2,800,000 SHARES
FIRST TRUST ENERGY INCOME AND GROWTH FUND
COMMON SHARES OF BENEFICIAL INTEREST
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
April 30, 2013
April 30, 2013
Morgan Stanley & Co. LLC
Citigroup Global Markets Inc.
RBC Capital Markets, LLC
as representatives of the several
Underwriters named in Schedule I hereto
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
RBC Capital Markets, LLC
Three World Financial Center
200 Vesey Street, 8th Floor
New York, NY 10281
Ladies and Gentlemen:
First Trust Energy Income and Growth Fund, a business trust organized
under the laws of the Commonwealth of Massachusetts (the "FUND"), is a
non-diversified closed-end management investment company registered under the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT"). The
Fund proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") 2,800,000 shares of its common shares of beneficial
interest (par value $0.01 per share) (the "FIRM SHARES"). The Fund also proposes
to issue and sell to the several Underwriters not more than an additional
420,000 shares of its common shares of beneficial interest (par value $0.01 per
share) (the "ADDITIONAL SHARES") if and to the extent that you, as Managers of
the offering, shall have determined to exercise, on behalf of the Underwriters,
the right to purchase all or any part of such shares granted to the Underwriters
in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "SHARES." The common shares of beneficial
interest (par value $0.01 per share) of the Fund to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"COMMON SHARES."
First Trust Advisors L.P. (the "ADVISOR") acts as the Fund's investment
advisor pursuant to an Investment Management Agreement between the Advisor and
the Fund (the "INVESTMENT MANAGEMENT AGREEMENT"). Energy Income Partners, LLC
("SUBADVISOR" and, together with Advisor, the "INVESTMENT ADVISORS") acts as the
Fund's subadvisor pursuant to a Sub-Advisory Agreement among the Fund, the
Advisor and the Subadvisor (the "SUB-ADVISORY AGREEMENT").
The Fund has filed with the Securities and Exchange Commission (the
"COMMISSION") a notification on Form N-8A (the "NOTIFICATION") of registration
of the Fund as an investment company and a registration statement on Form N-2,
including a prospectus and a statement of additional information incorporated by
reference in the prospectus, relating to the Shares. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time
(as defined in Section 10), has become effective. The Fund has filed, as part of
an amendment to the Registration Statement or pursuant to Rule 497 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), one or more
amendments thereto, including a related Preliminary Final Prospectus (including
the statement of additional information incorporated by reference therein), each
of which has previously been furnished to you. The Fund will file with the
Commission a final prospectus supplement (including the statement of additional
information incorporated by reference therein) related to the Shares in
accordance with Rule 497.
As filed, such final prospectus supplement (including the statement of
additional information incorporated by reference therein), together with the
Basic Prospectus, shall contain all information required by the Securities Act
and the Investment Company Act and the Rules and Regulations and, except to the
extent that Morgan Stanley & Co. LLC, Citigroup Global Markets Inc. and RBC
Capital Markets, LLC shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and the Preliminary Final Prospectus) as the Fund has advised
you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1).
For purposes of this Agreement, "REGISTRATION STATEMENT" means the
registration statement referred to in the preceding paragraph, including
exhibits and financial statements and any prospectus supplement relating to the
Shares that is filed with the Commission pursuant to Rule 497 and deemed part of
such registration statement pursuant to Rule 430B, as amended at the Execution
Time and, in the event any post-effective amendment thereto or any related Rule
462(b) Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. "RULE 462(B) REGISTRATION STATEMENT"
shall mean a registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the Registration Statement. The
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"BASIC PROSPECTUS" shall mean the prospectus (including the statement of
additional information incorporated by reference herein) referred to in the
paragraph above contained in the Registration Statement at the time it became
effective. The "PRELIMINARY FINAL PROSPECTUS" shall mean any preliminary
prospectus supplement (including the statement of additional information
incorporated by reference therein) to the Basic Prospectus filed with the
Commission pursuant to Rule 497, which describes the Shares and the offering
thereof and is used prior to the filing of the Final Prospectus, together with
the Basic Prospectus. The "FINAL PROSPECTUS" shall mean the prospectus
supplement (including the statement of additional information incorporated by
reference therein) relating to the Shares that is first filed pursuant to Rule
497 after the Execution Time, together with the Basic Prospectus.
The Investment Company Act and the Securities Act are hereinafter referred
to collectively as the "ACTS," the Investment Advisers Act of 1940, as amended,
is hereinafter referred to as the "ADVISERS ACT" and the rules and regulations
of the Commission under the Acts, the Advisers Act and under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") are hereinafter referred
to collectively as the "RULES AND REGULATIONS."
For purposes of this Agreement, "OMITTING PROSPECTUS" means any
advertisement used in the public offering of the Shares pursuant to Rule 482 of
the Rules and Regulations ("RULE 482") and "TIME OF SALE PROSPECTUS" means the
Preliminary Final Prospectus dated April 29, 2013, relating to the Shares,
together with the pricing information as set forth in Schedule III. As used
herein, the terms "Registration Statement," "Basic Prospectus," "Preliminary
Final Prospectus," "Time of Sale Prospectus" and "Final Prospectus" shall
include the documents, if any, incorporated by reference therein, including the
statement of additional information.
1. Representations and Warranties of the Fund and the Investment
Advisors. The Fund and the Investment Advisors, jointly and severally, represent
and warrant to and agree with each of the Underwriters as of the Execution Time,
as of the Closing Date referred to in Section 5 hereof, and as of each Option
Closing Date (if any) referred to in Section 3 hereof, that:
(a) The Fund meets the requirements for the use of Form N-2
under the Acts. The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
knowledge of the Fund or the Investment Advisors, threatened by the
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Commission. The Fund has filed one or more Preliminary Final Prospectuses,
each of which has previously been furnished to you. The Fund will file
with the Commission a Final Prospectus related to the Shares in accordance
with Rule 497. As filed, such Final Prospectus shall contain, in all
material respects, all information required by the Acts and the Rules and
Regulations and, except to the extent the Underwriters shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent the
Final Prospectus is not complete at the Execution Time, contains only such
specific additional information or other changes (beyond the Preliminary
Final Prospectus, as amended or supplemented as of the Execution time), as
the Fund advised you, prior to the Execution Time, would be included or
made therein. At the Execution Time, the Registration Statement meets the
requirements set forth in Rule 415(a)(1).
