RiverNorth Opportunities Fund, Inc. POS EX
Exhibit 99.(k)(5)
Subscription
Agent Agreement
Between
RiverNorth
Opportunities Fund, Inc.
And
Computershare
Trust Company, N.A.
And
Computershare
Inc.
| RiverNorth Subscription Agent Agreement | Page 1 |
This
SUBSCRIPTION AGENT AGREEMENT (the “Agreement”) is entered into as of this 29th day of September 2020
(the “Effective Date”) by and among RiverNorth Opportunities Fund, Inc., a company organized and existing under
the laws of the State of Maryland (the "Company"), and Computershare Trust Company, N.A., a federally chartered
trust company (“Trust Company”), and Computershare Inc., a Delaware corporation (“Computershare”
and, collectively with Trust Company, the “Agent”).
1. Appointment.
1.1 Company
is making an offer (the “Subscription Offer”) to issue to holders of record of its outstanding shares of common
stock, par value $0.0001 per share (the “Common Stock”), at the close of business on October 2, 2020 (the “Record
Date”), the right to subscribe for and purchase (each, a “Right”, and collectively, the “Rights”)
shares of common stock (the “Additional Common Stock”) at an initial estimated purchase price of $14.18 per
share of the Additional Common Stock (the “Subscription Price”), payable as described on the Subscription Form
(as defined below) sent to eligible shareholders, upon the terms and conditions set forth herein. The term “Subscribed”
shall mean submitted for purchase from Company by a stockholder in accordance with the terms of the Subscription Offer, and the
term “Subscription(s)” shall mean any such submission. Company hereby appoints Agent to act as subscription
agent in connection with the Subscription Offer and Agent hereby accepts such appointment in accordance with and subject to the
terms and conditions of this Agreement.
1.2 The
Subscription Offer will expire at 5:00 p.m., Eastern Time, on November 3, 2020 (the “Expiration Time”), unless
Company shall have extended the period of time for which the Subscription Offer is open, in which event the term “Expiration
Time” shall mean the latest time and date at which the Subscription Offer, as so extended by Company from time to time,
shall expire.
1.3 Company
filed a shelf registration statement relating to the Additional Common Stock with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the “1933 Act”), on November 26, 2019, which became effective on November
27, 2019, and filed a supplement to the prospectus on September 29, 2020 containing the “take-down prospectus” and
“base prospectus” (collectively herein, referred to herein as the “prospectus”).The terms of the Additional
Common Stock are more fully described in the prospectus forming a part of the registration statement as it was declared effective.
All terms used and not defined herein shall have the same meaning(s) as in the prospectus.
1.4 Promptly
after the Record Date, Company will furnish Agent with, or will instruct Agent, in its capacity as transfer agent for Company,
to prepare, a certified list in a format acceptable to Agent of holders of record of the Common Stock at the Record Date, including
each such holder’s name, address, taxpayer identification number (“TIN”), share amount with applicable
tax lot detail, any certificate detail and information regarding any applicable account stops or blocks (the “Record
Stockholders List”).
1.5 No
later than the earlier of (i) forty-five (45) days after the Record Date or (ii) January 15 of the year following the year in
which the Record Date occurs, Company shall deliver to Agent written direction on the adjustment of cost basis for covered securities
that arise from or are affected by the Subscription Offer in accordance with current Internal Revenue Service regulations (see
the Tax Instruction/Cost Basis Information Letter attached hereto as Exhibit B for additional information)
2. Subscription
of Rights.
2.1 The
Rights entitle the holders to subscribe, upon payment of the Subscription Price, for shares of the Additional Common Stock at
the rate of one share(s) for every three Rights (the “Basic Subscription Privilege”). No fractional Rights
will be issued. The number of Rights to be issued to a Record Date Stockholder will be rounded up to the nearest number of Rights
evenly divisible by three. Fractional shares will not be issued upon the exercise of the Rights. Accordingly, new shares of common
stock may be purchased only pursuant to the exercise of Rights in integral multiples of three.
| RiverNorth Subscription Agent Agreement | Page 2 |
2.2 If
subscribing shareholders who exercise their Rights in full are entitled to exercise an oversubscription right, then Company shall
provide Agent with instructions regarding the allocation to such shareholders of the Additional Common Stock after the initial
allocation thereof.
