1933 Act File No. 333-208597
1940 Act File No. 811-22554
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
| ¨ | REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
¨Pre-Effective Amendment No. _
☒ Post-Effective Amendment No. 8
| ¨ | REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 |
☒ Amendment No. 13
VERTICAL CAPITAL INCOME FUND
Principal Executive Offices
80 Arkay Drive, Suite 110, Hauppauge, NY 11788
1-631-470-2600
Agent for Service
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Copies of information to:
|
JoAnn Strasser, Esq. Thompson Hine LLP Columbus, OH 43215 |
Richard Malinowski, Esq. Gemini Fund Services, LLC 80 Arkay Drive, Suite 110 Hauppauge, NY 11788 (631) 470-2734 |
Approximate Date of Commencement of Proposed Public Offering (not applicable)
| ¨ | Check box if the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans |
| ¨ | Check box if any securities being registered on this Form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933 ("Securities Act"), other than securities offered in connection with a dividend reinvestment plan. |
| ¨ | Check box if this Form is a registration statement pursuant to General Instruction A.2 or a post-effective amendment thereto. |
| ¨ | Check box if this Form is a registration statement pursuant to General Instruction B or a post-effective amendment thereto that will become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act. |
| ¨ | Check box if this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction B to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act. |
It is proposed that this filing will become effective (check appropriate box)
| ¨ | when declared effective pursuant to Section 8(c) of the Securities Act |
If appropriate, check the following box:
| ¨ | This [post-effective] amendment designates a new effective date for a previously filed [post-effective amendment] [registration statement]. |
| ¨ | This Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: ______ |
| ¨ | This Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: ______. |
| ☒ | This Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, and the Securities Act registration statement number of the earlier effective registration statement for the same offering is: 333-208597. |
Check each box that appropriately characterizes the Registrant:
| ☒ | Registered Closed-End Fund (closed-end company that is registered under the Investment Company Act of 1940 ("Investment Company Act")). |
| ¨ | Business Development Company (closed-end company that intends or has elected to be regulated as a business development company under the Investment Company Act). |
| ¨ | Interval Fund (Registered Closed-End Fund or a Business Development Company that makes periodic repurchase offers under Rule 23c-3 under the Investment Company Act). |
| ¨ | A.2 Qualified (qualified to register securities pursuant to General Instruction A.2 of this Form). |
| ¨ | Well-Known Seasoned Issuer (as defined by Rule 405 under the Securities Act). |
| ¨ | Emerging Growth Company (as defined by Rule 12b-2 under the Securities Exchange Act of 1934 ("Exchange Act"). |
| ¨ | If an Emerging Growth Company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. |
| ¨ |
New Registrant (registered or regulated under the Investment Company Act for less than 12 calendar months preceding this filing). |
____________________________________________________________________________________
EXPLANATORY NOTE
This Post-Effective Amendment No. 8 to the Registration Statement on Form N-2 (File Nos. 333-208597 and 811-22554) of Vertical Capital Income Fund (the "Registration Statement") is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the "Securities Act"), solely for the purpose of filing exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 8 consists only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2 setting forth the exhibits to the Registration Statement. This Post-Effective Amendment No. 8 does not modify any other part of the Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 8 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of Parts A and B of the Registration Statement filed with the Securities
and Exchange Commission on January 28, 2019, pursuant to Rule 486(b) under the Securities Act, are incorporated by reference herein.
____________________________________________________________________________________
PART C - OTHER INFORMATION
Item 25. Financial Statements and Exhibits
1. Financial Statements
Part A: The financial highlights of Vertical Capital Income Fund (the "Registrant") for the fiscal period ended September 30, 2018 are included in Part A of this registration statement in the section entitled "Financial Highlights."
Part B: The Registrant's audited Financial Statements and the notes thereto in the Registrant's Annual Report to Shareholders for the fiscal period ended September 30, 2018, filed electronically with the Securities and Exchange Commission pursuant to Section 30(b)(2) of the Investment Company Act of 1940, as amended, are incorporated by reference into Part B of this registration statement.
2. Exhibits
a. (1) Agreement and Declaration of Trust 1
(2) Certificate of Trust 1
b. By-Laws 9
c. Voting Trust Agreements: None
| d. | Instruments Defining Rights of Security Holders. See Article III, "Shares" and Article V "Shareholders' Voting Powers and Meetings" of the Registrant's Agreement and Declaration of Trust. See also, Article 12, "Meetings" of shareholders of the Registrant's By-Laws. |
e. Dividend reinvestment plan 8
f. Rights of subsidiaries long-term debt holders: Not applicable.
g. Investment Advisory Agreement 8
h. Loan Agreement 7
i. Bonus, profit sharing, pension and similar arrangements for Fund Trustees and Officers: None.
j. Custody Agreements.
| (1) | Custody Agreement with U.S. Bank 7 |
| (2) | Custody Agreement with Community Banks of Colorado 9 |
k. (1) Fund Services Agreement (Administration, Accounting and Transfer Agency) 2
(2) Compliance Consulting Agreement 6
(3) Expense Limitation Agreement 9
(4) Security Servicing Agreement 4
(5) Transfer Agent Agreement 9
l. (1) Opinion of Counsel 4
(2) Consent of Counsel 7
m. Non-resident Trustee Consent to Service of Process: Not applicable
n. Consent of Independent Registered Public Accounting Firm 7
o. Omitted Financial Statements: None
p. Initial Capital Agreement 2
q. Model Retirement Plan: None
r. (1) Code of Ethics-Fund 2
(2) Code of Ethics-Adviser 4
s. Powers of Attorney 2
| 1 | Previously filed on May 3, 2011, as an exhibit to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. |
| 2 | Previously filed on September 30, 2011, as an exhibit to Pre-Effective Amendment No. 1 to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 3 | Previously filed on January 22, 2014, as an exhibit to Post-Effective Amendment No. 2 to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 4 | Previously filed on December 17, 2015, as an exhibit to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 5 | Previously filed on March 28, 2017, as an exhibit to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 6 | Previously filed on November 13, 2017, as an exhibit to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 7 | Previously filed on January 28, 2019, as an exhibit to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 8 | Previously filed on November 16, 2019, as an exhibit to the Registrant's Registration Statement on Form N-2, and hereby incorporated by reference. | |
| 9 | Filed herewith. |
Item 26. Marketing Arrangements
Not Applicable.
Item 27 . Other Expenses of Issuance and Distribution
Not Applicable.
Item 28. Persons Controlled by or Under Common Control with Registrant
None.
Item 29. Number of Holders of Securities as of March 1, 2021:
|
Title of Class Shares of Beneficial Ownership. |
Number of Record Holders 210 |
Item 30. Indemnification
Reference is made to Article VIII Section 2 of the Registrant's Agreement and Declaration of Trust (the "Declaration of Trust"), previously filed as Exhibit (a)(2) hereto; Section 8 of the Registrant's Underwriting Agreement, previously filed as Exhibit (h)(1) hereto; and Section 4 of the Fund Services Agreement, previously filed as Exhibit (k)(1) hereto; Section 11 of Security Servicing Agreement, previously filed as Exhibit (k)(4) hereto; and Section 8 of the Compliance Consulting Agreement, filed herewith as Exhibit (k)(2). The Registrant hereby undertakes that it will apply the indemnification provisions of the Declaration of Trust and agreements described above in a manner consistent with Release 40-11330 of the Securities and Exchange Commission (the "SEC") under the Investment Company Act of 1940, as amended (the "1940 Act"), so long as the interpretation therein of Sections 17(h) and 17(i) of the 1940 Act remains in effect. The Registrant maintains insurance on behalf of any person who is or was an independent trustee, officer, employee, or agent of the Registrant against certain liability asserted against and incurred by, or arising out of, his or her position. However, in no event will the Registrant pay that portion of the premium, if any, for insurance to indemnify any such person for any act for which the Registrant itself is not permitted to indemnify.
Insofar as indemnification for liability arising under the Securities Act of 1933 (the "1933 Act") may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, trustee, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, trustee, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.
Item 31. Business and Other Connections of Investment Adviser
A description of any other business, profession, vocation, or employment of a substantial nature in which the investment adviser of the Registrant, and each member, director, executive officer, or partner of any such investment adviser, is or has been, at any time during the past two fiscal years, engaged in for his or her own account or in the capacity of member, trustee, officer, employee, partner or director, is set forth in the Registrant's Prospectus in the section entitled "Management of the Fund." Information as to the members and officers of the Adviser is included in its Form ADV as filed with the SEC (File No. 801-80540), and is incorporated herein by reference.
Item 32. Location of Accounts and Records
Gemini Fund Services, LLC, the Fund's administrator, maintains certain required accounting related and financial books and records of the Registrant at 80 Arkay Drive, Suite 110, Hauppauge, New York 11788. American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, NY 11219 maintains certain records relating to its function as transfer agent. The other required books and records are maintained by the Adviser at 5301 Alpha Road, Suite 80-222, Dallas, TX 75240.
Item 33. Management Services
Not Applicable.
Item 34. Undertakings
| 1. | Not applicable. |
| 2. | Not applicable. |
| 3. | Not applicable. |
| 4. | Not applicable. |
| 5. | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference into the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 6. | Not applicable. |
| 7. | The Registrant undertakes to send by first class mail or other means designed to ensure equally prompt delivery within two business days of receipt of a written or oral request, the Registrant's prospectus or statement of additional information. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the Investment Company Act of 1940, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bexley, State of Ohio, on the 3rd day of March 2021.
