, the Investment
Adviser and the Sub-Advisers and to the extent provided in Section 9 hereof the
controlling persons, shareholders, partners, members, trustees, managers,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters, the Fund, the Investment Adviser, the Sub-Advisers and any
successor or assign of any substantial portion of the Fund's, the Investment
Adviser's, the Sub-Advisers', or any of the Underwriters' respective businesses
and/or assets.
16. DISCLAIMER OF LIABILITY OF TRUSTEES AND BENEFICIARIES. A copy of the
Agreement and Declaration of Trust of each of the Fund and Xxxxx Xxxxx is on
file with the Secretary of State of The Commonwealth of Massachusetts, and
notice hereby is given that this Underwriting Agreement is executed on behalf of
the Fund and Xxxxx Xxxxx, respectively, by an officer or Trustee of the Fund or
Xxxxx Xxxxx, as the case may be, in his or her capacity as an officer or Trustee
of the Fund or Xxxxx Xxxxx, as the case may be, and not individually and that
the obligations under or arising out of this Underwriting Agreement are not
binding upon any of the Trustees, officers or shareholders individually but are
binding only upon the assets and properties of the Fund or Xxxxx Xxxxx, as the
case may be.
17. NO FIDUCIARY RELATIONSHIP. [TO COME]
If the foregoing correctly sets forth the understanding among the Fund,
the Investment Adviser, the Sub-Advisers and the Underwriters, please so
indicate in the space provided below, whereupon this letter and your acceptance
shall constitute a binding agreement among the Fund, the Investment Adviser, the
Sub-Advisers and the Underwriters, severally.
19
Very truly yours,
XXXXX XXXXX TAX-MANAGED GLOBAL BUY-WRITE
OPPORTUNITIES FUND
By:
------------------------------------
Title:
XXXXX XXXXX MANAGEMENT
By:
------------------------------------
Title:
PARAMETRIC PORTFOLIO ASSOCIATES LLC
By:
------------------------------------
Title:
RAMPART INVESTMENT MANAGEMENT
COMPANY, INC.
By:
------------------------------------
Title:
Accepted and agreed to as of the
date first above written, on behalf of
themselves and the other several
Underwriters named in Schedule A
UBS SECURITIES LLC
By:
------------------------------------
Title:
By:
------------------------------------
Title:
20
SCHEDULE A
UNDERWRITERS NUMBER OF SHARES
------------ ----------------
UBS Securities LLC [__________]
Total................................................ [__________]
============
Schedule A-1
SCHEDULE B
FORM OF OPINION OF
XXXXXXXXXXX & XXXXXXXX LLP REGARDING THE FUND
1. The Registration Statement and all post-effective amendments, if
any, are effective under the Securities Act and no stop order with respect
thereto has been issued and no proceeding for that purpose has been instituted
or, to the best of our knowledge, is threatened by the Commission. Any filing of
the Prospectus or any supplements thereto required under Rule 497 of the
Securities Act Rules prior to the date hereof have been made in the manner and
within the time required by such rule.
2. The Fund has been duly formed and is validly existing as a
Massachusetts business trust under the laws of the Commonwealth of
Massachusetts, with full power and authority to conduct all the activities
conducted by it, to own or lease all assets owned (or to be owned) or leased (or
to be leased) by it and to conduct its business as described in the Registration
Statement and Prospectus, and the Fund is duly licensed and qualified to do
business and in good standing in each jurisdiction in which its ownership or
leasing of property or its conducting of business requires such qualification,
and the Fund owns, possesses or has obtained and currently maintains all
governmental licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its business
as contemplated in the Prospectus. The Fund has no subsidiaries.
3. The capitalization of the Fund is as set forth in the
Registration Statement and the Prospectus. The Shares of Beneficial Interest of
the Fund conform in all respects to the description of them in the Prospectus.
All the outstanding Shares of Beneficial Interest have been duly authorized and
are validly issued, fully paid and nonassessable (except as described in the
Registration Statement). The Shares to be issued and delivered to and paid for
by the Underwriters in accordance with the Underwriting Agreement against
payment therefor as provided by the Underwriting Agreement have been duly
authorized and when issued and delivered to the Underwriters will have been
validly issued and will be fully paid and nonassessable (except as described in
the Registration Statement). No person is entitled to any preemptive or other
similar rights with respect to the Shares.
