Exhibit 99.(k)(4)
SUBSCRIPTION AGENT AGREEMENT
May __, 2006
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with your appointment as Subscription Agent in the transaction
described herein, The Turkish Investment Fund, Inc. (the "Company"), hereby
confirms its arrangements with you as follows:
1. RIGHTS OFFERING - The Company is offering (the Rights offering") to the
holders of shares of its Common Stock, par value $ .01 per share ("Common
Stock"), on _________, 2006 (the "Record Date"), the right ("Rights") to
subscribe for Units ("Units"), each Unit consisting of four rights. Except
as set forth under Paragraphs 6 and 7 below, Rights shall cease to be
exercisable at 5:00 p.m., New York City time, on __________, 2006 or such
later date of which the Company notifies you orally and confirms in writing
(the "Expiration Date"). One Right is being issued for each share of Common
Stock held on the Record Date. Four Rights and payment in full of the
estimated subscription price of $_____ (the "Subscription Price") are
required to subscribe for one Unit. Rights are evidenced by
non-transferable subscription certificates in registered form
("Subscription Certificates"). Each holder of Subscription Certificates who
exercises the holder's right to subscribe for all Units that can be
subscribed for with the Rights evidenced by such Subscription Certificates
(the "Basic Subscription Right") will have the right to subscribe for
additional Units, if any, available as a result of any unexercised Rights
(such additional subscription right being referred to hereafter as the
"Additional Subscription Privilege"). The Rights Offering will be conducted
in the manner and upon the terms set forth in the Company's Prospectus
dated May __, 2006 (the "Prospectus"), which is incorporated herein by
reference and made a part hereof as if set forth in full herein.
2. APPOINTMENT OF SUBSCRIPTION AGENT - You are hereby appointed as
Subscription Agent to effect the Rights offering in accordance with the
Prospectus. Each reference to you in this letter is to you in your capacity
as Subscription Agent unless the context indicates otherwise.
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3. DELIVERY OF DOCUMENTS - Enclosed herewith are the following, the receipt of
which you acknowledge by your execution hereof:
(a) a copy of the Prospectus;
(b) the form of Subscription Certificate (with instructions);
(c) resolutions adopted by the Board of Directors of the Company in
connection with the Rights Offering, certified by the secretary of the
Company; and
(d) Notice of Guaranteed Delivery.
As soon as is reasonably practical, you shall mail or cause to be mailed to
each record holder of Common Stock at the close of business on the Record
Date a Subscription Certificate evidencing the Rights to which such holder
is entitled, a Notice of Guaranteed Delivery, a Prospectus and an envelope
addressed to you. Prior to mailing, the Company will provide you with blank
Subscription Certificates which you will prepare and issue in the names of
holders of Common Stock of record at the close of business on the Record
Date and for the number of Rights to which they are entitled. The Company
will also provide you with a sufficient number of copies of each of the
documents to be mailed with the Subscription Certificates.
4. SUBSCRIPTION PROCEDURE -
(a) Upon your receipt prior to 5:00 p.m., New York City time, on the
Expiration Date (by mail or delivery), as Subscription Agent, of (i) any
Subscription Certificate completed and endorsed for exercise, as provided
on the reverse side of the Subscription Certificate (except as provided in
paragraph 8 hereof), and (ii) payment in full of the Subscription Price in
U.S. funds by check, bank draft or money order payable at par (without
deduction for bank service charges or otherwise) to the order of American
Stock Transfer & Trust Company, you shall as soon as practicable after the
Expiration Date, but after performing the procedures described in
subparagraphs (b) and (c) below, mail to the subscriber's registered
address on the books of the Company certificates representing the
securities underlying each Unit duly subscribed for (pursuant to the Basic
Subscription Right and the Additional Subscription Privilege) and furnish a
list of all such information to the Company.
