SUBSCRIPTION AGENT AGREEMENT
Exhibit (k)(6)
This Subscription Agent Agreement (the “Agreement’’) is made as of June 21, 2007 between The Xxxxx
Fund, Inc. (the “Company”), Computershare Inc., a Delaware Corporation and its fully owned
subsidiary Computershare Trust Company, N.A., a national banking (collectively, the “Agent” or
individually “CSS” and the “Trust Company”, respectively). All terms not defined herein shall have
the meaning given in the prospectus (the “Prospectus”) included in the (Registration Statement on
Form N-2, Investment Company Act, File No. 811-04739, filed by the Company with the Securities and
Exchange Commission on May 14, 2007, as amended by any amendment filed with respect thereto (the
“Registration Statement”).
WHEREAS, the Company proposes to make subscription offer by issuing certificates or other evidences
of subscription rights, in the form designated by the Company (the “Subscription Certificates”) to
shareholders of record (the “Shareholders”) of its Common Stock, par value $0.10 per share (“Common
Stock”), as of a record date specified by the Company (the “Record Date”), pursuant to which each
Shareholder 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 Company wishes the Agent to perform certain acts on behalf of the Company, 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 Company 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. The Agent
shall, in its capacity as Transfer Agent of the Company, maintain a register of
Subscription Certificates and the holders of record thereof (each of whom shall be deemed
a “Shareholder” hereunder for purposes of determining the rights of holders of
Subscription Certificates). Each Subscription Certificate shall, subject to the provisions
thereof, entitle the Shareholder in whose name it is recorded to the following:
(1) With respect to Record Date Shareholders 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 five Rights (the “Primary Subscription Right”); and
(2) With respect to Record Date Shareholders 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 Shareholders who exercise
Over-Subscription Rights on the basis specified in the Prospectus; provided, however, that
such Record Date Shareholder has exercised all Primary Subscription Rights issued to him
or her (the “Over-Subscription Privilege”).
| 3. | Rights and Issuance of Subscription Certificates. |
A. Each Subscription Certificate shall evidence the Rights of the Shareholder therein
named to purchase Common Stock upon the terms and conditions therein and herein set forth.
B. Upon the written advice of the Company, signed by any of its duly authorized
officers, as to the Record Date, the Agent shall, from a list of the Company Shareholders
as of the Record Date to be prepared by the Agent in its capacity as Transfer Agent of the
Company, prepare and record Subscription Certificates in the names of the Shareholders,
setting forth the number of Rights to subscribe for the Company’s Common Stock calculated
on the basis of one Right for one share of Common Stock recorded on the books in the name
of each such Shareholder as of the Record Date. The number of Rights that are issued to
Record Date Shareholders will be rounded down, by the Agent, to the nearest number of Full
Rights as 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 Company deems necessary
or appropriate, to all Shareholders 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 Shareholders having a
registered address outside the United States (who will only receive copies of the
Prospectus, instruction letter and other documents as the Company 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 Shareholders 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, and other documents
as the Company deems necessary or appropriate, if any, but not Subscription Certificates
to Record Date Shareholders whose record addresses are outside the United States
(including its territories and possessions and the District of Columbia) (“Foreign Record
Date Shareholders”). The Rights to which such Subscription Certificates relate will be
held by the Agent for such Foreign Record Date Shareholders’
accounts until instructions
are received to exercise, sell or transfer the Rights.
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| 4. | Exercise. |
A. Record Date Shareholders 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
Shareholder in accordance with and as provided by the terms and conditions of the Subscription
Certificate, together with (ii) the estimated purchase price, as disclosed in the Prospectus,
for each share of Common Stock subscribed for by exercise of such Rights, 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 Company or CSS.
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 time on such date as the
Company shall designate to the Agent in writing (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 at the Shareholder Services Division of the
Agent specified in the Prospectus.