4. The Fund is duly registered with the Commission under the
Investment Company Act as a diversified, closed-end management investment
company and all action under the Securities Act, the Investment Company Act, the
Securities Act Rules and the Investment Company Act Rules, as the case may be,
necessary to make the public offering and consummate the sale of the Shares as
provided in the Underwriting Agreement has or will have been taken by the Fund.
5. The Fund has full power and authority to enter into each of the
Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory
Agreement, the Custodian Agreement, the Administration Agreement, and the
Transfer Agency Agreement (collectively, the "Fund Agreements") and to perform
all of the terms and provisions thereof to be carried out by it and (A) each
Fund Agreement has been duly and validly authorized, executed and delivered by
the Fund, (B) each Fund Agreement complies in all material respects with all
applicable provisions of the Investment Company Act, the Advisers Act, the
Investment Company Act Rules and the Advisers Act Rules, as the case may be, and
(C) assuming due authorization, execution and delivery by the other parties
thereto, each Fund Agreement constitutes the legal, valid and binding obligation
of the Fund enforceable in accordance with its terms, (1) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (2) as
rights to indemnity thereunder may be limited by federal or state securities
laws.
Schedule B-1
6. None of (A) the execution and delivery by the Fund of the Fund
Agreements, (B) the issue and sale by the Fund of the Shares as contemplated by
the Underwriting Agreement and (C) the performance by the Fund of its
obligations under the Fund Agreements or consummation by the Fund of the other
transactions contemplated by the Fund Agreements conflicts with or will conflict
with, or results or will result in a breach of, the Declaration of Trust or the
By-laws of the Fund or any agreement or instrument to which the Fund is a party
or by which the Fund is bound, or any law, rule or regulation, or order of any
court, governmental instrumentality, securities exchange or association or
arbitrator, whether foreign or domestic, applicable to the Fund, except that we
express no opinion as to the securities or "blue sky" laws applicable in
connection with the purchase and distribution of the Shares by the Underwriters
pursuant to the Underwriting Agreement.
7. The Fund is not currently in breach of, or in default under, any
written agreement or instrument to which it is a party or by which it or its
property is bound or affected.
8. No consent, approval, authorization or order of any court or
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required by the Fund for the consummation by the Fund of
the transactions to be performed by the Fund or the performance by the Fund of
all the terms and provisions to be performed by or on behalf of it in each case
as contemplated in the Fund Agreements, except such as (A) have been obtained
under the Securities Act, the Investment Company Act, the Advisers Act, the
Securities Act Rules, the Investment Company Act Rules and the Advisers Act
Rules and (B) may be required by the New York Stock Exchange or under state
securities or "blue sky" laws in connection with the purchase and distribution
of the Shares by the Underwriters pursuant to the Underwriting Agreement.
9. The Shares have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance, and the Fund's Registration
Statement on Form 8-A under the 1934 Act is effective.
10. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting the Fund, which is required to be disclosed in the
Prospectus that is not disclosed in the Prospectus, and there are no contracts,
franchises or other documents that are of a character required to be described
in, or that are required to be filed as exhibits to, the Registration Statement
that have not been described or filed as required.
11. The Fund does not require any tax or other rulings to enable it
to qualify as a regulated investment company under Subchapter M of the Code.
12. Each of the section in the Prospectus entitled "Distributions --
Federal Income Tax Matters" and the section in the Statement of Additional
Information entitled "Taxes" is a fair summary of the principal United States
federal income tax rules currently in effect applicable to the Fund and to the
purchase, ownership and disposition of the Shares.
13. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, complied as to form in all material respects
to the requirements of the Securities Act, the Investment Company Act and the
rules and regulations of the Commission thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of the Fund.