(b) As soon as practicable after the Expiration Date you shall calculate
the number of Units to which each subscriber is entitled pursuant to the
Additional Subscription Privilege. The Additional Subscription Privilege
may only be exercised by holders who subscribe to all the Units that can be
subscribed for under the Basic Subscription Right. The Units available for
additional subscriptions will be those that have not been subscribed and
paid for pursuant to the Basic Subscription Right (the "Remaining Units").
Where there are
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sufficient Remaining Units to satisfy all additional subscriptions by
holders exercising their rights under the Additional Subscription
Privilege, each holder shall be allotted the number of Additional Units
subscribed for. If the aggregate number of Units subscribed for under the
Additional Subscription Privilege exceeds the number of Remaining Units,
the number of Remaining Units allotted to each participant in the
Additional Subscription Privilege shall be the product (disregarding
fractions) obtained by multiplying the number of Remaining Units by a
fraction of which the numerator is the number of Units subscribed for by
that participant under the Additional Subscription Privilege and the
denominator is the aggregate number of Remaining Units subscribed for by
all participants under the Additional Subscription Privilege. Any
fractional Unit to which persons exercising their Additional Subscription
Privilege would otherwise be entitled pursuant to such allocation shall be
rounded to the next whole Unit.
(c) Upon calculating the number of Units to which each subscriber is
entitled pursuant to the Additional Subscription Privilege and the amount
overpaid, if any, by each subscriber, you shall, as soon as practicable,
furnish a list of all such information to the Company.
(d) Upon calculating the number of Units to which each subscriber is
entitled pursuant to the Additional Subscription Privilege and assuming
payment for the additional Units subscribed for has been delivered, you
shall mail, as contemplated in subparagraph (a) above, the certificates
representing the additional securities which the subscriber has been
allotted. If a lesser number of Units is allotted to a subscriber under the
Additional Subscription Privilege than the subscriber has tendered payment
for, you shall remit the difference to the subscriber without interest or
deduction at the same time as certificates representing the securities
allotted pursuant to the Additional Subscription Privilege are mailed.
(e) Funds received by you pursuant to the Basic Subscription Right and the
Additional Subscription Privilege shall be held by you in a segregated
interest-bearing account (which interest will inure to the benefit of the
Fund). Upon mailing certificates representing the securities and refunding
subscribers for additional Units subscribed for but not allocated, if any,
you shall promptly remit to the Company all funds received in payment of
the Subscription Price for Units sold in the Rights Offering.
5. DEFECTIVE EXERCISE OF RIGHTS LOST SUBSCRIPTION CERTIFICATES - The
Company shall have the absolute right to reject any defective exercise of
Rights or to waive any defect in exercise. Unless requested to do so by the
Company, you shall not be under any duty to give notification to holders of
Subscription Certificates of any defects or irregularities in
subscriptions. Subscriptions will not be deemed to have been made until any
such defects or irregularities have been cured or waived within such time
as the Company shall determine. You shall as soon as practicable return
Subscription Certificates with the defects or irregularities which
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have not been cured or waived to the holder of the Rights. If any
Subscription Certificate is alleged to have been lost, stolen or destroyed,
you should follow the same procedures followed for lost stock certificates
representing Common Stock you use in your capacity as transfer agent for
the Company's Common Stock.
6. LATE DELIVERY - If prior to 5:00 p.m., New York City time, on the
Expiration Date you receive (i) payment in full of the Subscription Price
for the Units being subscribed for and (ii) a guarantee notice
substantially in the form of the Notice of Guaranteed Delivery delivered
with the Subscription Certificate, from a financial institution having an
office or correspondent in the United States, or a member firm of any
registered United States national securities exchange or of the National
Association of Securities Dealers, Inc. stating the certificate number of
the Subscription Certificate relating to the Rights, the name and address
of the exercising subscriber, the number of Rights represented by the
Subscription Certificate held by such exercising subscriber, the number of
Units being subscribed for pursuant to the Rights and guaranteeing the
delivery to you of the Subscription Certificate evidencing such Rights
within three business days following the date of the Notice of Guaranteed
Delivery, then the Rights may be exercised even though the Subscription
Certificate was not delivered to you prior to 5:00 p.m., New York City
time, on the Expiration Date, provided that within three business days
following the date of the Notice of Guaranteed Delivery you receive the
properly completed Subscription Certificate evidencing the Rights being
exercised, with signatures guaranteed if required.
