Exhibit 12(d)(1)
Depositary and Information Agent Agreement
Between
Tortoise Pipeline & Energy Fund, Inc.,
And
Computershare Trust Company, N.A., Computershare
Inc.
And
Georgeson LLC
THIS DEPOSITARY AND INFORMATION AGENT
AGREEMENT dated as of August 31, 2022 (the “Effective Date”), is by and between Tortoise Pipeline &
Energy Fund, Inc., a Maryland corporation (the “Purchaser”), having its principal office and place of business
at 6363 College Boulevard 66211, Overland Park Kansas, and Computershare Inc., a Delaware corporation (“Computershare”),
and its wholly owned subsidiary Computershare Trust Company, N.A., a federally chartered trust company (“Trust Company”,
and together with Computershare, “Agent”), each having a principal office and place of business at 150 Royall Street,
Canton, Massachusetts 02021, and, for purposes of the services provided under Article II hereof, Georgeson LLC, a Delaware limited
liability company (”Georgeson”).
ARTICLE I – DEPOSITARY SERVICES
1. APPOINTMENT
1.1 The
Purchaser is offering to purchase up to 5% of the its outstanding shares of Common Stock, $ 0.001
per share par value (the “Shares”), at 98% of pricing date NAV to the seller in
cash, upon the terms and conditions set forth in its Offer to Purchase dated October 3rd, 2022 (the
“Offer to Purchase”) and in the letter of transmittal in a form acceptable to Agent (the “Letter of Transmittal”),
which together, as they may be amended from time to time, constitute the “Offer”. Each Purchaser hereby appoints Agent
to act as depositary and information agent in connection with the Offer and Agent hereby accepts such appointment in accordance with
and subject to the terms and conditions set forth in this Agreement.
1.2 The
“Expiration Date” for the Offer shall be 5:00 p.m. New York time, on October 31st, 2022,
unless and until a Purchaser shall have extended the period of time for which the Offer is open, in which event the term “Expiration
Date” shall mean the latest time and date at which the Offer, as so extended by such Purchaser from time to time, shall expire.
Capitalized terms used but not defined herein shall have the same meanings as in the Offer.
1.3 Promptly
after the date hereof, the Purchasers will furnish Agent as depository, with a certified list, in a format acceptable to Agent, of holders
of the Shares of record at the date noted above on which the Offer to Purchase becomes effective (the “Effective Time”),
including each such holder’s name, address, taxpayer identification number (“TIN”), Share amount with applicable
tax lot detail, any certificate detail or indication of accounts holding the Shares through the Direct Registration System (“Book
Entry Shares”) and information regarding any applicable account stops or blocks (the “Record Stockholders List”).
1.4 No
later than the earlier of (i) forty-five (45) days after the Expiration Date or (ii) January 15 of the year following the
year in which the Expiration Date occurs, the Purchase shall deliver to Agent as depository written direction on the adjustment of cost
basis for covered securities that arise from or are affected by this Offer in accordance with current Internal Revenue Service regulations
and as set forth in the Tax Instruction/Cost Basis Information Letter attached hereto as Exhibit A.
2. TENDER
OF SHARES
Agent, in its capacity as depositary, will receive tenders of the Shares.
Subject to the terms and conditions of this Agreement, Agent is authorized to accept such tenders of the Shares in accordance with the
Offer, and to act in accordance with the following instructions:
2.1 The Shares shall be considered
validly tendered to Agent only if:
| (a) | Agent receives prior to the Expiration Date, (i) certificates for such Shares (or a Confirmation (as defined in paragraph (b) below)
relating to such Shares), if applicable, (ii) a properly completed and duly executed Letter of Transmittal or an Agent’s Message
(as defined in paragraph (b) below) relating thereto, and (iii) if applicable, a final determination by Purchaser of the adequacy
of the items received, in accordance with Article I, Section 8 hereof; or |
| (b) | Agent receives (i) a Notice of Guaranteed Delivery (as defined in Article I, Section 2.2(b) below) relating to
such Shares prior to the Expiration Date, (ii) certificates for such Shares (or a Confirmation relating to such Shares), if applicable,
and either a properly completed and duly executed Letter of Transmittal or an Agent’s Message relating thereto, prior to the end
of the [third] trading day on the New York Stock Exchange after the Expiration Date, and (iii) if applicable, a final determination
by the Purchaser of the adequacy of the items received, in accordance with Article I, Section 8 hereof. |
2.2 For
the purpose of this Agreement:
| (a) | a “Confirmation” shall be a confirmation
of book-entry transfer of the Shares into an Agent account at The Depository Trust Company (the “Book-Entry Transfer Facility”)
to be established and maintained by Agent in accordance with Article I, Section 3 hereof; |
| (b) | a “Notice of Guaranteed Delivery” shall be
a notice of guaranteed delivery in the form agreed upon by the parties hereto or, if sent by a Book-Entry Transfer Facility, a message
transmitted through electronic means in accordance with the usual procedures of such Book-Entry Transfer Facility and Agent; provided,
however, that if such notice is sent by a Book-Entry Transfer Facility through electronic means, it must state that such Book-Entry Transfer
Facility has received an express acknowledgment from the participant on whose behalf such notice is given that such participant has received
and agrees to be bound by the form of such notice; and an “Agent's Message” shall be a message transmitted through
electronic means by a Book-Entry Transfer Facility, in accordance with the normal procedures of such Book-Entry Transfer Facility and
Agent, to and received by Agent and forming part of a Confirmation, which states that such Book-Entry Transfer Facility has received
an express acknowledgment from the participant in such Book-Entry Transfer Facility tendering the Shares which are the subject of such
Confirmation that such participant has received and agrees to be bound by the terms of the Letter of Transmittal, and that the Purchaser
may enforce such agreement against such participant. The term Agent's Message shall also include any hard copy printout evidencing such
message generated by a computer terminal maintained at Agent's office. |
| (c) | The Purchaser acknowledges that in connection with the Offer Agent may enter into agreements or arrangements with a Book-Entry Transfer
Facility which, among other things, provide that (i) delivery of an Agent's Message will satisfy the terms of the Offer with respect
to the Letter of Transmittal, (ii) such agreements or arrangements are enforceable against the Purchaser by such Book-Entry Transfer
Facility or participants therein and (iii) Agent, as depositary, is authorized to enter into such agreements or arrangements on behalf
of the Purchaser. Without limiting any other provision of this Agreement, Agent is expressly authorized to enter into any such agreements
or arrangements on behalf of the Purchaser and to make any necessary representations or warranties in connection thereunder, and any such
agreement or arrangement shall be enforceable against the Purchaser. |
| (d) | If any holder of the Shares as of the Effective Time reports to Agent that his or her failure to surrender a certificate representing
any Shares registered in his or her name at the Effective Time according to the Record Noteholders List is due to the theft, loss or destruction
of such certificate, upon Agent’s receipt from such stockholder of (a) an affidavit of such theft, loss or destruction, (b) an
open penalty surety bond in form and substance satisfactory to Agent, and (c) payment of all applicable fees, Agent will make and
payment due in connection with the Offer to the former noteholder as though the certificate for the Shares had been surrendered. Agent
may charge holders an administrative fee for processing payment with respect to the Shares represented by lost certificates, which shall
be charged only once in instances where a single surety bond obtained covers multiple certificates in a single account. Agent may receive
compensation, including in the form of commissions for services provided in connection with surety programs offered to stockholders. |
3. BOOK-ENTRY
ACCOUNT
Agent shall take steps to establish and, subject to such establishment,
maintain an account at each Book-Entry Transfer Facility for book-entry transfers of the Shares, as set forth in the Letter of Transmittal.
