SHARE TENDER AGREEMENT
Exhibit (d)(8)
This SHARE TENDER AGREEMENT is made and entered into as of November 14, 2023 (this “Agreement”), by and between THE GABELLI EQUITY TRUST INC., a closed-end fund organized as a Maryland corporation (the “Fund”), and Sunrise Partners Limited Partnership, organized as a Cayman Islands exempted limited partnership, including its successors by merger or operation of law (the “Shareholder”).
WHEREAS, in connection with the Offer (as defined below), the Shareholder desires to tender to the Fund, and the Fund desires to purchase from the Shareholder, the Covered Shares (as defined below) for cash, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the respective agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, have the following meanings:
“1940 Act” means the Investment Company Act of 1940, as amended.
“Auction Rate Preferred Shares” means the Fund’s Series C Preferred and Series E Preferred.
“Code” means the Internal Revenue Code.
“Covered Shares” means 2,071 Series C Preferred and 894 Series E Preferred owned by the Shareholder as of the date of this Agreement, constituting all Auction Rate Preferred Shares owned by the Shareholder beneficially or of record.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Expiration Date” means the expiration date of the Offer, as set forth in the Offer to Purchase.
“Governmental Authority” means any court, tribunal, arbitral or administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or any industry self-regulatory authority.
“Lien” means any mortgage, deed of trust, easement, declaration, restriction, pledge, hypothecation, assignment, deposit arrangement, option, equity interest, encumbrance, lien (statutory or other), preference, participation interest, priority or other security agreement or preferential arrangement of any kind or nature whatsoever relating to that property, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction to evidence any of the foregoing.
“Offer” means that certain offer by the Fund as approved by the Fund’s Board of Directors, and under Rule 13e-4 of the Exchange Act, to shareholders of the Fund to purchase all issued and outstanding Auction Rate Preferred Shares for cash in the amount of the Purchase Price, as set forth in the Fund’s Offer to Purchase, dated November 16, 2023 (the “Offer to Purchase”), which shall be filed as an exhibit to the Fund’s Schedule TO expected to be filed on November 16, 2023.
“Purchase Price” means $22,500 per Auction Rate Preferred Share, representing cash in an amount equal to 90% of the $25,000 liquidation preference per Auction Rate Preferred Share.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Series C Preferred” means the Fund’s issued and outstanding Series C Auction Rate Cumulative Preferred Stock, par value $0.001 and liquidation preference $25,000 per share (CUSIP 000000000).
“Series E Preferred” means the Fund’s issued and outstanding Series E Auction Rate Cumulative Preferred Stock, par value $0.001 and liquidation preference $25,000 per share (CUSIP 000000000).
| 1.1 | Incorporation of Certain Definitions by Reference |
Each capitalized term used herein and not otherwise defined herein shall have the meaning provided therefor (including by incorporation by reference) in the Offer to Purchase.
ARTICLE II
PURCHASE
| 2.1 | Purchase |
Subject to the terms and conditions of this Agreement, (a) on the Expiration Date, the Shareholder (i) shall have validly tendered to the Fund and not withdrawn the Covered Shares, and (ii) shall convey, transfer and deliver to the Fund, free and clear of any Liens, the Covered Shares, and (b) within 3 business days of the Expiration Date, in exchange for the Covered Shares, the Fund shall pay the Purchase Price, plus any accrued and unpaid dividends, to the Shareholder for the Covered Shares in accordance with the Offer to Purchase. Based on the representation provided by the Shareholder in Section 5.9, the Fund agrees that it will not deduct or withhold from the payment of the Purchase Price any amounts for U.S. tax purposes, as permitted pursuant to U.S. Treasury Regulations Section 1.1441-3(c)(2)(i)(B), but only to the extent such payment represents a distribution in part or full payment in exchange for stock.
ARTICLE III
CONDITIONS TO CLOSING
It shall be a condition to the obligations set forth in Article II that each of the following conditions shall have been satisfied or waived as of the Expiration Date:
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(a) this Agreement shall have been duly executed and delivered by the parties hereto;
(b) receipt by the Shareholder of a written certificate executed by a responsible officer of the Fund, dated as of the Expiration Date, to the effect that (A) the representations and warranties of the Fund set forth in Article IV were true and correct in all material respects (except to the extent that any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects) as of the date of this Agreement and are true and correct in all material respects (except to the extent that any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects) as of the Expiration Date with the same force and effect, as though expressly made on and as of the Expiration Date, and (B) the conditions set forth in clauses (b) and (c) of this Article III have been satisfied as of the Expiration Date;
(c) there shall not be any pending or threatened material litigation in respect of the Fund (unless such pending or threatened litigation has been determined by the Shareholder to be acceptable, and the Shareholder has communicated the same to the Fund in writing);
(d) the Shareholder, in its reasonable good faith judgment, shall be satisfied that no change in law, rule or regulation (or their interpretation or administration), in each case, shall have occurred which will adversely affect the consummation of the transactions contemplated by this Agreement;
(e) there shall have been delivered to the Shareholder any additional documentation and financial information, including satisfactory responses to its due diligence inquiries, as it reasonably deems relevant to the transactions contemplated by this Agreement; and
(f) no Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) which is in effect and prohibits consummation of the Offer or the transactions provided for herein. No law or order shall have been enacted, entered, promulgated or enforced by any Governmental Authority which prohibits or makes illegal the consummation of the Offer or the transactions provided for herein.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE FUND
The representations and warranties set out in this Article IV are given hereunder by the Fund to the Shareholder as of the date of this Agreement.