7. DELIVERY - You shall deliver to the Company the exercised Subscription
Certificates in accordance with written directions received from the
Company and shall deliver to the subscribers who have duly exercised Rights
at their registered addresses certificates representing the securities
subscribed for as instructed on the reverse side of the Subscription
Certificates.
8. REPORTS - You shall notify the Company by telephone on and before the close
of business of each business day during the period commencing 5 business
days after the mailing of the Rights and ending at the Expiration Date (and
in the case of guaranteed deliveries ending three business days after the
Expiration Date) (a "daily notice"), which notice shall thereafter be
confirmed in writing, of (i) the number of Rights exercised on the day
covered by such daily notice, (ii) the number of Rights subject to
guaranteed exercises on the day covered by such daily notice, (iii) the
number of Rights for which defective exercises have been received on the
day covered by such daily notice, and (iv) the cumulative total of the
information set forth in clauses (i) through (iii) above. At or before 5:00
p.m., New York City time, on the first business day following the
Expiration Date you shall certify in writing to the Company the cumulative
total through the Expiration Date of all the information set forth in
clauses (i) through (iii) above. At or before 10:00 a.m., New York City
time, on the fifth business day following the Expiration Date you will
execute and deliver to the Company a certificate setting forth the number
of Rights exercised pursuant to a Notice of Guaranteed Delivery and as
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to which Subscription Certificates have been timely received. You shall
also maintain and update a listing of holders who have fully or partially
exercised their Rights, holders who have transferred their Rights and their
transferees, and holders who have not exercised their Rights. You shall
provide the Company or its designees with such information compiled by you
pursuant to this paragraph 8 as any of them shall request.
9. FUTURE INSTRUCTIONS - With respect to notices or instructions to be
provided by the Company hereunder, you may rely and act on any written
instruction signed by any one or more of the following authorized officers
or employees of the Company:
NEW YORK/ XX XXXXXX (INSTITUTIONAL XXXXXX XXXXXXX INSTITUTIONAL
--------- ------------------------ ----------------------------
FUND OFFICERS HARBORSIDE FUND ADMINISTRATION) FUND ADMINISTRATION
------------- ---------- -------------------- -------------------
Xxxxxxx X. Fiumedreddo, Chairman Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx, President and PEO Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, VP Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxxxxxx
Xxxxx Germany, VP Xxxx Xxxxx Xxxxx Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxx, VP Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxxxx Xxxxxx Xxxx
Xxx Doberman, VP Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx Yu, VP Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx, Treasurer and CFO Xxxxxxx Xxx Xxxxx Xxxxxx
Xxxx X. Xxxxxx, Secretary Xxxx Xxxxxxxxx Xxx Xxxxxxxx
Xxxxxxx Xxxxx, Assistant Treasurer Xxxxxx Xxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, CCO Xxxx Xxxxxx Xxxx XxXxxxxx
Xxxxxx Xxxxxx, Asst. Secretary Xxxxx Xxxx Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxxxxx, Asst. Secretary Xxxxxx Xxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxxx, Asst. Secretary Xxxxxxx Xxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, Asst. Secretary Xxxxxxx Xxxxxxx Xxxxx X'Xxxxx
Xxxx Xxxxxxxx, Asst. Secretary Xxxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxxx, Asst. Secretary Xxxxxxx Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, Asst. Secretary Xxx Xxxxxxxx Xxxxx Xxxxxxx
XxxXxxx XxXxxxx, Asst. Secretary Xxxx Xxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxxxx Xx., Asst. Secretary Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, Asst. Secretary Xxxx Xxxxxx Xxx Xxxxxxx
Xxxxxxxxx Xxxxxx, Asst. Secretary
Xxxxx Xxxxxx, Asst. Secretary
Xxxx Xxxxx, Asst. Secretary
Xxxxx Xxxxxxx, Asst. Secretary
Xxxxxx Xxx, Asst. Secretary
10. PAYMENT OF EXPENSES - The Company will pay you compensation for acting in
your capacity as Subscription Agent hereunder in the amount of $25,000 plus
your reasonable out-of-pocket expenses.
