As filed with the Securities and Exchange Commission on April 30, 2010
================================================================================
1933 Act File No. 333-154254
1940 Act File No. 811-21549
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
(Check appropriate box or boxes)
[ ] REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[ ] Pre-Effective Amendment No. __
[X] Post-Effective Amendment No. 5
and
[ ] REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
[X] Amendment No. 19
Energy Income and Growth Fund
Exact Name of Registrant as Specified in Declaration of Trust
120 East Liberty Drive, Suite 400, Wheaton, Illinois 60187
Address of Principal Executive Offices (Number, Street, City, State, Zip Code)
(630) 765-8000
Registrant's Telephone Number, including Area Code
W. Scott Jardine, Esq.
First Trust Portfolios L.P.
120 East Liberty Drive, Suite 400
Wheaton, Illinois 60187
Name and Address (Number, Street, City, State, Zip Code) of Agent for Service
Copies of Communications to:
Eric F. Fess, Esq. David M. Carter
Chapman and Cutler LLP Troutman Sanders LLP
111 West Monroe Street Troutman Sanders Building
Chicago, Illinois 60603 1001 Haxall Point
Richmond, VA 23219
Approximate Date of Proposed Public Offering: From time to time after the
effective date of this Registration Statement
---------------
If any of the securities being registered on this form are offered on a delayed
or continuous basis in reliance on Rule 415 under the Securities Act of 1933,
other than securities offered in connection with a dividend reinvestment plan,
check the following box. [X]
This Post-Effective Amendment No. 5 will become effective immediately upon
filing pursuant to Rule 462(d) under the Securities Act of 1933.
EXPLANATORY NOTE
This Post-Effective Amendment No. 5 to the Registration Statement on
Form N-2 (File No. 333-154254) of Energy Income and Growth Fund (the
"Registration Statement") is being filed pursuant to Rule 462(d) under the
Securities Act of 1933, as amended (the "Securities Act"), solely for the
purpose of filing exhibits to the Registration Statement. Accordingly, this
Post-Effective Amendment No. 5 consists only of a facing page, this explanatory
note and Part C of the Registration Statement on Form N-2 setting forth the
exhibits to the Registration Statement. This Post-Effective Amendment No. 5 does
not modify any other part of the Registration Statement. Pursuant to Rule 462(d)
under the Securities Act, this Post-Effective Amendment No. 5 shall become
effective immediately upon filing with the Securities and Exchange Commission.
The contents of the Registration Statement are hereby incorporated by reference.
-2-
PART C - OTHER INFORMATION
Item 25: Financial Statements and Exhibits
1. Financial Statements:
The Registrant's audited financial statements, notes to the financial
statements and the report of independent public accounting firm thereon have
been incorporated into Part B of the Registration Statement by reference to
Registrant's Annual Report for the fiscal year ended November 30, 2009 contained
in its Form N-CSR, as described in the statement of additional information.
2. Exhibits:
a. Declaration of Trust dated March 25, 2004.(1)
b. Amended and Restated By-Laws of Fund.(7)
c. None.
d. Form of Share Certificate.(2)
e. Terms and Conditions of the Dividend Reinvestment Plan.(2)
f. None.
g.1 Investment Management Agreement between Registrant and First Trust
Advisors L.P.(3)
g.2 Sub-Advisory Agreement between Registrant, First Trust Advisors L.P. and
Energy Income Partners, LLC.(5)
h.1 Form of Sales Agreement.(10)
h.2 Underwriting Agreement.*
i. None.
j. Custodian Services Agreement between Registrant and PFPC Trust Company.(3)
k.1 Transfer Agency Services Agreement between Registrant and PFPC Inc.(3)
k.2 Administration and Accounting Services Agreement.(3)
k.3 Committed Facility Agreement.(8)
k.4 Amendment to the Committed Facility Agreement.(11)
l.1 Opinion and consent of Chapman and Cutler LLP.(9)
l.2 Opinion and consent of Bingham McCutchen LLP.(9)
l.3 Opinion and consent of Chapman and Cutler LLP.*
l.4 Opinion and consent of Bingham McCutchen LLP.*
-3-
m. None.
n. Consent of Independent Registered Public Accounting Firm.*
o. None.
p. Subscription Agreement between Registrant and First Trust Advisors L.P.(3)
q. None.
r.1 Code of Ethics of Registrant.(4)
r.2 Code of Ethics of First Trust Portfolios L.P.(4)
r.3 Code of Ethics of First Trust Advisors L.P.(4)
r.4 Code of Ethics of Energy Income Partners, LLC.(6)
s. Powers of Attorney.(6)
-------------------------------------------------------------------------------
* Filed herewith.