4. PROCEDURE FOR DISCREPANCIES
Agent shall follow its regular procedures to attempt to reconcile any
discrepancies between the number of Shares that any Letter of Transmittal may indicate are owned by a tendering stockholder and the number
that the Record Stockholders List indicates such stockholder owned. In any instance where Agent cannot reconcile such discrepancies by
following such procedures, Agent will consult with the Purchaser for instructions as to the number of Shares, if any; Agent is authorized
to accept as validly tendered. In the absence of such instructions, Agent is authorized not to accept any such Shares and will return
to the tendering stockholder (at Agent’s option by either first class mail under a blanket surety bond or insurance protecting Agent,
the Purchaser from losses or liabilities arising out of the non-receipt or non-delivery of such Shares or by registered mail insured separately
for the value of such Shares) to such stockholder’s address as set forth in the Letter of Transmittal any such Shares, the related
Letters of Transmittal and any other documents received with such Shares.
5. PROCEDURE
FOR DEFICIENT ITEMS
5.1 Agent
shall examine any certificate representing the Shares, Letter of Transmittal, Notice of Guaranteed Delivery, Agent’s Message and
any other document required by the Letter of Transmittal that is received by Agent as depositary to determine whether any tender may be
defective. In the event Agent concludes that any Letter of Transmittal, Notice of Guaranteed Delivery, Agent’s Message or other
document has been improperly completed, executed or transmitted, any certificate representing the Shares is not in proper form for transfer
or some other irregularity in connection with the tender of the Shares exists, Agent is authorized, subject to 8.2 below, to advise the
tendering stockholder or transmitting Book-Entry Transfer Facility, as the case may be, of the existence of the irregularity. Agent is
not authorized to accept any tender that is not made in accordance with the terms and conditions set forth in the Offer, or any other
tender which Agent deems to be defective, unless Agent shall have received from the Purchaser the applicable Letter of Transmittal (or
if the tender was made by means of a Confirmation containing an Agent’s Message, a written notice), duly dated and signed by an
authorized officer of the Purchaser, indicating that any defect or irregularity in such tender has been cured or waived and that such
tender has been accepted by the Purchaser.
5.2 Promptly
upon concluding that any tender is defective, Agent shall use reasonable efforts in accordance with Agent’s regular procedures to
notify the person tendering such Shares, or Book-Entry Transfer Facility transmitting the Agent's Message, as the case may be, of such
determination and, when necessary, return the subject Shares to such person in the manner described in Article I, Section 8
hereof. The Purchaser shall have full discretion to determine whether any tender is complete and proper and shall have the absolute right
to reject any or all tenders of any Shares determined by it not to be in proper form and to determine whether the acceptance of or payment
for such tenders may, in the opinion of counsel for the Purchaser, be unlawful; it being specifically agreed that Agent shall have neither
discretion nor responsibility with respect to these determinations. To the extent permitted by applicable law, the Purchaser also reserves
the absolute right to waive any of the conditions of the Offer or any defect or irregularity in the tender of any Shares. The interpretation
by the Purchaser of the terms and conditions of the Offer to Purchase, the Letter of Transmittal and the instructions thereto, a Notice
of Guaranteed Delivery or an Agent's Message (including without limitation the determination of whether any tender is complete and proper)
shall be final and binding.
5.3 If
less than all of the Shares validly tendered pursuant to the Offer are to be accepted because the Offer is oversubscribed by the Expiration
Date, the Purchaser shall provide Agent with instructions regarding proration as soon as practicable. Agent shall maintain accurate records
as to all the Shares tendered prior to or on the Expiration Date.
6. REPORT
OF TENDER ACTIVITY
6.1. Agent shall forward up to 10 reports of tender activity, by email,
beginning 2 weeks prior to the initial expiration date, to each of the parties named below as to the following information, based upon
a preliminary review as of the close of business on the preceding business day: (i) the number of the Shares tendered; (ii) the
number of the Shares tendered represented by certificates physically held by Agent; (iii) the number of the Shares represented by
Notices of Guaranteed Delivery; (iv) the number of the Shares withdrawn; and (v) the cumulative totals of the Shares in categories
(i) through (iv) above. At the expiration of the offer Agent shall provide a master list of the Shares elected, including a
complete list of the electing stockholders.
6.2. Agent may furnish to the Purchaser, upon reasonable request, ad
hoc reports. Fees for such reports will be as set forth on the Schedule of Fees attached hereto as Exhibit B. At the expiration of
the Offer, Agent shall provide a master list of the Shares tendered, including a complete list of the tendering stockholders.
7. NOTICE
OF WITHDRAWAL
Agent will return to any person tendering the Shares, in the manner
described in Article I, Section 8 hereof, any Shares tendered by such person but duly withdrawn pursuant to the Offer to Purchase.
To be effective, Agent must receive a written notice of withdrawal at its address as set forth on the back page of the Offer to Purchase,
within the time period specified for withdrawal in the Offer to Purchase or other method mutually agreed to by the Purchaser and Agent.
Any notice of withdrawal must specify the name of the registered holder of the Shares to be withdrawn, the number of the Shares to be
withdrawn and, if such Shares are represented by a physical certificate, the number of such certificate. Agent is authorized and directed
to examine any notice of withdrawal to determine whether it believes any such notice may be defective. In the event Agent concludes that
any such notice is defective it shall, after consultation with and on the instructions of the Purchaser, use reasonable efforts in accordance
with its regular procedures to notify the person delivering such notice of such determination. All questions as to the form and validity
(including time of receipt) of notices of withdrawal will be determined by the Purchaser in its sole discretion, whose determination shall
be final and binding. Any Shares withdrawn in accordance with the procedures set forth in this section shall no longer be considered to
be properly tendered unless such Shares are re-tendered prior to the Expiration Date in accordance with Article I, Section 2
hereof.
8. RETURN OF SHARES
If, pursuant to the terms and conditions of the Offer, the Purchaser
has notified Agent that it does not accept certain of the Shares tendered or purported to be tendered or a stockholder has withdrawn any
tendered Shares, the Purchaser instructs the Agent to promptly return tendered Certificated Shares, by canceling all such Certificated
Shares and issuing an equal number of book-entry Shares in Direct Registration System to each tendering holder and mail a transaction
advice reflecting such to each holder, together with any other documents received, to the person who deposited the same. Any transaction
advice for such Shares and other documents shall be delivered by Agent, at its option, by:
| a) | first class mail under a blanket surety bond or insurance protecting
Agent, the Purchaser from losses or liabilities arising out of the non-receipt or non-delivery of such Shares; or |
| b) | registered mail insured separately for the value of such Shares.
If any such Shares were tendered or purported to be tendered by means of a Confirmation containing an Agent's Message, Agent shall notify
the Book-Entry Transfer Facility that transmitted such Confirmation of the Purchaser’s decision not to accept the Shares. |
9. AMENDMENT/EXTENSION OF OFFER
Any amendment to or extension of the Offer, as the Purchaser shall
from time to time determine, shall be effective upon notice to Agent from the Purchaser given prior to the time the Offer would otherwise
have expired, and shall be promptly confirmed by the Purchaser in writing; provided that Agent may rely on and shall be authorized and
protected in acting or failing to act upon any such notice even if such notice is not confirmed in writing or such confirmation conflicts
with such notice. If at any time the Offer shall be terminated as permitted by the terms thereof, the Purchaser shall promptly notify
Agent of such termination. For purpose of this Agreement, an extension or subsequent offer period (an “Extension”)
shall last up to 10 business days. Any Extension period exceeding 10 business days will incur additional fees commensurate with that extension
or extensions.