2.3 Except
as otherwise indicated to Agent by Company in writing, all of the Common Stock delivered hereunder upon the exercise of the Rights
will be delivered free of restrictive legends. Company shall, if applicable, inform Agent as soon as possible in advance as to
whether any Common Stock issued hereunder is to be issued with restrictive legend(s) and, if so, Company shall provide the appropriate
legend(s) and a list identifying the affected shareholders, certificate numbers (if applicable) and share amounts for such affected
shareholders.
3. Duties
of Subscription Agent.
3.1 Agent
shall issue the Rights in accordance with this Agreement in the names of the holders of the Common Stock of record on the Record
Date, keep such records as are necessary for the purpose of recording such issuance(s), and furnish a copy of such records to
Company.
3.2 Promptly
after Agent receives the Record Stockholders List, Agent shall:
(a)
mail or cause to be mailed, by first class mail, to each holder of the Common Stock of record on the Record Date whose address
of record is within the United States of America and Canada, (i) a subscription form with respect to the Rights to which such
stockholder is entitled under the Subscription Offer (the “Subscription Form”), a form of which is attached
hereto as Exhibit A, (ii) a copy of the prospectus and (iii) a return envelope addressed to Agent.
(b)
At the direction of Company, mail or cause to be mailed, to each holder of the Common Stock of record on the Record Date whose
address of record is outside the United States of America and Canada, or is an A.P.O. or a F.P.O. address, a copy of the prospectus.
Agent shall refrain from mailing the Subscription Form to any holder of the Common Stock of record on the Record Date whose address
of record is outside the United States of America and Canada, or is an A.P.O. or a F.P.O. address, and hold such Subscription
Form for the account of such stockholder subject to such stockholder making satisfactory arrangements with Agent for the exercise
or other disposition of the Rights described therein, and effect the exercise, sale or delivery of such Rights in accordance with
the terms of this Agreement if notice of such arrangements is received at or before 11:00 a.m., Eastern Time, on October 2, 2020.
In the event that a request to exercise the Rights is received from such a holder, Agent will consult with Company for instructions
as to the number of shares of the Additional Common Stock, if any, Agent is authorized to issue.
(c)
Upon request by Company, Agent shall mail or deliver a copy of the prospectus (i) to each assignee or transferee of the Rights
upon receiving appropriate documentation satisfactory to Agent to register the assignment or transfer thereof and (ii) with shares
of the Additional Common Stock when such are issued to persons other than the registered holder of the Rights.
(d)
Agent shall accept Subscriptions upon the due exercise of the Rights (including payment of the Subscription Price) on or prior
to the Expiration Time in accordance with the Subscription Form.
| RiverNorth Subscription Agent Agreement | Page 3 |
(e)
Agent shall accept Subscriptions, without further authorization or direction from Company, without procuring supporting legal
papers or other proof of authority to sign (including, without limitation, proof of appointment of a fiduciary or other person
acting in a representative capacity), and without signatures of co-fiduciaries, co-representatives or any other person:
| (i) | If
the Right is registered in the name of a fiduciary and the Subscription Form is executed
by such fiduciary, provided, that the Additional Common Stock is to be issued in the
name of such fiduciary; |
| (ii) | If
the Right is registered in the name of joint tenants and the Subscription Form is executed
by one of the joint tenants, provided, that the Additional Common Stock is to be issued
in the names of such joint tenants; or |
| (iii) | If
the Right is registered in the name of a corporation and the Subscription Form is executed
by a person in a manner which appears or purports to be done in the capacity of an officer
or agent thereof, provided, that the Additional Common Stock is to be issued in the name
of such corporation. |
| (f) | Each
document received by Agent relating to its duties hereunder shall be dated and time stamped
when received at the applicable address(es) as outlined in the offering documents. |
| (g) | Agent
shall, absent specific and mutually agreed upon instructions between Agent and Company,
follow its normal and customary procedures with respect to the acceptance or rejection
of all Subscriptions received after the Expiration Time. Subscriptions not authorized
to be accepted pursuant to this Section 3 and Subscriptions otherwise failing to comply
with the terms and conditions of the Subscription Form will be rejected and returned
to the applicable shareholder. |
4. Acceptance
of Subscriptions.