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Basic Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Acts and the applicable
Rules and Regulations thereunder, (iii) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with the
offering when the Final Prospectus is not yet available to prospective
purchasers, the Time of Sale Prospectus, as then amended or supplemented,
if applicable, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading and (iv) the Final Prospectus, as amended or supplemented, if
applicable, will not, as of its date and the Closing Date (as defined in
Section 5), contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Final Prospectus based upon information
relating to any Underwriter furnished to the Fund in writing by such
Underwriter through you expressly for use therein.
(c) The Fund has been duly formed, is validly existing as a
business trust in good standing under the laws of the Commonwealth of
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Massachusetts, has the power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing could not reasonably
be expected to have (i) a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business, properties or operations of the
Fund whether or not arising from transactions in the ordinary course of
business (a "FUND MATERIAL ADVERSE EFFECT"). The Fund has no subsidiaries.
(d) The Fund is registered with the Commission as a
non-diversified, closed-end management investment company under the
Investment Company Act and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the
Fund's or Investment Advisor's knowledge, threatened by the Commission. No
person is serving or acting as an officer or trustee of, or investment
advisor to, the Fund except in accordance with the provisions of the
Investment Company Act and the Advisers Act. Except as otherwise disclosed
in the Registration Statement, the Time of Sale Prospectus and the Final
Prospectus, no trustee of the Fund is an "interested person" of the Fund
or an "affiliated person" of any Underwriter (each as defined in the
Investment Company Act).
(e) Each of this Agreement, the Investment Management
Agreement, the Sub-Advisory Agreement, the Administration and Accounting
Services Agreement between BNY Mellon Investment Servicing (U.S.) Inc.
(the "ADMINISTRATOR") and the Fund (the "ADMINISTRATION AGREEMENT"), the
Custodian Agreement between The Bank of New York Mellon, as successor to
BNY Mellon Investment Servicing Trust Company (formerly PFPC Trust
Company) (the "CUSTODIAN") and the Fund (the "CUSTODIAN AGREEMENT"), the
Transfer Agency Services Agreement between BNY Mellon Investment Servicing
(US) Inc., formerly known as PNC Global Investment Servicing (U.S.) Inc.
(the "TRANSFER AGENT") and the Fund (the "TRANSFER AGENCY
AGREEMENT") and the Committed Facility Agreement between BNP Paribas Prime
Brokerage Inc. and the Fund ( the "COMMITTED FACILITY AGREEMENT") (this
Agreement, the Investment Management Agreement, the Sub-Advisory
Agreement, the Administration Agreement, the Custodian Agreement, the
Transfer Agency Agreement and the Committed Facility Agreement being
referred to herein collectively as the "FUNDAMENTAL AGREEMENTS") has been
5
duly authorized, executed and delivered by the Fund and complies, in all
material respects, with the applicable provisions of the Acts, the
Advisers Act and the applicable Rules and Regulations. The Fund has
adopted the Dividend Reinvestment Plan (the "PLAN"). Each Fundamental
Agreement, other than this Agreement, and the Plan is a valid and binding
agreement of the Fund, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and equitable principles of general applicability.
(f) None of (1) the execution and delivery by the Fund of, and
the performance by the Fund of its obligations under, each Fundamental
Agreement or the adoption by the Fund of the Plan, or (2) the issue and
sale by the Fund of the Shares as contemplated by this Agreement
contravenes or will contravene any provision of applicable law or the
declaration of trust and by-laws of the Fund, any agreement or other
instrument binding upon the Fund or any other obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness, that is material to the Fund, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Fund, whether foreign or domestic. No consent, approval,
authorization, order or permit of, or qualification with, any governmental
body or agency, self-regulatory organization or court or other tribunal,
whether foreign or domestic, is required for the performance by the Fund
of its obligations under the Fundamental Agreements or the Plan, except
such as have been obtained and as may be required by the Acts, the
Advisers Act, the Exchange Act, or the applicable Rules and Regulations,
or by the securities or Blue Sky laws of the various states and foreign
jurisdictions in connection with the offer and sale of the Shares.
(g) As of the Execution Time, the Fund has an authorized and
outstanding capitalization as set forth under the heading "Actual" in the
section of the Preliminary Final Prospectus and the Final Prospectus
entitled "Capitalization" and, as of the Closing Date (without giving
effect to any issuance of Additional Shares), the Fund shall have an
authorized and outstanding capitalization as set forth under the heading
"As Adjusted" in the section of the Final Prospectus entitled
"Capitalization"; and the authorized capital stock of the Fund conforms in
all material respects to the description thereof contained in each of the
Time of Sale Prospectus and the Final Prospectus, and the declaration of
trust and by-laws of the Fund, the Fundamental Agreements and the Plan
conform in all material respects to the descriptions thereof contained in
each of the Time of Sale Prospectus and the Final Prospectus.
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(h) The declaration of trust and by-laws of the Fund, the
Fundamental Agreements and the Plan comply, in all material respects, with
the applicable provisions of the Acts and the applicable Rules and
Regulations, and all approvals of such documents required under the
Investment Company Act by the Fund's shareholders or board of trustees
have been obtained and are in full force and effect.
(i) The Fundamental Agreements (other than this Agreement) and
the Plan are in full force and effect and neither the Fund nor, to the
Fund's or the Investment Advisors' knowledge, any other party to any such
agreement is in default thereunder, and no event has occurred which with
the passage of time or the giving of notice or both would constitute a
default thereunder. The Fund is not currently in breach of, or in default
under, any other written agreement or instrument to which it or its
property is bound or affected.
(j) The Common Shares and preferred shares, if any, outstanding
prior to the issuance of the Shares have been duly authorized and are
validly issued, fully paid and non-assessable, except that, as set forth
in the Registration Statement, the Time of Sale Prospectus and the Final
Prospectus, shareholders of a Massachusetts business trust may under
certain circumstances be held personally liable for obligations of the
Fund. The Common Shares and preferred shares, if any, outstanding prior to
the issuance of the Shares are not entitled to preemptive or other rights
to subscribe for the shares.
(k) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(l) The Shares and any Common Shares outstanding prior to the
issuance of the Shares have been approved for listing on the NYSE Amex LLC
("NYSE AMEX"), subject to official notice of issuance. The Fund's
Registration Statement on Form 8-A under the Exchange Act is effective.