10. DISTRIBUTION
OF ENTITLEMENTS
10.1 If,
under the terms and conditions set forth in the Offer to Purchase, the Purchaser becomes obligated to accept and pay for the Shares validly
tendered, the Purchaser shall:
| a) | Provide Agent with a Notice of Acceptance in a form mutually agreed to by Agent and the Purchaser |
| b) | Provide Agent with instructions to coordinate the transfer of the Shares purchased in a form mutually agreed to by Agent and the Purchaser
(the “Transfer of Shares”) |
| c) | Deposit with Agent sufficient federal or other immediately available funds to pay, subject to the terms and conditions of the Offer,
all stockholders for whom payment for the Shares are to be drawn, less any adjustments required by the terms of the Offer and all applicable
tax withholdings (“Tender Consideration”), |
10.2 Upon
the Transfer of the Shares and deposit of immediately available funds, Agent shall deliver or cause to be delivered to stockholders who
have validly tendered their Shares (or such holders’ designated payees), consistent with this Agreement and the Letter of Transmittal,
official bank checks, or other method as mutually agreed between Agent and the Purchaser, in the amount of the applicable purchase price
specified in the Offer (less any applicable tax withholding) for the Shares theretofore properly tendered and purchased under the terms
and conditions of the Offer (the “Payment Event”). Tender Consideration must be received by Agent prior to 9:00 a.m. New
York City time for Payment Event to commence on the same day that Tender Consideration is received by Agent. Agent will not be obligated
to calculate or pay interest to any holder or any other party claiming through a holder or otherwise.
ARTICLE II – Information
Agent Services
Information Agent Services
| 1. | Services. Georgeson shall perform the information agent services described in the attached Exhibit B (such services, collectively,
the “IA Services”). |
| 2. | Fees. In consideration of Georgeson’s performance of the IA Services, the Purchaser shall pay Georgeson the amounts,
and pursuant to the terms, set forth on the attached Exhibit B, together with the Expenses (as defined below). The Purchaser acknowledges
and agrees that the Schedule of Fees shall be subject to adjustment if the Purchaser requests Georgeson to provide services with respect
to additional matters or a revised scope of work. |
| 3. | Expenses. In addition to the fees and charges described in paragraphs (2) hereof, Georgeson shall charge the Purchaser,
and the Purchaser shall be solely responsible, for the following costs and expenses (collectively, the “Expenses”): |
| a. | Costs and expenses incidental to the Offer, including without limitation the mailing or delivery of Offer materials; |
| b. | Costs and expenses relating to Georgeson’s work with its agents or other parties involved in the Offer, including without limitation
charges for bank threshold lists, data processing, telephone directory assistance, facsimile transmissions or other forms of electronic
communication; |
| c. | Costs and expenses incurred by Georgeson at the Purchaser’s request or for the Purchaser’s convenience, including without
limitation for copying, printing of additional and/or supplemental material and travel by Georgeson’s personnel; and |
| d. | Any other costs and expenses authorized by the Purchaser during the course of the Offer, including without limitation those relating
to advertising (including production and posting), media relations and analytical services. |
| e. | The Purchaser shall pay all applicable taxes incurred in connection with the delivery of the IA Services or Expenses. |
Georgeson agrees to check, itemize and pay on the Purchaser’s
behalf the charges of brokers and banks, with the exception of Broadridge Financial Solutions, Inc. (which will bill the Purchaser
directly), for forwarding the Purchaser’s offering material to beneficial owners. The Purchaser shall reimburse Georgeson for such
broker and bank charges in the manner described in the Fees & Services Schedule.
ARTICLE III – GENERAL PROVISIONS
1. PROCEDURE
FOR DISCREPANCIES
Agent shall follow its regular procedures to attempt to reconcile any
discrepancies between the number of certificated Shares that any Letter of Transmittal may indicate are owned by a surrendering stockholder
and the number that the Record Stockholders List indicates such stockholder owned of record as of the Effective Time. In any instance
where Agent cannot reconcile such discrepancies by following such procedures, Agent will consult with the Purchaser for instructions as
to the number of certificated Shares, if any; Agent is authorized to accept for exchange. In the absence of such instructions, Agent is
authorized not to accept any such certificated Shares for exchange and will return to the surrendering stockholder in accordance with
its standard procedures to such stockholder’s address as set forth in the Letter of Transmittal any certificates for the Shares
surrendered in connection therewith, the related Letters of Transmittal and any other documents received with such Shares.
2. PROCEDURE
FOR DEFICIENT ITEMS
2.1 Agent
shall examine the Letter of Transmittal and certificates for the Shares received by it as agent to ascertain whether they appear to have
been completed and executed in accordance with the instructions set forth in the Letter of Transmittal. In the event Agent determines
that any Letter of Transmittal does not appear to have been properly completed or executed, or where the certificates representing the
Shares do not appear to be in proper form for surrender, or any other deficiency in connection with the surrender appears to exist, the
Purchaser authorizes and instructs Agent to follow, where possible, its regular procedures, set forth in Article III, Section 2.3
below, to attempt to cause such irregularity to be corrected. Agent is not authorized to waive any deficiency in connection with the surrender,
unless the Purchaser provides written authorization to waive such deficiency, subject to applicable law and regulations.
2.2 If
a Letter of Transmittal specifies that payment for the Shares is to be made to a person other than the person in whose name a surrendered
certificate is registered, Agent will issue no Tender Consideration until such Letter of Transmittal has been properly endorsed with a
signature guarantee from an eligible guarantor institution approve by the Securities Transfer Association, and accompanied by any other
evidence of authority that may be reasonably required by the Agent, and otherwise put in proper form for transfer.
2.3 If
any such deficiency with respect to any certificated Shares is neither corrected nor waived, Agent shall: (a) convert the Shares
represented by such certificate to a Book Entry position and (b) Send to such holder a defect letter describing the applicable defects
and asking that the deficiencies be corrected.
3. ELIGIBILITY
OF SHARES FOR PAYMENT
Agent requests specific information with respect to affiliates, Shares
ineligible for tender, and any stockholder plans affected by this Offer including any treasury positions. Purchaser agrees to provide
all such applicable information on the list of affiliates, ineligible Shares and plans attached hereto as Exhibit C, as requested.
4. DEPOSIT
OF FUNDS
4.1 All
funds received by Computershare pursuant to this Agreement that are to be distributed or applied by Computershare in accordance with the
terms of this Agreement (the “Funds”) shall be delivered to Computershare by 9:00 a.m. Eastern Time (“ET”)
and in no event later than 12:00 p.m. ET on the Effective Time. Funding after 9:00 a.m. but before 12:00 p.m. on the Effective
Time may cause delays in payments to be made on the Effective Time. Delivery of the Funds on any day after 12:00 p.m. ET will be
subject to the terms of Article III, Section 4.4, below. Once received by Computershare, the Funds shall be held by Computershare
as agent for the Purchaser . Until paid or distributed in accordance with this Agreement, the Funds shall be deposited in one or more
bank accounts to be maintained by Computershare in its name as agent for the Purchaser. Until paid pursuant to this Agreement, 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) cash management sweeps to AAA fixed NAV money market funds that comply with Rule 2a-7
of the Investment Company Act of 1940, (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 S&P Global Inc. (“S&P”)
or Moody's Investors Service, Inc. (“Moody’s”), respectively.
