SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of [],
2005 between Global Income Fund, Inc. (the "Fund") and American Stock Transfer &
Trust Company, as subscription agent (the "Agent"). All terms not defined herein
shall have the meaning given in the prospectus (the "Prospectus") included in
the Registration Statement on Form N-2 (File No. 811-08025) filed by the Fund
with the Securities and Exchange Commission on [], 2005, as amended by any
amendment filed with respect thereto (the "Registration Statement").
WHEREAS, the Fund proposes to make a subscription offer by issuing
certificates or other evidences of subscription rights, in the form designated
by the Fund (the "Subscription Certificates") to stockholders of record (the
"Record Date Stockholders") of its common stock, par value $0.01 per share
("Common Stock"), as of a record date specified by the Fund (the "Record Date"),
pursuant to which each Record Date Stockholder will have certain rights (the
"Rights") to subscribe for shares of Common Stock, as described in and upon such
terms as are set forth in the Prospectus, a final copy of which has been, or,
upon availability will promptly be, delivered to the Agent; and
WHEREAS, the Fund wishes the Agent to perform certain acts on behalf of
the Fund, and the Agent is willing to so act, in connection with the
distribution of the Subscription Certificates and the issuance and exercise of
the Rights to subscribe therein set forth, all upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Appointment. The Fund hereby appoints the Agent to act as
subscription agent in connection with the distribution of Subscription
Certificates and the issuance and exercise of the Rights in accordance with the
terms set forth in this Agreement and the Agent hereby accepts such appointment.
2. Form and Execution of Subscription Certificates. (a) Each
Subscription Certificate shall be irrevocable and non-transferable to the extent
set forth in the Prospectus. The Agent shall, in its capacity as Transfer Agent
of the Fund, maintain a register of Subscription Certificates and the Record
Date Stockholders. Each Subscription Certificate shall, subject to the
provisions thereof, entitle the Record Date Stockholder in whose name it is
recorded to the following: (1) With respect to Record Date Stockholders only,
the right to acquire during the Subscription Period, as defined in the
Prospectus, at the Subscription Price, as defined in the Prospectus, a number of
shares of Common Stock equal to one share of Common Stock for every number of
Rights held as set forth in the Prospectus (the "Primary Subscription Right");
and (2) With respect to Record Date Stockholders only, the right to subscribe
for additional shares of Common Stock, subject to the availability of such
shares and to the allotment of such shares as may be available among Record Date
Stockholders who exercise Over-Subscription Rights on the basis specified in the
Prospectus; provided, however, that such Record Date Stockholder has exercised
all Primary Subscription Rights issued to him or her (the "Over-Subscription
Privilege"). Fractional Shares will not be issued upon the exercise of Rights.
3. Rights and Issuance of Subscription Certificates.
(a) Each Subscription Certificate shall evidence the Rights of the
Stockholder therein named to purchase Common Stock upon the terms and conditions
therein and herein set forth.
(b) Upon the written advice of the Fund, signed by any of its duly
authorized officers, the Agent shall, from a list of the Fund's Record Date
Stockholders to be prepared by the Agent in its capacity as Transfer Agent of
the Fund, prepare and record Subscription Certificates in the names of the
Record Date Stockholders, setting forth the number of Rights to subscribe for
the Fund's Common Stock calculated on the basis of one Right for each share of
Common Stock recorded on the books in the name of each such Stockholder as of
the Record Date. Fractional Rights will not be issued. Each Subscription
Certificate shall be dated as of the Record Date and shall be executed manually
or by facsimile signature of a duly authorized officer of the Subscription
Agent. Upon the written advice, signed as aforesaid, as to the effective date of
the Registration Statement, the Agent shall promptly countersign and deliver the
Subscription Certificates, together with a copy of the Prospectus, instruction
letter and any other document as the Fund deems necessary or appropriate, to all
Record Date Stockholders with record addresses in the United States (including
its territories and possessions and the District of Columbia). Delivery shall be
by first class mail (without registration or insurance), except for those Record
Date Stockholders having a registered address outside the United States (who
will only receive copies of the Prospectus, instruction letter and other
documents as the Fund deems necessary or appropriate, if any), delivery shall be
by air mail (without registration or insurance) and by first class mail (without
registration or insurance) to those Record Date Stockholders having APO or FPO
addresses. No Subscription Certificate shall be valid for any purpose unless so
executed.