(m) Each Omitting Prospectus (i) complies with the requirements
of Rule 482, (ii) does not contain an untrue statement of a material fact,
(iii) complied and will comply in all material respects with the Acts, the
Rules and Regulations and the rules and regulations of the Financial
Industry Regulatory Authority ("FINRA") and (iv) if required, has been
7
duly filed with FINRA and FINRA has issued no objections with respect
thereto. Except for the Omitting Prospectuses identified on Schedule II
hereto, the Fund has not prepared, used or referred to and will not,
without your prior written consent, prepare, use or refer to any
prospectus in reliance upon Rule 482.
(n) The Fund has filed all tax returns with respect to each
jurisdiction in which such returns are required to be filed or has duly
requested extensions thereof, and all such returns are complete and
correct in all material respects. The Fund has paid all taxes and any
related assessments, fines or penalties to all jurisdictions in which such
taxes, assessments, fines or penalties are required to be paid, except for
any such tax, assessment, fine or penalty that is being contested in good
faith and by appropriate proceedings and as to which adequate reserves
have been provided in accordance with U.S. GAAP. The Fund has not received
notice of any tax deficiency.
(o) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Fund from that set forth in the Time of Sale Prospectus,
and there have been no transactions entered into by the Fund which are
material to the Fund other than those in the ordinary course of its
business or as described in the Time of Sale Prospectus.
(p) There are no legal or governmental proceedings pending or
threatened to which the Fund is a party or to which any of the properties
of the Fund is subject (i) other than proceedings accurately described in
all material respects in the Time of Sale Prospectus and proceedings that
would not have a Fund Material Adverse Effect, or on the power or ability
of the Fund to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or
(ii) that are required to be described in the Registration Statement or
the Final Prospectus and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement, the Time of Sale Prospectus or
the Final Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required, except that for the
avoidance of doubt, this Agreement and the opinions and consents of
counsel and Deloitte & Touche LLP, will be filed by a post-effective
amendment to the Registration Statement.
(q) The Fund has all necessary consents, authorizations,
approvals, orders (including exemptive orders), certificates and permits
8
of and from, and has made all declarations and filings with, all
governmental authorities, self-regulatory organizations and courts and
other tribunals, whether foreign or domestic, to own and use its assets
and to conduct its business in the manner described in the Time of Sale
Prospectus and the Final Prospectus, except to the extent that the failure
to obtain or file the foregoing would not have a Fund Material Adverse
Effect.
(r) Each Preliminary Final Prospectus relating to the Shares
(including the statement of additional information incorporated therein by
reference) filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, and the Final Prospectus filed
pursuant to Rule 497 under the Securities Act, complied when so filed in
all material respects with the Acts and the applicable Rules and
Regulations.
(s) The financial statements, together with related schedules
and notes, included in the Registration Statement, the Time of Sale
Prospectus and the Final Prospectus present fairly, in all material
respects, the financial position of the Fund as of the date indicated and
said statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); and the other financial and
statistical information and data included in the Registration Statement,
the Time of Sale Prospectus and the Final Prospectus are accurately
derived from such financial statements and the books and records of the
Fund. Deloitte & Touche LLP, whose report appears in the Time of Sale
Prospectus and the Final Prospectus and who has certified the financial
statements and supporting schedules, if any, included in the Registration
Statement, the Time of Sale Prospectus and the Final Prospectus is an
independent registered public accounting firm as required by the Acts and
the applicable Rules and Regulations.
(t) There are no material restrictions, limitations or
regulations with respect to the ability of the Fund to invest its assets
as described in the Time of Sale Prospectus and the Final Prospectus,
other than as described therein.
(u) All advertisements authorized by the Fund for use in the
offering of the Shares complied and will comply in all material respects
with the requirements of the Acts, the applicable Rules and Regulations
and the rules and regulations of FINRA and there are no such
advertisements other than the Omitting Prospectuses identified in Schedule
II hereto.
9
(v) There are no contracts, agreements or understandings
between the Fund and any person granting such person the right to require
the Fund to file a registration statement under the Securities Act with
respect to any securities of the Fund or to require the Fund to include
such securities with the Shares registered pursuant to the Registration
Statement.
(w) The expense summary information set forth in the Time of
Sale Prospectus and the Final Prospectus in the Fee Table has been
prepared, in all material respects, in accordance with the requirements of
Form N-2 and any fee projections or estimates, if applicable, are
reasonably based.
(x) Subsequent to the respective dates as of which information
is given in each of the Registration Statement, the Time of Sale
Prospectus and the Final Prospectus, (i) the Fund has not incurred any
material liability or obligation, direct or contingent, nor entered into
any material transaction; (ii) the Fund has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock since the most
recent dividend payable on April 30, 2013 (other than, in the event this
representation and warranty is made after the Closing Date, ordinary and
customary dividends declared and payable after the Closing Date); and
(iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Fund except in each case as
described in each of the Registration Statement, the Time of Sale
Prospectus and the Final Prospectus, respectively.
(y) The Fund owns or possesses, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently employed
by them in connection with the business now operated by it, and the Fund
has not received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Fund Material Adverse Effect.
(z) The Fund maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access
10
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Except as described in
the Time of Sale Prospectus and the Final Prospectus, since the date of
the Fund's most recent audited financial statements included or
incorporated by reference in the Time of Sale Prospectus and the Final
Prospectus, there has been (i) no material weakness in the Fund's internal
control over financial reporting (whether or not remediated) and (ii) no
change in the Fund's internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Fund's internal control over financial reporting.
(aa) Neither the Fund nor any employee nor agent of the Fund has
made any payment of funds of the Fund or received or retained any funds,
which payment, receipt or retention is of a character to be disclosed in
the Time of Sale Prospectus, the Final Prospectus or the Registration
Statement.
(bb) The Transfer Agent is duly enrolled as a participant in the
Fast Automated Transfer Program (FAST) of The Depository Trust Company
("DTC").
(cc) At the Execution Time, the Purchase Price (defined below)
exceeds the net asset value per Common Share (exclusive of any
distributing commission or discount) in accordance with Section 23(b) of
the Investment Company Act.
