SUBSCRIPTION AND INFORMATION AGENT AGREEMENT
Exhibit
(k)(ii)
This Subscription and Information Agent
Agreement (the "Agreement") is made as of December 18, 2008 between The Gabelli
Global Deal Fund (the "Fund"), Computershare, Inc., a Delaware corporation and
its fully owned subsidiary Computershare Trust Company, N.A., a national banking
(collectively, the “Agent” or individually
“Computershare” 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, Securities
Act File No. 333-149864 filed by the Fund with the Securities and Exchange
Commission on December 10, 2008, 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
shareholders of record (the "Shareholders") of its Common Shares, as of a record
date specified by the Fund (the "Record Date"), pursuant to which each
Shareholder will have certain rights (the "Rights") to subscribe for Series A
Cumulative Callable Preferred Shares (“Preferred Shares”), 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 and information 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. Rights and Issuance of
Subscription Certificates.
A. Each Subscription
Certificate shall evidence the Rights of the Shareholder therein named to
purchase Preferred Shares 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, as to the Record
Date, the Agent shall, from a list of the Fund Shareholders as of the Record
Date to be prepared by the Agent in its capacity as Rights Agent of the Fund,
prepare and record Subscription Certificates in the names of the Shareholders,
setting forth the number of Rights to subscribe for the Fund's Preferred Shares
calculated on the basis of one Right for one Common
Share
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 up, 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 Rights
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 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 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
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, a special notice and other documents
as the Fund 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.
D. The Agent will perform
its duties as subscription and information agent in accordance with the terms
and provisions of the Fee and Service Schedule attached hereto as Exhibit
A.
3. Exercise.
A. Record Date Shareholders
may acquire Preferred Shares 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 Subscription
Price, as disclosed in the Prospectus, for each Preferred Share 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 Fund or
Computershare.
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. Eastern Time on such date as the
Fund 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.
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C. Notwithstanding the
provisions of Section 3(A) and 3(B) regarding delivery of an executed
Subscription Certificate to the Agent prior to 5:00 P.M. Eastern 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 any Preferred Shares subscribed for on Primary
Subscription and any additional Preferred Shares 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
Preferred Shares 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. A holder of Rights may
purchase one Preferred Share of the Fund for every ten Rights
exercised. Rights may be exercised at a price of $50.00 per Preferred
Share (the “Subscription Price”). As soon as practicable after the
Expiration Date, Computershare shall send to each exercising shareholder (or, if
Common Shares 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 Preferred Shares 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 shareholder or any excess to be refunded by the Fund
to such shareholder in the form of a check and stub, along with a letter
explaining the allocation of Preferred Shares pursuant to the Over-Subscription
Privilege.
E. Any additional payment
required from a shareholder must be received by Computershare during the Protect
Period and any excess payment to be refunded by the Fund to a Shareholder will
be mailed by Computershare within fifteen Business Days after the Expiration
Date. If a Shareholder does not make timely payment of any additional
amounts due in accordance with Section 3(D), Computershare will consult with the
Fund in accordance with Section 4 as to the appropriate action to be
taken. Computershare 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.
4. 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.
5. Over-Subscription.
If, after allocation of Preferred
Shares to Record Date Shareholders pursuant to the Primary Subscription, there
remain unexercised Rights, then the Agent shall allot the shares issuable upon
exercise of such unexercised Rights (the "Remaining Shares") to Shareholders
who
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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 subscribing pursuant to the Over-Subscription Privilege based on
the number of Common Shares 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 to
result in delivery of whole Preferred Shares. The Agent shall advise
the Fund immediately upon the completion of the allocation set forth above as to
the total number of Preferred Shares subscribed and distributable.
6. Delivery of
Shares.
The Agent will arrange with the Fund’s
transfer agent for the delivery of (i) certificates or Statements of Holding
reflecting new Preferred Shares of the Fund in the Direct Registration System,
representing those Preferred Shares 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 Statements of Holding 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.
7. Holding Proceeds of Rights
Offering.
A. All proceeds received by
Computershare from Shareholders in respect of the exercise of Rights shall be
held by Computershare, on behalf of the Fund, in a segregated account (the
"Account").
B. Computershare 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 three business days after
the expiration of the Protect Period.
C. The
Fund acknowledges that the bank accounts maintained by Computershare in
connection with the services provided under this Agreement will be in its name
and that Computershare may receive investment earnings in connection with the
investment at Computershare’s risk and for its benefit of funds held in those
accounts from time to time. Interest earned on the funds shall accrue
50% to the Fund and 50% to Computershare.
8. Reports.
Daily, during the period commencing on
December 29, 2008, 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 Preferred Shares
subscribed for, and payments received therefor, bringing forward the figures
from the previous
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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.
9. 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.
10. Compensation for
Services.
The Fund agrees to pay to the Agent
compensation for its services hereunder in accordance with its Fee and Service
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 as such.
11. Indemnification and
Limitation of Liability.
The Fund covenants and agrees to
indemnify and to hold the Agent harmless against any costs, expenses (including
reasonable fees of its legal counsel), losses or damages, which may be paid,
incurred or suffered by or to which it may become subject, arising from or out
of, directly or indirectly, any claims or liability resulting from its actions
as Agent pursuant hereto; provided, that such covenant and agreement does not
extend to, and the Agent shall not be indemnified with respect to, such costs,
expenses, losses and damages incurred or suffered by the Agent as a result of,
or arising out of, its gross negligence, bad faith, or willful
misconduct.
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 Fund, notify the Fund thereof in writing. The
Fund 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 11, 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.
Agent shall be responsible for and
shall indemnify and hold the Fund 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,
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whether
in contract, or in tort, or otherwise, is limited to, and shall not exceed, the
amounts paid under this Agreement by the Fund to Agent as fees and charges, but
not including reimbursable expenses.
Promptly after the receipt by the Fund
of notice of any demand or claim or the commencement of any action, suit,
proceeding or investigation, the Fund shall, if a claim in respect thereof is to
be made against the Agent, notify the Agent thereof in writing. The
Agent shall be entitled to participate at 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 11, 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 Fund, 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.
12. 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 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 except insofar as any such change may confer additional rights upon
the Shareholders.
13. Assignment/Delegation.
A. Except as provided in
Section 13(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 Fund, 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 responsible to the Fund 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 Fund and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive benefit of the
Agent and the Fund.
14. Governing
Law.
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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.
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15. Third Party
Beneficiaries.
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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
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23. 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, telecopier or overnight
courier guaranteeing next day delivery, addressed as
follows:
If to the Fund, to:
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copy
to:
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One
Corporate Center
|
Xxx
Xxxxxxxxx Xxxxxx
|
||
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Xxx,
XX 00000-0000
|
Xxx
XX 00000-0000
|
||
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Attention: Xxxxx
X. Xxxxxx
|
Attention: Xxxxx
Xxxxxxx
|
If to the Agent, to:
|
Computershare
Trust Company, N.A.
|
|
|
c/o
Computershare Inc.
|
|
|
000
Xxxxxx Xxxxxx
|
|
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Xxxxxx,
XX 00000
|
|
|
Attn: Reorganization
Department
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24. Survival.
The provisions of Paragraphs 11, 14,
16-18, 21, and 23-25 shall survive any termination, for any reason, of this
Agreement.
25. Merger of
Agreement.
This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
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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 THE
GABELLI GLOBAL
COMPANY,
NA. DEAL
FUND
By:______________________________ By:_______________________
Date:____________________________ Date:__12/18/08____________________
Title:____________________________ Title:__President___________________
COMPUTERSHARE
INC.
By:______________________________
Date:_____________________________
Title:_____________________________
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