4.2 Computershare
will only draw upon the Funds in such account(s) as required from time to time in order to make the payments for the Shares and any
applicable tax withholding payments. 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 Article III, Section 4, 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. Computershare shall not be obligated to pay such interest, dividends
or earnings to the Purchaser, any holder or any other party.
4.3 Computershare
is acting as Agent hereunder and is not a debtor of the Purchaser in respect of the Funds.
4.4 In
the case of late-day funding, which means delivery of the Funds to Computershare after 12:00 p.m. ET on any day, regardless
of whether such funding occurs prior to, or after, the Effective Time as set forth in Article III, Section 4.1 above (“Late-Day
Funding”), Federal Deposit Insurance or other bank liquidity charges may apply in connection with the overnight deposit of the
Funds with commercial banks. The parties hereto agree that any such charges assessed as a result of Late-Day Funding will be charged to
the Purchaser and the Purchaser hereby agrees to pay such charges.
4.5 The
Purchaser agrees to deliver the Funds by wire to the account(s) listed on the attached Exhibit D, which may be amended in writing
from time to time.
5. International Currency
Exchange
Computershare at its option may offer its International Currency Exchange
(“ICE”) Service (the “Service”) to certain shareholders whereby any such shareholder can elect to
receive their payment in a currency other than U.S. Dollars, via a convenient and secure currency conversion service. The Service is voluntary
and will only be utilized at the direction of the eligible shareholder electing such Service and agreeing to the terms and condition of
the Service as described in the ICE Registration Form included with a Letter of Transmittal and sent to eligible shareholders. Agent
shall charge a fee to participants for processing. The Purchaser will not incur fees resulting from the Service.
6. DATE/TIME STAMP
Each document received by Agent relating to its duties hereunder shall
be dated and time stamped when received.
8. TAX
REPORTING
78.1 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 Tax Instruction
/Cost Basis Information Letter attached hereto as Exhibit A. Any cost basis or tax adjustments required after the Effective Time
will incur additional fees.
8.2 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.
8.3 Should
any issue arise regarding federal income tax reporting or withholding, Agent shall take such reasonable action as the Purchaser may reasonably
request in writing. Such action may be subject to additional fees.
9. UNCLAIMED
PROPERTY The Agent shall report unclaimed property to each state in compliance with state laws. The Agent will charge
the Purchaser its standard fees plus expenses (including the cost of due diligence mailings) for such services. The Purchaser acknowledges
and agrees that in the case of reports made and property delivered pursuant to an initial or voluntary compliance program administered
by private auditing agents retained by state unclaimed property administrators, the Agent will be compensated for its efforts in facilitating
the Purchaser’s involvement in such a program including the provision of the necessary records and remittance of property in the
manner required by the program by means of an expense reimbursement payment based on a percentage of the property remitted to the states
through participation in the program. The Purchaser will not be charged for any services performed by the Agent in conjunction with the
program to the extent that the Agent receives an expense reimbursement and agrees to reimburse Agent for any expenses incurred in the
performance of such services.
10. AUTHORIZATIONS
AND PROTECTIONS
As agent for the Purchaser hereunder, Agent and Georgeson, respectively:
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 or
Georgeson, as applicable, and the Purchaser;
10.2 Shall
have no obligation to make any payment for the Shares unless the Purchaser shall have provided the necessary federal or other immediately
available funds to pay in full amounts due and payable with respect thereto;
10.3 Shall
be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value, or genuineness of any
certificates or the Shares represented thereby surrendered hereunder 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 Offer;
10.4 Shall
not be obligated to take any legal action hereunder; if, however, Agent or Georgeson, as applicable, determines to take any legal action
hereunder, and where the taking of such action might, in such party’s judgment, subject or expose it to any expense or liability,
Agent or Georgeson, as applicable, 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 or by Georgeson, as applicable,
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 Offer to Purchase or any other documents relating thereto;
10.7 Shall
not be liable or responsible for any failure of the Purchaser or any other party to comply with any of its covenants and obligations relating
to the Offer, including without limitation obligations under applicable securities laws;
10.8 Shall
not be liable to any holder of the Shares for any 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 the Purchaser concerning the services provided hereunder. Further, Agent or Georgeson,
as applicable, may apply to any officer or other authorized person of Purchaser for instruction, and may consult with legal counsel for
Agent or Georgeson, as applicable, or the Purchaser 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 Purchaser under Article III, Section 12.2
of this Agreement for any action taken or omitted by Agent or Georgeson, as applicable, in reliance upon any Purchaser instructions or
upon the advice or opinion of such counsel. Neither Agent nor Georgeson shall be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Purchaser;
1010 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 Article III, Section 10.9 above, Agent or Georgeson, as applicable,
may consult counsel satisfactory to such party (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 or Georgeson, as applicable, hereunder in good
faith and in reliance upon the advice of such counsel;
10.12 May perform
any of its duties hereunder either directly or by or through agents or attorneys and neither Agent nor Georgeson shall 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
AND WARRANTIES
| 11.1 | Agent. Agent represents and warrants to Purchaser 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 (i) any existing law, ordinance, or governmental rule or regulation to which Agent is subject,
(ii) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body
or authority applicable to Agent, (iii) Agent’s incorporation documents or by-laws, or (iv) any material agreement to
which Agent is a party. |
| 11.2 | Purchaser. Purchaser 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 Purchaser has been duly authorized by all
necessary action, constitutes the legal, valid and binding obligation of Purchaser enforceable against Purchaser 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 (i) any existing law, ordinance, or governmental rule or regulation to which
Purchaser is subject, (ii) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory
official, body or authority applicable to Purchaser, (iii) Purchaser’s incorporation documents or by-laws, (iv) any material
agreement to which Purchaser is a party, or (v) any applicable stock exchange rules; and |
| (c) | Shares. The Shares issued and outstanding on the date hereof have been duly authorized, validly issued and are fully paid and
are non-assessable. |
| 11.3 | Georgeson. Georgeson represents and warrants to Purchaser that: |
| (a) | Governance. Information Agent is a corporation duly organized, validly existing, and in good standing under the laws of the
State of Delaware and 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 Georgeson has been duly authorized by all necessary action, constitutes the legal, valid and binding obligation
of Georgeson enforceable against Georgeson 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 (i) any
existing law, ordinance, or governmental rule or regulation to which Georgeson is subject, (ii) any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority applicable to Georgeson,
(iii) Georgeson’s incorporation documents or by-laws, or (iv) any material agreement to which Georgeson is a party. |
12. INDEMNIFICATION
AND LIMITATION OF LIABILITY
12.1 Liability. Agent and Georgeson shall only be liable, severally
and not jointly, for any loss or damage determined by a court of competent jurisdiction to be a result of Agent’s or Georgeson‘s
respective gross negligence or willful misconduct; provided that any respective liability of Agent and Georgeson will be limited in the
aggregate to the amounts paid hereunder by Purchaser to Agent or Georgeson, respectively, as fees and charges, but not including reimbursable
expenses.
12.2 Indemnity. Purchaser shall indemnify and hold Agent and
Georgeson harmless from and against, and neither Agent nor Georgeson shall be responsible for, any and all losses, claims, damages, costs,
charges, counsel fees and expenses, payments, expenses and liability (collectively, “Losses”) arising out of or attributable
to Agent’s or Georgeson’s respective 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 or Georgeson as set forth in Article III,
Section 12.1 above.