VERTICAL CAPITAL INCOME FUND
By: /s/
Name: JoAnn M. Strasser
Title: Attorney-in-Fact*
*Pursuant to Powers of Attorney
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates.
| Name | Title | Date |
| Robert J. Boulware** | Trustee | ** |
| Mark J. Schlafly** | Trustee | ** |
| T. Neil Bathon** | Trustee | ** |
| /s/ Destiny Poninski | Treasurer and Principal Financial Officer | March 3, 2021 |
| Michael D. Cohen** | President and Principal Executive Officer | ** |
**By: /s/
JoAnn M. Strasser
March 3, 2021
**Attorney-in-Fact – Pursuant to Powers of Attorney
EXHIBIT INDEX
| Description | Exhibit Number |
| By-Laws | 99(b) |
| Custody Agreement with Community Banks of Colorado | 99(j)(2) |
| Expense Limitation Agreement | 99(k)(3) |
| Transfer Agent Agreement | 99(k)(5) |
By-Laws
of
VERTICAL CAPITAL INCOME FUND
(as supplemented January 30, 2019; and further supplemented February 19, 2021)
ARTICLE 1
Agreement and Declaration of Trust and Offices
1.1 Agreement and Declaration of Trust. These By-Laws shall be subject to the Agreement and Declaration of Trust, as from time to time in effect (the “Declaration of Trust”), of Vertical Capital Income Fund, the Delaware statutory trust established by the Declaration of Trust (the “Trust”).
1.2 Offices. The Trust may maintain one or more other offices, including its principal office, in or outside of Delaware, in such cities as the Board of Trustees (the “Board” or “Trustees”) may determine from time to time. Unless the Trustees otherwise determine, the principal office of the Trust shall be located in Hauppauge, NY.
ARTICLE 2
Meetings of Trustees
2.1 Regular Meetings. Regular meetings of the Trustees may be held without call or notice at such places and at such times as the Trustees may from time to time determine, provided that notice of the first regular meeting following any such determination shall be given to absent Trustees. A regular meeting of the Trustees may be held without call or notice immediately after and at the same place as any meeting of the shareholders.
2.2 Special Meetings. Special meetings of the Trustees may be held at any time and at any place designated in the call of the meeting when called by the President or the Treasurer or by two or more Trustees, sufficient notice thereof being given to each Trustee by the Secretary or an Assistant Secretary or by the officer or the Trustees calling the meeting.
2.3 Notice. It shall be sufficient notice to a Trustee of a special meeting to send notice by mail at least forty-eight hours before the meeting addressed to the Trustee at his or her usual or last known business or residence address or to give notice to him or her in person or by telephone or facsimile at least twenty-four hours before the meeting. Notice of a meeting need not be given to any Trustee if a written waiver of notice, executed by him or her before or after the meeting, is filed with the records of the meeting, or to any Trustee who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him or her. Neither notice of a meeting nor a waiver of a notice need specify the purposes of the meeting.
2.4 Quorum. At any meeting of the Trustees a majority of the Trustees then in office shall constitute a quorum. Any meeting may be adjourned from time to time by a majority of the
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votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice.
2.5 Participation by Telephone. One or more of the Trustees or of any committee of the Trust may participate in a meeting thereof by means of a conference telephone or similar Communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting except as otherwise provided by the Investment Company Act of 1940.
2.6 Action by Consent. Any action required or permitted to be taken at any meeting of the Trustees or any committee thereof may be taken without a meeting, if a written consent of such action is signed by a majority of the Trustees then in office or a majority of the members of such committee, as the case may be, and such written consent is filed with the minutes of the proceedings of the Trustees or such committee.
ARTICLE 3
Officers
3.1 Enumeration and Qualification. The officers of the Trust shall be a President, a Chief Compliance Officer, a Treasurer, a Secretary and such other officers, including Vice Presidents, if any, as the Trustees from time to time may in their discretion elect. The Trust also may have such agents as the Trustees from time to time may in their discretion appoint. Any officer may be, but need not be, a Trustee or shareholder. The same person may hold any two or more offices.
3.2 Election. The President, the Treasurer and the Secretary shall be elected annually by the Trustees. The Chief Compliance Officer must be appointed by the Trustees, including a majority of the independent Trustees, as defined in the Investment Company Act of 1940 (the “Independent Trustees”). Other officers, if any, may be elected or appointed by the Trustees at any time. Vacancies in any office may be filled at any time, provided, however, that filling a vacancy in the office of Chief Compliance Officer must be approved by the Trustees, including a majority of the Independent Trustees.
3.3 Tenure. The officers shall hold office for one year and until their respective successors are chosen and qualified, or in each case until he or she sooner dies, resigns, is removed or becomes disqualified. Each officer shall hold office and each agent shall retain authority at the pleasure of the Trustees.
3.4 Powers. Subject to the other provisions of these By-Laws, each officer shall have, in addition to the duties and powers herein and in the Declaration of Trust set forth, such duties and powers as are commonly incident to the office occupied by him or her as if the Trust were organized as a Delaware business corporation and such other duties and powers as the Trustees may from time to time designate.
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3.5 President. Unless the Trustees otherwise provide, the President, or in the absence of the President, any Trustee chosen by the Trustees, shall preside at all meetings of the shareholders and of the Trustees. The President shall be the chief executive officer.
3.6 Chief Compliance Officer. The Chief Compliance Officer of the Trust will be responsible for administering its compliance policies and procedures, shall have sufficient authority and independence within the organization to compel others to adhere to the compliance policies and procedures, shall report directly to the Board, shall annually furnish a written report on the operation of the compliance policies and procedures to the Board and shall perform such other duties as prescribed by the Board.
3.7 Treasurer. The Treasurer shall be the chief financial and accounting officer of the Trust, and shall, subject to the provisions of the Declaration of Trust and to any arrangement made by the Trustees with a custodian, investment adviser or manager, or transfer, shareholder servicing or similar agent, be in charge of the valuable papers, books of account and accounting records of the Trust, and shall have such other duties and powers as may be designated from time to time by the Trustees or by the President.
3.8 Secretary. The Secretary shall record all proceedings of the shareholders and the Trustees in books to be kept therefor, which books or a copy thereof shall be kept at the principal office of the Trust. In the absence of the Secretary from any meeting of the shareholders or Trustees, an assistant secretary, or if there be none or if he or she is absent, a temporary secretary chosen at such meeting shall record the proceedings thereof in the aforesaid books.
3.9 Resignations and Removals. Any Trustee or officer may resign at any time by written instrument signed by him or her and delivered to the President or the Secretary and to a meeting of the Trustees. Such resignation shall be effective upon receipt unless specified to be effective at some other time. The Trustees may remove any officer elected by them with or without cause, provided, however, that removal of the Chief Compliance Officer will require approval of the Trustees, including a majority of the Independent Trustees. Except to the extent expressly provided in a written agreement with the Trust, no Trustee or officer resigning and no officer removed shall have any right to any compensation for any period following his or her resignation or removal, or any right to damages on account of such removal.
ARTICLE 4
Committees
4.1 General. The Trustees, by vote of a majority of the Trustees then in office, may elect from their number an Executive Committee or other committees and may delegate thereto some or all of their powers except those which by law, by the Declaration of Trust, or by these By-Laws may not be delegated. Except as the Trustees may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Trustees or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these By-Laws for the Trustees themselves. All members of such committees
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shall hold such offices at the pleasure of the Trustees. The Trustees may abolish any such committee at any time. Any committee to which the Trustees delegate any of their powers or duties shall keep records of its meetings and shall report its action to the Trustees. The Trustees shall have power to rescind any action of any committee, but no such rescission shall have retroactive effect.
ARTICLE 5
Reports
5.1 General. The Trustees and officers shall render reports at the time and in the manner required by the Declaration of Trust or any applicable law. Officers and Committees shall render such additional reports as they may deem desirable or as may from time to time be required by the Trustees.
ARTICLE 6
Fiscal Year
6.1 General. The fiscal year of the Trust shall be fixed by, and shall be subject to change by, the Trustees.
ARTICLE 7
Seal
7.1 General. If required by applicable law, the seal of the Trust shall consist of a flat-faced die with the word “Delaware”, together with the name of the Trust and the year of its organization cut or engraved thereon, but, unless otherwise required by the Trustees, the seal shall not be necessary to be placed on, and its absence shall not impair the validity of, any document, instrument or other paper executed and delivered by or on behalf of the Trust.
ARTICLE 8
Execution of Papers
8.1 General. Except as the Trustees may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, contracts, notes and other obligations made by the Trustees shall be signed by the President, any Vice President, the Secretary or by the Treasurer and need not bear the seal of the Trust.
ARTICLE 9
Issuance of Share Certificates
9.1 Share Certificates. In lieu of issuing certificates for shares, the Trustees or the transfer agent may either issue receipts therefor or may keep accounts upon the books of the Trust for the record holders of such shares, who shall in either case be deemed, for all purposes
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hereunder, to be the holders of certificates for such shares as if they had accepted such certificates and shall be held to have expressly assented and agreed to the terms hereof.
The Trustees may at any time authorize the issuance of share certificates. In that event, each shareholder shall be entitled to a certificate stating the number of shares owned by him, in such form as shall be prescribed from time to time by the Trustees. Such certificate shall be signed by the President or a Vice-President and by the Treasurer or Assistant Treasurer. Such signatures may be facsimiles if the certificate is signed by a transfer agent, or by a registrar, other than a Trustee, officer or employee of the Trust. In case any officer who has signed or whose facsimile signature has been placed on such certificate shall cease to be such officer before such certificate is issued, it may be issued by the Trust with the same effect as if he were such officer at the time of its issue.