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 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 bank, a trust company or a New York Stock Exchange member
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 (the “Protect Period”). 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 Subscription Price per share will be equal to the lower of the Net Asset Value per share
of the Fund’s Common Stock (“NAV”) at the close of business on ___, 2007 (the “Pricing
Date”) or 95% of the average of the last reported sales price of a Share of the Fund’s Common
Stock on the NYSE on the Pricing Date and the four preceding business days. As soon as
practicable after the Pricing Date, CSS shall send to each exercising
shareholder (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 Direct Registration System, or
Dividend Reinvestment Plan statement, or Certificate of 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 Company by such shareholder or any excess to be refunded by
the Company to such shareholder in the form of a check and stub,
explaining the allocation of shares of Common Stock pursuant to the Over-Subscription Privilege.
E. Any additional payment required from a shareholder must be received by CSS within ten
Business Days after the Pricing Date and any excess payment to be refunded by the Company to a
shareholder will be mailed by CSS within ten Business Days after the Pricing Date. If a
shareholder
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does not make timely payment of any additional amounts due in accordance with Section 4(D), CSS will consult with the Company in accordance with Section 5 as to the appropriate action
to be taken. CSS will not issue or deliver certificates or Statements of Holding for shares
subscribed for until payment in full therefore has been received, including collection of checks
and payment pursuant to notices 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 Company 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 Shareholders, there remain
unexercised Rights, then the Agent shall allot the shares issuable upon exercise of such
unexercised Rights (the “Remaining Shares”) to shareholders 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 Shareholders exercising Over-Subscription
Privilege based on the number of shares of Common Stock owned by them on the Record Date. Any
remaining shares to be issued shall be allocated to holders of Rights acquired in the secondary
market based on the number of Rights exercised by such holders of Rights. The percentage of
Remaining Shares each over-subscribing Record Date Shareholder or other Rights holder may acquire
will be rounded up or down to result in delivery of whole shares of Common Stock. The Agent shall
advise the Company immediately upon the completion of the allocation set forth above as to the
total number of shares subscribed and distributable.
| 7. | Delivery of Shares. |
The Agent will deliver (i) certificates or Statement of Holdings reflecting new shares of Company
Common Stock in the Direct Registration System or in the Dividend Reinvestment Plan, 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 or Statement of Holdings 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 CSS from Shareholders in respect of the exercise of Rights shall be
held by CSS, on behalf of the Company, in a segregated account (the “Account”).
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B. CSS shall deliver all proceeds received in respect of the exercise of Rights to the Company
as promptly as practicable, but in no event later than ten business
days after the Pricing Date.
C. The Company acknowledges that the bank accounts maintained by CSS in connection with the
services provided under this Agreement will be in its name and that
CSS may receive investment earnings in connection with the investment
at CSS’s risk and for its benefit
of funds held in those accounts from time to time.
| 9. | Reports. |
Daily, during the period commencing on , until termination of the Subscription Period, the Agent
will report by telephone or telecopier, confirmed by letter, to an Officer of the Company, 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
Company 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 Company 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 Company agrees to pay to the Agent compensation for its services hereunder in accordance with
its Fee Schedule to act as Agent attached hereto as Exhibit A. The Company further agrees that it
will reimburse the Agent for its reasonable out-of-pocket expenses incurred in the performance of
its duties as such.
| 12. | Instructions, Indemnification and Limitation of Liability. |
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 Company, whether in conformity with the provisions of
this Agreement or constituting a modification hereof or a supplement hereto. 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 Company which conforms to the applicable requirements
of this Agreement and which the Agent reasonably believes to be genuine and shall not be
liable for any delays, errors or loss of data occurring by reason of circumstances beyond
the Agent’s control.
B. The Company 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
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this Agreement or the instructions or directions furnished to the Agent relating to this
Agreement by an appropriate officer of the Company, except for any liability or expense which shall
arise out of the gross negligence, bad faith or willful misconduct of the Agent or such nominees.
Promptly after the receipt by the Agent of notice of any demand or claim or the commencement of any
action, suit, proceeding or investigation, the Agent shall, if a claim in respect thereof is to be
made against the Company, notify the Company thereof in writing. The Company shall be entitled to
participate as its own expense in the defense of any such claim or proceeding, and, if it so elects
at any time after receipt of such notice, it may assume the defense of any suit brought to enforce
any such claim or of any other legal action or proceeding. For the purposes of this Section 12, the
term “expense or loss” means any amount paid or payable to satisfy any claim, demand, action, suit
or proceeding settled with the express written consent of the Agent, and all reasonable costs and
expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or
incurred in investigating or defending against any such claim, demand, action, suit, proceeding or
investigation.
