EXHIBIT 99.2(h)(iv)
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of February
19, 2004 between Global Income Fund, Inc. (the "Fund") and American Stock
Transfer & Trust Company, as subscription agent (the "Agent"). All terms not
defined herein shall have the meaning given in the prospectus (the "Prospectus")
included in the Registration Statement on Form N-2 (File No. 811-08025) filed by
the Fund with the Securities and Exchange Commission on December 10, 2003, 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 stockholders of record (the
"Record Date Stockholders") of its common stock, par value $0.01 per share
("Common Stock"), as of a record date specified by the Fund (the "Record Date"),
pursuant to which each Record Date Stockholder 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 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
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 nontransferable. The Agent shall, in its
capacity as Transfer Agent of the Fund, maintain a register of Subscription
Certificates and the Record Date Stockholders. Each Subscription Certificate
shall, subject to the provisions thereof, entitle the Record Date Stockholder in
whose name it is recorded to the following: (1) With respect to Record Date
Stockholders 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 four Rights held (the "Primary Subscription Right"); and (2)
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 Over-Subscription Rights on the basis specified in the
Prospectus; provided, however, that such Record Date Stockholder has exercised
all Primary Subscription Rights issued to him or her (the "Over-Subscription
Privilege"). Fractional Shares will not be issued upon the exercise of Rights.
3. Rights and Issuance of Subscription Certificates.
(a) Each Subscription Certificate shall evidence the Rights of the
Stockholder therein named to purchase Common Stock 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, the Agent shall, from a list of the Fund's Record Date
Stockholders 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 Stockholder as of the Record Date. 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 Fund deems necessary or
appropriate, to all Record Date Stockholders 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 Record Date Stockholders 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 Record Date Stockholders 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
Stockholders whose record addresses are outside the United States ("Foreign
Record Date Stockholders"). 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.
4. Exercise.
(a) Record Date Stockholders 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 Stockholder in accordance with and as provided by the
terms and conditions of the Subscription Certificate, together with
(ii) the estimated Subscription Price, as disclosed in the
Prospectus, for each share of Common Stock subscribed for by exercise
of such Rights, including shares of Common Stock subscribed for in an
exercise of the Over-Subscription Privilege, 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 Agent.
(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 City time on 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 by the Agent.
(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 City 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 New York Stock Exchange member firm, bank, a trust company
or other financial institution 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 and full payment for
their Common Stock within ten Business Days after the Confirmation
Date. 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 Fund will determine the Subscription Price by taking the
lesser of (A) 95% of the net asset value per share of the Fund's Common
Stock on the Pricing Date or (B) 95% of the average of the volume-weighted
average sales prices of a share of the Fund's Common Stock on the American
Stock Exchange on the Pricing Date and the four preceding trading days. By
the Confirmation Date, the Agent shall send to each exercising Stockholder
(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 confirmation showing 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 Fund by such
Stockholder or any excess to be refunded by the Fund to such Stockholder in
the form of a check and stub, along with a letter explaining the allocation
of shares of Common Stock pursuant to the Over-Subscription Privilege.
(e) Any additional payment required from a Stockholder must be
received by the Agent within ten Business Days after the Confirmation Date
and any excess payment to be refunded by the Fund to a Stockholder will be
mailed by the Agent within ten Business Days after the Confirmation Date.
If a Stockholder does not make timely payment of any additional amounts due
in accordance with Section 4(d), the Agent will consult with the Fund in
accordance with Section 5 as to the appropriate action to be taken. The
Agent will not issue or deliver certificates for shares subscribed for
until payment in full has been received, including collection of checks and
payment pursuant to a Notice 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 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.
6. Over-Subscription. If, after allocation of shares of Common Stock to
Record Date Stockholders, there remain unexercised Rights, then the Agent shall
allot the shares issuable upon exercise of such unexercised Rights (the
"Remaining Shares") to Record Date Stockholders 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
Stockholders exercising Over-Subscription Privilege based on the number of
shares of Common Stock owned by them on the Record Date. The percentage of
Remaining Shares each over-subscribing Record Date Stockholder may acquire will
be rounded down to result in delivery of whole shares of Common Stock. The Agent
shall advise the Fund immediately upon the completion of the allocation set
forth above as to the total number of shares subscribed and distributable.
7. Delivery of Certificates. The Agent will deliver by mail (i)
certificates 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 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 the Agent from Record Date Stockholders
in respect of the exercise of Rights shall be held by the Agent, on behalf
of the Fund, in a segregated, interest-bearing account (the "Account").
Such interest shall accrue to the Fund pending disbursement in the manner
described in Section 4(e) above.
(b) The Agent 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 fifteen Business Days after the Confirmation Date. Proceeds held
in respect of Excess Payments (including interest earned thereon) shall
belong to the Fund.
9. Reports. Daily, during the period commencing on effective date of the
Offer, 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 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 Fund 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 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.
11. Compensation for Services. The Fund agrees to pay to the Agent
compensation for its services as such in accordance with its Fee 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.
12. Instructions and Indemnification. 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 Fund, in
conformity with the provisions of this Agreement. 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 Fund
which conforms to the applicable requirements of this Agreement and which
the Agent reasonably believes to be genuine.
(b) The Fund 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 this Agreement or the
instructions or directions furnished to the Agent relating to this
Agreement by an appropriate officer of the Fund, except for any liability
or expense which shall arise out of the negligence, bad faith or willful
misconduct of the Agent or such nominees.
(c) The Agent will indemnify the Fund 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 this Agreement or the
instructions or directions furnished to the Fund relating to this Agreement
by an appropriate officer of the Agent, except for any liability or expense
which shall arise out of the negligence, bad faith or willful misconduct of
the Fund or such nominees.
13. Changes in Subscription Certificate. The Agent may, without the consent
or concurrence of the Record Date Stockholders 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 or Prospectus except insofar as any such change may
confer additional rights upon the Record Date Stockholders.
14. Assignment, Delegation; No Third Party Beneficiaries. (a) 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) 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.
15. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the law of the State of New York.
16. No Joint Venture. 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.
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,
terrorism, 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 provisions 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.
22. 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.
23. Term. This Agreement shall remain in effect until terminated on May 27,
2004 (the "Termination Date") or prior to the Termination Date, upon 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
Agent and the Fund required or permitted hereunder shall be delivered or mailed
by first class mail, postage prepaid, addressed as follows:
If to the Fund, to:
Global Income Fund, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: 0-000-000-0000
Telecopy: 1-212-785-0400
If to the Agent, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
25. Survival. The provisions of Paragraphs 12, 15, 17-19, 22, 24, 25 and 26
shall survive any termination, for any reason, of this Agreement.
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.
AMERICAN STOCK TRANSFER
& TRUST COMPANY
/s/ Xxx Xxxx
Signature
Title: Vice President
GLOBAL INCOME FUND, INC.
/s/ Xxxxxx X. Xxxxxxx
Signature
Title: President
Exhibit A
$5,000