9.2 Loss of Certificates. In case of the alleged loss or destruction or the mutilation of a share certificate, a duplicate certificate may be issued in place thereof, upon such terms as the Trustees shall prescribe.
9.3 Issuance of New Certificate to Pledgee. In the event certificates have been issued, a pledgee of shares transferred as collateral security shall be entitled to a new certificate if the instrument of transfer substantially describes the debt or duty that is intended to be secured thereby. Such new certificate shall express on its face that it is held as collateral security, and the name of the pledgor shall be stated thereon, who alone shall be liable as a shareholder, and entitled to vote thereon.
9.4 Discontinuance of Issuance of Certificates. The Trustees may at any time discontinue the issuance of share certificates and may, by written notice to each shareholder, require the surrender of share certificates to the Trust for cancellation. Such surrender and cancellation shall not affect the ownership of shares in the Trust.
ARTICLE 10
Custodian
10.1 General. The Trust shall at all times employ a bank or trust company having a capital, surplus and undivided profits of at least Five Hundred Thousand ($500,000) Dollars as Custodian of the capital assets of the Trust. The Custodian shall be compensated for its services by the Trust and upon such basis as shall be agreed upon from time to time between the Trust and the Custodian.
ARTICLE 11
Dealings with Trustees and Officers
11.1 General. Any Trustee, officer or other agent of the Trust may acquire, own and dispose of shares of the Trust to the same extent as if he were not a Trustee, officer or agent; and
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the Trustees may accept subscriptions to shares or repurchase shares from any firm or company in which he is interested.
ARTICLE 12
Shareholders
12.1 Meetings. A meeting of the shareholders of the Trust shall be held whenever called by the Trustees, whenever election of a Trustee or Trustees by shareholders is required by the provisions of Section 16(a) of the Investment Company Act of 1940 for that purpose or whenever otherwise required pursuant to the Declaration of Trust. Any meeting shall be held on such day and at such time as the President or the Trustees may fix in the notice of the meeting. In addition to being held within or outside the State of Delaware as described under Article V, Section 2 of the Declaration of Trust, meetings of shareholders may be held by means of remote communication. Shareholders voting by remote communication shall be deemed to be voting in person. Shareholder proponents presenting proposals pursuant to Securities and Exchange Act Rule 14a-8(h) by remote communication shall be deemed to be in person.
12.2 Record Dates. For the purpose of determining the shareholders who are entitled to vote or act at any meeting or any adjournment thereof, or who are entitled to receive payment of any dividend or of any other distribution, the Trustees may from time to time fix a time, which shall be not more than 180 days before the date of any meeting of shareholders or the date for the payment of any dividend or of any other distribution, as the record date for determining the shareholders having the right to notice of and to vote at such meeting and any adjournment thereof or the right to receive such dividend or distribution, and in such case only shareholders of record on such record date shall have such right, notwithstanding any transfer of shares on the books of the Trust after the record date; or without fixing such record date the Trustees may for any such purposes close the register or transfer books for all or any part of such period.
ARTICLE 13
Amendments to the By-Laws
13.1 General. These By-Laws may be amended or repealed, in whole or in part, only by a majority of the Trustees then in office at any meeting of the Trustees, or by one or more writings signed by such a majority.
ARTICLE 14
Exchange Listing
14.1 Exchange Listing. If the Trust seeks to list its shares on the New York Stock Exchange, LLC (“NYSE”), then upon the effectiveness of approval for such listing, the minimum number of Trustees shall be three and the Trustees shall be elected in three classes. The Trustees shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of Trustees constituting the entire Board. Within the limits above specified, the number of the Trustees in each class shall be
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determined by resolution of the Board. The term of office of the first class shall expire on the date of the first annual meeting of Shareholders or special meeting in lieu thereof following the effective date of listing on the NYSE. The term of the second class shall expire on the date of the second annual meeting of Shareholders or special meeting in lieu thereof following the effective date of listing on the NYSE. The term of the third class shall expire on the date of the third annual meeting of Shareholders or special meeting in lieu thereof following the effective date of listing on the NYSE. Upon expiration of the term of office of each class as set forth above, the number of Trustees in such class, as determined by the Board, shall be elected for a three-year term expiring on the date of the third annual meeting of Shareholders or special meeting in lieu thereof following such expiration to succeed the Trustees whose terms of office expire. The Trustees shall be elected at an annual meeting of the Shareholders or special meeting in lieu thereof called for that purpose. These exchange-listing provisions shall be deemed consistent with the Declaration of Trust and not in conflict or inconsistent with the Declaration of Trust.
LIMITED PURPOSE TRI-PARTY CUSTODIAN AGREEMENT
THIS AGREEMENT, is made as of December 7, 2020, between Statebridge Company, LLC ("Statebridge"), Community Banks of Colorado, a division of NBH Bank, N.A. ("CBC" or "Custodian"), and Vertical Capital Income Fund ("Fund").
W I T N E S S E T H:
WHEREAS, the Fund wishes to employ CBC to act as a limited purpose custodian for the Fund and to provide related services, all as provided herein, and CBC is willing to accept such employment; and the Fund wishes to employ Statebridge to act as a limited purpose agent for the Fund and to provide related services, all as provided herein, and Statebridge is willing to accept such employment, subject to the terms and conditions herein set forth.
NOW, THEREFORE, for good and valuable consideration, the adequacy of which is acknowledged by each party; and in consideration of the mutual covenants and agreements herein contained, the Fund, CBC, and Statebridge hereby agree, as follows:
1. Appointment of Custodian and Agent.
The Fund hereby appoints CBC as custodian, and CBC hereby accepts such appointment. All checks and cash delivered to the Custodian shall be dealt with as provided in this Agreement. The duties of the Custodian with respect to the Fund's assets shall be only as set forth expressly in this Agreement, which duties are generally comprised of safekeeping assets and various administrative duties that will be performed in accordance with Instructions (as defined below) and as reasonably required to effect Instructions. The parties hereby incorporate by reference the Master Treasury Management Services Agreement dated July 30, 2018, as may be amended from time to time and all related schedules ("MTMSA"), for the purpose of identifying personnel of Statebridge who are authorized persons for the purpose of this Agreement ("Authorized Persons"). The president, treasurer and secretary of the Fund are also Authorized Persons.
2. Representations, Warranties and Covenants of the Fund and Statebridge.
2.1 This Agreement has been, and at the time of delivery of each Instruction, such Instruction will have been, duly authorized, executed and delivered by Statebridge or the Fund. Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law or conflicts with or constitutes a default under the Fund's organizational documents or any agreement, judgment, order or decree to which the Fund is a party.
2.2 Statebridge shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it. If Statebridge uses any on-line or similar communications service made available
by the Custodian, Statebridge and the Custodian each shall be solely responsible for ensuring the security of its access to the service and for the authorized use of the service, and shall only attempt to access the service and the Custodian's computer systems as directed by the Custodian.
3. Representation and Warranty of CBC as Custodian. CBC hereby represents and warrants that this Agreement has been duly authorized, executed and delivered by CBC and does not and will not violate any applicable law or conflict with or constitute a default under any agreement, instrument, judgment, order or decree to which CBC is a party or by which it is bound.
Instructions. Unless otherwise explicitly indicated herein, the Custodian shall perform its duties pursuant to Instructions. As used herein, the term "Instruction" shall mean a directive initiated by an Authorized Person of any actions made pursuant to the Servicing Agreement between Statebridge and the Fund, dated June 24, 2015, as may be amended from time to time (“Servicing Agreement”). Each Instruction from Statebridge shall be transmitted by such secured or authenticated electro-mechanical means as the Custodian shall make available to Statebridge pursuant to MTMSA unless the Fund elects to transmit such Instruction in accordance with Subsection 4.1.1.Instructions may be transmitted in a writing that bears the manual signature of an Authorized Person of the Fund.
If the Custodian determines that a Fund Instruction is either unclear or incomplete, the Custodian may give prompt notice of such determination to the Fund and the Fund shall thereupon amend or otherwise reform the Instruction. In such event, the Custodian shall have no obligation to take any action in response to the Instruction initially delivered until the redelivery of an amended or reformed Instruction. In addition, the Custodian shall be entitled to reasonably assume that all Instructions provided are being provided in accordance with the Servicing Agreement.
5. Safekeeping of Fund Assets. The Custodian shall hold assets delivered to it for the Fund in accordance with the provisions of this Section. Such assets include an interest or non-interest bearing deposit account with the Custodian. The Custodian shall hold assets for the account of the Fund (as identified as a sub-account by Statebridge in MTMSA entitled Statebridge Company LLC ITF Vertical Capital Income Fund (P&I), Acc. # 2080255)) and shall segregate such from assets belonging to the Custodian.
6. Administrative Duties of Statebridge and the Custodian. Statebridge and the Custodian shall perform the following administrative duties with respect to the assets of the Fund.
6.1 Income Collection. Unless otherwise directed by an Instruction, Statebridge shall collect any amount due and payable to the Fund and promptly credit the amount collected to the Fund's Account. Statebridge is hereby authorized to endorse and deliver any instrument required to be so endorsed and delivered to
effect collection of any amount due and payable to the Fund with respect to Fund assets.