| 4.1 | Existence |
The Fund is existing and in good standing as a corporation, incorporated under the laws of Maryland, with full right and power to effect the Offer, to purchase the Auction Rate Preferred Shares, and to execute, deliver and perform its obligations under this Agreement and the Offer to Purchase with respect to the Offer.
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| 4.2 | Authorization; Contravention |
The execution, delivery and performance by the Fund of this Agreement and the Offer to Purchase are within the Fund’s powers, have been duly authorized by all necessary action, require no action by or in respect of, or filing with, any governmental body, agency or official except such as have been taken or made and do not violate or contravene, or constitute a default under, any provision of applicable law, charter, ordinance or regulation or of any material agreement, judgment, injunction, order, decree or other instrument binding upon the Fund or result in the creation or imposition of any Lien on any asset of the Fund.
| 4.3 | Binding Effect |
This Agreement constitutes a valid and binding agreement of the Fund, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable or public policy principles of general applicability, it being understood that the enforceability of indemnification provisions may be subject to limitations imposed under applicable securities laws.
The outstanding Auction Rate Preferred Shares have been duly authorized and are validly issued and outstanding, fully paid and nonassessable and free of any preemptive or similar rights.
| 4.4 | Litigation |
No action, suit, proceeding or investigation is pending or (to the best knowledge of the Fund) overtly threatened in writing against the Fund in any court or before any governmental authority in any way contesting or that, if decided adversely, would affect the validity of the Offer or this Agreement.
| 4.5 | Consents |
All consents, licenses, approvals, validations and authorizations of, and registrations, validations or declarations by or with, any shareholder, court or any governmental agency, bureau or agency required to be obtained in connection with the execution, delivery, performance, validity or enforceability of this Agreement and the Offer by or against the Fund have been obtained and are in full force and effect.
| 4.6 | 1940 Act Registration |
The Fund is duly registered as a closed-end management investment company under the 1940 Act and such registration is in full force and effect.
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| 4.7 | No Defaults |
The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not violate, conflict with, require a consent or approval under, result in a breach of, constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, result in the right of termination of, accelerate the performance required by, increase any amount payable under, change the rights or obligations of a party under, cause any additional fees to be due under, or give rise to any Lien or penalty under, the terms, conditions or provisions of (i) the Fund’s governing documents, (ii) any material contract or other instrument of the Fund, or by which the Fund is bound or affected, or to which the Fund or its businesses, operations, assets or properties is subject or receives benefits or (iii) assuming the accuracy of the representations made by the Shareholder in Article V, any law, permit or license.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDER
The representations and warranties set out in this Article V are given hereunder by the Shareholder to the Fund as of the date of this Agreement.
| 5.1 | Existence |
The Shareholder is validly existing and in good standing in its jurisdiction of organization and has full right and power to effect the tender of the Covered Shares and to execute, deliver and perform its obligations under this Agreement.
| 5.2 | Authorization; Contravention |
The execution, delivery and performance by the Shareholder of this Agreement are within the Shareholder’s powers, have been duly authorized by all necessary action, require no action by or in respect of, or filing with, any governmental body, agency or official except such as have been taken or made and do not violate or contravene, or constitute a default under, any provision of applicable law, charter, ordinance or regulation or of any material agreement, judgment, injunction, order, decree or other instrument binding upon the Shareholder.
| 5.3 | Binding Effect |
This Agreement constitutes a valid and binding agreement of the Shareholder, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable or public policy principles of general applicability, it being understood that the enforceability of indemnification provisions may be subject to limitations imposed under applicable securities laws.
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| 5.4 | Litigation |
No action, suit, proceeding or investigation is pending or (to the best knowledge of the Shareholder) overtly threatened in writing against the Shareholder in any court or before any governmental authority in any way contesting or, if decided adversely, would affect the validity of this Agreement.
| 5.5 | Consents |
All consents, licenses, approvals, validations and authorizations of, and registrations, validations or declarations by or with, any court or any governmental agency, bureau or agency required to be obtained by the Shareholder in connection with the execution, delivery, performance, validity or enforceability of this Agreement by or against the Shareholder and the Offer have been obtained and are in full force and effect.
| 5.6 | Certain Transactions |
Other than consummating the transactions contemplated by this Agreement, the Shareholder has not directly or indirectly executed, nor has any person acting on the Shareholder’s behalf or pursuant to any understanding with the Shareholder executed, any other purchases of securities of the Fund which may be integrated with the transactions contemplated by this Agreement.