11. INDEMNIFICATION - The Company covenants and agrees to indemnify and hold
you harmless against any costs, expenses (including reasonable fees of
legal counsel), losses or damages, which may be paid, incurred or suffered
by or to which you may become subject arising from or out of, directly or
indirectly, any claim or liability resulting from your actions as
Subscription Agent pursuant hereto; provided that such covenant and
agreement does not extend to such costs, expenses, losses and damages
incurred or suffered by you as a result of, or arising out of, your own
negligence, misconduct or bad faith or that of any
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employees, agents or independent contractors used by you in connection with
performance of your duties as Subscription Agent hereunder.
In no case shall the Company be liable with respect to any claim against
you unless you have notified the Company in writing of the assertion of a
claim against it promptly after you have notice of a claim or have been
served with a summons or other legal process giving information as to the
nature and basis of the claim. The Company shall be entitled to control the
defense of any suit brought to enforce any such claim and you agree not to
settle or compromise any claim or threatened litigation or proceeding
without providing the Company adequate written notice of any such proposed
settlement or compromise and without the prior written consent of the
Company. In no event shall the Company be liable for the fees and expenses
of any additional counsel that you may retain.
12. NOTICES - Unless otherwise provided herein, all reports, notices and
other communications required or permitted to be given hereunder shall be
in writing and delivered by hand or confirmed telecopy or by first class
U.S. mail, postage prepaid, shall be deemed given if by hand or telecopy,
upon receipt or if by U.S. mail, three business days after deposit in the
U.S. mail and shall be addressed as follows
(a) If to the Company, to:
The Turkish Investment Fund, Inc.
c/o Morgan Xxxxxxx Investment Management
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to you, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
13. ASSIGNMENT AND DELEGATION - Neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by either party without
the prior written consent of the other party. This Agreement shall inure to
the benefit of and be binding upon the parties and their respective
successors and assigns. Nothing in this Agreement is intended or shall be
construed to confer upon any other person any duty, liability or
obligation.
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14. GOVERNING LAW - The validity, interpretation and
performance of this Agreement shall be governed by the laws of the State of
New York, without regard to its principles of conflicts of law. The parties
agree that with respect to all unresolved disputes arising out of this
Agreement they shall submit to the jurisdiction of any state or federal
court sitting in New York, New York.
15. SEVERABILITY - The parties hereto agree that if any of the provisions
contained in this Agreement shall be determined invalid, unlawful or
unenforceable to any extent, such provisions shall be deemed modified to
the extent necessary to render such provisions enforceable. The parties
hereto further agree that this Agreement shall be deemed severable, and the
invalidity, unlawfulness or enforceability of any term or provision thereof
shall not affect the validity, legality or enforceability of this Agreement
or of any term or provision hereof.
16. COUNTERPARTS - This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same Agreement.
17. CAPTIONS - The captions and descriptive headings herein are for the
convenience of the parties only.
18. FACSIMILE SIGNATURES - Any facsimile signature of any party hereto
shall constitute a legal, valid and binding execution hereof by such party.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day and year first above written.
THE TURKISH INVESTMENT FUND, INC.
By: ____________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer and Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: ____________________________
Name:
Title:
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