Schedule B-2
In connection with the registration of the Shares, we have advised
the Fund as to the requirements of the Securities Act, the Investment Company
Act and the applicable rules and regulations of the Commission thereunder and
have rendered other legal advice and assistance to the Fund in the course of its
preparation of the Registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and reviews of certain corporate records,
documents and proceedings. We also participated in conferences with
representatives of the Fund and its accountants at which the contents of the
Registration Statement and Prospectus and related matters were discussed. With
your permission, we have not undertaken, except as otherwise indicated herein,
to determine independently, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the date hereof, 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 or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
Schedule B-3
SCHEDULE C
FORM OF OPINION OF INTERNAL COUNSEL
REGARDING XXXXX XXXXX MANAGEMENT
1. Xxxxx Xxxxx has been duly formed and is validly existing as a
Massachusetts business trust under the laws of its jurisdiction of incorporation
with full power and authority to conduct all of the activities conducted by it,
to own or lease all of the assets owned or leased by it and to conduct its
business as described in the Registration Statement and Prospectus, and Xxxxx
Xxxxx is duly licensed and qualified and in good standing in each other
jurisdiction in which it is required to be so qualified and Xxxxx Xxxxx owns,
possesses or has obtained and currently maintains all governmental licenses,
permits, consents, orders, approvals and other authorizations, whether foreign
or domestic, necessary for Xxxxx Xxxxx to carry on its business as contemplated
in the Registration Statement and the Prospectus.
2. Xxxxx Xxxxx is duly registered as an investment adviser under the
Advisers Act and is not prohibited by the Advisers Act, the Investment Company
Act, the Advisers Act Rules or the Investment Company Act Rules from acting as
investment adviser for the Fund as contemplated by the Investment Advisory
Agreement, the Registration Statement and the Prospectus.
3. Xxxxx Xxxxx has full power and authority to enter into each of
the Underwriting Agreement, the Investment Advisory Agreement, the Sub-Advisory
Agreement, the Administration Agreement, [the Additional Compensation
Agreement], and the Shareholder Servicing Agreement (collectively, the "Xxxxx
Xxxxx Agreements") and to carry out all the terms and provisions thereof to be
carried out by it, and each such agreement has been duly and validly authorized,
executed and delivered by Xxxxx Xxxxx; each Xxxxx Xxxxx Agreement complies in
all material respects with all provisions of the Investment Company Act, the
Advisers Act, the Investment Company Act Rules and the Advisers Act Rules; and
assuming due authorization, execution and delivery by the other parties thereto,
each Xxxxx Xxxxx Agreement constitutes a legal, valid and binding obligation of
Xxxxx Xxxxx, enforceable in accordance with its terms, (1) subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (2) as
rights to indemnity thereunder may be limited by federal or state securities
laws.
4. Neither (A) the execution and delivery by Xxxxx Xxxxx of any
Xxxxx Xxxxx Agreement nor (B) the consummation by Xxxxx Xxxxx of the
transactions contemplated by, or the performance of its obligations under any
Xxxxx Xxxxx Agreement conflicts or will conflict with, or results or will result
in a breach of, the Agreement and Declaration of Trust or By-Laws of Xxxxx Xxxxx
or any agreement or instrument to which Xxxxx Xxxxx is a party or by which Xxxxx
Xxxxx is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to Xxxxx Xxxxx.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by Xxxxx Xxxxx of its obligations under, any
Xxxxx Xxxxx Agreement, except such as have been obtained under the Investment
Company Act, the Advisers Act, the Securities Act, the Investment Company Act
Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of Xxxxx Xxxxx and its business, and the
statements attributable to Xxxxx Xxxxx, in the Registration Statement and the
Prospectus complies with the requirements of the Securities Act, the Investment
Company Act, the Securities Act Rules and the Investment Company Act
Schedule C-1
Rules and do 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.
7. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting Xxxxx Xxxxx of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of Xxxxx Xxxxx or the ability of Xxxxx Xxxxx to
fulfill its respective obligations under any Xxxxx Xxxxx Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of Xxxxx
Xxxxx.
In connection with the registration of the Shares, we have advised
Xxxxx Xxxxx as to the requirements of the Securities Act, the Investment Company
Act and the applicable rules and regulations of the Commission thereunder and
have rendered other legal advice and assistance to Xxxxx Xxxxx in the course of
the preparation of the registration Statement and the Prospectus. Rendering such
assistance involved, among other things, discussions and inquiries concerning
various legal and related subjects and reviews of certain corporate records,
documents and proceedings. We also participated in conferences with
representatives of the Fund and its accountants and Xxxxx Xxxxx at which the
contents of the registration and Prospectus and related matters were discussed.