(c) The Agent will mail a copy of the Prospectus, instruction letter, a
special notice and other documents as the Fund deems necessary or appropriate,
if any, but not Subscription Certificates to Record Date Stockholders whose
record addresses are outside the United States ("Foreign Record Date
Stockholders"). The Rights to which such Subscription Certificates relate will
be held by the Agent for such Foreign Record Date Stockholders' accounts until
instructions are received to exercise the Rights.
4. Exercise.
(a) Record Date Stockholders may acquire shares of Common Stock on
Primary Subscription and pursuant to the Over-Subscription Privilege by delivery
to the Agent as specified in the Prospectus of
(i) the Subscription Certificate with respect thereto, duly
executed by such Stockholder in accordance with and as provided by the terms and
conditions of the Subscription Certificate, together with
(ii) the estimated Subscription Price, as disclosed in the
Prospectus, for each share of Common Stock subscribed for by exercise of such
Rights, including shares of Common Stock subscribed for in an exercise of the
Over-Subscription Privilege, in U.S. dollars by money order or check drawn on a
bank in the United States, in each case payable to the order of the Agent.
(b) Rights may be exercised at any time after the date of issuance of
the Subscription Certificates with respect thereto but no later than 5:00 P.M.
New York City time on the Expiration Date. For the purpose of determining the
time of the exercise of any Rights, delivery of any material to the Agent shall
be deemed to occur when such materials are received by the Agent.
(c) Notwithstanding the provisions of Section 4(a) and 4(b) regarding
delivery of an executed Subscription Certificate to the Agent prior to 5:00 P.M.
New York City time on the Expiration Date, if prior to such time the Agent
receives a Notice of Guaranteed Delivery by facsimile (telecopy) or otherwise
from a New York Stock Exchange member firm, bank, a trust company or other
financial institution guaranteeing delivery of
(i) payment of the full Subscription Price for the shares of
Common Stock subscribed for on Primary Subscription and any additional shares of
Common Stock subscribed for pursuant to the Over-Subscription Privilege, and
(ii) a properly completed and executed Subscription
Certificate, then such exercise of Primary Subscription Rights and
Over-Subscription Rights shall be regarded as timely, subject, however, to
receipt of the duly executed Subscription Certificate and full payment for the
Common Stock by the Agent within three Business Days (as defined below) after
the Expiration Date and full payment for their Common Stock within ten Business
Days after the Confirmation Date. For the purposes of the Prospectus and this
Agreement, "Business Day" shall mean any day on which trading is conducted on
the New York Stock Exchange.
(d) The Fund will determine the Subscription Price as set forth in the
Prospectus. By the Confirmation Date, the Agent shall send to each exercising
Stockholder (or, if shares of Common Stock on the Record Date are held by Cede &
Co. or any other depository or nominee, to Cede & Co. or such other depository
or nominee) a confirmation showing the number of shares of Common Stock acquired
pursuant to the Primary Subscription, and, if applicable, the Over-Subscription
Privilege, the per share and total purchase price for such shares, and any
additional amount payable to the Fund by such Stockholder or any excess to be
refunded by the Fund to such Stockholder in the form of a check and stub, along
with a letter explaining the allocation of shares of Common Stock pursuant to
the Over-Subscription Privilege.
(e) Any additional payment required from a Stockholder must be received
by the Agent within ten Business Days after the Confirmation Date and any excess
payment to be refunded by the Fund to a Stockholder will be mailed by the Agent
within ten Business Days after the Confirmation Date. If a Stockholder does not
make timely payment of any additional amounts due in accordance with Section
4(d), the Agent will consult with the Fund in accordance with Section 5 as to
the appropriate action to be taken. The Agent will not issue or deliver
certificates for shares subscribed for until payment in full has been received,
including collection of checks and payment pursuant to a Notice of Guaranteed
Delivery.