13. DAMAGES
Notwithstanding anything in this Agreement to the contrary, no party
shall be liable to any 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.
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 the 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 such physical and other security measures and controls which are 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 Article III,
Section 14.
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 or Georgeson, as applicable,
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 Article III, 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 Article III, Section 14.
15. TERMINATION
15.1 Depositary. The Agent or the Purchaser may, with respect
to the depositary services, terminate this Agreement upon 30 days prior written notice to the other party. Unless so terminated, this
Agreement shall continue in effect until all Shares have been received and paid for, or until the final delivery of all Tender Consideration(s) to
the appropriate states as unclaimed property. In the event of such termination, the Purchaser will appoint a successor agent and inform
Agent of the name and address of any successor agent so appointed, provided that no failure by the Purchaser 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 the Purchaser or its designee any unpaid Tender Consideration deposited with Agent
pursuant to Article III, Section 4 hereof.
15.2 Information Agent. Either Georgeson or the Purchaser may,
with respect to the IA Services, terminate this Agreement upon 30 days prior written notice to the other party. Unless so terminated,
this Agreement shall, with respect to IA Services continue in effect for the term of the Offer and any extension thereof, and shall terminate
upon the final expiration of the Offer.
15.3 Notices of termination delivered pursuant to Article III,
Section 15.1, above, will not be deemed to terminate IA Services. Likewise, termination pursuant to Article III, Section 15.2,
above, will not be deemed to terminate depositary services.
16. COMPENSATION AND EXPENSES
16.1 The
Purchaser shall pay to Agent and to Georgeson, respectively, compensation in accordance with the attached Exhibit B, together with
reimbursement for reasonable fees and disbursements of counsel, regardless of whether any Shares are surrendered to Agent, for Agent’s
services as agent hereunder, and for Georgeson’s services as information agent hereunder.
16.2 The
Purchaser shall be charged for certain expenses advanced or incurred by Agent and Georgeson in connection with the performance of their
respective 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 both Agent and Georgeson endeavor 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 and Georgeson’s billing systems.
16.3 If
any out-of-proof condition caused by the Purchaser or any of its prior agents arises during any terms of this agreement, the Purchaser
will, promptly upon Agent’s request, provide Agent with funds or Shares sufficient to resolve the out-of-proof condition.
16.4 All
amounts owed to Agent and Georgeson 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. The Purchaser
agrees to reimburse Agent and Georgeson for any attorney’s fees and any other costs associated with collecting delinquent payments.
16.5 The parties hereto agree that in the event that Agent and Georgeson
commence performance under this Agreement, which performance may include, inter alia, initial project set-up activity, balancing
and reconciliation, loading files, preparing letters of transmittal or other documents, as applicable, but the transaction contemplated
hereunder is not initiated for any reason, the Purchaser agrees to pay, in any event, the Event Management fee and the IA Services base
fee, set forth in Exhibit B, attached hereto. In addition, the Purchaser agrees to pay any expenses incurred by the Agent in connection
with the services hereunder, up to and including the date on which Agent receives written notice of termination pursuant to Article III,
Section 15 hereof.
16.6 Following
initiation and notice of termination of this Agreement for any reason, the Purchaser hereby agrees to pay on or before the effective
date of such termination (a) all fees earned and expenses set forth on the attached Exhibit B incurred by Agent through and
including the date of such termination, including, in any event, the Event Management Fee, and (b) all costs and expenses associated
with the movement of records, materials, and services to Purchaser or the successor agent, including all reasonable expense.
16.7 Purchaser
is responsible for all taxes, levies, duties, and assessments levied on services purchased under this Agreement (collectively, “Transaction
Taxes”). Computershare is responsible for collecting and remitting Transaction Taxes in all jurisdictions in which Computershare
is registered to collect such Transaction Taxes. Computershare shall invoice Purchaser for such Transaction Taxes that Computershare
is obligated to collect upon the furnishing of services provided hereunder. Purchaser shall pay such Transaction Taxes according
to the terms in Article III, Section 16.1, above. Computershare shall timely remit to the appropriate governmental authorities
all such Transaction Taxes that Computershare collects from Purchaser. To the extent that Purchaser provides Computershare with
valid exemption certificates, direct pay permits, or other documentation that exempts Computershare from collecting Transaction Taxes
from Purchaser, invoices issued for services hereunder provided after Computershare’s receipt of such certificates, permits, or
other documentation will not reflect exempted Transaction Taxes. Computershare is solely responsible for the payment of all personal
property taxes, franchise taxes, corporate excise or privilege taxes, property or license taxes, taxes relating to Computershare’s
personnel, and taxes based on Computershare’s net income or gross revenues relating to services provided hereunder.
17. ASSIGNMENT
Neither this Agreement nor any rights or obligations hereunder may
be assigned by Purchaser or Agent without the written consent of the other; provided, however, that Agent may, without further consent
of Purchaser, 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 Purchaser, 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 Purchaser 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 Article III, Section 18.1 of this Agreement)
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 overnight delivery services, or by certified or registered mail, return receipt requested to:
| If to the Purchaser: |
with an additional copy to: |
|
Tortoise Capital Advisors, L.L.C.
6363 College Boulevard, Suite 100A
Overland Park, KS 66211
Attn: Brad Adams
badams@tortoiseecofin.com
|
Sean Wickliffe
(swickliffe@tortoiseecofin.com) |
Invoice for Fees and Services (if different than above):
Same as above.
| If to Agent (as applicable): |
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
|
If to Georgeson:
Georgeson LLC
1290 Avenue of the Americas, 9th Floor,
New York, NY 10104
Attn: Relationship Manager |
with an additional copy to:
Georgeson LLC
480 Washington Blvd, 29th Floor
Jersey City, NJ 07310
Attn: Legal Department |
19.2 No Expenditure of Funds. No provision of this Agreement
shall require Agent or Georgeson, as applicable, 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. No party 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 and Georgeson may each use Purchaser’s name in their respective 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 Purchaser or Agent and Georgeson, as applicable, 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 Purchaser.
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, provision, 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 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. Neither Agent nor Georgeson shall 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 and Georgeson may each consult with foreign counsel, at Purchaser’s expense, to resolve any foreign law issues that
may arise as a result of Purchaser or any other party being subject to the laws or regulations of any foreign jurisdiction.
19.8 Force
Majeure. Neither Agent nor Georgeson will be liable for any delay or failure in performance when such delay or failure arises from
circumstances beyond its reasonable control, including without limitation acts of God, acts of government in its sovereign or contractual
capacity, acts of public enemy or terrorists, acts of civil or military authority, war, riots, civil strife, terrorism, blockades, sabotage,
rationing, embargoes, epidemics, pandemics, outbreaks of infectious diseases or any other public health crises, earthquakes, fire, flood,
other natural disaster, quarantine or any other employee restrictions, power shortages or failures, utility or communication failure or
delays, labor disputes, strikes, or shortages, supply shortages, equipment failures, or software malfunctions.
19.9 Third
Party Beneficiaries. The provisions of this Agreement are intended to benefit only Agent, Georgeson, Purchaser 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
schedules or attachments hereto, and (c) the Offer to Purchase, 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 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.]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement by their duly authorized officers as of Effective Date hereof.