6.2 Other Dealings. The Custodian shall otherwise act as directed by Instruction, including without limitation effecting the free payments of moneys, provided that such Instruction shall indicate the purpose of such payment or delivery and that the Custodian shall record the party to whom the payment or delivery is made.
6.3 Use of Agents. The Custodian may appoint (and remove) any affiliate, bank, trust fund or subcontractor as its agent (each an "Agent" and collectively, the "Agents"), in addition to subcustodians, to carry out such provisions of this Agreement. The Custodian shall exercise reasonable care in the selection and monitoring of such Agents and subcustodians. The appointment of an Agent or subcustodian shall not relieve the Custodian of its obligations under this Agreement.
7. Responsibility of the Custodian. In performing its duties and obligations hereunder, the Custodian shall use reasonable care under the facts and circumstances prevailing in the market where performance is effected. Subject to the specific provisions of this Section, the Custodian shall be liable to the Fund for any damage incurred by the Fund in consequence of the Custodian's (or its employees', officers' or other agents') gross negligence, bad faith or willful misconduct. In no event shall the Custodian be liable hereunder for any special, indirect, punitive or consequential damages arising out of, pursuant to or in connection with this Agreement even if advised of the possibility of such damages.
7.1 Limitations of Performance. The Custodian shall not be responsible under this Agreement for any failure to perform its duties, and shall not be liable hereunder for any loss or damage in association with such failure to perform for or in consequence of the following causes:
7.1.1 Force Majeure. Force Majeure shall mean any circumstance or event which is beyond the reasonable control of the Custodian, which adversely affects the performance by the Custodian of its obligations hereunder, or by any other Agent of the Custodian, including any event caused by, arising out of or involving (a) an act of God, (b) accident, fire, water or wind damage or explosion, (c) any computer, system or other equipment failure or malfunction caused by any computer virus or the malfunction or failure of any communications medium, (d) any interruption of the power supply or other utility service, (e) any strike or other work stoppage, whether partial or total, or (f) any other cause similarly beyond the reasonable control of the Custodian.
7.2. Limitations on Liability and Indemnification. The Custodian shall not be liable for any loss, claim, damage or other liability arising from the following causes:
7.2.1 Failure of Third Parties. The failure of any third party similarly beyond the control or choice of the Custodian.
7.2.2 Information Sources. The Custodian may rely upon information received from commercially reasonable sources such as commercial data bases and the like, but shall not be responsible for specific inaccuracies in such information (provided that the Custodian has relied upon such information in good faith), or the failure of any commercially reasonable information provider.
7.2.3 Reliance on Instruction. Action by the Custodian or a subcustodian in accordance with an Instruction, even when such action conflicts with, or is contrary to any provision of, the Fund's trust instrument, certificate of trust or by-laws, Applicable Law, or actions by the trustees, or shareholders of the Fund.
7.2.4 Indemnification. The Fund hereby indemnifies CBC and Statebridge, and their agents, nominees and the partners, employees, officers and directors, and agrees to hold each of them harmless from and against all claims and liabilities, including counsel fees and taxes, incurred or assessed against any of them in connection with the performance of this Agreement and any Instruction. If any other person indemnified under the preceding sentence, gives written notice of claim to CBC or Statebridge, the notified party shall promptly give written notice to the Fund. However, the Fund does not waive any claim that may arise against Statebridge pursuant to the Servicing Agreement between Statebridge and the Fund.
8. Reports and Records. CBC shall:
8.1 create and maintain records relating to the performance of its obligations under this Agreement (including such reports as may be required pursuant to Section 31(a) of the 1940 Act and the rules thereunder);
8.2 make available to and copy for the Fund (at the Fund's expense), its auditors, agents and employees, upon reasonable request and during its normal business hours, all records maintained by CBC pursuant to Section 8.1 above, subject, however, to all reasonable security requirements of CBC then applicable to the records of its customers generally; and
8.3 make available to the Fund all Electronic Reports; it being understood that CBC shall not be liable hereunder for the inaccuracy or incompleteness thereof or for errors in any information included therein.
8.4 The Fund shall examine all records, however produced or transmitted, promptly upon receipt and notify CBC promptly of any discrepancy or error. Unless the Fund delivers written notice of any such discrepancy or error within a
reasonable time after its receipt of the records, the records shall be deemed to be true and accurate.
8.5 The Fund acknowledges that the Custodian obtains information from outside sources which may be utilized in certain reports made available to the Fund. The Custodian deems such sources to be reliable but the Fund acknowledges and agrees that the Custodian does not verify such information nor make any representations or warrantees as to its accuracy or completeness and accordingly shall be without liability in selecting and using such sources and furnishing such information.
9. Miscellaneous.
9.1 Powers of Attorney, etc. The Fund and Statebridge will promptly execute and deliver, upon request, such proxies, powers of attorney or other instruments as may reasonably be necessary or desirable for the Custodian to provide the services contemplated by this Agreement.
9.2 Entire Agreement; Amendment. This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes any other oral or written agreements heretofore in effect between the Fund and the Custodian with respect to the subject matter hereof. No provision of this Agreement may be amended or terminated except by a statement in writing signed by the party against which enforcement of the amendment or termination is sought, provided, however, that an Instruction shall, whether or not such Instruction shall constitute a waiver, amendment or modification for purposes hereof, be deemed to have been accepted by the Custodian when it commences actions pursuant thereto or in accordance therewith. In the event of a conflict between the terms of this Agreement and the terms of a service level agreement or other operating agreement in place between the parties from time to time, the terms of this Agreement shall control.
9.3 Binding Effect; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Custodian, the Fund, and Statebridge and their successors and assignees, provided that no party may assign this Agreement without the prior written consent of the other parties. Each party agrees that only the parties to this Agreement and/or their successors in interest shall have a right to enforce the terms of this Agreement. Accordingly, no client of Statebridge, the Fund or other third party shall have any rights under this Agreement and such rights are explicitly disclaimed by the parties.
9.4 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MISSOURI AND THE FEDERAL COURTS
LOCATED IN MISSOURI. THE FUND AND STATEBRIDGE IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FURTHERMORE, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9.5 Notices. Notices and other writings contemplated by this Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first class registered or certified mail, postage prepaid, return receipt requested, (c) by a nationally recognized overnight courier, or (d) by facsimile transmission, provided that any notice or other writing sent by facsimile transmission shall also be mailed, postage prepaid, to the party to whom such notice is addressed. All such notices shall be addressed, as follows:
If to the Fund:
c/o Gemini Fund Services, LLC
80 Arkay Drive
Hauppauge, New York 11788
Attn: Jennifer Farrell
Telephone: (631) 470-2778
If to the Custodian:
Kathy Mitchley
VP, Treasury Management
1111 Main St., Suite 2600
Kansas City, MO 64105
If to Statebridge:
Kevin Kanouff
kkanouff@statebridgecompany.com
(720) 931-6201
6061 South Willow Drive, Suite 300
Greenwood Village, CO 80111
or such other address as the parties may have designated in writing to the other. Notices may also be given by electronic mail to the email address of any Authorized Person. The Fund and Statebridge agree that such notices given by electronic mail shall be conclusively presumed to have been delivered and received by the Fund as of the date such electronic mail was sent by the Custodian, as recorded by the Custodian's systems.
9.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. This Agreement shall become effective when one or more counterparts have been signed and delivered by Statebridge, the Fund and the Custodian. A photocopy or telefax of the Agreement shall be acceptable evidence of the existence of the Agreement and the parties shall be protected in relying on the photocopy or telefax until the party has received the original of the Agreement.
9.10 Tape-recording. The Fund and Statebridge authorize the Custodian to tape record any and all telephonic or other oral instructions given to the Custodian by or on behalf of the Fund or Statebridge, including from any Authorized Person. This authorization will remain in effect until and unless revoked by a granting party in writing.
9.11 Conflict. Nothing contained in this Agreement shall prevent the Custodian and its associates from (i) acting as a custodian, a subcustodian, a trustee, an agent, securities dealer, an investment manager or in any other capacity for any other client whose interests may be adverse to the interest of the Fund; or (ii) buying, holding, lending, and dealing in any way in any assets for the benefit of its own account, or for the account of any other client whose interests may be adverse to the Fund notwithstanding that the same or similar assets may be held or dealt in by, or for the account of the Fund by the Custodian.
10. Termination. This Agreement may be terminated by either party in accordance with the provisions of this Section. The provisions of this Agreement and any other rights or obligations incurred or accrued by any party hereto prior to termination of this Agreement shall survive any termination of this Agreement.
10.1 Term, Notice and Effect. This Agreement shall continue unless any party terminates this Agreement by written notice effective ninety (90) days or more following delivery of that notice to the other party at its address set forth hereof. Notwithstanding the foregoing provisions, any party may terminate this Agreement at any time (a) for cause, which is a material breach of the Agreement not cured within 60 days, in which case termination shall be effective upon written receipt of notice by the non-terminating party, or (b) upon thirty (30) days written notice to the other party in the event that either party is adjudged bankrupt or insolvent, or there shall be commenced against such party a case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect.