5. Validity of Subscriptions. Irregular subscriptions not otherwise
covered by specific instructions herein shall be submitted to an appropriate
officer of the Fund and handled in accordance with his or her instructions. Such
instructions will be documented by the Agent indicating the instructing officer
and the date thereof.
6. Over-Subscription. If, after allocation of shares of Common Stock to
Record Date Stockholders, there remain unexercised Rights, then the Agent shall
allot the shares issuable upon exercise of such unexercised Rights (the
"Remaining Shares") to Record Date Stockholders who have exercised all the
Rights initially issued to them and who wish to acquire more than the number of
shares for which the Rights issued to them are exercisable. Shares subscribed
for pursuant to the Over-Subscription Privilege will be allocated in the amounts
of such over-subscriptions. If the number of shares for which the
Over-Subscription Privilege has been exercised is greater than the Remaining
Shares, the Agent shall allocate the Remaining Shares to Record Date
Stockholders exercising Over-Subscription Privilege based on the number of
shares of Common Stock owned by them on the Record Date. The percentage of
Remaining Shares each over-subscribing Record Date Stockholder may acquire will
be rounded down to result in delivery of whole shares of Common Stock. The Agent
shall advise the Fund immediately upon the completion of the allocation set
forth above as to the total number of shares subscribed and distributable.
7. Delivery of Certificates. To the extent set forth in the Prospectus,
the Agent will deliver by mail (i) certificates representing those shares of
Common Stock purchased pursuant to exercise of Primary Subscription Rights as
soon as practicable after the corresponding Rights have been validly exercised
and full payment for such shares has been received and cleared, and (ii)
certificates representing those shares purchased pursuant to the exercise of the
Over-Subscription Privilege as soon as practicable after the Expiration Date and
after all allocations have been effected.
8. Holding Proceeds of Rights Offering.
(a) All proceeds received by the Agent from Record Date Stockholders in
respect of the exercise of Rights shall be held by the Agent, on behalf of the
Fund, in a segregated, interest-bearing account (the "Account"). Such interest
shall accrue to the Fund pending disbursement in the manner described in Section
4(e) above.
(b) The Agent shall deliver all proceeds received in respect of the
exercise of Rights to the Fund as promptly as practicable, but in no event later
than fifteen Business Days after the Confirmation Date. Proceeds held in respect
of Excess Payments (including interest earned thereon) shall belong to the Fund.
9. Reports. Daily, during the period commencing on effective date of
the Offer, until termination of the Subscription Period, the Agent will report
by telephone or telecopier, confirmed by letter, to an Officer of the Fund, data
regarding Rights exercised, the total number of shares of Common Stock
subscribed for, and payments received therefor, bringing forward the figures
from the previous day's report in each case so as to show the cumulative totals
and any such other information as may be mutually determined by the Fund and the
Agent.
10. Loss or Mutilation. If any Subscription Certificate is lost,
stolen, mutilated or destroyed, the Agent may, on such terms which will
indemnify and protect the Fund and the Agent as the Agent may in its discretion
impose (which shall, in the case of a mutilated Subscription Certificate include
the surrender and cancellation thereof), issue a new Subscription Certificate of
like denomination in substitution for the Subscription Certificate so lost,
stolen, mutilated or destroyed.
11. Compensation for Services. The Fund agrees to pay to the Agent
compensation for its services as such in accordance with its Fee Schedule to act
as Agent attached hereto as Exhibit A. The Fund further agrees that it will
reimburse the Agent for its reasonable out-of-pocket expenses incurred in the
performance of its duties.
12. Instructions and Indemnification. The Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions:
(a) The Agent shall be entitled to rely upon any instructions or
directions furnished to it by an appropriate officer of the Fund, in conformity
with the provisions of this Agreement. Without limiting the generality of the
foregoing or any other provision of this Agreement, the Agent, in connection
with its duties hereunder, shall not be under any duty or obligation to inquire
into the validity or invalidity or authority or lack thereof of any instruction
or direction from an officer of the Fund which conforms to the applicable
requirements of this Agreement and which the Agent reasonably believes to be
genuine.
