SUBSCRIPTION AGENT AGREEMENT
May __, 2006
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with your appointment as Subscription Agent in the transaction
described herein, Xxxxxx Xxxxxxx Eastern Europe Fund, Inc. (the "Company"),
hereby confirms its arrangements with you as follows:
1. RIGHTS OFFERING - The Company is offering (the Rights offering") to the
holders of shares of its Common Stock, par value $ .01 per share
("Common Stock"), on _________, 2006 (the "Record Date"), the right
("Rights") to subscribe for Units ("Units"), each Unit consisting of
four rights. Except as set forth under Paragraphs 6 and 7 below, Rights
shall cease to be exercisable at 5:00 p.m., New York City time, on
__________, 2006 or such later date of which the Company notifies you
orally and confirms in writing (the "Expiration Date"). One Right is
being issued for each share of Common Stock held on the Record Date.
Four Rights and payment in full of the estimated subscription price of
$_____ (the "Subscription Price") are required to subscribe for one
Unit. Rights are evidenced by non-transferable subscription
certificates in registered form ("Subscription Certificates"). Each
holder of Subscription Certificates who exercises the holder's right to
subscribe for all Units that can be subscribed for with the Rights
evidenced by such Subscription Certificates (the "Basic Subscription
Right") will have the right to subscribe for additional Units, if any,
available as a result of any unexercised Rights (such additional
subscription right being referred to hereafter as the "Additional
Subscription Privilege"). The Rights Offering will be conducted in the
manner and upon the terms set forth in the Company's Prospectus dated
May __, 2006 (the "Prospectus"), which is incorporated herein by
reference and made a part hereof as if set forth in full herein.
2. APPOINTMENT OF SUBSCRIPTION AGENT - You are hereby appointed as
Subscription Agent to effect the Rights offering in accordance with the
Prospectus. Each reference to you in this letter is to you in your
capacity as Subscription Agent unless the context indicates otherwise.
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3. DELIVERY OF DOCUMENTS - Enclosed herewith are the following, the
receipt of which you acknowledge by your execution hereof:
(a) a copy of the Prospectus;
(b) the form of Subscription Certificate (with instructions);
(c) resolutions adopted by the Board of Directors of the Company in
connection with the Rights Offering, certified by the secretary of
the Company; and (d) Notice of Guaranteed Delivery.
As soon as is reasonably practical, you shall mail or cause to be
mailed to each record holder of Common Stock at the close of business
on the Record Date a Subscription Certificate evidencing the Rights to
which such holder is entitled, a Notice of Guaranteed Delivery, a
Prospectus and an envelope addressed to you. Prior to mailing, the
Company will provide you with blank Subscription Certificates which you
will prepare and issue in the names of holders of Common Stock of
record at the close of business on the Record Date and for the number
of Rights to which they are entitled. The Company will also provide you
with a sufficient number of copies of each of the documents to be
mailed with the Subscription Certificates.
4. SUBSCRIPTION PROCEDURE -
(a) Upon your receipt prior to 5:00 p.m., New York City time, on the
Expiration Date (by mail or delivery), as Subscription Agent, of (i)
any Subscription Certificate completed and endorsed for exercise, as
provided on the reverse side of the Subscription Certificate (except as
provided in paragraph 8 hereof), and (ii) payment in full of the
Subscription Price in U.S. funds by check, bank draft or money order
payable at par (without deduction for bank service charges or
otherwise) to the order of American Stock Transfer & Trust Company, you
shall as soon as practicable after the Expiration Date, but after
performing the procedures described in subparagraphs (b) and (c) below,
mail to the subscriber's registered address on the books of the Company
certificates representing the securities underlying each Unit duly
subscribed for (pursuant to the Basic Subscription Right and the
Additional Subscription Privilege) and furnish a list of all such
information to the Company.
(b) As soon as practicable after the Expiration Date you shall
calculate the number of Units to which each subscriber is entitled
pursuant to the Additional Subscription Privilege. The Additional
Subscription Privilege may only be exercised by holders who subscribe
to all the Units that can be subscribed for under the Basic
Subscription Right. The Units available for additional subscriptions
will be those that have not been subscribed and paid for pursuant to
the Basic Subscription Right (the "Remaining Units"). Where there are
sufficient Remaining Units to satisfy all additional subscriptions by
holders
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exercising their rights under the Additional Subscription Privilege,
each holder shall be allotted the number of Additional Units subscribed
for. If the aggregate number of Units subscribed for under the
Additional Subscription Privilege exceeds the number of Remaining
Units, the number of Remaining Units allotted to each participant in
the Additional Subscription Privilege shall be the product
(disregarding fractions) obtained by multiplying the number of
Remaining Units by a fraction of which the numerator is the number of
Units subscribed for by that participant under the Additional
Subscription Privilege and the denominator is the aggregate number of
Remaining Units subscribed for by all participants under the Additional
Subscription Privilege. Any fractional Unit to which persons exercising
their Additional Subscription Privilege would otherwise be entitled
pursuant to such allocation shall be rounded to the next whole Unit.