10.2 Notice and Succession. In the event a termination notice is given by a party hereto, all reasonable costs and expenses associated with any required systems, facilities, procedures, personnel, and other resourced modifications as well as the movement of records and materials and the conversion thereof shall be paid by the Fund for which services shall cease to be performed hereunder. Furthermore, to the extent that it appears impracticable given the circumstances to effect an orderly delivery of the necessary and appropriate records of CBC to a
successor within the time specified in the notice of termination as aforesaid, CBC, Statebridge and the Fund agree that this Agreement shall remain in full force and effect for such reasonable period as may be required to complete necessary arrangements with a successor.
signature page follows
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document.
|
Statebridge Company, LLC
By
/s/ Kevin Kanouff CEO |
Community Banks of Colorado
By
/s/ Sarah E. Burchett Commercial Banking Interim Managing Director |
Vertical Capital Income Fund
By
/s/ Stanton Eigenbrodt Secretary |
VERTICAL CAPITAL INCOME FUND
OPERATING EXPENSES LIMITATION AGREEMENT
THIS OPERATING EXPENSES LIMITATION AGREEMENT (the "Agreement"), which supersedes any prior operating expense limitation
agreements, is effective as of October 1, 2020, by and between VERTICAL CAPITAL INCOME FUND, a Delaware statutory trust (the "Fund"),
and the Advisor of such Fund, OAKLINE ADVISORS, LLC (the "Advisor").
WITNESSETH:
WHEREAS, the Advisor renders advice and services to the Fund pursuant to the terms and provisions of an investment advisory agreement
(the "Investment Advisory Agreement") between the Fund and the Advisor; and
WHEREAS, the Fund is responsible for, and has assumed the obligation for payment of certain expenses pursuant to the Investment
Advisory Agreement that have not been assumed by the Advisor; and
WHEREAS, the Advisor desires to limit the Fund's Operating Expenses (as that term is defined in Paragraph 2 of this Agreement)
pursuant to the terms and provisions of this Agreement, and the Fund desires to allow the Advisor to implement those limits;
NOW THEREFORE, in consideration of the covenants and the mutual promises hereinafter set forth, the parties, intending to be legally
bound hereby, mutually agree as follows:
1. Limit on Operating Expenses. The Advisor hereby agrees to limit the Fund's current Operating Expenses to an annual rate,
expressed as a percentage of Fund average daily net assets, to the amounts listed in Appendix A (the "Annual Limit")
for the time periods indicated. In the event that the current Operating Expenses of the Fund, as accrued each month, exceed the
respective Annual Limit, the Advisor will, as needed, waive its fees and pay to the Fund, on a monthly basis, the excess expense
within 30 days of being notified that an excess expense payment is due.
2. Definition. For purposes of this Agreement, the term "Operating Expenses" with respect to the Fund, is defined
to include all expenses necessary or appropriate for the operation of the Fund and including the Advisor's investment advisory
or management fee detailed in the Investment Advisory Agreement, any shareholder servicing fees, distribution fees and other expenses
described in the Investment Advisory Agreement, but does not include any front-end or contingent deferred loads, taxes, leverage
interest, borrowing interest, borrowing related fees, brokerage commissions, expenses incurred in connection with any merger or
reorganization, dividend expense on securities sold short, acquired (underlying) fund fees and expenses, expenses deemed
by the Fund’s Board of Trustees as unusual non-recurring expenses, or extraordinary expenses such as litigation and Advisor transition expenses.
3. Reimbursement of Fees and Expenses. The Advisor retains its right to receive reimbursement of any waiver and/or excess
expense payments paid by it pursuant to this Agreement within three fiscal years following the month in which the waiver and/or
expenses were incurred, even if the repayment occurs after the termination of the limitation period, provided that the Advisor
remains the investment adviser to the Fund and that the Operating Expenses have fallen to a level below the Annual Limit and the
reimbursement amount does not raise the level of Operating Expenses in the month the repayment is being made to a level that exceeds
the Annual Limit or any then-current expense limit.
4. Term. This Agreement shall become effective on the date specified herein and remain in effect at least through the date
listed in Appendix A, unless sooner terminated as provided in Paragraph 5 of this Agreement. Additionally, this Agreement
shall continue for successive 12-month periods upon approval by the Fund’s Board of Trustees and the Advisor.
5. Termination. This Agreement may be terminated at any time, and without payment of any penalty, by the Board of Trustees
of the Fund, written notice to the Advisor. This Agreement may not be terminated by the Advisor without the consent of the Board
of Trustees of the Fund. This Agreement will automatically terminate if the Investment Advisory Agreement for the Fund is terminated,
with such termination effective upon the effective date of the Investment Advisory Agreement's termination for the Fund.
6. Assignment. This Agreement and all rights and obligations hereunder may not be assigned without the written consent of
the other party.
7. Severability. If any provision of this Agreement shall be held or made invalid by a court decision, statute or rule,
or shall be otherwise rendered invalid, the remainder of this Agreement shall not be affected thereby.
8. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York
without giving effect to the conflict of laws principles thereof; provided that nothing herein shall be construed to preempt, or
to be inconsistent with, any federal law, regulation or rule, including the Investment Company Act of 1940 and the Investment Advisers
Act of 1940 and any rules and regulations promulgated thereunder.
Appendix A
| Annualized Percentage of Average Daily Net Assets |
Minimum Duration |
| 2.50% | Through September 30, 2021 |
----------signature page follows---------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and attested by their duly authorized officer or officers.
| VERTICAL CAPITAL INCOME FUND | OAKLINE ADVISORS, LLC |
| By: /s/__________________ | By: /s/__________________ |
| Name: Stanton P. Eigenbrodt | Name: Stanton P. Eigenbrodt |
| Title: Secretary | Title: Executive Vice President |
transfer agency and registrar services agreement
This Transfer Agency and Registrar Services Agreement (this “Agreement”), dated as of April 24, 2019 (the “Effective Date”), is entered into by and between Vertical Capital Income Fund, a Delaware statutory trust (the “Company”), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company (“AST”; together with the Company, the “Parties”; each, the “Party”).
1. Appointment of AST as Transfer Agent and Registrar.
(a) The Company hereby appoints AST, and AST hereby accepts such appointment, to act as sole transfer agent and registrar (the “Transfer Agent”) for the shares of beneficial interest (also referred to as common stock) of the Company and for any other securities of the Company as requested in writing by the Company from time to time (the “Shares”). AST shall perform only those duties and obligations that are specifically set forth in this Agreement, and no implied duties and obligations shall be read into this Agreement against AST.
(b) On or immediately after the Effective Date, the Company shall deliver to AST the following: (i) forms of outstanding stock certificates of the Company (the “Stock Certificates”) approved and authorized by the board of trustees of the Company (the “Board”) and certified by the corporate secretary or similar authorized officers of the Company; (ii) incumbency certificates of the officers of the Company who are authorized to (x) execute Stock Certificates and/or (y) deliver written instructions and requests on behalf of the Company to AST; (iii) copies of the organizational documents of the Company, certified by the corporate secretary or similar authorized officers of the Company; (iv) a sufficient supply of blank Stock Certificates executed by (or bearing the facsimile signature of) the officers of the Company who are authorized to execute Stock Certificates and, if required, bearing the Company’s corporate seal; (v) a schedule that lists the class of the Shares, the par value of the Shares, and the number of authorized Shares; and (vi) all documentation or information reasonably requested by AST that is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended. The Company authorizes AST to use Stock Certificates bearing the signature of an authorized officer of the Company who at the time of use is no longer an officer.
(c) The Company shall promptly advise AST in writing of any change in the capital structure of the Company, and the Company shall promptly provide AST with resolutions of the Board authorizing any recapitalization of the Shares or change in the number of issued or authorized Shares. Further, the Company shall advise AST reasonably promptly of any amendment or supplement to any information or materials provided by the Company to AST and shall provide such amendment or supplement to AST as soon as practicable.
(d) The Company hereby authorizes AST to establish a program (the “DRS Sale Program”) through which a holder of one or more Shares (each, a “Shareholder”) may elect to sell any Shares held in book-entry form through the Direct Registration System. The Company shall not be charged by AST for establishing or administering the DRS Sale Program, and AST shall be entitled to charge a transaction fee as set forth on Schedule 2 to any Shareholder that elects to sell Shares through the DRS Sale Program. The Company hereby appoints AST, and AST hereby accepts such appointment, to act as the administrator of the DRS Sale Program.
2. Term. The initial term of this Agreement shall be three (3) years from the date hereof, and this Agreement shall automatically renew for additional three-year successive terms (each, a “Term”)
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without further action of the Parties, unless written notice is provided by either Party at least ninety (90) days prior to the end of the initial or any subsequent three-year period. The Term shall be governed by this Section, notwithstanding the cessation of active trading of the Shares.
3. Fees; Expenses.
(a) As consideration for the services listed on Schedule 1 (the “Services”), the Company shall pay to AST the fees set forth on Schedule 2 (the “Fees”). If the Company requests that AST provide additional services not contemplated hereby, the Company shall pay to AST fees for such services at AST’s reasonable and customary rates, such fees to be governed by the terms of a separate agreement to be mutually agreed to and entered into by the Parties at such time (the “Additional Service Fee”; together with the Fees, the “Service Fees”).
(b) The Company shall reimburse AST for all reasonable and documented expenses incurred by AST (including, without limitation, reasonable and documented fees and disbursements of counsel) in connection with the Services (the “Expenses”); provided, however, that AST reserves the right to request advance payment for any out-of-pocket expenses. The Company agrees to pay all Service Fees and Expenses within thirty (30) days following receipt of an invoice from AST.
(c) The Company agrees and acknowledges that AST may adjust the Service Fees annually, on or about each anniversary date of this Agreement, by the annual percentage of change in the latest Consumer Price Index of All Urban Consumers United States City Average, as published by the U.S. Department of Labor, Bureau of Labor Statistics.