4.1 Following
Agent’s first receipt of Subscriptions, on each business day, or more frequently if reasonably requested as to major
tally figures, forward a report by email to [REMOVED] (the “Company Representative”) as to the following
information, based upon a preliminary review (and at all times subject to a final determination by Company) as of the close
of business on the preceding business day or the most recent practicable time prior to such request, as the case may be: (i)
the total number of shares of the Additional Common Stock Subscribed for; (ii) the total number of the Rights sold; (iii) the
total number of the Rights partially Subscribed for; (iv) the amount of funds received; and (v) the cumulative totals in
categories (i) through (iv), above.
4.2 As
promptly as possible following the Expiration Time, advise the Company Representative by email of (i) the number of shares of
the Additional Common Stock Subscribed for and (ii) the number of shares of the Additional Common Stock unsubscribed for.
4.3 Upon
acceptance of a Subscription, all funds received by Computershare under this Agreement that are to be distributed or applied by
Computershare in the performance of services hereunder (the “Funds”) shall be held by Computershare as agent for Company
and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for Company. Computershare may
hold or invest the Funds through such accounts in: (i) bank accounts, short term certificates of deposit, bank repurchase agreements,
and disbursement accounts with commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment
grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default
Rating) (each as reported by Bloomberg Finance L.P.), (ii) AAA Fixed NAV money market funds that comply with Rule 2a-7 of the
Investment Company Act of 1940, a AAA rated 3C-7 fund, or similar (iii) funds backed by obligations of, or guaranteed by, the
United States of America, municipal securities, or (iv) debt or commercial paper obligations rated A-1 or P-1 or better by Standard
& Poor's Corporation (“S&P”) or Moody's Investors Service, Inc. (“Moody’s”),
respectively. Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any
deposit or investment made by Computershare in accordance with this paragraph, including any losses resulting from a default by
any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or
other earnings in connection with such deposits or investments. Computershare shall not be obligated to pay such interest,
dividends or earnings to the Company, any holder or any other party.
| RiverNorth Subscription Agent Agreement | Page 4 |
5.
Intentionally Omitted.
6. Completion
of Subscription Offer.
6.1 Upon
completion of the Subscription Offer, Agent shall request the transfer agent for the Common Stock to issue the appropriate number
of shares of the Additional Common Stock as required in order to effectuate the Subscriptions.
6.2 The
Rights shall be issued in registered, book-entry form only. Agent shall keep books and records of the registration, transfer and
exchange of the Rights (the “Rights Register”).
6.3 All
of the Rights issued upon any registration of transfer or exchange of the Rights shall be the valid obligations of Company, evidencing
the same obligations and entitled to the same benefits under this Agreement as the Rights surrendered for such registration of
transfer or exchange; provided, that until such transfer or exchange is registered in the Rights Register, Company and Agent may
treat the registered holder thereof as the owner for all purposes.
6.4 For
so long as this Agreement shall be in effect, Company will reserve for issuance and keep available free from preemptive rights
a sufficient number of shares of the Additional Common Stock to permit the exercise in full of all of the Rights issued pursuant
to the Subscription Offer.
6.5 Company
shall take any and all action, including, without limitation, obtaining the authorization, consent, lack of objection, registration
or approval of any governmental authority, or the taking of any other action under the laws of the United States of America or
any political subdivision thereof, to insure that all of the shares of the Additional Common Stock issuable upon the exercise
of the Rights (subject to payment of the Subscription Price) will be duly and validly issued and fully paid and non-assessable
shares of the Common Stock, free from all preemptive rights and taxes, liens, charges and security interests created by or imposed
upon Company with respect thereto.
6.6 Company
shall, from time to time, take all action necessary or appropriate to obtain and keep effective all registrations, permits, consents
and approvals of the Securities and Exchange Commission and any other governmental agency or authority and make such filings under
federal and state laws, which may be necessary or appropriate in connection with the issuance, sale, transfer and delivery of
the Rights or the Additional Common Stock issued upon the exercise of the Rights.