(dd) The questionnaires relating to the FINRA Corporate Financing
Rule provided to the Underwriters or to the counsel for the Underwriters,
if any, in connection with letters, filings or other supplemental
information provided to FINRA pursuant to FINRA's conduct rules is true,
complete and correct in all material respects.
(ee) The Fund maintains "disclosure controls and procedures" (as
such term is defined in Rule 30a-3 under the Investment Company Act); such
disclosure controls and procedures are effective as required by the
Investment Company Act and the Investment Company Act rules and
regulations.
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(ff) The Fund has adopted and implemented written policies and
procedures reasonably designed to prevent violation of the Federal
Securities Laws (as that term is defined in Rule 38a-1 under the
Investment Company Act) by the Fund, including policies and procedures
that provide oversight of compliance by each Investment Advisor,
administrator and transfer agent of the Fund.
(gg) Neither the Fund nor any of its trustees, officers, or
employees, nor, to the Fund's knowledge, any agent or representative of
the Fund, has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or
giving of money, property, gifts or anything else of value, directly or
indirectly, to any "government official" (including any officer or
employee of a government or government-owned or controlled entity or of a
public international organization, or any person acting in an official
capacity for or on behalf of any of the foregoing, or any political party
or party official or candidate for political office) to influence official
action or secure an improper advantage; and the Fund has conducted its
businesses in compliance with applicable anti-corruption laws, including
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder ("FCPA"), and has instituted and maintains and will
continue to maintain policies and procedures designed to promote and
achieve compliance with such laws and with the representation and warranty
contained herein.
(hh) There is and has been no failure on the part of the Fund or
any of the Fund's trustees or officers, in their capacities as such, to
comply in all material respects with any provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith applicable to them.
(ii) The operations of the Fund are and have been conducted at
all times in compliance in all material respects with the applicable
financial recordkeeping and reporting requirements, including those of the
Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money
laundering statutes of jurisdictions where the Fund conducts business, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the "ANTI-MONEY LAUNDERING LAWS"), and
12
no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Fund with
respect to the Anti-Money Laundering Laws is pending or, to the best
knowledge of the Fund, threatened.
(jj) (i) Neither the Fund nor any trustee, officer, or employee
thereof, nor, to the Fund's knowledge, any agent, affiliate or
representative of the Fund, is an individual or entity ("PERSON") that is,
or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or
enforced by the U.S. Department of Treasury's Office of Foreign
Assets Control ("OFAC"), the United Nations Security Council
("UNSC"), the European Union ("EU"), Her Majesty's Treasury
("HMT"), or other relevant sanctions authority (collectively,
"SANCTIONS"), or
(B) located, organized or resident in a country or
territory that is the subject of Sanctions (including, without
limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan
and Syria).
(ii) The Fund will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other Person:
(A) to fund or facilitate any activities or business of
or with any Person or in any country or territory that, at the
time of such funding or facilitation, is the subject of
Sanctions; or
(B) in any other manner that will result in a violation
of Sanctions by any Person (including any Person participating
in the offering, whether as underwriter, advisor, investor or
otherwise).
(iii) For the past 5 years, the Fund has not knowingly
engaged in, is not now knowingly engaged in, and will not knowingly
engage in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
2. Representations and Warranties of the Investment Advisors. Each
Investment Advisor, severally and not jointly, represents and warrants to and
agrees with each of the Underwriters as of the Execution Time, as of the Closing
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Date referred to in Section 5 hereof, and as of each Option Closing Date (if
any) referred to in Section 3 hereof, that:
(a) Such Investment Advisor has been duly organized, is
validly existing as a limited partnership or a limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction of its organization, has the power and authority to own
its property and to conduct its business as described in the Time of
Sale Prospectus and the Final Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing could not
reasonably be expected to have (i) a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business, properties or operations of such Investment Advisor whether
or not arising from transactions in the ordinary course of business
(an "INVESTMENT ADVISOR MATERIAL ADVERSE EFFECT"). Such Investment
Advisor has no subsidiaries.
(b) Such Investment Advisor is duly registered as an
investment advisor under the Advisers Act, and is not prohibited by
the Advisers Act or the Investment Company Act from acting under the
Investment Management Agreement or Sub-Advisory Agreement as an
investment advisor to the Fund as contemplated by the Time of Sale
Prospectus and the Final Prospectus, in the case of the Advisor, or
from acting as the subadvisor under the Sub-Advisory Agreement, in
the case of the Subadvisor, and no order of suspension or revocation
of such registration has been issued or proceedings therefor
initiated or, to the knowledge of such Investment Advisor, threatened
by the Commission.
(c) Each of this Agreement, the Investment Management
Agreement, the Sub-Advisory Agreement and the Administration
Agreement (collectively, the "ADVISOR AGREEMENTS") has been duly
authorized, executed and delivered by such Investment Advisor and
complies in all material respects with the applicable provisions of
the Acts, the Advisers Act and the applicable Rules and Regulations.
Each of the Advisor Agreements is a valid and binding agreement of
such Investment Advisor, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and by equitable principles of
general applicability.
14
(d) The execution and delivery by such Investment Advisor
of, and the performance by such Investment Advisor of its obligations
under the Advisor Agreements will not contravene any provision of
applicable law or the certificate of formation, the certificate of
limited partnership, the limited liability company agreement or the
limited partnership agreement, as the case may be, of such Investment
Advisor or any agreement or other instrument binding upon the
Investment Advisor that is material to such Investment Advisor, or
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Investment Advisor, whether
foreign or domestic. No consent, approval, authorization, order or
permit of, or qualification with, any governmental body or agency,
self-regulatory organization or court or other tribunal, whether
foreign or domestic, is required for the performance by such
Investment Advisor of its obligations under the Advisor Agreements,
except such as have been obtained and as may be required by the Acts,
the Advisers Act, the Exchange Act or the applicable Rules and
Regulations, or by the securities or Blue Sky laws of the various
states and foreign jurisdictions in connection with the offer and
sale of the Shares.