(1) Filed on April 1, 2004 in Registrant's Registration Statement on Form N-2
(File No. 333-114131) and incorporated herein by reference.
(2) Filed on June 24, 2004 in Registrant's Registration Statement on Form N-2
(File No. 333-114131) and incorporated herein by reference.
(3) Filed on November 30, 2004 in Registrant's Registration Statement on Form
N-2 (File No. 333-120853) and incorporated herein by reference.
(4) Filed on February 10, 2006 in Registrant's Registration Statement on Form
N-2 (File No. 333-131771) and incorporated herein by reference.
(5) Filed on January 28, 2008 in Registrant's Annual Report on Form NSAR-B
(File No. 811-21549) and incorporated herein by reference.
(6) Filed on October 14, 2008 in Registrant's Registration Statement on Form
N-2 (File No. 333-154254) and incorporated herein by reference.
(7) Filed on January 29, 2007 in Registrant's Annual Report on Form NSAR-B
(File No. 811-21529) and incorporated herein by reference.
(8) Filed on March 16, 2009 in Registrant's Registration Statement on Form N-2
(File No. 333-154254) and incorporated herein by reference.
(9) Filed on May 5, 2009 in Registrant's Pre-Effective Amendment No. 2 to
Registrant's Registration Statement on Form N-2 (File No. 333-154254) and
incorporated herein by reference.
(10) Filed on May 19, 2009 in Registrant's Post-Effective Amendment No. 1 to
Registrant's Registration Statement on Form N-2 (File No. 333-154254) and
incorporated herein by reference.
-4-
(11) Filed on March 17, 2010 in Registrant's Post-Effective Amendment No. 4 to
Registrant's Registration Statement on Form N-2 (File No. 333-154254) and
incorporated herein by reference.
Item 26: Marketing Arrangements
The information contained under the heading "Plan of Distribution"
contained in Registrant's Prospectus, filed as Part A of Registrant's
Registration Statement on March 17, 2010 is incorporated by reference herein.
The information contained in the Underwriting Agreement among the
Registrant, First Trust Advisors L.P., Energy Income Partners LLC and the
Underwriters for the Registrant's common shares of beneficial interest, filed as
exhibit h.2 to this Registration Statement, is incorporated by reference herein.
-5-
Item 27: Other Expenses of Issuance and Distribution
------------------------------------------------------------ ----------------
Securities and Exchange Commission Fees $ 1,965
------------------------------------------------------------ ----------------
Financial Industry Regulatory Authority, Inc. Fees $ 5,500
------------------------------------------------------------ ----------------
Printing and Engraving Expenses $ 10,000
------------------------------------------------------------ ----------------
Legal Fees $ 423,000
------------------------------------------------------------ ----------------
Listing Fees $ -
------------------------------------------------------------ ----------------
Accounting Expenses $ 38,000
------------------------------------------------------------ ----------------
Blue Sky Filing Fees and Expenses $ -
------------------------------------------------------------ ----------------
Miscellaneous Expenses $ 38,000
------------------------------------------------------------ ----------------
Total $ 516,465*
------------------------------------------------------------ ----------------
* These expenses will be borne by the Registrant unless otherwise specified in a
prospectus supplement.
Item 28: Persons Controlled by or under Common Control with Registrant
Not applicable.