C. The Agent shall be responsible for and shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to Agent’s refusal or failure to comply with the terms of this
Agreement, or which arise out of Agent’s negligence or willful misconduct or which arise out of the
breach of any representation or warranty of Agent hereunder, for which Agent is not entitled to
indemnification under this Agreement; provided, however, that Agent’s aggregate liability during
any term of this Agreement with respect to, arising from, or arising in connection with this
Agreement, or from all services provided or omitted to be provided under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder
by the Company to Agent as fees and charges, but not including reimbursable expenses, during the
twelve (12) calendar months immediately preceding the event for which recovery from the Agent is
being sought.
| 13. | Changes in Subscription Certificate. |
The Agent may, without the consent or concurrence of the Shareholders in whose names Subscription
Certificates are registered, by supplemental agreement or otherwise, concur with the Company in
making any changes or corrections in a Subscription Certificate that it shall have been advised by
counsel (who may be counsel for the Company) 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 except insofar as any such change may confer additional rights upon the Shareholders.
| 14. | Assignment/Delegation. |
A. Except as provided in Section 14(B) below, 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. The Agent may, without further consent on the part of the Company, subcontract with other
subcontractors for systems, processing, telephone and mailing services, and post-exchange
activities, as may be required from time to time; provided, however, that the Agent shall be as
fully
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responsible to the Company for the acts and omissions of any subcontractor as it is for its
own acts and omissions.
C. Except as explicitly stated elsewhere in this Agreement, nothing under this Agreement shall be
construed to give any rights or benefits in this Agreement to anyone other than the Agent and the
Company and the duties and responsibilities undertaken pursuant to this Agreement shall be for the
sole and exclusive benefit of the Agent and the Company.
| 15. | Governing Law. |
The validity, interpretation and performance of this Agreement shall be governed by the law of the
Commonwealth of Massachusetts and shall inure to the benefit of and the obligations created hereby
shall be binding upon the successors and permitted assigns of the parties hereto.
| 16. | Third Party Beneficiaries. |
This Agreement does not constitute an agreement for a partnership or joint venture between the
Agent and the Company. 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, terrorist acts, 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 provision 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.
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| 22. | Confidentiality. |
The Agent and the Company 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 and Termination. |
This Agreement shall remain in effect until the earlier of (a) thirty (30) days after the
Expiration Date; (b) it is terminated by either party upon a material breach of this Agreement
which remains uncured for 30 days after written notice of such breach has been provided; or (c) 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 Exchange Agent and the Company required or permitted
hereunder shall be delivered or mailed by first class mail, postage prepaid, telecopier or
overnight courier guaranteeing next day delivery, addressed as follows:
If to the Company, to:
The Xxxxx Fund, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Agent, to:
Computershare Trust Company, N.A.
c/o Comutershare, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Reorganization Department
c/o Comutershare, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Reorganization Department
| 25. | Survival. |
The provisions of Paragraphs 12, 15, 17-19, 22, and 24-26 shall survive any termination, for any
reason, of this Agreement.
(Remainder of this page intentionally left blank)
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| 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.
| COMPUTERSHARE TRUST COMPANY, N.A. | ||||
By:
|
/s/ Xxxxxx Xxxxxx | |||
Xxxxxx Xxxxxx |
||||
Date:
|
6/21/07 | |||
Title:
|
Managing Director | |||
| THE XXXXX FUND, INC. | ||||
By:
|
/s/ Xxxxx X. Xxxxxxx | |||
Xxxxx X. Xxxxxxx |
||||
Date:
|
6/21/07 | |||
Title:
|
Treasurer | |||
| COMPUTERSHARE SHAREHOLDER SERVICES, INC. |
||||
By:
|
/s/ Xxxxxx Xxxxxx | |||
Xxxxxx Xxxxxx |
||||
Date:
|
6/21/07 | |||
Title:
|
Managing Director | |||
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