Exhibit (2)(d)(5)
SUBSCRIPTION AGENT AGREEMENT
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This Subscription Agent Agreement (the "Agreement") is made as of the 23rd
day of August, 1999, by and between Xxxxxx Xxxxxxx Xxxx Xxxxxx High Yield Fund,
Inc., a Maryland corporation (the "Fund"), and American Stock Transfer & Trust
Company, as subscription agent (the "Agent"). All terms not defined herein
shall have the meanings given in the prospectus (the "Prospectus") included in
the Registration Statement on Form N-2, File No. 333-82863, filed by the Fund
with the Securities and Exchange Commission (the "Commission") on July 14, 1999,
as amended by any amendment filed with respect thereto (collectively the
"Registration Statement").
RECITALS
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WHEREAS, the Fund has caused the Registration Statement to be filed with
the Commission relating to a proposed distribution by the Fund of non-
transferable rights (the "Rights") to purchase shares of the Fund's common
stock, par value $.01 per share ("Common Stock"), upon the exercise of such
Rights (the distribution of the Rights and the sale of shares of Common Stock
upon the exercise thereof as contemplated by the Registration Statement is
referred to herein as the "Offering");
WHEREAS, the Rights will be distributed on or about August 23, 1999 to
holders of record of shares of Common Stock (the "Record Date Stockholders") as
of the close of business on August 23, 1999 (the "Record Date") at a rate of one
Right for each share of Common Stock held on the Record Date;
WHEREAS, the Fund has authorized the issuance in connection with the
Offering of an aggregate of 2,960,000 shares (the "Shares") of Common Stock (the
"Offer");
WHEREAS, the "Subscription Price" is 95% of the average of the last
reported sales price per share of the Fund's Common Stock on the New York Stock
Exchange ("NYSE") for the five trading days ending on September 24, 1999, unless
the Fund extends the Offering as described in the Prospectus (the "Expiration
Date"). Record Date Stockholders will be entitled to subscribe to purchase at a
per share price one Share for each three Rights held (the "Primary
Subscription"), which right to subscribe for such Shares pursuant to the Primary
Subscription is not transferable;
WHEREAS, Record Date Stockholders will also be entitled to subscribe to
purchase any Shares that are not subscribed for in the Primary Subscription,
subject to proration by the Fund, if necessary (the "Over-Subscription
Privilege"), which right to subscribe for such Shares pursuant to the Over-
Subscription Privilege is not transferable;
WHEREAS, if sufficient shares are not available after completion of the
Primary Subscription to honor all over-subscription requests, the Fund may
determine after the expiration of the Offer to issue up to an additional 25% of
the shares available pursuant to the Offer in order to cover over-subscription
requests; 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 Offering as set
forth herein, 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:
ARTICLE 1: APPOINTMENT OF AGENT
1.1. The Fund hereby appoints the Agent to act as agent for the Fund in
accordance with the instructions set forth in this Agreement, and the Agent
hereby accepts such appointment and agrees to so act.
ARTICLE 2: ISSUANCE OF SECURITIES
2.1. The Fund has authorized the issuance of the Rights and, following
the Record Date and the effectiveness of the Registration Statement, promptly
will issue such Rights to the Record Date Stockholders as contemplated by the
Registration Statement. The Fund will promptly notify the Agent upon the
effectiveness of the Registration Statement. As transfer agent and registrar for
the shares of Common Stock, the Agent shall provide such assistance as the Fund
may require in order to effect the distribution of the Rights to Record Date
Stockholders, including assistance in determining the number of Rights to be
distributed to each such Record Date Stockholder and assistance in distributing
the Subscription Documents (as defined in Section 5.2 hereof) evidencing the
Rights and all other ancillary documents and issuance of the Shares.
2.2. The Fund has authorized the issuance of and will hold in reserve
the Shares, and upon the valid exercise of Rights, the Fund will issue Shares to
validly exercising Record Date Stockholders as set forth in the Prospectus.