Item 29: Number of Holders of Securities
At January 25, 2010
--------------------------------------------- ------------------------------
Title of Class Number of Record Holders
--------------------------------------------- ------------------------------
Common Shares, $0.01 par value 8,596
--------------------------------------------- ------------------------------
-6-
Item 30: Indemnification
Section 5.3 of the Registrant's Declaration of Trust provides as follows:
(a) Subject to the exceptions and limitations contained in paragraph
(b) below:
(i) every person who is or has been a Trustee or officer of
the Trust (hereinafter referred to as a "Covered Person") shall be
indemnified by the Trust against all liability and against all expenses
reasonably incurred or paid by him or her in connection with any claim,
action, suit or proceeding in which that individual becomes involved as
a party or otherwise by virtue of being or having been a Trustee or
officer and against amounts paid or incurred by that individual in the
settlement thereof; and
(ii) the words "claim," "action," "suit" or "proceeding" shall
apply to all claims, actions, suits or proceedings (civil, criminal,
administrative or other, including appeals), actual or threatened; and
the words "liability" and "expenses" shall include, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement or
compromise, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) against any liability to the Trust or the Shareholders by
reason of a final adjudication by the court or other body before which
the proceeding was brought that the Covered Person engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of that individual's office;
(ii) with respect to any matter as to which the Covered Person
shall have been finally adjudicated not to have acted in good faith in
the reasonable belief that that individual's action was in the best
interest of the Trust; or
(iii) in the event of a settlement involving a payment by a
Trustee, Trustee Emeritus or officer or other disposition not involving
a final adjudication as provided in paragraph (b)(i) or (b)(ii) above
resulting in a payment by a Covered Person, unless there has been
either a determination that such Covered Person did not engage in
willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of that individual's office by
the court or other body approving the settlement or other disposition
or by a reasonable determination, based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that that
individual did not engage in such conduct:
(A) by vote of a majority of the Disinterested
Trustees (as defined below) acting on the matter (provided that a
majority of the Disinterested Trustees then in office act on the
matter); or
(B) by written opinion of (i) the then-current legal
counsel to the Trustees who are not Interested Persons of the Trust or
(ii) other legal counsel chosen by a majority of the Disinterested
Trustees (or if there are no Disinterested Trustees with respect to the
matter in question, by a majority of the Trustees who are not
Interested Persons of the Trust) and determined by them in their
reasonable judgment to be independent.
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not
affect any other rights to which any Covered Person may now or hereafter be
entitled, shall continue as to a person who has ceased to be a Covered Person
and shall inure to the benefit of the heirs, executors and administrators of
such person. Nothing contained herein shall limit the Trust from entering into
other insurance arrangements or affect any rights to indemnification to which
Trust personnel, including Covered Persons, may be entitled by contract or
otherwise under law.
-7-
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit, or proceeding of the character described in paragraph (a) of this
Section 5.3 shall be advanced by the Trust prior to final disposition thereof
upon receipt of an undertaking by or on behalf of the Covered Person to repay
such amount if it is ultimately determined that the Covered Person is not
entitled to indemnification under this Section 5.3, provided that either:
(i) such undertaking is secured by a surety bond or some
other appropriate security or the Trust shall be insured against losses
arising out of any such advances; or
(ii) a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in
office act on the matter) or legal counsel meeting the requirement in
Section 5.3(b)(iii)(B) above in a written opinion, shall determine,
based upon a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the Covered
Person ultimately will be found entitled to indemnification.
As used in this Section 5.3, a "Disinterested Trustee" is one (i) who
is not an "Interested Person" of the Trust (including anyone who has
been exempted from being an "Interested Person" by any rule, regulation
or order of the Commission), and (ii) against whom none of such
actions, suits or other proceedings or another action, suit or other
proceeding on the same or similar grounds is then or had been pending.
(e) With respect to any such determination or opinion referred to in
clause (b)(iii) above or clause (d)(ii) above, a rebuttable presumption shall be
afforded that the Covered Person has not engaged in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office in accordance with pronouncements of the
Commission.
Section 6 of the Underwriting Agreement provides as follows:
6. Indemnification and Contribution.
(a) Indemnification by the Fund, the Adviser and Sub-Adviser. The
Fund, the Adviser and Sub-Adviser, jointly and severally, agree to indemnify and
hold harmless each Underwriter, its partners, directors, members, officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) including any
information deemed to be a part thereof pursuant to Rule 430A or Rule
497 under the Securities Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material
fact included in the Preliminary Prospectus, any sales material, the
Disclosure Package or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Fund and the
Adviser; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (1) or (2) above, provided, however,
-8-
that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to
the Fund, the Adviser or Sub-Adviser by any Underwriter expressly for
use in the Registration Statement (or any amendment thereto), in the
Preliminary Prospectus, any sales material, the Disclosure Package or
in any Prospectus (or any amendment or supplement thereto).