7. Procedure
for Discrepancies. Agent shall follow its regular procedures to attempt to reconcile any discrepancies between the number
of shares of Additional Common Stock that any Subscription Form may indicate are to be issued to a stockholder upon the exercise
of the Rights and the number that the Record Stockholders List indicates may be issued to such stockholder. In any instance where
Agent cannot reconcile such discrepancies by following such procedures, Agent will consult with Company for instructions as to
the number of shares of Additional Common Stock, if any, Agent is authorized to issue. In the absence of such instructions, Agent
is authorized not to issue any shares of Additional Common Stock to such stockholder and will return to the subscribing stockholder
(at Agent’s option by either first class mail under a blanket surety bond or insurance protecting Agent and Company from
losses or liabilities arising out of the non-receipt or non-delivery of the Subscription Form or by registered mail insured separately
for the value of the applicable Rights) to such stockholder’s address as set forth in the Subscription Form, any Subscription
Form delivered to Agent, any other documents delivered therewith and a letter explaining the reason for the return of such documents.
| RiverNorth Subscription Agent Agreement | Page 5 |
8. Procedure
for Deficient Items.
8.1 Agent
shall examine the Subscription Form(s) received by it as agent to ascertain whether they appear to have been completed and executed
in accordance with the Subscription Offer. In the event that Agent determines that any Subscription Form does not appear to have
been properly completed or executed, or to be in proper form, or any other deficiency in connection with the Subscription Form
appears to exist, Agent shall follow, where possible, its regular procedures to attempt to cause such irregularity to be corrected.
Agent is not authorized to waive any deficiency in connection with the Subscription, unless Company provides written authorization
to waive such deficiency.
8.2 If
a Subscription Form specifies that shares of the Additional Common Stock are to be issued to a person other than the person in
whose name a surrendered Right is registered, Agent will not issue such shares until such Subscription Form has been properly
endorsed with the signature guaranteed in a manner acceptable to Agent (or otherwise put in proper form for transfer).
8.3 If
any such deficiency is neither corrected nor waived, Agent will return to the subscribing stockholder (at Agent’s option
by either first class mail under a blanket surety bond or insurance protecting Agent and Company from losses or liabilities arising
out of the non-receipt or non-delivery of the Subscription Form or by registered mail insured separately for the value of the
applicable Rights) to such stockholder’s address as set forth in the Subscription Form, any Subscription Form delivered
to Agent, any other documents delivered therewith and a letter explaining the reason for the return of such documents.
9.
Tax Reporting.
9.1 Agent
shall prepare and file with the appropriate governmental agency and mail to each stockholder, as applicable, all appropriate tax
information forms, including, but not limited to, Forms 1099-B, covering payments or any other distributions made by Agent pursuant
to this Agreement during each calendar year, or any portion thereof, during which Agent performs services hereunder, as described
in the attached Exhibit B.
9.2
With respect to any surrendering stockholder whose TIN has not been certified as correct, Agent shall deduct and withhold the
appropriate backup withholding tax from any payment made to such stockholder pursuant to the Internal Revenue Code.
9.3 Should
any issue arise regarding federal income tax reporting or withholding, Agent shall take such reasonable action as Company may
reasonably request in writing. Such action may be subject to additional fees.
10. Authorizations
and Protections.
As
agent for Company hereunder, Agent:
10.1 Shall
have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed to in writing by
Agent and Company;
| RiverNorth Subscription Agent Agreement | Page 6 |
10.2 Shall
have no obligation to deliver the Additional Common Stock unless Company shall have provided a sufficient number of shares of
the Additional Common Stock to satisfy the exercise of the Rights by holders as set forth hereunder;
10.3 Shall
be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value, or genuineness
of any certificates, if applicable, or the Rights represented thereby surrendered hereunder or the Additional Common Stock issued
in exchange therefor, and will not be required to or be responsible for and will make no representations as to, the validity,
sufficiency, value or genuineness of the Subscription Offer;
10.4 Shall
not be obligated to take any legal action hereunder; if, however, Agent determines to take any legal action hereunder, and where
the taking of such action might, in Agent’s judgment, subject or expose it to any expense or liability, Agent shall not
be required to act unless it shall have been furnished with an indemnity satisfactory to it;
10.5 May
rely on and shall be fully authorized and protected in acting or failing to act upon any certificate, instrument, opinion, notice,
letter, telegram, telex, facsimile transmission or other document or security delivered to Agent and believed by Agent to be genuine
and to have been signed by the proper party or parties;
10.6 Shall
not be liable or responsible for any recital or statement contained in the Subscription Offer or any other documents relating
thereto;
10.7
Shall not be liable or responsible for any failure of the Company or any other party