With your permission, we have not undertaken, except as otherwise indicated
herein, to determine independently, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements in the Registration
Statement or Prospectus. On the basis of the information which was developed in
the course of the performance of the services referred to above, no information
has come to our attention that would lead us to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the date hereof, 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 or that any amendment
or supplement to the Prospectus, as of its respective date, and as of the date
hereof, contained any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were made, not
misleading (except the financial statements, schedules and other financial data
included therein, as to which we express no view).
Schedule C-2
SCHEDULE D-1
FORM OF OPINION OF XXXXXXXXXXX & XXXXXXXX LLP
REGARDING RAMPART INVESTMENT MANAGEMENT COMPANY, INC.
1. Rampart Investment Management Company, Inc. (the "Sub-Adviser")
has been duly formed and is validly existing as a Massachusetts corporation
under the laws of its jurisdiction of incorporation with full power and
authority to conduct all of the activities conducted by it, to own or lease all
of the assets owned or leased by it and to conduct its business as described in
the Registration Statement and Prospectus, and the Sub-Adviser is duly licensed
and qualified and in good standing in each other jurisdiction in which it is
required to be so qualified and the Sub-Adviser owns, possesses or has obtained
and currently maintains all governmental licenses, permits, consents, orders,
approvals and other authorizations, whether foreign or domestic, necessary for
the Sub-Adviser to carry on its business as contemplated in the Registration
Statement and the Prospectus.
2. The Sub-Adviser is duly registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
3. The Sub-Adviser has full power and authority to enter into each
of the Underwriting Agreement and the Sub-Advisory Agreement (collectively, the
"Sub-Adviser Agreements") and to carry out all the terms and provisions thereof
to be carried out by it, and each such agreement has been duly and validly
authorized, executed and delivered by the Sub-Adviser; each Sub-Adviser
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each Sub-Adviser Agreement constitutes a legal,
valid and binding obligation of the Sub-Adviser, enforceable in accordance with
its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) as rights to indemnity thereunder may be limited by
federal or state securities laws.
4. Neither (A) the execution and delivery by the Sub-Adviser of any
Sub-Adviser Agreement nor (B) the consummation by the Sub-Adviser of the
transactions contemplated by, or the performance of its obligations under any
Sub-Adviser Agreement conflicts or will conflict with, or results or will result
in a breach of, the Articles of Incorporation or By-Laws of the Sub-Adviser or
any agreement or instrument to which the Sub-Adviser is a party or by which the
Sub-Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to the Sub-Adviser.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Sub-Adviser of its obligations under,
any Sub-Adviser Agreement, except such as have been obtained under the
Investment Company Act, the Advisers Act, the Securities Act, the Investment
Company Act Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of the Sub-Adviser and its business, and the
statements attributable to the Sub-Adviser, in the Registration Statement and
the Prospectus complies with the requirements of the Securities Act, the
Investment Company Act, the Securities Act Rules and the
Schedule D-1
Investment Company Act Rules and do 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.
7. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting the Sub-Adviser of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Sub-Adviser or the ability of the
Sub-Adviser to fulfill its respective obligations under any Sub-Adviser
Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of the
Sub-Adviser.
In connection with the registration of the Shares, we have advised
the Sub-Adviser as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the
Sub-Adviser in the course of the preparation of the registration Statement and
the Prospectus. Rendering such assistance involved, among other things,
discussions and inquiries concerning various legal and related subjects and
reviews of certain corporate records, documents and proceedings. We also
participated in conferences with representatives of the Fund and its accountants
and the Sub-Adviser at which the contents of the registration and Prospectus and
related matters were discussed. With your permission, we have not undertaken,
except as otherwise indicated herein, to determine independently, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements in the Registration Statement or Prospectus. On the basis of the
information which was developed in the course of the performance of the services
referred to above, no information has come to our attention that would lead us
to believe that the Registration Statement, at the time it became effective,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date and as of the date
hereof, 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 or that any amendment or supplement to the Prospectus, as of its
respective date, and as of the date hereof, contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements in the Prospectus, in the light of the circumstances under
which they were made, not misleading (except the financial statements, schedules
and other financial data included therein, as to which we express no view).