(d) Upon termination of this Agreement for any reason, AST shall assist the Company with the transfer of records of the Company held by AST. AST shall be entitled to reasonable additional compensation and reimbursement of any Expenses for the preparation and delivery of such records to the successor agent or to the Company, and for maintaining records and/or Stock Certificates that are received after the termination of this Agreement (the “Record Transfer Services”).
| 4. | Representations and Warranties. |
(a) The Company represents and warrants to AST that (i) it is duly organized and validly existing and in good standing under the laws of the state of its organization; (ii) it has all requisite power and authority to enter into this Agreement and to perform the transactions contemplated hereby; (iii) the execution, delivery and performance of this Agreement and the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company; and (iv) this Agreement has been duly executed and delivered and is the legally valid and binding obligation of the Company, enforceable against the Company in accordance with the Agreement’s terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought by proceeding in equity or at law).
(b) All Shares issued and outstanding as of the date hereof, or to be issued during the Term, are or shall be duly authorized, validly issued, fully paid and non-assessable. All such Shares are or shall be duly registered under the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(c) Any Shares that are not registered under the Securities Act and the Exchange Act are or shall be issued or transferred in a transaction that is, or a series of transactions that are, exempt from the registration provisions under the Securities Act and the Exchange Act, and such Shares bear or shall bear the applicable restrictive legends. Upon any issuance or transfer of such Shares, the Company shall
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deliver to AST a legal opinion in form and substance reasonably satisfactory to AST.
5. Reliance.
(a) AST shall be entitled to assume the validity of the issuance, presentation or transfer of a Stock Certificate, the genuineness of any endorsement(s), the authority of its presenter(s), or the collection or payment of charges or taxes incident to the issuance or transfer of such Stock Certificate; provided, however, that AST may delay or decline to issue or transfer a Stock Certificate if it determines in good faith and in its sole discretion that it is in the Company’s and/or AST’s best interests to receive evidence or written assurance of the validity of the issuance, presentation or transfer of the Stock Certificate, the authority of its presenter(s) or the collection or payment of any charges or taxes relating to the issuance or transfer.
(b) In its capacity as successor transfer agent, AST shall not be responsible or liable for any discrepancy between its records and the Company’s records, unless, prior to or contemporaneously with the transfer of records from the Company’s prior transfer agent, an authorized officer of the Company has notified AST in writing that no discrepancy existed between the Company’s records and the records in the possession of the prior transfer agent. For the avoidance of doubt, AST shall not be responsible for any transfer or issuance of Shares that has not been effected by AST.
(c) AST may rely on, and shall be protected and incur no liability in acting or refraining from acting in reliance upon: (i) any writing or other instruction, including, but not limited to, oral instruction, certificate, instrument, opinion, notice, letter, stock power, affidavit or other document or security, received from any Person (as defined below) it believes in good faith to be an authorized officer, agent or employee of the Company, unless the Company has advised AST in writing that AST must act and rely only on written instructions of certain authorized officers of the Company; (ii) any statement of fact contained in any such writing or instruction which AST in good faith believes to be accurate; (iii) other authenticity and genuineness of any signature (manual, facsimile or electronic) appearing on any writing, including, but not limited to, any certificate, instrument, opinion, notice, letter, stock power, affidavit or other document or security; and (iv) the conformity to original of any copy. AST may act and rely on the advice, opinions or instructions received from the Company’s legal counsel. In the event that the Company or its legal counsel is unavailable or does not respond to AST’s requests for legal advice, AST may seek the advice of AST’s own legal counsel (including its internal legal counsel), and AST shall be entitled to act and rely on the advice, opinion or instruction of such counsel, which shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by AST pursuant to such advice, opinion or instruction. Without limiting the foregoing, AST shall be entitled to use and rely upon any instructions of the Company without responsibility for independent verification thereof and shall not assume responsibility for the accuracy or completeness of such instructions.
(d) AST may rely on, and shall be protected and incur no liability in acting or refraining from acting in reliance upon: (i) any writing or other instruction believed by AST in good faith to have been furnished by or on behalf of a Shareholder, including, but not limited to, any oral instruction, certificate, instrument, opinion, notice, letter, stock power, affidavit or other document or security; (ii) any statement of fact contained in any such writing or instruction which AST in good faith believes to be accurate; (iii) the apparent authority of any Person to act on behalf of a Shareholder as having actual authority to the extent of such apparent authority; (iv) the authenticity and genuineness of any signature (manual, facsimile or electronic) appearing on any writing, including, but not limited to, any certificate, instrument, opinion, notice, letter, stock power, affidavit or other document or security; and (v) on the conformity to original of any copy. AST is authorized to reject any transfer request that fails to satisfy AST’s internal procedures relating to the transfer of Shares. Without limiting the foregoing, AST shall be entitled to use and rely upon any instructions of a Shareholder or its representatives without responsibility for
| 3 |
independent verification thereof and shall not assume responsibility for the accuracy or completeness of such instructions.
(e) AST may rely on, and shall be protected and incur no liability in acting or refraining from acting in reliance upon: (i) any information, records, documents and communication provided to AST by any former transfer agent or former registrar of the Company; (ii) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable signature guarantee program or insurance program; or (iii) any instructions received through the Depository Trust Company’s Direct Registration System/Profile service.
(f) AST shall promptly notify the Company upon receipt of a Stock Certificate that is not reflected in AST’s records. If the Company and AST are unable to account for such Stock Certificate, within sixty (60) days of such determination, the Company shall in its sole discretion (a) increase the number of issued Shares or (b) acquire and cancel a number of Shares to account for such Stock Certificate.
6. Lost, Stolen or Destroyed Certificates. AST shall not be obligated to issue a replacement certificate for any Stock Certificate reported to have been lost, stolen or destroyed, unless AST shall have received from the applicable Shareholder: (a) an affidavit of loss; (b) an indemnity bond in form and substance reasonably satisfactory to AST; and (c) payment of all applicable processing fees; provided that, upon the Company’s written request, AST may, in its sole discretion, accept an indemnification letter from the Company in lieu of an indemnity bond.
7. Unclaimed Property.
(a) To the extent required by applicable unclaimed property laws or if requested by the Company, AST will provide, or cause to be provided, unclaimed property reporting services for unclaimed property that may be deemed abandoned or otherwise subject to unclaimed property law. Such services may include (without limitation) (i) identification of unclaimed or abandoned property, (ii) preparation of unclaimed or abandoned property reports, (iii) delivery of unclaimed or abandoned property to the applicable state unclaimed property departments, (iv) completion of required due diligence notifications, (v) responses to inquiries from Shareholders relating to unclaimed or abandoned property, and (vi) such other services as may reasonably be necessary to comply with unclaimed property laws or regulations. The Company shall assist and cooperate with AST as reasonably necessary in connection with the performance of the services described in this Section. AST shall assist the Company in responding to (x) inquiries from state unclaimed property departments regarding reports filed by or on behalf of the Company or (y) requests for the confirmation of names of owners of unclaimed or abandoned property.
(b) The Company acknowledges and agrees that AST may use a shareholder locating service provider (the “Locating Service Provider”) to locate and contact Shareholders (or their surviving relatives, joint tenants or heirs, as applicable) to assist them in preventing the escheatment of applicable Shares and related unclaimed or abandoned property. The Company shall not be charged by AST or the Locating Service Provider for such services. The Locating Service Provider shall inform the Shareholders that they may elect (x) to contact AST at no charge other than at AST’s applicable fees or (y) to utilize the services of the Locating Service Provider for a fee, which shall not exceed the maximum fee allowed under the applicable state’s unclaimed property rules.
8. Confidentiality.
(a) “Confidential Information” means, as to the Disclosing Party (as defined below) and, if
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applicable, its Affiliates: (i) information concerning the business of the Disclosing Party and, if applicable, its Affiliates (including, without limitation, business, financial, technical, and other information marked or designated by such Party as “confidential” or “proprietary”, historical financial statements, financial projections and budgets, audits, tax returns and accountants’ materials, historical, current and projected sales, capital spending budgets and plans, business plans, strategic plans, marketing and advertising plans, publications, and customer agreements); (ii) information that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential; (iii) information, including account information, relating to the shareholders of the Disclosing Party; and (iv) all notes, analyses, compilations, studies, summaries and other material prepared by the Receiving Party (as defined below), its Affiliates, employees, agents, and representatives containing or based, in whole or in part, on any or all of the foregoing; provided that Confidential Information shall not include any information that (x) is or becomes (through no improper action or inaction of the Receiving Party) generally available to the public; (y) was rightfully disclosed to the Receiving Party by a third party without a breach of any confidentiality obligations hereunder; or (z) was independently developed by the Receiving Party without reference to or use of any Confidential Information.
(b) “Affiliates” means, as to a specified Person, another Person that directly, or indirectly, controls or is controlled or is under common control with the specified Person; “Person” means any corporation, limited liability company, partnership or other legal entity; and “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “controlled” shall have corresponding meanings.
(c) Each Party (the “Receiving Party”) acknowledges that it may acquire or have access to Confidential Information of the other Party (the “Disclosing Party”) in connection with the Services or this Agreement. The Receiving Party shall not disclose Confidential Information to any other Person, and shall not use Confidential Information for any purposes other than in connection with the performance of its obligations under this Agreement; provided that the Receiving Party shall be permitted to disclose Confidential Information (i) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law or compulsory legal process based on the advice of counsel (in which case the Receiving Party agrees, to the extent practicable and not prohibited by applicable law, to inform the Disclosing Party promptly thereof prior to disclosure; provided, however, that this clause shall not require AST to notify the Company of its receipt of any subpoena, summons, or other legal process relating to wage garnishment, tax levy or domestic matter proceedings filed against or by a Shareholder); or (ii) upon the request or demand of any regulatory authority having jurisdiction over the Receiving Party (in which case the Receiving Party agrees, to the extent practicable and not prohibited by applicable law, to inform the Disclosing Party promptly thereof prior to disclosure). The Receiving Party shall safeguard the Confidential Information to the same extent that it safeguards its own confidential information of a like nature and in any event with not less than a reasonable degree of care.