to comply with any of its covenants and obligations relating to the Subscription Offer, including without limitation obligations
under applicable securities laws;
10.8 Shall
not be liable to any holder of the Rights for any Additional Common Stock or dividends thereon or, if applicable, and any related
unclaimed property that has been delivered to a public official pursuant to applicable abandoned property law;
10.9 May,
from time to time, rely on instructions provided by Company concerning the services provided hereunder. Further, Agent may apply
to any officer or other authorized person of Company for instruction, and may consult with legal counsel for Agent or Company
with respect to any matter arising in connection with the services provided hereunder. Agent and its agents and subcontractors
shall not be liable and shall be indemnified by Company under Section 11.2 of this Agreement for any action taken or omitted by
Agent in reliance upon any Company instructions or upon the advice or opinion of such counsel. Agent shall not be held to have
notice of any change of authority of any person, until receipt of written notice thereof from Company;
10.10 May
rely on and be fully authorized and protected in acting or failing to act upon (a) 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 in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation
or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended
or repealed;
10.11 Either
in connection with, or independent of the instruction term in Section 10.9, above, Agent may consult counsel satisfactory to Agent
(including internal counsel), and the advice of such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by Agent hereunder in good faith and in reliance upon the advice of such counsel;
| RiverNorth Subscription Agent Agreement | Page 7 |
10.12 May
perform any of its duties hereunder either directly or by or through agents or attorneys and Agent shall not be liable or responsible
for any misconduct or negligence on the part of any agent or attorney appointed with reasonable care hereunder; and
10.13 Is
not authorized, and shall have no obligation, to pay any brokers, dealers, or soliciting fees to any person.
11. Representations,
Warranties and Covenants.
11.1 Agent. Agent represents and warrants to Company that:
| (a) | Governance.
Trust Company is a federally chartered trust company duly organized, validly existing,
and in good standing under the laws of the United States and Computershare is a corporation
duly organized, validly existing, and in good standing under the laws of the State of
Delaware and each has full power, authority and legal right to execute, deliver and perform
this Agreement; and |
| (b) | Compliance
with Laws. The execution, delivery and performance of this Agreement by Agent has
been duly authorized by all necessary action, constitutes the legal, valid and binding
obligation of Agent enforceable against Agent in accordance with its terms, will not
require the consent of any third party that has not been given, and will not violate,
conflict with or result in the breach of any material term, condition or provision of
(A) any existing law, ordinance, or governmental rule or regulation to which Agent is
subject, (B) any judgment, order, writ, injunction, decree or award of any court, arbitrator
or governmental or regulatory official, body or authority applicable to Agent, (C) Agent’s
incorporation documents or by-laws, or (D) any material agreement to which Agent is a
party. |
11.2 Company. Company represents and warrants to Agent that:
| (a) | Governance.
It is a corporation duly organized, validly existing and in good standing under the
laws of the State of Maryland, and it has full power, authority and legal right to enter
into and perform this Agreement; |
| (b) | Compliance
with Laws. The execution, delivery and performance of this Agreement by Company has
been duly authorized by all necessary action, constitutes the legal, valid and binding
obligation of Company enforceable against Company in accordance with its terms, will
not require the consent of any third party that has not been given, and will not violate,
conflict with or result in the breach of any material term, condition or provision of
(A) any existing law, ordinance, or governmental rule or regulation to which Company
is subject, (B) any judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority applicable to Company,
(C) Company’s incorporation documents or by-laws, (D) any material agreement to
which Company is a party, or (E) any applicable stock exchange rules; |
| (c) | Securities
Laws. Registration statements under the 1933 Act and the Securities Exchange Act
of 1934 (the “1934 Act”) have been filed and are currently effective,
or will be effective prior to the sale of any Additional Common Stock, and will remain
so effective, and all appropriate state securities law filings have been made with respect
to all of the Additional Common Stock being offered for sale, except for any shares of
Additional Common Stock which are offered in a transaction or series of transactions
which are exempt from the registration requirements of the 1933 Act, 1934 Act and state
securities laws; Company will immediately notify Agent of any information to the contrary;
and |
| RiverNorth Subscription Agent Agreement | Page 8 |
| (d) | Shares.
The Additional Common Stock issued and outstanding on the date hereof have been duly
authorized, validly issued and are fully paid and are non-assessable; and any Additional
Common Stock to be issued hereafter, when issued, shall have been duly authorized, validly
issued and fully paid and will be non-assessable. |
12. Indemnification
and Limitation of Liability.