Schedule D-2
SCHEDULE D-2
FORM OF OPINION OF XXXXXXXXXXX & XXXXXXXX LLP
REGARDING PARAMETRIC PORTFOLIO ASSOCIATES LLC
1. Parametric Portfolio Associates LLC (the "Sub-Adviser") has been
duly formed and is validly existing as a limited liability company under the
laws of its jurisdiction of formation with full power and authority to conduct
all of the activities conducted by it, to own or lease all of the assets owned
or leased by it and to conduct its business as described in the Registration
Statement and Prospectus, and the Sub-Adviser is duly licensed and qualified and
in good standing in each other jurisdiction in which it is required to be so
qualified and the Sub-Adviser owns, possesses or has obtained and currently
maintains all governmental licenses, permits, consents, orders, approvals and
other authorizations, whether foreign or domestic, necessary for the Sub-Adviser
to carry on its business as contemplated in the Registration Statement and the
Prospectus.
2. The Sub-Adviser is duly registered as an investment adviser under
the Advisers Act and is not prohibited by the Advisers Act, the Investment
Company Act, the Advisers Act Rules or the Investment Company Act Rules from
acting as investment adviser for the Fund as contemplated by the Sub-Advisory
Agreement, the Registration Statement and the Prospectus.
3. The Sub-Adviser has full power and authority to enter into each
of the Underwriting Agreement and the Sub-Advisory Agreement (collectively, the
"Sub-Adviser Agreements") and to carry out all the terms and provisions thereof
to be carried out by it, and each such agreement has been duly and validly
authorized, executed and delivered by the Sub-Adviser; each Sub-Adviser
Agreement complies in all material respects with all provisions of the
Investment Company Act, the Advisers Act, the Investment Company Act Rules and
the Advisers Act Rules; and assuming due authorization, execution and delivery
by the other parties thereto, each Sub-Adviser Agreement constitutes a legal,
valid and binding obligation of the Sub-Adviser, enforceable in accordance with
its terms, (1) subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (2) as rights to indemnity thereunder may be limited by
federal or state securities laws.
4. Neither (A) the execution and delivery by the Sub-Adviser of any
Sub-Adviser Agreement nor (B) the consummation by the Sub-Adviser of the
transactions contemplated by, or the performance of its obligations under any
Sub-Adviser Agreement conflicts or will conflict with, or results or will result
in a breach of, the Articles of Incorporation or By-Laws of the Sub-Adviser or
any agreement or instrument to which the Sub-Adviser is a party or by which the
Sub-Adviser is bound, or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or association or arbitrator,
whether foreign or domestic, applicable to the Sub-Adviser.
5. No consent, approval, authorization or order of any court,
governmental agency or body or securities exchange or association, whether
foreign or domestic, is required for the consummation of the transactions
contemplated in, or the performance by the Sub-Adviser of its obligations under,
any Sub-Adviser Agreement, except such as have been obtained under the
Investment Company Act, the Advisers Act, the Securities Act, the Investment
Company Act Rules, the Advisers Act Rules and the Securities Act Rules.
6. The description of the Sub-Adviser and its business, and the
statements attributable to the Sub-Adviser, in the Registration Statement and
the Prospectus complies with the requirements of the Securities Act, the
Investment Company Act, the Securities Act Rules and the
Schedule D-1
Investment Company Act Rules and do 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.
7. There is no action, suit or proceeding before or by any court,
commission, regulatory body, administrative agency or other governmental agency
or body, foreign or domestic, now pending or, to our knowledge, threatened
against or affecting the Sub-Adviser of a nature required to be disclosed in the
Registration Statement or Prospectus or that might reasonably result in any
material adverse change in the condition, financial or otherwise, business
affairs or business prospects of the Sub-Adviser or the ability of the
Sub-Adviser to fulfill its respective obligations under any Sub-Adviser
Agreement.