(d) Upon the termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party shall, at the Disclosing Party’s option, either destroy or return to the Disclosing Party any and all of the Confidential Information, written or other materials derived from the Confidential Information, and copies thereof, and shall delete and purge permanently all copies and traces of the same from any storage location and/or media to the extent reasonably or technically possible. The Receiving Party shall, within fifteen (15) days from the termination of this Agreement or such request, provide the Disclosing Party with a certificate signed by an authorized officer of the Receiving Party confirming that the Receiving Party has fulfilled its obligations under this clause. Notwithstanding the foregoing, upon notice to the Disclosing Party, the Receiving Party may keep a copy of the Confidential Information after termination of this Agreement to the extent necessary for audit and/or regulatory purposes or to the extent
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required under applicable law.
9. Termination.
(a) Either Party may terminate this Agreement if the other Party breaches any material provision herein and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within 45 days after the breaching Party’s receipt of written notice of such breach (the “Cure Period”). If the Company is the breaching Party, then, during the Cure Period, upon written notice to the Company, AST may suspend the Services without terminating the Agreement. During the period of suspension of Services, AST shall have no obligation to act as Transfer Agent, it being understood that such suspension shall not affect AST’s rights and remedies hereunder.
(b) Either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) business days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) The expiration or termination of this Agreement, for any reason, shall not release either Party from any obligation or liability to the other Party, including any payment and delivery obligation, that (i) has already accrued hereunder; (ii) comes into effect due to the expiration or termination of the Agreement; or (iii) otherwise survives the expiration or termination of this Agreement. Following the termination of this Agreement, AST shall promptly invoice the Company for any outstanding Service Fees and Expenses due and owing under this Agreement, and the Company shall pay all such Service Fees and Expenses to AST in accordance with the payment terms set forth in this Agreement.
(d) If the Company terminates this Agreement pursuant to Sections 2 or 9(a), then the Company shall pay to AST (i) all amounts outstanding under this Agreement as of the date of such termination and (ii) AST’s then-customary fees for Record Transfer Services. If the Company terminates this Agreement for any reason other than pursuant to Sections 2 or 9(a), then the Company shall pay to AST (x) all outstanding Service Fees and Expenses as of the date of such termination, (y) the Service Fees that would otherwise have accrued during the remainder of the then-current Term, and (z) AST’s then-customary fees for Record Transfer Services.
10. Limitations on Liability.
(a) To the fullest extent permitted by applicable law, no Party shall be liable to any other Party on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings).
(b) AST’s liability arising out of or in connection with the Services shall not exceed the aggregate amount of all Service Fees paid under this Agreement during the twelve-month period immediately prior to the date of occurrence of the circumstances giving rise to such liability.
11. Indemnity.
(a) The Company hereby agrees to indemnify and hold harmless AST and its Affiliates and its and their officers, directors, employees, advisors, agents, other representatives and controlling persons
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(each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Agreement and the Services or any claim, litigation, investigation or proceeding relating to any of the foregoing (each, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto or whether a Proceeding is brought by a third party or by the Company or any of its Affiliates, and to reimburse each such Indemnified Person upon demand for any reasonable, documented legal or other out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing by one counsel to the Indemnified Persons taken as a whole and, in the case of a conflict of interest, one additional counsel to the affected Indemnified Persons taken as a whole; provided that the foregoing indemnity shall not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(b) AST agrees to notify the Company promptly of the assertion of any Proceeding against any Indemnified Person; and the Company agrees to notify AST promptly of the assertion of any Proceeding against the Company, or any of its officers, directors, employees, advisors, agents, other representatives and controlling persons in connection with the Services, in which event AST agrees to assume sole responsibility of promptly notifying any of the relevant Indemnified Persons of any such assertion. At the Company’s election, unless there is a conflict of interest, the defense of the Indemnified Persons shall be conducted by the Company’s counsel. Notwithstanding the foregoing, AST may employ separate counsel to represent it or defend AST or an Indemnified Person in such Proceeding, and the Company will pay any reasonable, documented legal or other out-of-pocket expenses of counsel if AST or such Indemnified Person reasonably determines, based on the advice of its legal counsel, that there are defenses available to AST or such Indemnified Person that are different from, or in addition to, those available to the Company, or if an actual or potential conflict of interest between AST or the Indemnified Person and the Company makes representation by the Company’s counsel not advisable; provided that, unless there is an actual or potential conflict of interest, the Company will not be required to pay the fees and expenses of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single Proceeding. In any Proceeding the defense of which the Company assumes, the Indemnified Persons shall be entitled to participate in such Proceeding and retain its own counsel at such Indemnified Person’s own expense.
(c) The Company shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with the Company’s written consent or if there is a final judgment for the plaintiff in any such Proceedings, the Company agrees to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with clause (a) above. The Company shall not, without the prior written consent of an Indemnified Person (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person, unless (i) such settlement includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
12. Force Majeure. AST shall not be liable for failure or delay in the performance of the Services if such failure or delay is due to causes beyond its reasonable control, including but not limited to Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion,
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revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service or any other force majeure event.
13. Notices. Any notice, report or payment required or permitted to be given or made under this Agreement by one Party to the other shall be in writing and addressed to the other Party at the following address (or at such other address as shall be given in writing by one Party to the other):
If to the Company:
Vertical Capital Income Fund
Attention: Stanton Eigenbrodt, Secretary
Fax: 214-655-1610
Phone: 469-341-2443
Email: seigenbrodt@strateraservices.com
With a copy to:
Vertical Capital Income Fund
c/o Ultimus Fund Solutions, LLC (f.k.a. Gemini Fund Services, LLC)
Attention: Daniel Schriever, Manager, Fund Administration
Fax: None
Phone: 402-896-7596
Email: daniel.schriever@thegeminicompanies.com
If to AST:
American Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, NY 11219
Attention: Relationship Management
With a copy to:
American Stock Transfer & Trust Company, LLC
48 Wall Street, 22nd Floor
New York, New York 10005
Attention: Legal Department
Email: legalteamAST@astfinancial.com
15. Miscellaneous.
(a) The Company acknowledges and agrees that (i) nothing herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and (ii) the Company waives, to the fullest extent permitted by law, any claims that it may have against AST for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that AST shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim.
(b) This Agreement shall be construed and enforced in accordance with the laws of the State of New York, without reference to its conflicts of law rules. It is agreed that any action, suit or
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proceeding arising out of or based upon this Agreement shall be brought in the United States District Court for the Southern District of New York or any court of the State of New York of competent jurisdiction located in such District. Service of any process by registered mail addressed to each party at the respective address above shall be effective service of process against such party for any suit, action or proceeding brought in any such court. Each Party (i) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Services in any New York State court or in any such Federal court; (ii) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court; and (iii) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF ANY SERVICE HEREUNDER.
(c) The compensation, reimbursement, confidentiality, indemnification, jurisdiction, governing law, and waiver of jury trial provisions contained herein shall remain in full force and effect regardless of the termination of this Agreement. No amendment or waiver of any provision hereof shall be effective unless in writing and signed by the Parties and then only in the specific instance and for the specific purpose for which given. This Agreement is the only agreement between the Parties with respect to the matters contemplated hereby and sets forth the entire understanding of the Parties with respect thereto. This Agreement and the obligations hereunder of each Party shall not be assignable by such Party without the prior written consent of the other Party (such consent not to be unreasonably withheld, delayed or conditioned); provided that AST may assign this Agreement or any rights granted hereunder, in whole or in part, to (i) its Affiliates in connection with a reorganization or (ii) a Person that acquires all or substantially all of the business or assets of AST whether by merger, acquisition, or otherwise.
(d) This Agreement may be executed in any number of counterparts and by different Parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or in “.pdf” or “.tif” form shall be effective as delivery of a manually executed counterpart of this Agreement. If any provision of this Agreement shall be held illegal or invalid by any court, this Agreement shall be construed and enforced as if such provision had not been contained herein and shall be deemed an agreement between the Parties to the fullest extent permitted by law.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed as of the date first above written.
| AMERICAN STOCK TRANSFER & | VERTICAL CAPITAL INCOME FUND | |||
| TRUST COMPANY, LLC | ||||
| By: /s/ | By: /s/ | |||
| Name: Michael A. Nespoli | Name: Stanton Eigenbrodt | |||
| Title: Executive Director | Title: Secretary | |||
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Schedule 1
Services
Capitalized terms used herein and not defined have the meaning ascribed to such terms in the Agreement. Unless otherwise noted, AST will provide the following services:
ACCOUNT MAINTENANCE AND RECORDKEEPING
· Open new accounts, consolidate and close Shareholder accounts
· Annual record storage services (subject to additional fee)
· Maintain all Shareholder accounts
· Process address changes, including seasonal addresses
· Place, maintain and remove stop transfers
· Post all debit and credit certificate transactions
· Perform social security solicitation
· Handle shareholder and broker inquiries, including internet correspondence
· Respond to requests for audit confirmations
| · | Monthly report for all classes of securities in Microsoft Word and HTML formats (Excel format is subject to an additional fee) |
STOCK AUDIT / CONTROL BOOK FUNCTIONS
· Maintain accurate records of outstanding Shares
· Respond to requests for audit confirmations
| · | Provide web access to the total outstanding Share balances |
CERTIFICATE AND SECURITY ISSUANCE FUNCTIONS
· Process all routine transfers
· Post all debit and credit certificate transactions
· Issue Stock Certificates
· Create book entry Direct Registration System (“DRS”) positions
· Participate in the DRS profile system, allowing broker “sweeps” of registered positions
· Interface electronically with DTC/CEDE & CO.