Tortoise pipeline &
energy fund, inc.,
| By: |
/s/ P. Bradley Adams |
|
| Name: |
P. Bradley Adams |
|
| Title: |
Chief Executive Officer |
|
COMPUTERSHARE TRUST COMPANY, N.A., and COMPUTERSHARE
INC.,
On behalf of both entities
| By: |
/s/ Thomas Borbely |
|
| Name: |
Thomas Borbely |
|
| Title: |
Senior Manager, Corporate Actions |
|
GEORGESON LLC
| By: |
/s/ Christopher M. Hayden |
|
| Name: |
Christopher M. Hayden |
|
| Title: |
Chief Operating Officer>US |
|
Exhibit A Tax Instruction and
Cost Basis Information Letter
Exhibit B Schedule of Fees
Exhibit C List of affiliates, Ineligible
Shares, and Plans
Exhibit D Wire Instructions
EXHIBIT A;
Section 1
Standard Tax Reporting Instructions
Pursuant to the Emergency Economic Stabilization Act of 2008, financial
intermediaries such as Computershare must report cost basis for certain types of securities acquired after January 1, 2011 to both
security holders and the IRS. In preparation for the year-end tax reporting to be performed by Computershare under our service agreement
for the corporate actions event described in Section 2 of this agreement, please (a) complete the below Year End Tax Reporting
Package and (b) provide us with the pertinent issuer statement (i.e., hard copy or website link requested in Section 4 below)
as required of issuers under Internal Revenue Code Section 6045B and the underlying Treasury regulations.
In the event that you have not yet produced the issuer statement,
kindly provide us with the requisite information at your earliest convenience when completed. You may find it helpful to refer to the
below link on the IRS website for some background information regarding the issuer’s obligation to produce the issuer statement.
https://www.irs.gov/forms-pubs/form-8937-report-of-organizational-actions-affecting-basis-of-securities
Please review, complete, execute and
return the Year End Tax Reporting Package or the Form 8937, attached documents via e-mail. By requesting cost basis
information, Computershare has fulfilled its regulatory obligation. Failure to provide correct basis information may result in a liability
to you as an issuer, but if we can provide additional details, please feel free to call upon us.
Additional information may be required based on the completion of
the information provided below.
PLEASE NOTE: If IRC sections
302/304 apply to this Corporate Actions event, please reach out to the Corporate Actions Relationship Manager listed on Wire Instruction
Exhibit of this Agreement to provide further details.
Year End Tax Reporting Package
Computershare cannot provide tax advice for purposes of completing this worksheet. Please consult your tax counsel to determine your respective
tax reporting requirements.
Shareholder accounts without certified TIN, or certification of foreign
status on our system of record will be subject to backup withholding tax at the applicable rate in accordance with IRS rules and
regulations regarding 1099 tax reporting. The applicable backup withholding tax deducted from their payment will be remitted to the Internal
Revenue Service (IRS). Holders will need to claim any refund of over withholding directly from the IRS and not Computershare. Please
note residents or holders that are uncertified, and reside in the state of CA will be withheld an additional 7% which will be remitted
to the state of CA.
Important: Computershare
uses Constructive Receipt (refer to below definition) reporting for its standard tax reporting default. Deviations from our Standard Default
Tax Terms, late submissions and subsequent corrections after the event is over will be subject to additional fees, by appraisal. If Computershare
does not receive the completed tax letter by the expiration of the offer /effective date of the distribution or exchange, Computershare
will use our Standard Default Tax Terms.
Computershare will perform form suppression on de minimis reporting
for the following: on 1099-B tax forms less than $20 in proceeds and fractional share issuance if no withholding; 1099-DIV tax forms less
than $10 in dividend income if no withholding.
Computershare will not be liable for any IRS penalties resulting
from any client changes to this tax letter or client delay in any final tax instructions that will alter our initial tax reporting instructions.
Should any withholding be remitted late to the IRS as a result of any changes to your initial tax reporting instructions. Company and/or
Purchaser will be responsible for obligations related to penalties and interest as noted under the Section of the Agreement titled
“Indemnification and Limitation of Liability.”
Definitions:
Constructive Receipt: Constructive
Receipt means that any corporate action exchange proceeds would be reported to the IRS in the year the merger is effective, whether or
not the shareholder has presented the requisite and valid documentation in such year.
Standard Default Tax Terms:
The share consideration (if any) is considered a non-taxable event with no Fair Market Value Reporting (FMV) on shares. Principal and
CIL are reported on form 1099B as constructive receipt. In the event of an exchange, dividends declared after the effective date, will
accrue on the shares issuable to un-exchanged holders and tax reported “as if” paid currently.
Section 2 – Client Information
| Client Name: |
Tortoise Pipeline & Energy Fund, Inc. |
| |
|
| Tax ID/EIN: |
45-2785066 |
| Issue Description/Type: |
C-Corporation |
| CUSIP Number(s): |
89148H207 |
Will you require Computershare to perform tax reporting services for
this transaction?
x Yes ¨ No***
***If you mark the above box “No”, an explanation of
either how the consideration will be tax reported, or why tax reporting is not applicable (i.e. K1, W-2, etc.), is required. Please
provide this explanation in Section 5 where it indicates “If you answered “No” in Section 2.
Section 3 – Standard 1099 Reporting
3.A – Principal payment / cash in lieu
of fractional shares
If 3.A is not applicable, please check here and move to
3.B ¨
Computershare to report principal payment on Form 1099-B.
Yes, on Form 1099-B x Yes,
on a form other than Form 1099-B. Please complete Section 3.C ¨
Computershare to report cash in lieu payment for fractional shares
made to holders.
Yes, on Form 1099-B x Yes, on
a form other than Form 1099-B. Please complete Section 3.C ¨
3.B – Dividend Reporting (including
accrued dividends for unexchanged accounts)
If 3.B is not applicable, please check here and move to
Section 3.C x
Dividends that have been paid in conjunction with Corporate Actions
payments, deemed or accrued, such payment will be reported as Constructive Receipt on Form 1099-DIV or 1042-S.
Computershare to report dividends on Forms 1099-DIV / 1042-S.
Yes, Form 1099-DIV/1042-SB ¨ Yes,
on a form other than Form 1099-DIV/1042=S. ¨ Please explain
Did the Purchaser distribute qualified dividends (100% ordinary &
100% qualified) for this tax year on the Newco shares?
Yes ¨ *No ¨
*If no, please provide us with your worksheet to ensure all reportable
income or reclassification income, paid by Computershare as agent, is reported correctly. Please note that up to five decimal points can
be utilized in the reallocation process. If you choose to use less than five decimal points this could result in rounding issues. Due
to time constraints inherent with tax season, we will not be able to re-run tax forms due to rounding issues. Please provide us with your
worksheet reflecting all distributions for this applicable tax year.
3.C – Additional reporting
If 3.C is not applicable, please check here and move to Section 4 x
Does any of the following reporting need to be performed by Computershare
for cash paid (i.e., principal, cash in lieu) if not to be tax reported on Form 1099-B?
1099-INT ¨ 1099-OID ¨ 1099-MISC ¨ 1099-DIV ¨ 1042-S ¨
If you selected 1099-INT, 1099-OID or 1099-MISC above, please complete
the below. Specify which box on the Form should be used for reportable amounts:
| Reporting Box for
1099-INT: |
|
| |
|
| Reporting Box for 1099-OID: |
|
| Reporting Box for
1099-MISC: |
|
If you selected 1099-DIV and/or 1042-S above, please complete the below.