8. The Registration Statement (except the financial statements and
schedules and other financial data included therein as to which we express no
view), at the time it became effective, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act,
the Investment Company Act and the rules and regulations of the Commission
thereunder.
In rendering our opinion, we have relied, as to factual matters,
upon the attached written certificates and statements of officers of the
Sub-Adviser.
In connection with the registration of the Shares, we have advised
the Sub-Adviser as to the requirements of the Securities Act, the Investment
Company Act and the applicable rules and regulations of the Commission
thereunder and have rendered other legal advice and assistance to the
Sub-Adviser in the course of the preparation of the registration Statement and
the Prospectus. Rendering such assistance involved, among other things,
discussions and inquiries concerning various legal and related subjects and
reviews of certain corporate records, documents and proceedings. We also
participated in conferences with representatives of the Fund and its accountants
and the Sub-Adviser at which the contents of the registration and Prospectus and
related matters were discussed. With your permission, we have not undertaken,
except as otherwise indicated herein, to determine independently, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements in the Registration Statement or Prospectus. On the basis of the
information which was developed in the course of the performance of the services
referred to above, no information has come to our attention that would lead us
to believe that the Registration Statement, at the time it became effective,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date and as of the date
hereof, 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 or that any amendment or supplement to the Prospectus, as of its
respective date, and as of the date hereof, contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements in the Prospectus, in the light of the circumstances under
which they were made, not misleading (except the financial statements, schedules
and other financial data included therein, as to which we express no view).
Schedule D-2
SCHEDULE E
FORM OF ACCOUNTANT'S LETTER
, 2005
The Board of Trustees of
Xxxxx Xxxxx Tax-Managed Global Buy-Write Opportunities Fund
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Representative of the Underwriters
Ladies and Gentlemen:
We have audited the statement of assets and liabilities of Xxxxx
Xxxxx Tax-Managed Global Buy-Write Opportunities Fund (the "Fund") as of [ ],
2005 included in the Registration Statement on Form N-2 filed by the Fund under
the Securities Act of 1933 (the "Securities Act") (File No. 333-[ ]) and under
the Investment Company Act of 1940 (the "Investment Company Act") (File No.
811-[ ]); such statement and our report with respect to such statement are
included in the Registration Statement.
In connection with the Registration Statement:
1. We are independent public accountants with respect to the Fund
within the meaning of the Securities Act and the applicable rules and
regulations thereunder.
2. In our opinion, the statement of assets and liabilities included
in the Registration Statement and audited by us complies as to form in all
respects with the applicable accounting requirements of the Securities Act, the
Investment Company Act and the respective rules and regulations thereunder.
3. For purposes of this letter we have read the minutes of all
meetings of the Shareholders, the Board of Trustees and all Committees of the
Board of Trustees of the Fund as set forth in the minute books at the offices of
the Fund, officials of the Fund having advised us that the minutes of all such
meetings through [ ], 2005, were set forth therein.
4. Fund officials have advised us that no financial statements as of
any date subsequent to [ ], 2005, are available. We have made inquiries of
certain officials of the Fund who have responsibility for financial and
accounting matters regarding whether there was any change at [ ], 2005, in the
capital shares or net assets of the Fund as compared with amounts shown in the [
], 2005, statement of assets and liabilities included in the Registration
Statement, except for changes that the Registration Statement discloses have
occurred or may occur. On the basis of our inquiries and our reading of the
minutes as described in Paragraph 3, nothing came to our attention that caused
us to believe that there were any such changes.
Schedule E-1
The foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards. Accordingly, we make no
representations as to the sufficiency of the foregoing procedures for your
purposes.
This letter is solely for the information of the addressees and to
assist the underwriters in conducting and documenting their investigation of the
affairs of the Fund in connection with the offering of the securities covered by
the Registration Statement, and is not to be used, circulated, quoted or
otherwise referred to within or without the underwriting group for any other
purpose, including but not limited to the registration, purchase or sale of
securities, nor is it to be filed with or referred to in whole or in part in the
Registration Statement or any other document, except that reference may be made
to it in the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
Very truly yours,
Schedule E-2