(c) Upon calculating the number of Units to which each subscriber is
entitled pursuant to the Additional Subscription Privilege and the
amount overpaid, if any, by each subscriber, you shall, as soon as
practicable, furnish a list of all such information to the Company.
(d) Upon calculating the number of Units to which each subscriber is
entitled pursuant to the Additional Subscription Privilege and assuming
payment for the additional Units subscribed for has been delivered, you
shall mail, as contemplated in subparagraph (a) above, the certificates
representing the additional securities which the subscriber has been
allotted. If a lesser number of Units is allotted to a subscriber under
the Additional Subscription Privilege than the subscriber has tendered
payment for, you shall remit the difference to the subscriber without
interest or deduction at the same time as certificates representing the
securities allotted pursuant to the Additional Subscription Privilege
are mailed.
(e) Funds received by you pursuant to the Basic Subscription Right and
the Additional Subscription Privilege shall be held by you in a
segregated interest-bearing account (which interest will inure to the
benefit of the Fund). Upon mailing certificates representing the
securities and refunding subscribers for additional Units subscribed
for but not allocated, if any, you shall promptly remit to the Company
all funds received in payment of the Subscription Price for Units sold
in the Rights Offering.
5. DEFECTIVE EXERCISE OF RIGHTS LOST SUBSCRIPTION CERTIFICATES - The
Company shall have the absolute right to reject any defective exercise
of Rights or to waive any defect in exercise. Unless requested to do so
by the Company, you shall not be under any duty to give notification to
holders of Subscription Certificates of any defects or irregularities
in subscriptions. Subscriptions will not be deemed to have been made
until any such defects or irregularities have been cured or waived
within such time as the Company shall determine. You shall as soon as
practicable return Subscription Certificates with the defects or
irregularities which have not been cured or waived to the holder of the
Rights. If any Subscription
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Certificate is alleged to have been lost, stolen or destroyed, you
should follow the same procedures followed for lost stock certificates
representing Common Stock you use in your capacity as transfer agent
for the Company's Common Stock.
6. LATE DELIVERY - If prior to 5:00 p.m., New York City time, on the
Expiration Date you receive (i) payment in full of the Subscription
Price for the Units being subscribed for and (ii) a guarantee notice
substantially in the form of the Notice of Guaranteed Delivery
delivered with the Subscription Certificate, from a financial
institution having an office or correspondent in the United States, or
a member firm of any registered United States national securities
exchange or of the National Association of Securities Dealers, Inc.
stating the certificate number of the Subscription Certificate relating
to the Rights, the name and address of the exercising subscriber, the
number of Rights represented by the Subscription Certificate held by
such exercising subscriber, the number of Units being subscribed for
pursuant to the Rights and guaranteeing the delivery to you of the
Subscription Certificate evidencing such Rights within three business
days following the date of the Notice of Guaranteed Delivery, then the
Rights may be exercised even though the Subscription Certificate was
not delivered to you prior to 5:00 p.m., New York City time, on the
Expiration Date, provided that within three business days following the
date of the Notice of Guaranteed Delivery you receive the properly
completed Subscription Certificate evidencing the Rights being
exercised, with signatures guaranteed if required.
7. DELIVERY - You shall deliver to the Company the exercised Subscription
Certificates in accordance with written directions received from the
Company and shall deliver to the subscribers who have duly exercised
Rights at their registered addresses certificates representing the
securities subscribed for as instructed on the reverse side of the
Subscription Certificates.
8. REPORTS - You shall notify the Company by telephone on and before the
close of business of each business day during the period commencing 5
business days after the mailing of the Rights and ending at the
Expiration Date (and in the case of guaranteed deliveries ending three
business days after the Expiration Date) (a "daily notice"), which
notice shall thereafter be confirmed in writing, of (i) the number of
Rights exercised on the day covered by such daily notice, (ii) the
number of Rights subject to guaranteed exercises on the day covered by
such daily notice, (iii) the number of Rights for which defective
exercises have been received on the day covered by such daily notice,
and (iv) the cumulative total of the information set forth in clauses
(i) through (iii) above. At or before 5:00 p.m., New York City time, on
the first business day following the Expiration Date you shall certify
in writing to the Company the cumulative total through the Expiration
Date of all the information set forth in clauses (i) through (iii)
above. At or before 10:00 a.m., New York City time, on the fifth
business day following the Expiration Date you will execute and deliver
to the Company a certificate setting forth the number of Rights
exercised pursuant to a Notice of Guaranteed Delivery and as to which
Subscription Certificates have been timely received. You shall also
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Paintain and update a listing of holders who have fully or partially
exercised their Rights, holders who have transferred their Rights and
their transferees, and holders who have not exercised their Rights. You
shall provide the Company or its designees with such information
compiled by you pursuant to this paragraph 8 as any of them shall
request.