(b) Indemnification by the Underwriters. Each Underwriter agrees to
indemnify and hold harmless each of the Fund, the Adviser and the Sub-Adviser,
each of their partners, directors, trustees, members, each of their officers who
signed the Registration Statement, and each person, if any, who controls the
Fund, the Adviser or Sub-Adviser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 6, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), the Preliminary Prospectus,
any sales material, the Disclosure Package or any Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Fund, the Adviser or the Sub-Adviser by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), such Preliminary Prospectus, sales material, Disclosure Package or
Prospectus (or any amendment or supplement thereto). The Fund, the Adviser and
Sub-Adviser acknowledge that the statements set forth in the Preliminary
Prospectus and the Prospectus in (i) the last sentence of the paragraph of the
cover page regarding delivery of the Securities and (ii) under the heading
"Underwriting," (A) the list of Underwriters and their respective participation
in the sale of the Securities, (B) the sentences related to concessions and
re-allowances and (C) the paragraph related to stabilization, syndicate covering
transactions and penalty bids constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
Disclosure Package or the Prospectus.
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. Counsel to the indemnified parties shall be selected as
follows: counsel to Underwriters, its partners, directors, members, officers,
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall be
selected by the Underwriters; counsel to the Fund, its partners, directors,
trustees, members, each of its officers who signed the Registration Statement
and each person, if any, who controls the Fund within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall be selected by the
Fund; counsel to the Adviser and each person, if any, who controls the Adviser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall be selected by the Adviser and counsel to the Sub-Advisor and
each person, if any, who controls the Sub-Advisor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall be selected by
the Sub-Adviser. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for the Underwriters and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for the Fund, each of their partners, directors, trustees, members, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Fund within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for the
Adviser, the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for the Sub-Adviser, and the fees
and expenses of more than one counsel, in each case in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
-9-
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification and Contribution.
The provisions of this Section 6 hereof shall not affect any agreements among
the Fund, the Adviser and Sub-Adviser with respect to indemnification of each
other or contribution between themselves.
(f) Contribution.
(1) If the indemnification provided for in this Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund, the Adviser and Sub-Adviser on
the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Fund, the Adviser and Sub-Adviser on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
(2) The relative benefits received by the Fund, the Adviser and
Sub-Adviser on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the Securities pursuant to
this Agreement (before deducting expenses) received by the Fund and
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
(3) The relative fault of the Fund, the Adviser and Sub-Adviser
on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Fund, by the Adviser, by the Sub-Adviser or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(4) The Fund, the Adviser, the Sub-Adviser and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 6(f) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(f). The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section
6(f) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
(5) Notwithstanding the provisions of this Section 6(f), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
-10-
(6) 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.
(7) For purposes of this Section 6(f), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person who
controls the Fund, any Adviser or Sub-Adviser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
each officer of the Fund, the Adviser and the Sub-Adviser and each
trustee, director or member of the Fund, the Adviser and the
Sub-Adviser shall have the same rights to contribution as the Fund,
the Adviser and the Sub-Adviser. The Underwriters' respective
obligations to contribute pursuant to this Section 6(f) are several in
proportion to the number of Initial Securities set forth opposite
their respective names in Schedule A hereto and not joint.
(g) The indemnity and contribution agreements contained in this
Section 6 and the representation and warranties of the Fund, the Adviser and the
Sub-Adviser set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter, its partners, officers or employees, or any person controlling such
Underwriter, within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, and or by or on behalf of the Fund and/or any Adviser or
Sub-Adviser, its directors and officers or any person who controls the Fund,
and/or any Adviser or Sub-Adviser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) delivery and acceptance
of the Securities and payment therefor, or (iii) any termination of this
Agreement. A successor to any Underwriter or to the Fund or the Adviser or
the Sub-Adviser, its respective directors or officers, or any person
controlling the Fund, or the Adviser or Sub-Adviser, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 6.
Item 31: Business and Other Connections of Investment Advisers
The information in the Statement of Additional Information under the captions
"Management of the Fund--Trustees and Officers" and "Sub Adviser" is hereby
incorporated by reference.
Item 32: Location of Accounts and Records.
First Trust Advisors L.P. maintains the Declaration of Trust, By-Laws, minutes
of trustees and shareholders meetings and contracts of the Registrant, all
advisory material of the investment adviser, all general and subsidiary ledgers,
journals, trial balances, records of all portfolio purchases and sales, and all
other required records.
Item 33: Management Services
Not applicable.
Item 34: Undertakings
1. Registrant undertakes to suspend the offering of its shares until it
amends its prospectus if (1) subsequent to the effective date of its
Registration Statement, the net asset value declines more than 10 percent
from its net asset value as of the effective date of the Registration
Statement, or (2) the net asset value increases to an amount greater than
its net proceeds as stated in the prospectus.