ARTICLE 3: RIGHTS AND ISSUANCE OF
SUBSCRIPTION DOCUMENTS
3.1. Each set of Subscription Documents (as defined in Section 5.2
hereof) shall contain a certificate or other evidence of Rights, in the form
designated by the Fund ("Subscription Certificate") which shall be non-
transferable. The Agent shall, in its capacity as transfer agent and registrar
of the Fund, maintain a register of Subscription Certificates and the Record
Date Stockholders thereof. Each Subscription Certificate shall, subject to the
provisions thereof, entitle the Record Date Stockholder in whose name it is
recorded to the following:
(a) With respect to Record Date Stockholders only, the right to
subscribe for prior to the Expiration Date at the Subscription Price a number of
shares of Common Stock equal to one share of Common Stock for every three rights
held by each Record Date Stockholder on the Record Date, except that Record Date
Stockholders who receive less than three rights may purchase one share at the
Subscription Price; and
(b) 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 their Over-Subscription Privilege on the basis
specified in the Prospectus; provided, however, that each such Record Date
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Stockholder has exercised all exercisable Rights held by such Record Date
Stockholder (other than those Rights which cannot be exercised because they
represent the right to acquire less than one Share).
ARTICLE 4: FRACTIONAL RIGHTS AND SHARES
4.1. The Fund shall not issue fractions of Rights nor shall the Agent
distribute Subscription Certificates which evidence fractional Rights. The
number of Rights issued to each Record Date Stockholder will be rounded down to
the nearest whole number. All questions as to the validity and eligibility of
any rounding of fractional Rights shall be determined by the Fund in its sole
discretion, and its determination shall be final and binding. The Fund shall
not issue fractional shares of Common Stock to exercising Record Date
Stockholders upon exercise of Rights.
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ARTICLE 5: FORM AND EXECUTION OF SUBSCRIPTION DOCUMENTS
5.1. Each Subscription Certificate shall evidence the Rights of the
Record Date Stockholder therein named to purchase Common Stock upon the terms
and conditions set forth in the Subscription Documents.
5.2. Upon the written advice of the Fund, signed by any of its duly
authorized officers, as to the Record Date, the Agent shall, from a list of the
Fund's stockholders as of the Record Date 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 Record Date Stockholder. 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 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 Certificate,
together with a copy of the Prospectus, instruction letter and any other
document as the Fund deems necessary or appropriate (collectively the
"Subscription Documents"), to all Record Date Stockholders with record addresses
in the United States (the term "United States" includes the states, the District
of Columbia, and the territories and possessions of the United States). No
Subscription Certificate shall be valid for any purpose unless so executed.
Delivery shall be by first class mail (without registration or insurance).
5.3. Subscription Certificates will not be mailed to Record Date
Stockholders having a registered address outside the United States, or to those
Record Date Stockholders having APO or FPO addresses ("Foreign Record Date
Stockholders"). The Agent will provide written notice of the Offer to Foreign
Record Date Stockholders as provided for in the Prospectus. 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. Upon request, the Agent will send a copy of the Prospectus to such
Foreign Record Date Stockholders.
ARTICLE 6: EXERCISE OF RIGHTS;
EXERCISE PRICE; EXPIRATION DATE
6.1. Each Record Date Stockholder may exercise some or all of the
Rights evidenced by the Subscription Certificate by delivering to the Agent, on
or prior to 5:00 P.M., New York City time, on the Expiration Date, properly
completed and executed Subscription Documents evidencing such Rights (with
signatures guaranteed, if required by Section 6.9 hereof, by a financial
institution (including commercial banks, savings and loan associations and
brokerage houses) that is a member of a recognized signature guarantee or
medallion program within the meaning of Rule 17AD-15 under the Securities
Exchange Act of 1934, as amended (each, an "Eligible Institution")), together
with payment of the estimated subscription price of $13.25 per share (based on
approximately 95% of the last reported sales price on the NYSE on August 20,
1999) ("Estimated Subscription Price") for each Share subscribed for pursuant to
the Primary Subscription and the Over-Subscription Privilege, as the case may
be.
6.2. In the case of Record Date Stockholders whose Rights are held of
record by Cede & Co. ("Cede"), as nominee for The Depository Trust Company
("DTC"), the exercise of Rights pursuant to the Primary Subscription may be
effected by instructing DTC to transfer Rights from the DTC account of such
Record Date Stockholder to the DTC account of the Agent, together with payment
of the Estimated Subscription Price for each Share subscribed for pursuant to
the Primary Subscription and the Over-Subscription Privilege. Alternatively, a
Record Date Stockholder may exercise the Rights evidenced by the Subscription
Certificate by effecting compliance with the procedures for guaranteed delivery
set forth in Section 6.3 below.