9. FUTURE INSTRUCTIONS - With respect to notices or instructions to be
provided by the Company hereunder, you may rely and act on any written
instruction signed by any one or more of the following authorized
officers or employees of the Company:
NEW YORK/ XX XXXXXX (INSTITUTIONAL XXXXXX XXXXXXX INSTITUTIONAL
--------- ------------------------ ----------------------------
FUND OFFICERS HARBORSIDE FUND ADMINISTRATION) FUND ADMINISTRATION
------------- ---------- -------------------- -------------------
Xxxxxxx X. Fiumedreddo, Chairman Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx, President and PEO Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, VP Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxxxxxx
Xxxxx Germany, VP Xxxx Xxxxx Xxxxx Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxx, VP Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxxxx Xxxxxx Xxxx
Xxx Doberman, VP Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx Yu, VP Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx, Treasurer and CFO Xxxxxxx Xxx Xxxxx Xxxxxx
Xxxx X. Xxxxxx, Secretary Xxxx Xxxxxxxxx Xxx Xxxxxxxx
Xxxxxxx Xxxxx, Assistant Treasurer Xxxxxx Xxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, CCO Xxxx Xxxxxx Xxxx XxXxxxxx
Xxxxxx Xxxxxx, Asst. Secretary Xxxxx Xxxx Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxxxxx, Asst. Secretary Xxxxxx Xxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxxx, Asst. Secretary Xxxxxxx Xxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, Asst. Secretary Xxxxxxx Xxxxxxx Xxxxx X'Xxxxx
Xxxx Xxxxxxxx, Asst. Secretary Xxxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxxx, Asst. Secretary Xxxxxxx Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, Asst. Secretary Xxx Xxxxxxxx Xxxxx Xxxxxxx
XxxXxxx XxXxxxx, Asst. Secretary Xxxx Xxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxxxx Xx., Asst. Secretary Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, Asst. Secretary Xxxx Xxxxxx Xxx Xxxxxxx
Xxxxxxxxx Xxxxxx, Asst. Secretary
Xxxxx Xxxxxx, Asst. Secretary
Xxxx Xxxxx, Asst. Secretary
Xxxxx Xxxxxxx, Asst. Secretary
Xxxxxx Xxx, Asst. Secretary
10. PAYMENT OF EXPENSES - The Company will pay you compensation for acting
in your capacity as Subscription Agent hereunder in the amount of
$25,000 plus your reasonable out-of-pocket expenses.
11. INDEMNIFICATION - The Company covenants and agrees to indemnify and
hold you harmless against any costs, expenses (including reasonable
fees of legal counsel), losses or damages, which may be paid, incurred
or suffered by or to which you may become subject arising from or out
of, directly or indirectly, any claim or liability resulting from your
actions as Subscription Agent pursuant hereto; provided that such
covenant and agreement does not extend to such costs, expenses, losses
and damages incurred or suffered by you as a result of, or arising out
of, your own negligence, misconduct or bad faith or that of any
employees, agents or independent contractors used by you in connection
with
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performance of your duties as Subscription Agent hereunder.
In no case shall the Company be liable with respect to any claim
against you unless you have notified the Company in writing of the
assertion of a claim against it promptly after you have notice of a
claim or have been served with a summons or other legal process giving
information as to the nature and basis of the claim. The Company shall
be entitled to control the defense of any suit brought to enforce any
such claim and you agree not to settle or compromise any claim or
threatened litigation or proceeding without providing the Company
adequate written notice of any such proposed settlement or compromise
and without the prior written consent of the Company. In no event shall
the Company be liable for the fees and expenses of any additional
counsel that you may retain.
12. NOTICES - Unless otherwise provided herein, all reports, notices and
other communications required or permitted to be given hereunder shall
be in writing and delivered by hand or confirmed telecopy or by first
class U.S. mail, postage prepaid, shall be deemed given if by hand or
telecopy, upon receipt or if by U.S. mail, three business days after
deposit in the U.S. mail and shall be addressed as follows
(a) If to the Company, to:
Xxxxxx Xxxxxxx Eastern Europe Fund, Inc.
c/o Morgan Xxxxxxx Investment Management
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to you, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
13. ASSIGNMENT AND DELEGATION - 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. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other person any
duty, liability or obligation.
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14. GOVERNING LAW - The validity, interpretation and performance 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.
15. SEVERABILITY - The parties hereto agree that if any of the provisions
contained in this Agreement shall be determined invalid, unlawful or
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.
16. 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.
17. CAPTIONS - The captions and descriptive headings herein are for the
convenience of the parties only.
18. FACSIMILE SIGNATURES - Any facsimile signature of any party hereto
shall constitute a legal, valid and binding execution hereof by such
party.
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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 EASTERN EUROPE FUND, INC.
By: ____________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer and Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: ____________________________
Name:
Title:
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