(e) There are no legal or governmental proceedings pending
or, to the knowledge of such Investment Advisor, threatened to which
such Investment Advisor is a party or to which any of the properties
of such Investment Advisor is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale
Prospectus and proceedings that would not have an Investment Advisor
Material Adverse Effect, or on the power or ability of such
Investment Advisor to perform its obligations under this Agreement or
to consummate the transactions contemplated by the Time of Sale
Prospectus or (ii) that are required to be described in the
Registration Statement, the Time of Sale Prospectus or the Final
Prospectus and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement, the Time of Sale Prospectus
or the Final Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(f) Such Investment Advisor has all necessary consents,
authorizations, approvals, orders (including exemptive orders),
certificates and permits of and from, and has made all declarations
and filings with, all governmental authorities, self-regulatory
organizations and courts and other tribunals, whether foreign or
domestic, to own and use its assets and to conduct its business in
the manner described in the Time of Sale Prospectus and the Final
15
Prospectus, except to the extent that the failure to obtain or file
the foregoing would not have an Investment Advisor Material Adverse
Effect or a Fund Material Adverse Effect.
(g) Such Investment Advisor has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Time of Sale Prospectus and the
Final Prospectus and by the Advisor Agreements.
(h) The Investment Management Agreement and the Sub-Advisory
Agreement are in full force and effect and neither the Fund nor any
Investment Advisor is in default thereunder, and, no event has
occurred which with the passage of time or the giving of notice or
both would constitute a default under such document. Each Investment
Advisor is not in violation of its organizational documents or in
default under any agreement, indenture or instrument, where such
violation or default would reasonably be expected to have an
Investment Advisor Material Adverse Effect.
(i) All information furnished by such Investment Advisor for
use in the Registration Statement, the Time of Sale Prospectus and
the Final Prospectus, including, without limitation, the description
of such Investment Advisor, does not, and on the Closing Date will
not, contain any untrue statement of a material fact or omit to
state any material fact necessary to make such information not
misleading.
(j) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business
or operations of such Investment Advisor from that set forth in the
Time of Sale Prospectus, and there have been no transactions entered
into by such Investment Advisor which are material to such Investment
Advisor other than those in the ordinary course of its business or as
described in the Time of Sale Prospectus.
(k) Neither such Investment Advisor nor any of its
directors, partners, managers, officers, or employees, nor, to such
Investment Advisor's knowledge, any agent or representative of such
Investment Advisor, has taken or will take any action in furtherance
of an offer, payment, promise to pay, or authorization or approval of
the payment or giving of money, property, gifts or anything else of
value, directly or indirectly, to any "government official"
(including any officer or employee of a government or
government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or on
16
behalf of any of the foregoing, or any political party or party
official or candidate for political office) to influence official
action or secure an improper advantage; and such Investment Advisor
has conducted its businesses in compliance with applicable
anti-corruption laws, including the FCPA, and has instituted and
maintains and will continue to maintain policies and procedures
designed to promote and achieve compliance with such laws and with
the representation and warranty contained herein.
(l) The operations of such Investment Advisor are and have
been conducted at all times in compliance with all applicable
financial recordkeeping and reporting requirements, including those
of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and
the Anti-Money Laundering Laws, and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any
arbitrator involving such Investment Advisor with respect to the
Anti-Money Laundering Laws is pending or, to the best knowledge of
such Investment Advisor, threatened.
(m) (i) Neither such Investment Advisor of its directors,
partners, managers, officers, or employees thereof, nor, to such
Investment Advisor's knowledge, any agent, affiliate or
representative of such Investment Advisor, is a Person that is, or is
owned or controlled by a Person that is:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or
territory that is the subject of Sanctions (including,
without limitation, Burma/Myanmar, Cuba, Iran, Libya,
North Korea, Sudan and Syria).
(ii) Such Investment Advisor will not, directly or
indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person:
(A) to fund or facilitate any activities or business
of or with any Person or in any country or territory that,
at the time of such funding or facilitation, is the
subject of Sanctions; or
17
(B) in any other manner that will result in a
violation of Sanctions by any Person (including any
Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, such Investment Advisor
has not knowingly engaged in, is not now knowingly engaged in, and
will not knowingly engage in, any dealings or transactions with
any Person, or in any country or territory, that at the time of
the dealing or transaction is or was the subject of Sanctions.
3. Agreements to Sell and Purchase. The Fund hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the Fund
the respective numbers of Firm Shares set forth in Schedule I hereto opposite
its name at $33.168 a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Fund agrees to sell to
the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 420,000 Additional Shares at
the Purchase Price less an amount per share equal to any dividends or
distributions declared by the Fund and paid or payable on the Firm Shares, but
not payable on the Additional Shares. Morgan Stanley & Co. LLC may exercise this
right on behalf of the Underwriters in whole or from time to time in part by
giving written notice not later than 45 days after the date of this Agreement.
Any exercise notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the closing date for the
Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. On each day, if any, that Additional Shares are to be purchased
(an "OPTION CLOSING DATE"), each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I hereto opposite the
name of such Underwriter bears to the total number of Firm Shares.
18
The Fund hereby agrees that, without the prior written consent of each of
Morgan Stanley & Co. LLC, Citigroup Global Markets Inc. and RBC Capital Markets,
LLC, on behalf of the Underwriters, it will not, during the period ending 90
days after the date of the Final Prospectus, (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any Common Shares or
any other securities convertible into or exercisable or exchangeable for Common
Shares or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Shares, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Shares or such other securities, in
cash or otherwise. The agreements contained in this paragraph shall not apply to
the Shares to be sold hereunder or any Common Shares issued pursuant to the
Plan. If: (1) during the last 17 days of the restricted period the Fund issues
an earnings release or material news or a material event relating to the Fund
occurs; or (2) prior to the expiration of the restricted period, the Fund
announces that it will release earnings results during the 16-day period
beginning on the last day of the restricted period, the foregoing restrictions
shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or
material event.
4. Terms of Public Offering. The Fund and the Investment Advisors are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable. The Fund
and the Investment Advisors are further advised by you that the Shares are to be
offered to the public initially at $34.55 a share (the "PUBLIC OFFERING PRICE"),
and to certain dealers selected by you at a price that represents a concession
not in excess of $0.83 a share under the Public Offering Price.
5. Payment and Delivery. Payment for the Firm Shares shall be made to
the Fund in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 A.M. (New York City time), on May 3, 2013, or at such
other time on the same or such other date, not later than May 17, 2013, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Fund in Federal or
other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 A.M. (New York City time), on the date specified in the corresponding
19
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than June 28, 2013, as shall be designated in
writing by you.
The Firm Shares and Additional Shares shall be registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you through the facilities of DTC on the Closing Date or an Option
Closing Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of
the Shares to the Underwriters duly paid, against payment of the Purchase Price
therefor.
