SUBSCRIPTION AGENT AGREEMENT
Exhibit
(k)(ii)
This
Subscription Agent Agreement (the "Agreement") is made as of __________,
2008 between The Gabelli Global Deal Fund (the "Company") and
[
], (the "Agent" or
"Subscription 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 Nos. 333-149864 and 811-21969 filed by the
Company with the Securities and Exchange Commission on August 6, 2008,
as
amended and supplemented by any amendment and supplement filed with respect
thereto (the "Registration Statement").
WHEREAS,
the Company proposes to issue 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 Shares of beneficial interest, par value $0.001 per share
("Preferred Shares"), 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 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 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, exercise, and
sale 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. The Agent shall
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)
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 Preferred Shares equal to
one Preferred Share for every ten Rights (the "Primary Subscription
Right");
and
(2)
The right to
subscribe for additional Preferred Shares, subject to the availability of such
shares
and to the allotment of such shares as may be available among Rights holders
who
exercise Over-Subscription Rights on the basis specified in the
Prospectus; (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 Preferred Shares 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, prepare
and record Subscription Certificates
in the names of the Shareholders, setting forth the number of Rights to
subscribe for the Company's Preferred Shares calculated on the basis of
ten Rights
for each Preferred 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
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)
and Canada. Delivery shall be by first class mail (without registration
or
insurance), except for those Shareholders having a registered address
outside
the United States and Canada.
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 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 ) and Canada
("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, provided, however, that if the Agent has received no instruction by
the third Business Day prior to the Expiration Date or the Company has
determined that the rights offering may not be made to a particular shareholder,
the Agent will attempt to sell all of such shareholder's Rights and remit the
net proceeds, if any, to such shareholders.
4. Exercise.
A.
Record Date Shareholders may acquire Preferred Shares via a 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
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 (provided, however, that
holders of Rights who are residents of Canada may make payment in U.S. dollars
by money order or check drawn on a bank located in Canada), in each case payable
to the
order of the Company.
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 Investor Services division
of the
Agent at the address 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 a properly completed and
executed Subscription Certificate and payment in full, 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 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. Within ten
Business Days after the Expiration Date, the Agent 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 Common 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 Company by such shareholder or
any excess to be refunded by the Company to such shareholder.
E.
Any excess payment to be refunded by the Company to a shareholder will be
mailed by the Agent within fifteen Business Days after the
Confirmation Date.
5. Validity of
Subscriptions.
Irregular
subscriptions not otherwise covered by specific instructions herein
shall be referred 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 Shares to Record Date Shareholders,
there remain unexercised Rights, then the Agent shall allot the shares
issuable upon exercise of such unexercised Rights in accordance with the
allocation
set forth in the Registration Statement. The Agent shall advise the Company
immediately upon the completion of the allocation set forth in the Registration
Statement as to the total number of shares subscribed and distributable.
7. Delivery of Shares.
The
Agent will deliver (i) Statements of Holding reflecting
new Preferred Shares of the Direct Registration System, representing
those
shares of 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 cleared and (ii) 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.
8. Holding Proceeds of Rights
Offering.
A.
All proceeds received by the Agent from Shareholders in respect of the
exercise
of Rights shall be held by the Agent, on behalf of the Company, in a
segregated
account (the "Account"). No interest shall accrue to the Company or shareholders
on funds held in the Account 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 Company as promptly as practicable, but in no event later than
fifteen business
days after the Confirmation Date.
C.
The Company acknowledges that the bank accounts maintained by the Agent
in
connection with the services provided under this Agreement will be in its
name and
that the Agent may receive investment earnings in connection with the
investment
at the Agent's risk and for its benefit of funds held in those accounts
from time
to time.
9.
Sale of Rights.