Reporting for merger consideration (other than accrued and unpaid dividends
as outlined below), on Form 1099-DIV and/or 1042-S is as follows:
Section 4 – Cost Basis
Please provide a copy of the completed Issuer Statement (IRS Form 8937)
or link to where the Tax & Cost Basis information can be found. If you are unable to provide the link or information pertaining
to the Issuer Statement or such IRS filing requirement does not apply, you must answer the questions below.
What are the Cost Basis implications due to this Corporate Action?
Please include the details of any calculation that needs to be applied to existing cost basis, or provide an explanation if the IRS filing
requirement for Form 8937 does not apply to this event.
N/A – link to Form 8937 will be provided after
completion of the offer.
Section 5 – Additional Information
Did any of the following corporate changes occur during the same year
in which this corporate action took place?
| a)
Name Change? |
Yes ¨ |
No x |
| b)
Tax Id Number Change? |
Yes ¨ |
No x |
| c)
CUSIP Number Change? |
Yes ¨ |
No x |
| d)
Cash Liquidating Distribution |
Yes ¨ |
No x |
| e)
Non-Cash Liquidating Distribution |
Yes ¨ |
No x |
| f)
Sale of Rights payment |
Yes ¨ |
No x |
Is any additional tax reporting required, other than what has been
stated in Section 3 above (specify below)?
NO
If you answered “No” in Section 2 above indicating
that you do not require Computershare to perform tax reporting, please explain below.
N/A
Section 6 – Additional Information
continued
Is any additional tax withholding required other than what has been
stated in Section 3 above (specify below)?
NO
Section 7
Fair Market Value (FMV) Tax Reporting Instructions
Pursuant to the Emergency Economic Stabilization Act of 2008, financial
intermediaries such as Computershare must report cost basis for certain types of securities acquired after January 1, 2011 to both
security holders and the IRS. In preparation for the year-end tax reporting to be performed by Computershare under our service agreement
for the corporate actions event described in Section 1 of this agreement, please (a) complete the below Tax and Cost Basis package
and (b) provide us with the pertinent issuer statement (i.e., hard copy or website link requested in Section 8 below) as required
of issuers under Internal Revenue Code Section 6045B and the underlying Treasury regulations.
In the event that you have not yet produced the issuer statement,
kindly provide us with the requisite information at your earliest convenience when completed. You may find it helpful to refer to the
below link on the IRS website for some background information regarding the issuer’s obligation to produce the issuer statement.
https://www.irs.gov/forms-pubs/form-8937-report-of-organizational-actions-affecting-basis-of-securities
Please review, complete, execute and return the below Tax Letter
and either the Cost Basis word document or the Form 8937, attached documents via e-mail. By requesting cost basis information, Computershare
has fulfilled its regulatory obligation. Failure to provide correct basis information may result in a liability to you as an issuer, but
if we can provide additional details, please feel free to call upon us.
Additional information may be required based on the completion of
the information provided below.
PLEASE NOTE: If 302/304
Tax Reporting is requirements please reach out to the Corporate Actions Relationship Manager listed on the Wire Instruction Exhibit of
this Agreement
Year End Tax Reporting Package
Computershare cannot provide tax advice for purposes of completing
this worksheet. Please consult your tax counsel to determine your respective tax reporting requirements.
Shareholder accounts without certified TIN, or foreign status on our
system of record will be subject to backup withholding tax at the applicable rate in accordance with IRS rules and regulations regarding
1099 tax reporting. The applicable backup withholding tax deducted from their payment will be remitted to the Internal Revenue Service
(IRS). Holders will need to claim any refund of over withholding directly from the IRS and not Computershare. Please note residents
or holders that are uncertified, and reside in the state of CA will be withheld an additional 7% which will be remitted to the state of
CA.
Important: Computershare
uses Constructive Receipt reporting for its standard tax reporting default. Deviations from our Standard Default Tax Terms, late submissions
and subsequent corrections after the event is over will be subject to additional fees, by appraisal. If Computershare does not receive
the completed tax letter by the expiration of the offer /effective date of the distribution or exchange, Computershare will use our Standard
Default Tax Terms.
Fair Market Value Reporting (FMV) is subject to additional fees,
by appraisal.
Computershare will perform form suppression on de minimis reporting
for the following: on 1099-B tax forms less than $20 in proceeds and fractional share issuance if no withholding; 1099-DIV tax forms less
than $10 in dividend income if no withholding.
Computershare will not be liable for any IRS penalties resulting
from any client changes to this tax letter or client delay in any final tax instructions that will alter our initial tax reporting instructions.
Should any withholding be remitted late to the IRS as a result of any changes to your initial tax reporting instructions. Company will
be responsible for obligations related to penalties and interest as noted under the Section of the Agreement titled “Indemnification
and Limitation of Liability.”
Definitions:
Constructive Receipt: Constructive
Receipt means that any corporate action exchange proceeds would be reported to the IRS in the year the merger is finalized, regardless
of whether the shareholder has already processed the exchange or not.
Standard Default Tax Terms:
The share distribution is considered a non-taxable event with no Fair Market Value Reporting (FMV) on shares. Principal and CIL are reported
on form 1099B as constructive receipt. In the event of an exchange, dividends declared after the effective date, will accrue on the shares
issuable to un-exchanged holders.
Fair Market Value (FMV) tax reporting:
Refers to an exchange where the share consideration) is treated as fully taxable and reportable on Form 1099-B at the
per share valuation provided by client.
Section 8 – Client Information
| Client Name: |
|
| |
|
| *Tax ID/EIN: |
|
*If FMV reporting is required, the Issuer (Acquirer) will be deemed
the payor and you must provide your EIN for reporting purposes. In addition, Client must provide Computershare with completed IRS Form 2678
in order for Computershare to remit any backup withholding tax to the IRS on client’s behalf.
Will you require Computershare to perform FMV tax reporting services
for this transaction?
¨ Yes ¨ No***
***If you mark the above box “No” the value of all newly
issued shares will NOT be tax reported to the holders and any cost basis and acquisition date of the surrendered target company shares
will be carried over to the new shares. Please refer to Section 3.
Section 9
Fair Market Value reporting
We ask that you read each question below
carefully and respond to each question
accordingly as this questionnaire requires a great deal of attention.
Taxable Event Information
Please check one of the boxes below regarding the following statement.
This event requires Fair Market Value (FMV) reporting on Form 1099-B
as the share consideration received in this transaction is a taxable event to former target holders and as such the basis of the new shares
received will be the FMV rate and become covered shares (i.e., date of acquisition is the effective date).
True ¨ *False
¨
*If the above statement is “False”, please provide
an explanation as to why:
If the FMV share consideration is nontaxable, and not tax reportable,
please confirm by checking a box below:
*True ¨ **False
¨
*If you selected “True”, please explain briefly why
the FMV share consideration is nontaxable, and whether the “cash” (if any) is tax reportable on Form 1099-B:
**If you selected “False” from the above, is the
FMV of the share consideration treated as taxable and reportable on a 1099-B?
Yes ¨ *No ¨
*If you selected “No”, please advise on the IRS Form &
box number in which it should be reported:
Gross Proceeds Information
If the transaction with a shareholder should be reported on a 1099-B,
and the full amount of the consideration is treated as taxable, is the FMV of the stock consideration, as well as the cash (if any), reportable
on Form 1099-B in Box 1d as “Proceeds”?
Yes ¨ *No ¨
*If you selected “No”, please advise on the rationale as
to why the cash and/or stock is not considered as “ proceeds” for 1099-B reporting purposes:
If Form 1099-B reporting is required, should Box 7 on the Form 1099-B
(“Check if loss is not allowed based on amount in 1d”) be checked?