| 5.7 | Title to Covered Shares |
The Shareholder is the current record and beneficial owner, and a Holder, of the Covered Shares, with full power to participate in the Offer. The Shareholder has good and valid title to the Covered Shares and beneficially owns the Covered Shares, free and clear of any Lien. The Shareholder has not, and will not, prior to the expiration of the Offer, in whole or in part, (i) assign, transfer, hypothecate, pledge or otherwise dispose of the Covered Shares or its ownership rights in the Covered Shares or (ii) given any person any transfer order or power of attorney with respect to the Covered Shares.
| 5.8 | No Defaults |
The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not violate, conflict with, require a consent or approval under, result in a breach of, constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, result in the right of termination of, accelerate the performance required by, increase any amount payable under, change the rights or obligations of a party under, cause any additional fees to be due under, or give rise to any Lien or penalty under, the terms, conditions or provisions of (i) the Shareholder’s organizational documents, (ii) any material contract or other instrument of the Shareholder, or by which the Shareholder is bound or affected, or to which the Shareholder or its businesses, operations, assets or properties is subject or receives benefits or (iii) assuming the accuracy of the representations made by the Fund contained in Article IV, any law, permit or license.
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| 5.9 | Exemption from Withholding Provisions |
The tender of the Covered Shares to the Fund in exchange for the Purchase Price constitutes a complete redemption of all of the stock of the Fund owned by the Shareholder as described under Section 302(b)(3) of the Code, provided that the Shareholder does not own (actually or constructively) any other Fund shares. As such it is expected that the tender of the Covered Shares shall not be subject to any U.S. withholding tax. Nothing herein shall prevent the Fund from complying with applicable law, including any provision of the Code, in connection with the Offer and this paragraph shall not be understood to make any representation to the contrary, nor shall the Fund incur any liability hereunder in effecting such compliance.
ARTICLE VI
MISCELLANEOUS
| 6.1 | Notices |
All notices, requests and other communications to any party hereunder shall be in writing (including telecopy, electronic mail or similar writing), except in the case of notices and other communications permitted to be given by telephone, and shall be given to such party at its address or telecopy number or email address set forth below or such other address or telecopy number or email address as such party may hereafter specify for the purpose by notice to the other parties. Each such notice, request or other communication shall be effective when delivered at the address specified in this Section. The notice address for each party is specified below:
| (a) | if to the Fund: | ||
|
c/o Xxxx X. Xxxx President Xxx Xxxxxxxxx Xxxxxx Xxx, XX 00000 | |||
| Telephone: | (000) 000-0000 | ||
| Email: | xxxxx@xxxxxxx.xxx | ||
| (b) | if to the Shareholder: | ||
Sunrise Partners Limited Partners c/o Paloma Partners Management Company Two American Lane Greenwich, CT 06836 | |||
| Attention: | Xxxxxxx Xxxxx | ||
| Telephone: | 000-000-0000 | ||
| Email: | xxxxxx@xxxxxx.xxx | ||
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| 6.2 | No Waivers |
No failure or delay by the Fund or the Shareholder in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No failure or delay by the Fund or the Shareholder in exercising any right, power or privilege under or in respect of the Covered Shares shall affect the rights, powers or privileges of the Fund or the Shareholder hereunder or shall operate as a limitation or waiver thereof. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
| 6.3 | Expenses |
Each party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Agreement and of each document referred to in it.
| 6.4 | Amendments and Waivers |
Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Fund and the Shareholder.
| 6.5 | Successors and Assigns |
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither the Fund nor the Shareholder may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (other than by operation of law), except that the Shareholder may assign its rights or obligations to any affiliates of the Shareholder. Any assignment without such prior written consent shall be void.
| 6.6 | Governing Law |
This Agreement shall be construed in accordance with and governed by the domestic law of the State of New York without regard to conflicts of law principles that would require the application of the law of another jurisdiction.
THE PARTIES HERETO HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY.
| 6.7 | Waiver of Jury Trial |
The Fund and the Shareholder hereby waive trial by jury in any action, proceeding or counterclaim brought by any of the parties hereto against any other on any matters whatsoever arising out of or in any way connected with this Agreement.
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| 6.8 | Counterparts |
This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Any counterpart or other signature delivered by facsimile or by electronic mail shall be deemed for all purposes as being a good and valid execution and delivery of this Agreement by that party.
| 6.9 | Beneficiaries |
This Agreement is not intended and shall not be construed to confer upon any person other than the parties hereto and their successors and permitted assigns any rights or remedies hereunder.
| 6.10 | Entire Agreement |
This Agreement shall constitute the entire agreement and understanding between the parties hereto with respect to the matters set forth herein and shall supersede any and all prior agreements and understandings relating to the subject matter hereof.
| 6.11 | Relationship to the Offer |
The Fund and the Shareholder agree that the representations, warranties, covenants and agreements contained in this Agreement are in addition to the terms and provisions set forth in the Offer.
| 6.12 | Severability |
In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby so long as the intent of the parties to this Agreement shall be preserved.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| THE GABELLI EQUITY TRUST INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| SUNRISE PARTNERS LIMITED PARTNERSHIP | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Share Tender Agreement]
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