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6.3. If a Record Date Stockholder wishes to exercise Rights, but time
will not permit such Record Date Stockholder to cause the Subscription
Certificate evidencing such Rights to reach the Agent on or prior to the
Expiration Date, such Rights may nevertheless be exercised if all of the
following conditions are met:
(a) the Agent receives, on or prior to 5:00 P.M., New York City time,
on the Expiration Date, a guarantee notice (a "Notice of Guaranteed Delivery")
by facsimile (telecopy) or otherwise from a bank, a trust company or a NYSE
member guaranteeing the delivery of (i) payment of the Estimated Subscription
Price for the Shares subscribed for pursuant to the Primary Subscription and any
additional Shares subscribed for pursuant to the Over-Subscription Privilege,
and (ii) a properly completed and executed Subscription Certificate; and
(b) the properly completed and executed Subscription Certificate(s)
evidencing the Rights being exercised, with any required signatures guaranteed,
and full payment for the Shares are received by the Agent, or such Rights are
transferred into the DTC account of the Agent, at or prior to the close of
business New York City time on the third Business Day after the Expiration Date.
The Notice of Guaranteed Delivery may be delivered to the Agent in the same
manner as Subscription Certificates at the addresses set forth above, or may be
transmitted to the Agent by telegram or facsimile transmission (facsimile: (718)
236-5001).
6.4. The Rights shall expire at 5:00 p.m., New York City time, on the
Expiration Date and thereafter may not be exercised.
6.5. If an exercising Record Date Stockholder has not indicated the
number of Rights being exercised, or if the Estimated Subscription Price payment
forwarded by such Record Date Stockholder to the Agent is not sufficient to
purchase the number of shares subscribed for, the Record Date Stockholder will
be deemed to have exercised, pursuant to the Primary Subscription, the maximum
number of whole Rights which may be exercised for the Estimated Subscription
Price delivered to the Agent and, to the extent that the Estimated Subscription
Price payment delivered by such Record Date Stockholder exceeds the Estimated
Subscription Price multiplied by the maximum number of whole Rights which may be
exercised (such excess being the "Estimated Subscription Price Excess"), the
Record Date Stockholder will have been deemed to exercise its Over-Subscription
Privilege to purchase, to the extent available, that number of whole shares of
Common Stock equal to the quotient obtained by dividing the Estimated
Subscription Price Excess by the Estimated Subscription Price, up to the maximum
number of shares purchasable by such Record Date Stockholder. The Agent, as soon
as practicable after the exercise of the Rights, shall mail to such Record Date
Stockholders any portion of the Estimated Subscription Price Excess not applied
to the purchase of Common Stock pursuant to the Over-Subscription Privilege,
without interest or deduction.
6.6. The Agent shall hold all proceeds of the Offering in a segregated
interest bearing bank account (the "Bank Account") (the interest of which shall
be paid to the Fund). The Agent shall and is hereby directed to withdraw from
the Bank Account in which the proceeds of the Offering have been held and pay
to, credit to the account of, or otherwise transfer to, the Fund all such
proceeds (including all interest earned thereon), as promptly as practicable,
after the Expiration Date. At the request of the Fund, any portion of the Shares
shall be issued and the corresponding proceeds shall be remitted to the Fund.
Proceeds held in respect of excess payments over the Subscription Price made by
Record Date Shareholders exercising Rights shall be segregated in a separate
bank account from other proceeds of the Offering and refunded to Record Date
Shareholders entitled to such a refund as promptly as possible after the
Expiration Date.
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6.7. The Agent is authorized to accept only Subscription Certificates
(other than Subscription Certificates delivered in accordance with the procedure
for guaranteed delivery set forth in Section 6.3, or transfers of Rights to its
account at DTC), received prior to 5:00 p.m., New York City time, on the
Expiration Date.
6.8. Once a Record Date Stockholder has exercised a Right, such
exercise may not be revoked.
6.9. If a Record Date Stockholder requests that the certificate
representing the Common Stock to be issued in a name other than the name of the
Record Date Stockholder or such certificate is to be sent to an address other
than the address shown on such Record Date Stockholder's Subscription
Certificate, the signatures on such Subscription Certificate must be guaranteed
by an Eligible Institution.
ARTICLE 7: VALIDITY OF SUBSCRIPTIONS
7.1. Irregular subscriptions and improperly executed Subscription
Documents 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 instruction officer and the date thereof.