12.1 Liability. Agent shall only be liable for any loss or damage determined by a court of competent jurisdiction to be a result
of Agent’s gross negligence or willful misconduct; provided that any liability of Agent will be limited in the aggregate
to the amounts paid hereunder by Company to Agent as fees and charges, but not including reimbursable expenses.
12.2 Indemnity.
Company shall indemnify and hold Agent harmless from and against, and Agent shall not be responsible for, any and all losses,
claims, damages, costs, charges, penalties and related interest, counsel fees and expenses, payments, expenses and liability (collectively,
“Losses”) arising out of or attributable to Agent’s duties under this Agreement or this appointment,
including the reasonable costs and expenses of defending itself against any Loss or enforcing this Agreement, except for any liability
of Agent as set forth in Section 11.1, above.
12.3 Limitation of the Company and Shareholders. It is understood and expressly stipulated that none of the directors, officers, agents
or shareholders of the Company shall be personally liable hereunder for the obligations of the Company. All persons dealing with
the Company must look solely to the property of the Company for the enforcement of any claims against the Company, as neither
the directors, officers, agents or shareholders assume any personal liability for obligations entered into on behalf of the Company.
12 Damages.
Notwithstanding anything in this Agreement to the contrary, neither party shall be liable to the other for any incidental, indirect,
special or consequential damages of any nature whatsoever, including, but not limited to, loss of anticipated profits, occasioned
by a breach of any provision of this Agreement even if apprised of the possibility of such damages.
13.
Intentionally Omitted.
14. Confidentiality.
14.1 Definition. “Confidential Information” shall mean any and all technical or business information
relating to a party, including, without limitation, financial, marketing and product development information, shareholder data
(including any non-public information of such Shareholder), proprietary information, and the terms and conditions (but not the
existence) of this Agreement, that is disclosed or otherwise becomes known to the other party or its affiliates, agents or representatives
before or during the term of this Agreement. Confidential Information constitutes trade secrets and is of great value to
the owner (or its affiliates). Confidential Information shall not include any information that is: (a) already known to
the other party or its affiliates at the time of the disclosure; (b) publicly known at the time of the disclosure or becomes publicly
known through no wrongful act or failure of the other party; (c) subsequently disclosed to the other party or its affiliates on
a non-confidential basis by a third party not having a confidential relationship with the owner and which rightfully acquired
such information; or (d) independently developed by one party without access to Confidential Information of the other.
14.2 Use and Disclosure. All Confidential Information of a party will be held in confidence by the other party with at least
the same degree of care as such party protects its own confidential or proprietary information of like kind and import, but not
less than a reasonable degree of care. Neither party will disclose in any manner Confidential Information of the other party in
any form to any person or entity without the other party's prior consent. However, each party may disclose relevant aspects of
the other party's Confidential Information to its officers, affiliates, agents, subcontractors and employees to the extent reasonably
necessary to perform its duties and obligations under this Agreement and such disclosure is not prohibited by applicable law.
Without limiting the foregoing, each party will implement physical and other security measures and controls designed to protect
(a) the security and confidentiality of Confidential Information; (b) against any threats or hazards to the security
and integrity of Confidential Information; and (c) against any unauthorized access to or use of Confidential Information.
To the extent that a party delegates any duties and responsibilities under this Agreement to an agent or other subcontractor,
the party ensures that such agent and subcontractor are contractually bound to confidentiality terms consistent with the terms
of this Section 14.
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14.3 Required or Permitted Disclosure. In the event that any requests or demands are made for the disclosure of Confidential
Information, other than requests to Agent for Shareholder records pursuant to standard subpoenas from state or federal government
authorities (e.g., divorce and criminal actions), the party receiving such request will promptly notify the other party
to secure instructions from an authorized officer of such party as to such request and to enable the other party the opportunity
to obtain a protective order or other confidential treatment, unless such notification is otherwise prohibited by law or court
order. Each party expressly reserves the right, however, to disclose Confidential Information to any person whenever it is advised
by counsel that it may be held liable for the failure to disclose such Confidential Information or if required by law or court
order.