6. Conditions to the Underwriters' Obligations. The respective
obligations of the Fund and the Investment Advisors and the several obligations
of the Underwriters hereunder are subject to the condition that the Registration
Statement became effective prior to the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any change,
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Fund or the Investment Advisors, from that set forth in the Time of Sale
Prospectus that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
each of the Fund and the Investment Advisors, to the effect that (i) the
Final Prospectus has been filed and the Final Prospectus and any
supplements thereto have been filed in the manner and within the time
period required by Rule 497, (ii) no stop order suspending the
effectiveness of the Registration Statement is in effect or any notice
objecting to its use or order pursuant to Section 8(e) of the Investment
Company Act shall have been issued and no proceedings for such purpose
are, as of the Closing Date, pending before or threatened by the
Commission and any request of the Commission for additional information
(to be included in the Registration Statement or Final Prospectus or
otherwise) shall have been complied with in all material respects, (iii)
20
the representations and warranties of the Fund and the Investment Advisors
contained in this Agreement are true and correct as of the Closing Date,
(iv) that each of the Fund and the Investment Advisors has complied with
all of the agreements and satisfied all of the conditions on its part to
be performed or satisfied hereunder on or before the Closing Date and (v)
the Purchase Price exceeds the net asset value per Common Share (exclusive
of any distributing commission or discount) in accordance with Section
23(b) of the Investment Company Act.
Each officer signing and delivering such a certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) Each of the Investment Advisors and the Fund shall have
performed all of their respective obligations to be performed hereunder on
or prior to the Closing Date.
(d) The Underwriters shall have received on the Closing Date an
opinion of Chapman and Cutler LLP, special counsel for the Fund, dated the
Closing Date, substantially in the form attached hereto as Exhibit A and
Exhibit B.
(e) The Underwriters shall have received on the Closing Date
(x) an opinion of Chapman and Cutler LLP, counsel for the Advisor,
substantially in the form attached hereto as Exhibit C and (x), an opinion
of Dechert LLP, counsel for the Subadvisor, substantially in the form
attached hereto as Exhibit D, each dated the Closing Date.
(f) The Underwriters shall have received on the Closing Date
the favorable opinion of Simpson Thacher & Bartlett LLP, counsel for the
Underwriters, dated the Closing Date, and covering such matters as the
Underwriters shall reasonably request.
(g) The "lock up" agreements, each substantially in the form
attached hereto as Exhibit E, between the Underwriters and each of the
Fund, its trustees and the Investment Advisors delivered to the
Underwriters on or before the date hereof, shall be in full force and
effect on the Closing Date.
In rendering its opinion described in Section 6(d) above, as to matters of
Massachusetts law, Chapman and Cutler LLP may rely on the opinion of Bingham
McCutchen LLP, so long as a copy of such opinion of Bingham McCutchen LLP is
delivered to you and is in form and substance satisfactory to you and your
21
counsel, and such opinion of Bingham McCutchen LLP expressly permits reliance
thereon by Chapman and Cutler LLP and Simpson Thacher & Bartlett LLP for
purposes of rendering their respective opinions.
The opinions of Chapman and Cutler LLP and Dechert LLP described in
Sections 6(d) and 6(e) above, respectively, shall be rendered to the
Underwriters at the request of the Fund and shall so state therein.
(h) The Underwriters shall have received on the Closing Date a
certificate from a duly authorized officer of the Custodian, certifying
that the Custodian Agreement is in full force and effect and is a valid
and binding agreement of the Custodian.
(i) The Underwriters shall have received on the Closing Date a
certificate from a duly authorized officer of the Administrator certifying
that the Administration Agreement is in full force and effect and is a
valid and binding agreement of the Administrator.
(j) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Deloitte & Touche LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement, the Time of Sale Prospectus and the Final
Prospectus, provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(k) All filings, applications and proceedings taken by the Fund
and the Investment Advisors in connection with the organization and
registration of the Fund and the Shares under the Acts and the applicable
Rules and Regulations shall be satisfactory in form and substance to you
and counsel for the Underwriters.
(l) No action, suit, proceeding, inquiry or investigation shall
have been instituted or threatened by the Commission which would adversely
affect the Fund's standing as a registered investment company under the
Investment Company Act or the standing of the Advisor or the Subadvisor as
a registered investment advisor under the Advisers Act.
(m) The Shares shall have been duly authorized for listing on
the NYSE Amex, subject only to official notice of issuance thereof.
22
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Fund and the Investment Advisors, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and
other matters related to the issuance of such Additional Shares, and officers'
certificates and opinions of Chapman and Cutler LLP, Dechert LLP, Bingham
McCutchen LLP and Simpson Thacher & Bartlett LLP to the effect set forth above,
except that such certificates and opinions shall be dated as of the applicable
Option Closing Date and statements and opinions above contemplated to be given
as of the Closing Date shall instead be made and given as of such Option Closing
Date.
7. Covenants of the Fund and the Investment Advisors. In further
consideration of the agreements of the Underwriters herein contained, the Fund
and the Investment Advisors, jointly and severally, covenant and agree with each
Underwriter as follows:
(a) To notify you immediately, and confirm such notice in
writing, (i) of the institution of any proceedings pursuant to Section
8(e) of the Investment Company Act and (ii) of the happening of any event
during the period mentioned in Section 7(h) below which in the judgment of
the Fund makes any statement in the Notification, the Registration
Statement, the Time of Sale Prospectus, any Omitting Prospectus or the
Final Prospectus untrue in any material respect or which requires the
making of any change in or addition to the Notification, the Registration
Statement, the Time of Sale Prospectus, any Omitting Prospectus or the
Final Prospectus in order to make the statements therein not misleading in
any material respect. If at any time the Commission shall issue any order
suspending the effectiveness of the Registration Statement or an order
pursuant to Section 8(e) of the Investment Company Act, the Fund will make
every reasonable effort to obtain the withdrawal of such order at the
earliest possible moment.