· Mail newly-issued certificates/DRS advices to Shareholders
· Replace lost or stolen Stock Certificates upon Shareholder request
· Issue and register all Stock Certificates
| · | Issue shares upon exercise of stock options. |
· Process legal transfers and transactions requiring special handling
· Provide, upon request, access to daily reports of processed transfers
REPORTING
· Furnish, upon request, unlimited Shareholder list, sorted by Company-designated criteria
LISTS AND MAILINGS
| · | Enclose multiple proxy cards to same household in one envelope, if applicable (subject to additional fee) |
| · | Monitor and suppress undeliverable mail until correct address is located |
| · | Furnish shareholder lists, in any sequence |
| · | Provide geographical detail reports of all stocks issued/surrendered over a specific period |
| · | Provide mailing labels |
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WEB-BASED ORIGINAL ISSUANCE (OI) / DWAC SYSTEM 1
| · | Facilitate Deposit/Withdrawal At Custodian (“DWAC”) and original issuances initiated from the Company’s desktop via Internet |
| · | Accept files for original issuances |
| · | Allow multiple requests to be submitted on the same form at the same time |
| · | Notify the Company via email when matching broker instructions have not been received |
| · | Provide designated brokers the ability for brokers to log into the system and track the status of Company-submitted items |
| · | Report daily and monthly transactions via e-mail |
| · | Enforce built-in security procedures |
TECHNOLOGY AND INTERNET ACCESS
| · | Retrieve account information (including outstanding Stock Certificates and checks) 24 hours a day, 7 days per week |
| · | Review frequently asked questions, including transfer requirements and corporate actions data |
| · | Download forms (e.g., affidavit of domicile, form W8/W9, letters of transmittal and stock power) |
| · | Change account addresses |
| · | Replace lost, stolen or uncashed checks |
| · | Replace lost, stolen or non-received Stock Certificates |
| · | Obtain a duplicate Form 1099 |
| · | Sign up for electronic delivery (e.g., for proxy materials) |
| · | Request a certificate for shares held in book-entry or plan form |
| · | Enroll to have dividends directed toward purchase of additional Shares |
| · | Send e-mail inquiries concerning Shareholder’s account, or conduct an online chat session with one of AST’s customer service representatives |
SHAREHOLDERS VIA THE INTERACTIVE VOICE RESPONSE (“IVR”)
| · | Obtain account-specific information, including account balance |
| · | Execute plan transactions, including sales and certification requests |
| · | Request a duplicate Form 1099, with delivery via mail or fax |
| · | Request a transfer package via mail or fax |
| · | Request forms to effect address changes, check replacements, Stock Certificate replacements and direct deposit enrollments |
| · | Obtain information pertaining to current corporate actions or other significant Company events |
SHAREHOLDER (INQUIRIES)
| · | Distribute “welcome” material to new Shareholders (may incur reimbursable expenses) |
| · | Provide assistance to Shareholders related to their securities holdings as they initiate account inquiries or perform transactions, including guidance through common transactions and explanations for transaction rejections and the corrective steps required to complete their request |
| · | Provide 24/7 account access via the internet and IVR telephonic system |
| · | Provide toll-free number for Shareholder-initiated telephone inquiries to AST’s call center |
| · | Oversee the fulfillment process for potential investors (if applicable) |
1 Please note that AST does not charge a fee for DWAC processing but that the broker may charge fees incurred from receipt of Shares.
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CLIENT-DESIGNATED PERSONNEL VIA THE INTERNET
| · | View and download detailed Shareholder data, including: name, address of record, account number(s), number of Shares held in certificate and book-entry form, historical dividend-related information and cost basis reporting information |
| · | Obtain total outstanding Share balances |
| · | Utilize AST’s reporting tool to generate comprehensive reports in a real-time environment, with immediate e-mail delivery |
| · | Issue stock options and effect delivery through the DWAC system |
| · | Update company profile and corporate information |
Control Books Tracking
| · | Receive daily emails of control books information |
| · | Review current transactions affecting the number of outstanding Shares in a Company-specified date range |
Proxy Central
| · | Proxy reports (either summarized or detailed) by proposal |
| · | Voting status on the 50 largest accounts |
| · | Shareholders attending the Company annual meeting |
| · | DTC position listing |
| · | Broker voting detail |
ANNUAL SHAREHOLDER MEETING
| · | Process proxy votes for routine/non-routine meetings of the Company |
| · | Imprint Shareholders’ name on proxy cards |
| · | 2Mail material to Shareholders |
| · | Prepare and transmit daily proxy tabulation reports to the Company by email |
| · | Provide certified Shareholder list in hard copy if requested |
| · | Facilitate proxy distribution mailing |
DIVIDEND DISBURSEMENT
| · | Confirm in writing that the dividend notice was received |
| · | Prepare and calculate dividend payments |
| · | Coordinate dividend checks and enclosures (if applicable) mailing to the Shareholders |
| · | Furnish one copy of the dividend register, hard copy or CD-ROM (if requested) |
| · | Place stop payment orders on reported lost dividend checks |
| · | Issue replacement dividend checks/sales checks |
| · | Provide copies of paid dividend checks upon request (subject to additional fee) |
| · | Report annual dividend income to Shareholders on applicable Form 1099 |
| · | File annual tax information electronically to the Internal Revenue Service |
| · | Withhold and remit backup withholding taxes as required by the Internal Revenue Service |
| · | Withhold foreign tax and file foreign tax reports as required by the Internal Revenue Service |
| · | Maintain custody and control of all undeliverable checks and forward returned items to Shareholders upon confirmation of a current address |
2 Please note that postage and processing fees will apply.
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Unclaimed Property
| · | Analyze and identify unclaimed or abandoned property across each class of security (if applicable) |
| · | Prepare and distribute due diligence notices (may incur reimbursable expenses) |
| · | Prepare unclaimed or abandoned property reports (including null or negative reports, if applicable) |
| · | Deliver all unclaimed property and reports to the applicable jurisdictions |
| · | Respond to shareholder and state inquiries relating to unclaimed property filings |
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Schedule 2
Fees
|
Transfer Agent AND Registrar SERVICES |
|
| Monthly Administration Fee (Monthly Dividends) | $5,350.00 |
| One-Time Dividend Reinvestment Implimentation | $2,500.00 |
| Unclaimed Property Reporting | $750 |
|
(each additional class of security $250 per month)
| |
| Account Maintenance per Account | Included |
| Issuance and Registration of Stock Certificates | Included |
| Each Stock Certificate cancelled | Included |
| Restricted/Preferred Accounts | Included |
| General Written Correspondence | Included |
| Shareholder Address Changes | Included |
| Customer Service – Telephone | Included |
| Research and Responding to Shareholder Inquiries | Included |
| Issuance of Restricted Transfers | Included |
| Issuance of Stock Option | Included |
| 3DWAC Transfers (broker fees may apply) | Included |
| Non-Routine Transfers (including removal of legends and transfer of applicable Shares) | Included |
| Shareholder Internet Access | Included |
| Client Internet Access | Included |
| 4DRS Sale Program – Transaction Fee (to be paid by the Shareholder) | Per transaction |
| SHARE CONVERSION PORTAL (if multiple classes optional service) | $5,000 |
| ANNUAL MEETING ADministration SERVICES | |
| Prepare Full Shareholder List as of Record Date | Included |
| Complete Reporting for Proxy Program | Included |
| Enclose and Mail Proxy Materials (mailing costs applied as out-of-pocket) | Included |
| Receive and Scan Returned Proxies | Included |
| Tabulate Proxies (Registered and Beneficial Holders – per vote fee applicable) | Included |
| Prepare and Verify Final Vote List | Included |
| Online access for Company to monitor voting | Included |
| Omnibus Download of Proxy from DTC | Included |
| Inspector of Election (travel fees will be applied as out-of-pocket expenses) | Available |
| Online & Telephonic Voting for Registered Shareholders | Available |
3 Please note that AST does not charge a fee for DWAC processing but that the broker may charge fees incurred from receipt of Shares.
4 A transaction fee of $15.00 plus $0.12 per Share sold will be charged to the Shareholder.
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| MANAGEMENT REPORTING | |
| Standard Reporting Suite | Included |
| Online Access to Management Reports | Included |
| Report Requirements determined at Conversion | Included |
SPECIAL SERVICES
Services not included herein (including, without limitation, trustee and custodial services, exchange/tender offer services, stock dividend disbursement services, voluntary disclosure agreements and audit administration services relating to abandoned or unclaimed property) but requested by the Company may be subject to additional charges.
Out-of-pocket Expenses
All customary out-of-pocket expenses will be billed in addition to the foregoing fees. These charges include, but are not limited to, printing and stationery, freight and materials delivery, postage and handling.
The foregoing fees apply to services ordinarily rendered by AST and are subject to reasonable adjustment based on final review of documents.