14.4 Unauthorized Disclosure. As may be required by law and without limiting any party's rights in respect of a breach of this
Section 14, each party will promptly:
| (a) | Notify
the other party in writing of any unauthorized possession, use or disclosure of the other
party's Confidential Information by any person or entity that may become known to such
party; |
| (b) | Furnish
to the other party full details of the unauthorized possession, use or disclosure; and |
| (c) | Use
commercially reasonable efforts to prevent a recurrence of any such unauthorized possession,
use or disclosure of Confidential Information. |
14.5 Costs. Each party will bear the costs it incurs as a result of compliance with this Section 14.
15. Compensation
and Expenses.
15.1 Company
shall pay to Agent compensation in accordance with the fee schedule attached as Exhibit B hereto, together with reimbursement
for reasonable fees and disbursements of counsel, regardless of whether any Rights are surrendered to Agent, for Agent’s
services hereunder.
15.2 Company
shall be charged for certain expenses advanced or incurred by Agent in connection with Agent’s performance of its duties
hereunder. Such charges include, but are not limited to, stationery and supplies, such as checks, envelopes and paper stock, as
well as any disbursements for telephone and document creation and delivery. While Agent endeavors to maintain such charges (both
internal and external) at competitive rates, these charges may not reflect actual out-of-pocket costs, and may include handling
charges to cover internal processing and use of Agent’s billing systems.
15.3 All
amounts owed to Agent hereunder are due within thirty (30) days of the invoice date. Delinquent payments are subject to a late
payment charge of one and one half percent (1.5%) per month commencing forty-five (45) days from the invoice date. Company agrees
to reimburse Agent for any attorney’s fees and any other costs associated with collecting delinquent payments.
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15.4
No provision of this Agreement shall require Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its rights.
16. Termination.
Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party. Unless so
terminated, this Agreement shall continue in effect until ninety (90) days following the Expiration Time. In the event of such
early termination, Company will appoint a successor agent and inform Agent of the name and address of any successor agent so appointed,
provided, that no failure by Company to appoint such a successor agent shall affect the termination of this Agreement or the discharge
of Agent as agent hereunder. Upon any such termination, Agent shall be relieved and discharged of any further responsibilities
with respect to its duties hereunder. Upon payment of all outstanding fees and expenses hereunder, Agent shall promptly forward
to Company or its designee any Subscription Forms or other documents relating to the Subscription Offer that Agent may receive
after its appointment has so terminated.
17. Assignment.
Neither this Agreement nor any rights or obligations hereunder may be assigned by Company or Agent without the written consent
of the other; provided, however, that Agent may, without further consent of Company, assign any of its rights and obligations
hereunder to any affiliated agent registered under Rule 17Ac2-1 promulgated under the 1934 Act.
18. Subcontractors
and Unaffiliated Third Parties.
18.1 Subcontractors.
Agent may, without further consent of Company, subcontract with (a) any affiliates, or (b) unaffiliated subcontractors for such
services as may be required from time to time (e.g., lost shareholder searches, escheatment, telephone and mailing services);
provided, however, that Agent shall be as fully responsible to Company for the acts and omissions of any subcontractor as it is
for its own acts and omissions.
18.2 Unaffiliated
Third Parties. Nothing herein shall impose any duty upon Agent in connection with or make Agent liable for the actions or
omissions to act of unaffiliated third parties (other than subcontractors referenced in Section 18.1, above) such as, by way of
example and not limitation, airborne services, delivery services, the U.S. mails, and telecommunication companies, provided, if
Agent selected such company, Agent exercised due care in selecting the same.
19.
Miscellaneous.
19.1 Notices.
All notices, demands and other communications given pursuant to the terms and provisions hereof shall be in writing, shall be
deemed effective on the date of receipt, and may be sent by electronic mail (except for notices of default or termination of this
Agreement by Agent), overnight delivery services, or by certified or registered mail, return receipt requested to:
| If
to Company: |
with
an additional copy to: |
| |
|
RiverNorth
Opportunities Fund, Inc.
1290
Broadway, Suite 1000
Denver,
Colorado 80203
[E-mail
address]
Attn:
Sareena.Khwaja-Dixon@alpsinc.com and
Owen.Niland@alpsinc.com
|
Dechert
LLP
1095
6th Ave
New
York, New York 10036
allison.fumai@dechert.com
Attn:
Allison Fumai
|
Invoice
for fees and services (if different than above):
RiverNorth
Opportunities Fund, Inc.