(b) To furnish to you, without charge, three conformed copies
of each of the Notification and the Registration Statement (including
exhibits thereto) and for delivery to each other Underwriter a conformed
copy of each of the Notification and the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without charge,
prior to 10:00 A.M. (New York City time) on the business day next
succeeding the date of this Agreement and during the period mentioned in
23
Section 7(d) below, as many copies of the Time of Sale Prospectus, the
Final Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(c) During the period during which the Final Prospectus is
required to be delivered in connection with the sale of the Shares, before
amending or supplementing the Registration Statement, the Basic
Prospectus, the Time of Sale Prospectus or the Final Prospectus, to
furnish to you a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which you
reasonably object, and to file with the Commission within the applicable
period specified in Rule 497 under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(d) To furnish to you a copy of each proposed Omitting
Prospectus to be prepared by or on behalf of, used by, or referred to by
the Fund and not to use or refer to any proposed Omitting Prospectus to
which you reasonably object.
(e) If the Time of Sale Prospectus is being used to solicit
offers to buy the Shares at a time when the Final Prospectus is not yet
available to prospective purchasers and any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Time
of Sale Prospectus in order to make the statements therein, in the light
of the circumstances, not misleading, or if any event shall occur or
condition exist as a result of which the Time of Sale Prospectus conflicts
with the information contained in the Registration Statement then on file,
or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the
statements in the Time of Sale Prospectus as so amended or supplemented
will not, in the light of the circumstances when delivered to a
prospective purchaser, be misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended
or supplemented, will comply in all material respects with applicable law.
(f) The Fund will use the net proceeds received by it from the
sale of the Shares in the manner specified in the Registration Statement,
the Time of Sale Prospectus and the Final Prospectus and direct the
investment of net proceeds in such a manner as to comply with the
24
investment objectives, policies and restrictions of the Fund as described
in the Time of Sale Prospectus and the Final Prospectus.
(g) The Fund and the Investment Advisors will not take any
action designed to cause or result in the manipulation of the price of any
security of the Fund to facilitate the sale of Shares in violation of the
Acts or the Securities Act and the applicable Rules and Regulations, or
the securities or Blue Sky laws of the various states and foreign
jurisdictions in connection with the offer and sale of Shares.
(h) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Final Prospectus is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Final Prospectus in order to make the statements therein, in the light of
the circumstances when the Final Prospectus is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Final Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Fund) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Final Prospectus so
that the statements in the Final Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Final Prospectus is
delivered to a purchaser, be misleading or so that the Final Prospectus,
as amended or supplemented, will comply in all material respects with
applicable law.
(i) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(j) To make generally available to the Fund's security holders
and, upon request, to you as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Fund occurring after the date of this Agreement
which shall satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations, including Rule 158, of the Commission
thereunder.
(k) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause
25
to be paid all expenses incident to the performance of the obligations of
the Fund and the Investment Advisors under this Agreement, including: (i)
the fees, disbursements and expenses of the Fund's counsel and the Fund's
accountants in connection with the registration and delivery of the Shares
under the Securities Act and all other fees or expenses in connection with
the preparation and filing of the Registration Statement, any Preliminary
Final Prospectus, the Basic Prospectus, the Time of Sale Prospectus, the
Final Prospectus, and any Omitting Prospectus prepared by or on behalf of,
used by, or referred to by the Fund and amendments and supplements to any
of the foregoing, including all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii)
the cost of printing or producing any Blue Sky memorandum in connection
with the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(i) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in
connection with the Blue Sky memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred
in connection with the review and qualification of the offering of the
Shares by FINRA, (v) all costs and expenses incident to listing the Shares
on the NYSE Amex, (vi) the cost, if any, of printing certificates
representing the Shares, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs and expenses, if any, of
the Fund relating to investor presentations on any "road show" undertaken
in connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior approval of the Fund, travel and lodging expenses of the
representatives and officers of the Fund and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (ix) the
document production charges and expenses associated with printing this
Agreement and (x) all other costs and expenses incident to the performance
of the obligations of the Fund hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 8 entitled "Indemnity and Contribution"
26
and the last paragraph of Section 10 below, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
(l) The Fund shall provide satisfactory evidence to the
Underwriters that the Fund has filed a listing application for the
Additional Shares with the NYSE Amex and the NYSE Amex has approved the
listing of the Additional Shares.
8. Indemnity and Contribution. (a) Each of the Fund and the Investment
Advisors, jointly and severally, agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, each agent of any Underwriter and each director, officer or affiliate of
any Underwriter within the meaning of Rule 405 under the Securities Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim), caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any Omitting Prospectus except
for the Omitting Prospectuses identified on Schedule II hereto, any Preliminary
Final Prospectus (including any statement of additional information incorporated
therein by reference), the Time of Sale Prospectus, or the Final Prospectus or
any amendment or supplement thereto, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Fund in writing by such Underwriter
through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless each of the Fund and the Investment Advisors,
their respective directors or trustees (as the case may be), and each
officer of the Fund who signed the Registration Statement and each person,
if any, who controls the Fund or any Investment Advisor within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Fund and the
Investment Advisors to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Fund in writing
by such Underwriter through you expressly for use in the Registration
Statement, any Preliminary Final Prospectus (including any statement of
27
additional information incorporated therein by reference), the Time of
Sale Prospectus, any Omitting Prospectus or the Final Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (i) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, all persons who are
agents of any Underwriters or all persons who are directors, officers or
affiliates of any Underwriters within the meaning of Section 405 under the
Securities Act, (ii) the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Fund, its trustees, its
officers who signed the Registration Statement and each person, if any,
who controls the Fund within the meaning of either such Section, and (iii)
the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Investment Advisors, its directors, trustees or
control persons, as the case may be, and each person, if any, who controls
any of the Investment Advisors within the meaning of either such Section,
and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and
28
such control persons, agents, directors, officers and affiliates of any
Underwriters, such firm shall be designated in writing by Morgan Stanley &
Co. LLC, Citigroup Global Markets Inc. and RBC Capital Markets, LLC. In
the case of any such separate firm for the Fund, and such trustees,
officers and control persons of the Fund, such firm shall be designated in
writing by the Fund. In the case of any such separate firm for the
Investment Advisors, and such directors and control persons of the
Investment Advisors, such firm shall be designated in writing by the
Advisor. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
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 and third sentences of this paragraph, 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 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. 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
a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Fund and the Investment Advisors 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 8(d)(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 8(d)(i) above
but also the relative fault of the Fund and the Investment Advisors on the
one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Fund and the Investment Advisors on the
one hand and the Underwriters on the other hand in connection with the
29
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Fund and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Final Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Fund and the Investment Advisors on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Fund or any of the Investment Advisors or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 8 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint. Each of the
Investment Advisors agrees to pay any amounts that are payable by the Fund
pursuant to this paragraph to the extent that the Fund fails to make all
contributions required to be made by the Fund pursuant to this Section 8.