ARTICLE 8: OVERSUBSCRIPTION; REFUND OF EXCESS PAYMENT
8.1. General. To the extent Record Date Stockholders do not exercise
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all of the Rights issued to them pursuant to the Primary Subscription, any
Shares represented by such Rights will be offered by means of the Over-
Subscription Privilege to the Record Date Stockholders who have exercised all of
the Rights issued to them pursuant to the Primary Subscription and who wish to
acquire more than the number of Shares to which they are entitled. Only Record
Date Stockholders who exercise all the Rights issued to them pursuant to the
Primary Subscription (other than those rights which cannot be exercised because
they represent the right to acquire less than on Share) may indicate, on the
Subscription Certificate that they submit with respect to the exercise of the
Rights issued to them, how many Shares they desire to purchase pursuant to the
Over-Subscription Privilege. If sufficient Shares remain after completion of the
Primary Subscription, all over-subscription requests will be honored in full. If
sufficient Shares are not available to honor all over-subscription requests, the
Fund may determine after the expiration of the Offer, in the discretion of the
Board of Directors, to issue up to an additional 25% of the shares available
pursuant to the Offer in order to cover the over-subscription requests.
Regardless of whether the Fund issues such additional shares, and to the extent
shares are not available to honor all over-subscription requests, the available
shares will be allocated pro rata among Record Date Stockholders who exercise
the Over-Subscription Privilege in proportion to the number of shares owned by
such stockholders on the Record Date; provided, however, that if such pro rata
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allocation results in any Record Date Stockholder being allocated a greater
number of shares than such Record Date Stockholder subscribed for pursuant to
the exercise of such Record Date Stockholder's Over-Subscription Privilege, then
such Record Date Stockholder will be allocated only such number of shares as
such Record Date Stockholder subscribed for and the remaining shares will be
allocated among all other Record Date Stockholders exercising the Over-
Subscription Privilege.
8.2. As soon as practicable after the Expiration Date and the
allocation of shares subscribed for pursuant to the Over-Subscription Privilege,
the Agent shall refund to each Record Date Stockholder any amount paid by such
Record Date Stockholder and not applied toward the purchase of Shares pursuant
to such Record Date Stockholder's exercise pursuant to the Primary Subscription
and its Over-Subscription Privilege.
ARTICLE 9: DELIVERY OF STOCK CERTIFICATES
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9.1. As soon as practicable after the Expiration Date, the Agent shall
deliver to each Record Date Shareholder exercising Rights certificates
representing the shares of Common Stock purchased pursuant to the Primary
Subscription and the Over-Subscription Privilege, if any.
ARTICLE 10: REPORTS
10.1. The Agent shall notify both the Fund and its designated
representatives by telephone as requested during the period commencing with the
mailing of Subscription Documents and ending on the Expiration Date (and in the
case of guaranteed deliveries pursuant to Section 6.3 the period ending on the
third Business Day after the Expiration Date), which notice shall thereafter be
confirmed in writing, of (i) the number of Rights exercised on the day of such
request, (ii) the number of Shares subscribed for pursuant to the Primary
Subscription and the Over-Subscription Privilege, if any, and the number of such
Rights for which payment has been received, (iii) the number of Rights subject
to guaranteed delivery pursuant to Section 6.3 on such day, (iv) the number of
Rights for which defective exercises have been received on such day and (v)
cumulative totals derived from the information set forth in clauses (i) through
(iv) above. At or before 6:00 p.m., New York City time, on the Expiration Date,
the Agent shall certify in writing to the Fund the cumulative totals through the
Expiration Date derived from the information set forth in clauses (i) through
(iv) above. The Agent shall also maintain and update a listing of Record Date
Stockholders who have fully or partially exercised their Rights and Record Date
Stockholders who have not exercised their Rights. The Agent shall provide the
Fund or its designated representatives with the information compiled pursuant to
this Section 10.1 as any of them shall request. The Agent hereby represents,
warrants and agrees that the information contained in each notification referred
to in this Section 10.1 shall be accurate in all material respects.
10.2 On a date within eight Business Days following the Expiration Date
(the "Confirmation Date"), the Agent will send to each Record Date Stockholder
exercising Rights (or, if shares are held by Cede or any other depository or
nominee, to Cede or such other depository or nominee) a confirmation showing (i)
the number of Shares purchased pursuant to the Primary Subscription, (ii) the
number of Shares, if any, acquired pursuant to the Over-Subscription Privilege,
(iii) the Subscription Price per Share and total purchase price of the shares,
and (iv) any additional amount payable by such Record Date Stockholder to the
Fund or any excess to be refunded by the Fund to such Record Date Stockholder,
in each case based on the Subscription Price.