2. Not applicable.
3. Not applicable.
4. The Registrant undertakes (a) to file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration
Statement:
-11-
(1) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(2) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(3) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(b) that, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of those securities at that time shall be deemed to be the initial bona
fide offering thereof;
(c) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering;
(d) that, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser, if the Registrant is subject to Rule
430C; each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the
Securities Act of 1933, shall be deemed to be part of and included in this
Registration Statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in this Registration Statement or
prospectus that is part of this registration statement or made in a document
incorporated or deemed incorporated by reference into this registration
statement or prospectus that is art of this registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supercede or
modify any statement that was made in this registration statement or prospectus
that was part of this registration statement or made in any such document
immediately prior to such date of first use;
(e) that for the purpose of determining liability of the Registrant
under the Securities Act of 1933 to any purchaser in the initial distribution of
securities:
The undersigned Registrant undertakes that in a primary offering of
securities of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to the purchaser:
(1) any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to
Rule 497 under the Securities Act of 1933;
(2) the portion of any advertisement pursuant to Rule 482 under
the Securities Act of 1933 relating to the offering containing
material information about the undersigned Registrant or its
securities provided by or on behalf of the undersigned Registrant; and
(3) any other communication that is an offer in the offering made
by the undersigned Registrant to the purchaser.
5. The Registrant undertakes that:
a. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of a registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the Registrant under Rule
497(h) under the Securities Act of 1933 shall be deemed to be part of
the Registration Statement as of the time it was declared effective;
and
-12-
b. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of the securities
at that time shall be deemed to be the initial bona fide offering
thereof.
6. The Registrant undertakes to send by first class mail or other means
designed to ensure equally prompt delivery, within two business days of
receipt of a written or oral request, any Statement of Additional
Information.
7. Upon each issuance of securities pursuant to this Registration Statement,
the Registrant undertakes to file a form of prospectus and/or prospectus
supplement pursuant to Rule 497 and a post-effective amendment to the
extent required by the Securities Act of 1933 and the rules and
regulations thereunder, including, but not limited to a post-effective
amendment pursuant to Rule 462(c) or Rule 462(d) under the Securities Act
of 1933.
8. The Registrant undertakes to file a post-effective amendment pursuant to
Section 8(c) of the Securities Act of 1933 in connection with any
offering of its securities below net asset value.
-13-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in this City of Wheaton, and State of Illinois, on the 30th day of
April, 2010.
ENERGY INCOME AND GROWTH FUND
By: /s/ James A. Bowen
-----------------------------------
James A. Bowen, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
---------------------------------------- -------------------------------------- --------------------------------------
Signature Title Date
---------------------------------------- -------------------------------------- --------------------------------------
/s/ James A. Bowen President, Chairman of the Board and April 30, 2010
----------------------------- Trustee (Principal Executive Officer)
James A. Bowen
---------------------------------------- -------------------------------------- --------------------------------------
/s/ Mark R. Bradley Chief Financial Officer and April 30, 2010
------------------------------ Treasurer (Principal Financial and
Mark R. Bradley Accounting Officer)
---------------------------------------- -------------------------------------- --------------------------------------
Richard E. Erickson(1) Trustee )
---------------------------------------- -------------------------------------- By: /s/ W. Scott Jardine
Thomas R. Kadlec(1) Trustee ) -------------------------
---------------------------------------- -------------------------------------- W. Scott Jardine
Robert F. Keith(1) Trustee ) Attorney-In-Fact
---------------------------------------- -------------------------------------- April 30, 2010
Niel B. Nielson(1) Trustee )
---------------------------------------- -------------------------------------- --------------------------------------
(1) Original powers of attorney authorizing James A. Bowen, W. Scott Jardine and
Eric F. Fess to execute Registrant's Registration Statement, and Amendments
thereto, for each of the trustees of the Registrant on whose behalf this
Pre-Effective Amendment No. 3 is filed, were previously executed filed on
October 14, 2008 as Exhibit S to Registrant's Registration Statement on Form N-2
(File No. 333-154254).
-14-
INDEX TO EXHIBITS
h.2 Underwriting Agreement.
l.3 Opinion and consent of Chapman and Cutler LLP.
1.4 Opinion and consent of Bingham McCutchen LLP.
n. Consent of Independent Registered Public Accounting Firm.
-15-