(b) The Fund will indemnify the Agent and its nominees against, and
hold it harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Agent relating to this Agreement by an appropriate
officer of the Fund, except for any liability or expense which shall arise out
of the negligence, bad faith or willful misconduct of the Agent or such
nominees.
(c) The Agent will indemnify the Fund and its nominees against, and
hold it harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Fund relating to this Agreement by an appropriate
officer of the Agent, except for any liability or expense which shall arise out
of the negligence, bad faith or willful misconduct of the Fund or such nominees.
13. Changes in Subscription Certificate. The Agent may, without the
consent or concurrence of the Record Date Stockholders in whose names
Subscription Certificates are registered, by supplemental agreement or
otherwise, concur with the Fund in making any changes or corrections in a
Subscription Certificate that it shall have been advised by counsel (who may be
counsel for the Fund) is appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error therein or herein contained, and which shall not be inconsistent with the
provision of the Subscription Certificate or Prospectus except insofar as any
such change may confer additional rights upon the Record Date Stockholders.
14. Assignment, Delegation; No Third Party Beneficiaries. (a) Neither
this Agreement nor any rights or obligations hereunder may be assigned or
delegated by either party without the written consent of the other party. (b)
This Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other person any right, remedy
or claim or to impose upon any other person any duty, liability or obligation.
15. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the law of the State of New York.
16. No Joint Venture. This Agreement does not constitute an agreement
for a partnership or joint venture between the Agent and the Fund. Neither party
shall make any commitments with third parties that are binding on the other
party without the other party's prior written consent.
17. Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
terrorism, equipment or transmission failure or damage reasonably beyond its
control, or other cause reasonably beyond its control, such party shall not be
liable for damages to the other for any damages resulting from such failure to
perform or otherwise from such causes. Performance under this Agreement shall
resume when the affected party or parties are able to perform substantially that
party's duties.
18. Consequential Damages. Neither party to this Agreement shall be
liable to the other party for any consequential, indirect, special or incidental
damages under any provisions of this Agreement or for any consequential,
indirect, penal, special or incidental damages arising out of any act or failure
to act hereunder even if that party has been advised of or has foreseen the
possibility of such damages.
19. Severability. If any provisions of this Agreement shall be held
invalid, unlawful, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired.
20. 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.
21. Captions. The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify, amplify, alter
or give full notice of the provisions hereof.
22. Confidentiality. The Agent and the Fund agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement including the fees for services set forth in the attached
schedule shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
23. Term. This Agreement shall remain in effect until terminated on [],
2005 (the "Termination Date") or prior to the Termination Date, upon 30 days'
written notice has been provided by either party to the other. Upon termination
of the Agreement, the Agent shall retain all canceled Certificates and related
documentation as required by applicable law.
24. Notices. Until further notice in writing by either party hereto to
the other party, all written reports, notices and other communications between
the Agent and the Fund required or permitted hereunder shall be delivered or
mailed by first class mail, postage prepaid, addressed as follows:
If to the Fund, to:
Global Income Fund, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: 0-000-000-0000
Telecopy: 0-000-000-0000
If to the Agent, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
25. Survival. The provisions of Paragraphs 12, 15, 17-19, 22, 24, 25
and 26 shall survive any termination, for any reason, of this Agreement.
26. Merger of Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supercedes any prior agreement with
respect to the subject matter hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly authorized, as of the day
and year first above written.
AMERICAN STOCK TRANSFER
& TRUST COMPANY
/s/ Xxx Xxxx
By: Xxx Xxxx
Title: Vice President
GLOBAL INCOME FUND, INC.
/s/ Xxxxxx X. Xxxxxxx
By: Xxxxxx X. Xxxxxxx
Title: President
Exhibit A
$5,000