ARTICLE 11: LOSS OR MUTILATION
11.1. Upon receipt by the Fund and the Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a
Subscription Certificate, and, in case of loss, theft or destruction, of
indemnity and/or security satisfactory to them, which may be in the form of an
open penalty bond, and reimbursement to the Fund and the Agent of all reasonable
expenses incidental thereto, and upon surrender and cancellation of the
Subscription Certificate if mutilated, the Fund will make and deliver a new
Subscription Certificate of like tenor to the Agent for delivery to the
registered owner in lieu of the Subscription Certificate so lost, stolen,
destroyed or mutilated. If required by the Fund or the Agent an indemnity bond
must be sufficient in the judgment of both to protect the Fund, the Agent or any
agent thereof from any loss which any of them may suffer if a Subscription
Certificate is replaced.
ARTICLE 12: COMPENSATION FOR SERVICES
12.1. The Fund agrees to pay to the Agent a fee in the amount of Twenty
Five Thousand dollars ($25,000) as compensation for its services in acting as
Agent, plus postage fees incurred in the performance of Agent's duties
hereunder.
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ARTICLE 13: INSTRUCTIONS AND INDEMNIFICATION
13.1. The Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions:
(a) Whenever in the performance of its duties under this Agreement
the Agent shall deem it necessary or desirable that any fact or matter be proved
or established, prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof is herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board or President or a Vice President
or the Secretary or Assistant Secretary or the Treasurer of the Fund delivered
to the Agent, and such certificate shall be full authorization to the Agent for
any action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(b) The Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
officer or assistant officer of the Fund and to apply to any such officer of the
Fund for advice or instructions in connection with its duties, and subject to
the other requirements of this agreement which the Agent reasonably believes to
be genuine and shall set forth above, shall be indemnified and not be liable for
any delays, errors or loss of data occurring by reason of circumstances beyond
the Agent's control.
(c) The Fund also agrees to indemnify and hold the Agent harmless
against any losses, claims, actions, damages, liabilities, costs or expenses
(including reasonable fees and disbursements of legal counsel) (collectively,
"Claims") that the Agent may incur or become subject to, arising from or out of
any claim or liability resulting from actions taken as Agent pursuant to this
Agreement; provided, however, that such covenant and agreement does not extend
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to, and the Agent shall not be indemnified or held harmless with respect to,
such Claims incurred or suffered by the Agent as a result, or arising out, of
the Agent's negligence, misconduct, bad faith or breach of this Agreement. In
connection therewith, and without limiting any other provision in this Section
13.1: (i) in no case shall the Fund be liable with respect to any Claim against
the Agent unless the Agent shall have notified the Fund in writing of the
assertion of a Claim against it promptly after the Agent shall have notice of a
Claim or shall have been served with the summons or other legal process giving
information as to the nature and basis of the Claim; (ii) the Fund shall be
entitled to control the defense of any suit brought to enforce any such Claim;
and (iii) the Agent agrees not to settle or compromise any Claim or threatened
litigation or proceeding without providing the Fund adequate notice of any such
settlement or compromise and, without the prior written consent of the Fund. In
no event shall the Fund be liable for the fees and expenses of any additional
counsel that the Agent may retain.
(d) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, suffered or omitted by it without negligence and
in good faith in connection with its administration of this Agreement in
reliance upon any Subscription Certificate, or written power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document reasonably believed by it to be genuine and
to be signed, executed and, where necessary, verified or acknowledged by the
proper person or persons.
ARTICLE 14: INTERPRETATION
14.1. All questions as to the timeliness, validity, form and
eligibility of any exercise of Rights will be determined by the Fund whose
determination shall be final and binding. The Fund in its sole discretion may
waive any defect or irregularity, permit a defect or irregularity to be
corrected within such time as it may determine or reject the purported exercise
of any Right. Subscriptions will not be deemed to have been received or accepted
until all irregularities have been waived or cured within such time as the
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Fund determines in its sole discretion. Neither the Fund nor the Agent shall be
under any duty to give notification of any defect or irregularity in connection
with the submission of Subscription Documents or incur any liability for failure
to give such notification.