Holders of Rights
who are unable or do not wish to exercise any or all of their Rights may
instruct the Agent to sell any unexercised Rights. The Subscription Certificates
representing the Rights to be sold by the Agent must be received on or before
____,2008. Upon the timely receipt of the appropriate instructions to sell
Rights, the Agent will use its best efforts to complete the sale and will
remit the proceeds of sale, net of commissions, to the holders. If the Rights
can be sold, sales of the Rights will be deemed to have been effected at the
weighted the average price received by the Agent on the day such Rights are
sold. The selling Rights holder will pay all brokerage commissions incurred by
the Agent. These sales may be effected by the Rights Agent through Gabelli &
Company, Inc., (the "Dealer Manager") a registered broker-dealer and an
affiliate of the Investment Adviser, at a commission of up to [$0.02] per Right,
provided that, if the Agent is able to negotiate a lower brokerage commission
with an independent broker, the Rights Agent will execute these sales through
that independent broker. The Rights Agent will automatically attempt to
sell any unexercised Rights that remain unclaimed as a result of Subscription
Certificates being returned by the postal authorities as undeliverable as of the
fourth Business Day prior to the Expiration Date. These sales will be made net
of commissions on behalf of the nonclaiming holders of Rights. Proceeds from
those sales will be held by American Stock Transfer & Trust Company, in its
capacity as the Company's transfer agent, for the account of the nonclaiming
holder of rights until the proceeds are either claimed or escheated. There can
be no assurance that the Agent will be able to complete the sale of any of these
Rights and neither the Fund nor the Agent has guaranteed any minimum sales
price for the Rights. All of these Rights will be sold at the market price, if
any, on the [NYSE or through an unaffiliated market maker if no market exists on
the NYSE.]
10. Method of
Transferring Rights.
The Rights evidenced by a
single Subscription Certificate may be transferred in whole by endorsing the
Subscription Certificate for transfer in accordance with the accompanying
instructions. A portion of the Rights evidenced by a single Subscription
Certificate (but not fractional Rights) may be transferred by delivering to the
Agent a Subscription Certificate properly endorsed for transfer, with
instructions to register the portion of the Rights evidenced thereby in the name
of the transferee (and to issue a new Subscription Certificate to the transferee
evidencing the transferred Rights). In this event, a new Subscription
Certificate evidencing the balance of the Rights will be issued to the Rights
holder or, if the Rights holder so instructs, to an additional
transferee.
Neither
the Company nor the Agent shall have any liability to a transferee or
transferor of Rights if Subscription Certificates are not received in time for
exercise or sale prior to the Expiration Date.
All
commissions, fees and other expenses (including brokerage commissions and
transfer taxes) incurred in connection with the purchase, sale or exercise of
Rights will be for the account of the transferor of the Rights, and none of
these commissions, fees or expenses will be paid by the Agent.
The Company anticipates that the Rights will be eligible for transfer
through, and that the exercise of the Subscription may be effected through, the
facilities of DTC.
11. 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 a duly authorized officer of the Company, data regarding Rights
exercised,
the total number of Preferred Shares 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.
12. 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.
13. Compensation for
Services.
The
Company agrees to pay to the Agent compensation for its services hereunder
in accordance with its fee schedule (the "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.
14. 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 a duly authorized 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 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 1, 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 six (6)
calendar
months immediately preceding the event for which recovery from the Agent is
being sought.
15. 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.
16. Assignment/Delegation.
A.
Except as provided in Section 16(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 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.
17. Governing Law.
The
validity, interpretation and performance of this Agreement shall be
governed by the law of the [Preferredwealth 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.
18. 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.
19. 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.
20. 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 incidential
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.
21. Severability.
If
any provision of this Agreement shall be held invalid, unlawful, or unenforceable,
the valididty, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired.
22. 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.
23. 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.
24. Confidentiality.
The
Agent and the Company agree that all books, records, informtion 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.
25. 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.
26. 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 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:
|
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
|
If
to the Agent, to:
|
[
]
Attn: _____________________
|
27. Survival.
The
provisions of Paragraphs 14, 17, 19-21, 24, and 26-28 shall survive
any termination, for any reason, of this Agreement.
28. Merger of Agreement.
This
Agreement constitutes the entire agreement between the parties hereto
and supercedes any prior agreement with respet 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.
| [ ] | GABELLI GLOBAL DEAL FUND | |
| By: ________________________________________ | By: ______________________________________________ | |
| Date: ______________________________________ | Date: ____________________________________________ | |
| Title: ______________________________________ | Title: ____________________________________________ |
EXHIBIT
A
Fee Schedule
[To
come]