[Address]
[E-mail
address]
Attn:
| RiverNorth Subscription Agent Agreement | Page 11 |
| If
to Agent: |
with
an additional copy to: |
| |
|
Computershare
Inc.
480
Washington Blvd., 29th Floor
Jersey
City, NJ 07310
Attn:
Corp Actions Relationship Manager |
Computershare
Inc.
150
Royall Street
Canton,
MA 02021
Attn:
Legal Department |
Or
Computershare
Inc.
150
Royall Street
Canton,
MA 02021
Attn:
Corp Actions Relationship Manager
19.2 No
Expenditure of Funds. No provision of this Agreement shall require Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it shall believe
in good faith that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured
to it.
19.3 Publicity.
Neither party hereto shall issue a news release, public announcement, advertisement, or other form of publicity concerning the
existence of this Agreement or the services to be provided hereunder without obtaining the prior written approval of the other
party, which may be withheld in the other party’s sole discretion; provided, that Agent may use Company’s name in
its customer lists or otherwise as required by law or regulation.
19.4 Successors.
All the covenants and provisions of this Agreement by or for the benefit of Company or Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
19.5 Amendments.
This Agreement may be amended or modified by a written amendment executed by the parties hereto and, to the extent required, authorized
by a resolution of the Board of Directors of Company.
19.6 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or invalidated.
19.7 Governing
Law; Jurisdiction. This Agreement shall be governed by the laws of the State of New York, without regard to principles of
conflicts of law. The parties hereto irrevocably (a) submit to the non-exclusive jurisdiction of any New York State court sitting
in New York City or the United States District Court for the Southern District of New York in any action or proceeding arising
out of or relating to this Agreement, (b) waive, to the fullest extent they may effectively do so, any defense based on inconvenient
forum, improper venue or lack of jurisdiction to the maintenance of any such action or proceeding, and (c) waive all right to
trial by jury in any action, proceeding or counterclaim arising out of this Agreement or the transactions contemplated hereby.
Agent shall not be required hereunder to comply with the laws or regulations of any country other than the United States of America
or any political subdivision thereof. Agent may consult with foreign counsel, at Company’s expense, to resolve any foreign
law issues that may arise as a result of Company or any other party being subject to the laws or regulations of any foreign jurisdiction.
19.8 Force
Majeure. Notwithstanding anything to the contrary contained herein, Agent shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures
or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
| RiverNorth Subscription Agent Agreement | Page 12 |
19.9 Third
Party Beneficiaries. The provisions of this Agreement are intended to benefit only Agent, Company and their respective permitted
successors and assigns. No rights shall be granted to any other person by virtue of this Agreement, and there are no third party
beneficiaries hereof.
19.10 Survival.
All provisions regarding indemnification, warranty, liability and limits thereon, compensation and expenses and confidentiality
and protection of proprietary rights and trade secrets shall survive the termination or expiration of this Agreement.
19.11 Priorities. In the event of any conflict, discrepancy, or ambiguity between the terms and conditions contained
in (a) this Agreement, (b) any exhibits, schedules or attachments hereto, and (c) the Subscription Offer, the terms and conditions
contained in this Agreement shall take precedence.
19.12 Merger of Agreement. This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to the subject matter hereof, whether oral or written.
19.13 No
Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the
event any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by
all parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provision of this Agreement.
19.14 Descriptive
Headings. Descriptive headings contained in this Agreement are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
19.15 Counterparts.
This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Agreement
executed and/or transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
[The
remainder of this page has been intentionally left blank. Signature page follows.]
| RiverNorth Subscription Agent Agreement | Page 13 |
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the Effective Date
hereof.
| RiverNorth Opportunities Fund, Inc. |
| |
|
|
| By: |
/s/Kathryn
Burns |
|
| Name: |
Kathryn Burns |
|
| Title: |
President |
|
COMPUTERSHARE
INC. and
COMPUTERSHARE
TRUST COMPANY, N.A.
For
both entities
| By: |
/s/
Thomas Borbely |
|
| Name: |
Thomas Borbely |
|
| Title: |
Manager, Corporate Actions |
|
| Exhibit
A |
Form
of Subscription Form |
| Exhibit
B |
Tax Instruction
and Cost Basis Information Letter |
| Exhibit
C |
Schedule of
Fees |
| RiverNorth Subscription Agent Agreement | Page 14 |