ARTICLE 15: CANCELLATION AND DESTRUCTION OF
SUBSCRIPTION CERTIFICATES
15.1. All Subscription Certificates surrendered for the purpose of
exercise, exchange, or substitution shall be canceled by the Agent, and no
Subscription Certificates shall be issued in lieu thereof except as expressly
permitted by provisions of this Agreement. The Fund shall deliver to the Agent
for cancellation and retirement, and the Agent shall so cancel and return, any
other Subscription Certificate purchased or acquired by the Fund otherwise than
upon the exercise thereof. The Agent shall deliver all canceled Subscription
Certificates to the Fund, or shall, at the written request of the Fund, destroy
such canceled Subscription Certificates, and in such case shall deliver a
certificate of destruction thereof to the Fund.
ARTICLE 16: CHANGES IN SUBSCRIPTION CERTIFICATE
The Agent will notify the Fund if it shall have been advised by counsel
(who may be counsel for the Fund) that any changes or corrections in a
Subscription Certificate are 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
provison of the Subscription Certificate except insofar as any such change may
confer additional rights upon the Record Date Stockholders. After such
notification, the Agent and the Fund may thereafter agree, by supplemental
agreement or otherwise, to make any such changes or corrections in a
Subscription Certificate. The Agent is not required to receive the consent or
concurrence for any such changes or corrections in a Subscription Certificate of
the Record Date Stockholders in whose names Subscription Certificates are
registered.
ARTICLE 17: ASSIGNMENT AND DELEGATION
17.1. 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.
17.2. 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.
17.3. Any corporation into which the Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Agent, shall be
the successor to the Agent hereunder without the execution or filing of any of
the parties hereto, provided that such corporation would be eligible for
appointment as a successor Agent. In case at the time such successor to the
Agent shall succeed to the agency created by this Agreement, any of the
Subscription Certificates shall have been countersigned but not delivered, any
such successor to the Agent may adopt the countersignature of the original Agent
and deliver such Subscription Certificates so countersigned, and in case at that
time the Subscription Certificates shall not have been countersigned, any
successor to the Agent may countersign such Subscription Certificates either in
the name of the predecessor Agent or in the name of the successor Agent, and in
all such cases such Subscription Certificates shall have the full force provided
in the Subscription Certificates and in this Agreement.
ARTICLE 18: NOTICES TO THE FUND, RECORD DATE STOCKHOLDERS AND AGENT.
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18.1. All notices and other communications provided for or permitted
hereunder shall be made by hand delivery, prepaid certified first-class mail
(return receipt requested), or telecopier (with written confirmation of
receipt):
(a) if to the Fund, to
Xxxxxx Xxxxxxx Xxxx Xxxxxx High Yield Fund, Inc.
c/o Morgan Xxxxxxx Xxxx Xxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Agent, to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Exchange Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to a Record Date Stockholder, at the address shown on the
registry books of the Fund.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when by certified mail,
two Business Days after being deposited in the mail, postage prepaid, if mailed
as aforesaid; and when receipt is acknowledged, if telecopied.
ARTICLE 19: MISCELLANEOUS PROVISIONS
19.1. Securities Act of 1933. Upon written advice to the Agent that
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the Commission shall have issued or threatened to have issued any order
preventing or suspending the use of the Prospectus, or if for any reason it
shall be necessary to amend or supplement the Prospectus in order to comply with
the Securities Act of 1933, as amended (the "Act"), the Agent shall cease acting
hereunder until receipt of written instructions from the Fund and such
assurances as it may reasonably request that it may comply with such instruction
without violation of the Act.
19.2. Governing Law. The validity, interpretation and performance
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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.
19.3. Severability. The parties hereto agree that if any of the
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provisions contained in this Agreement shall be determined invalid, unlawful of
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.
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19.4. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
19.5. Captions. The captions and descriptive headings herein are for
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the convenience of the parties only. They do not in any way modify,
amplify, alter or give full notice of the provisions hereof.
19.6. Facsimile Signatures. Any facsimile signature of any party
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hereto shall constitute a legal, valid and binding execution hereof by such
party.
19.7. Further Actions. Each party agrees to perform such further acts
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and execute such further documents as are necessary to effect the purpose of
this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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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.
XXXXXX XXXXXXX XXXX XXXXXX HIGH YIELD
FUND, INC.
/s/ Xxxxxxx X. Xxxxx
By:__________________________________
Name: Xxxxxxx X. Xxxxx
Title: President
AMERICAN STOCK TRANSFER & TRUST COMPANY
/s/ Xxxxxxx X'Xxxxx
By:_________________________________
Name: Xxxxxxx X'Xxxxx
Title: Vice President
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