(e) The Fund, the Investment Advisors and the Underwriters
agree that it would not be just or equitable if contribution pursuant to
this Section 8 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 Section 8(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
30
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 remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Fund and each of the Investment Advisors contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter, any person controlling any Underwriter or any agent of
any Underwriter or any director, officer or affiliate of any Underwriter
or by or on behalf of any of the Investment Advisors, their officers or
directors or any person controlling the Investment Advisors or by or on
behalf of the Fund, its officers or trustees or any person controlling the
Fund and (iii) acceptance of and payment for any of the Shares.
9. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Fund, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on, or by, as the case may be, any of the New York Stock
Exchange, the NYSE Amex, the NASDAQ Global Market, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Fund shall have been suspended on any exchange
or in any over-the-counter market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States shall have
occurred, (iv) any moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets, currency exchange rates or controls or any calamity or crisis that, in
your judgment, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus or the Final Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto. (the
"EXECUTION TIME").
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
31
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased on such date, and arrangements satisfactory to you and
the Fund for the purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Fund or the Investment Advisors. In any such
case either you or the Fund shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement, in the Time of Sale Prospectus, in the
Final Prospectus or in any other documents or arrangements may be effected. If,
on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Fund or any of the
Investment Advisors to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Fund or any of the Investment
Advisors shall be unable to perform its obligations under this Agreement, the
Fund and the Investment Advisors, jointly and severally, will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
32
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Entire Agreement. (a) This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the
Shares, represents the entire agreement between the Fund, the Investment
Advisors and the Underwriters with respect to the preparation of any Preliminary
Final Prospectus, the Registration Statement, the Basic Prospectus, the
Preliminary Final Prospectus, the Time of Sale Prospectus, the Final Prospectus,
the conduct of the offering, and the purchase and sale of the Shares.
(b) The Fund and the Investment Advisors acknowledge that in
connection with the offering of the Shares: (i) the Underwriters have
acted at arm's length, are not agents of, and owe no fiduciary duties to,
the Fund, the Investment Advisors or any other person, (ii) the
Underwriters owe the Fund and the Investment Advisors only those duties
and obligations set forth in this Agreement and prior written agreements
(to the extent not superseded by this Agreement), if any, and (iii) the
Underwriters may have interests that differ from those of the Fund and the
Investment Advisors. The Fund and the Investment Advisors waive to the
full extent permitted by applicable law any claims any of them may have
against the Underwriters arising from an alleged breach of fiduciary duty
in connection with the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. Notices. All communications hereunder shall be in writing and
effective only upon receipt and if to the Underwriters shall be delivered,
mailed or sent to you in care of Morgan Stanley & Co. LLC, 1585 Broadway, New
York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal
Department; if to the Fund, shall be delivered, mailed or sent to First Trust
Energy Income and Growth Fund, First Trust Portfolios L.P., 120 East Liberty
33
Drive, Suite 400, Wheaton, Illinois 60187, Attn: W. Scott Jardine, Esq.; if to
the Advisor, shall be delivered, mailed or sent to First Trust Portfolios L.P.,
120 East Liberty Drive, Suite 400, Wheaton, Illinois 60187, Attn: W. Scott
Jardine, Esq.; and if to the Subadvisor, shall be delivered, mailed or sent to
Energy Income Partners, LLC, 49 Riverside Avenue, Westport, Connecticut 06880,
Attn: Jim Murchie.
16. Disclaimer of Liability of Trustees and Beneficiaries. A copy of
the Declaration of Trust of the Fund is on file with the Secretary of State of
The Commonwealth of Massachusetts, and notice hereby is given that this
Agreement is executed on behalf of the Fund by an officer or Trustee of the Fund
in his or her capacity as an officer or Trustee of the Fund and not individually
and that the obligations under or arising out of this Agreement are not binding
upon any of the Trustees, officers or shareholders individually but are binding
only upon the assets and properties of the Fund.
[Signature Pages Follow]
34
Very truly yours,
FIRST TRUST ENERGY INCOME AND GROWTH FUND
By: /s/ Mark R. Bradley
--------------------------------------
Name: Mark R. Bradley
Title: President and Chief Executive
Officer
FIRST TRUST ADVISORS L.P.
By: /s/ Mark R. Bradley
---------------------------------------
Name: Mark R. Bradley
Title: Chief Financial Officer and
Chief Operating Officer
ENERGY INCOME PARTNERS, LLC
By: /s/ James Murchie
----------------------------------------
Name: James Murchie
Title: President, CEO
Accepted as of the date hereof
Morgan Stanley & Co. LLC
Citigroup Global Markets Inc.
RBC Capital Markets, LLC
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto
By: Morgan Stanley & Co. LLC
By: /s/ Jon Zimmerman
----------------------------------------------
Name: Jon Zimmerman
Title: Vice President
By: Citigroup Global Markets Inc.
By: /s/ Kevin Deignan
----------------------------------------------
Name: Kevin Deignan
Title: Managing Director
By: RBC Capital Markets, LLC
By: /s/ Eric Purcell
----------------------------------------------
Name: Eric Purcell
Title: Director
SCHEDULE I
NUMBER OF FIRM
SHARES TO BE
UNDERWRITER PURCHASED
Morgan Stanley & Co. LLC................................... 910,000
Citigroup Global Markets Inc............................... 910,000
RBC Capital Markets, LLC................................... 280,000
Oppenheimer & Co. Inc...................................... 210,000
Robert W. Baird & Co. Incorporated......................... 210,000
BB&T Capital Markets, a division of BB&T Securities, LLC... 140,000
Janney Montgomery Scott LLC................................ 140,000
Total:............................................ 2,800,000
================================================================================
I-1
SCHEDULE II
OMITTING PROSPECTUSES
1. Launch press release dated April 29, 2013.
2. Pricing press release dated April 30, 2013.
II-1
SCHEDULE III
1. Price per Share to the public: $34.55
2. Number of Shares sold: 2,800,000
3. Number of Additional Shares: 420,000
4. Underwriting discount: 4.00%
III-1
copy to come