Yes ¨ *No ¨
Backup Withholding Information
If you selected “Yes” and indicated that FMV of the
share consideration is a taxable exchange and reportable on a 1099-B as “Proceeds”,- please advise on the following questions:
| · | Is the share consideration subject to backup withholding? (Uncertified accounts
would be entitled to a lowered share amount upon exchange due to withholding of shares to satisfy remittance to the IRS.) |
Yes ¨ *No ¨
*If you selected “No”, please provide the basis for selecting
“No” so that Tax can review this further.
If you selected “Yes” and indicated that shares are
subject to backup withholding, please confirm the following statement by selecting “Issuer/Acquirer Agrees”:
Computershare is hereby authorized by the Issuer/Acquirer to
sell the appropriate number of shares from each shareholder’s share entitlement to cover applicable tax withholding obligations.
The withholding obligation arises on the date the reportable consideration is paid. The shares sold to fund any backup withholding
will be based on the amount of withholding required. The current share price may not be exactly the FMV price and may result in a shortage
or overage that will either need to be returned to the company or covered by the company.
Issuer/Acquirer Agrees ¨
If you would prefer that Computershare does not fund the backup withholding
obligation by selling the shares, the Issuer/Acquirer can fund the amount of backup withholding required to remit to the IRS in lieu of
selling shares. Should you wish to proceed with this alternative, please select the box below:
Yes, we will fund the entire balance
due in one single wire to Computershare for the backup withholding obligation ¨
If you checked the box above, to fund
the backup withholding on FMV reporting, the funds you provided will be included in a “gross -up” calculation (to increase
a net amount to include deductions, such as taxes, that would be incurred by the receiver) reported on a 1099-B as additional
proceeds to the holder.
Fair Market Value (FMV)
Please provide the value per share associated with the FMV reporting
of the share consideration:
___________________
Form 8937
Please provide a copy of the Issuer Statement (IRS Form 8937)
or link to where the Tax & Cost Basis information can be found. If you are unable to provide the link or information pertaining
to the Issuer Statement, you must answer the questions below.
What are the Tax & Cost Basis implications due to this Corporate
Action? Please include the details of any calculation that needs to be applied to determine the per share basis of the share consideration
received by the target’s holders.
Exhibit B
SCHEDULE OF FEES
Computershare
To Serve As Depositary,
And
Georgeson as Information Agent, In Connection
With
[COMPANY NAME] Self-Tender Offer
| Depository Services |
| Event Management |
$52,500.00 |
| Per Fund/CUSIP (First CUSIP is included in above Event Management fee) |
$10,000.00 |
| Per Tender processed |
$15.00 |
| Per Eligible Account (Registered) |
$5.00 |
| Per Payment (Registered) |
$4.00 |
| Per Account – Tax Servicing (Registered) |
$2.50 |
| Per Special Handling Presentation |
By appraisal |
| Per Guarantee of Delivery or withdrawal |
$20.00 |
| Calculating pro-rata items, each |
$5.00 |
| Per extension or subsequent offering period, if applicable |
$2,500.00 |
| Tax Administration |
$2,500.00 |
| Expiration other than 5pm EST |
$5,000.00 |
| Information Agent Services |
| Base Services (per fund) |
$3,000.00 |
| Dedicated Toll-Free Number, Call Center Staffing and Training |
$1,500.00 |
| Outbound communications to Registered/Retail Holders |
$6.50/call |
| Inbound communications to call center |
$2.75/minute |
| Per extension or subsequent offering period, if applicable |
$2,000.00 |
| Directory assistance (if required) |
$0.67 per account |
| Mobile Phone upcharge |
$1.50 per number |
*The above fees exclude expenses and assume the use of Computershare’s
standard Agency Agreement and Letter of Transmittal. We agree that in the event that the transaction and/or your services are begun but
not completed for any reason, the above Event Management fee will be charged, plus the expense associated with work performed up to the
point Computershare is notified. It is required that this agreement be executed on or before the Effective Time. Mailing and processing
will not begin until this agreement has been executed by the Company and Computershare. This fee schedule is based upon information provided
to date and may be subject to change. CRM# XXXXXXXXXX
B. SERVICES
COVERED
DEPOSITARY - Tender Offer
| § | Designating an operational team to carry out Depositary duties |
| § | Reviewing the Depositary Agreement and other legal documents |
| § | Interfacing with Georgeson (Info Agent), as necessary |
| § | Reviewing the Communication Package (i.e., Letter of Transmittal (LT), enclosure
letters and other documentation |
| § | Converting the Company shareholder files to Computershare’s corporate
actions system |
| § | Coordinating tender offer with The Depository Trust and Clearing Corporation
to facilitate tenders from brokers and street shareholders |
| § | Receiving, opening and processing returned LTs |
| § | Curing defective LTs, including telephoning and writing shareholders in connection
with unsigned or improperly executed LTs |
| § | Canceling surrendered certificates |
| § | Tracking and reporting the number of shares submitted and the submitting
shareholders, as follows: Agent shall forward up to 10 reports of tender activity by email beginning the last 2 weeks before the
expiration to each of the parties named below as to the following information, based upon a preliminary review as of the close of business
on the preceding business day: (i) the number of Shares tendered; (ii) the number of Shares tended represented by certificates
physically held by Agent; (iii) the number of Shares represented by Notices of Guaranteed Delivery; (iv) the number of Shares
withdrawn; and (v) the cumulative totals of Shares in categories (i) through (iv) above. At the expiration of the offer
Agent shall provide a master lists of Shares elected, including a complete list of the electing stockholders. Agent can furnish to the
Purchaser, upon reasonable request, additional daily or inter-day ad hoc reports, for an additional fee of $100.00 per report. |
| § | Calculating and issuing checks at the completion of the tender period, assuming
receipt of properly executed Letters of Transmittal and surrender of shares |
| § | Issuing tax forms and filing tax information with the IRS, as required |
| § | Enclosing and mailing checks, Forms 1099-B and letters or notices to shareholders |
| § | Replacing checks alleged to have been lost or destroyed |
Information Agent –
Tender Offer
BASE SERVICES
| |
§ |
Advance review of Offer documents |
| |
|
|
| |
§ |
Strategic advice relating to the Offer |
| |
|
|
| |
§ |
Coordination
of tombstone advertisement placement in newspapers
|
| |
|
|
| |
§ |
(cost for advertisement additional and dependent upon newspaper and
size of advertisement) |
| |
|
|
| |
§ |
Dissemination of Offer documents to bank and broker community |
| |
|
|
| |
§ |
Communication with bank and broker community during Offer period |
| |
|
|
| |
§ |
Outreach to Professional Investors |
| |
|
|
| |
§ |
Communication with Depositary Agent to monitor progress of the offer |
| |
|
|
| |
§ |
Provide progress updates to the advisory team |
ADDITIONAL/SUPPLEMENTAL SERVICES
| |
§ |
Dedicated Toll-Free Number, Call Center Staffing and Training |
| |
|
|
| |
§ |
Outbound communications to Registered/Retail Holders |
| |
|
|
| |
§ |
Inbound communications to call center |
NOTE: The foregoing fees are exclusive
of Expenses and custodial charges as described in paragraphs Article II, Sections 3 and 4 of this Agreement.
C. ITEMS
NOT COVERED
| § | All expenses such as ad hoc reports, printing, checks, postage, stationery,
wire transfers, etc. (these will be billed as incurred) |
D. ASSUMPTIONS
| § | Fee schedule based upon information known at this time about the transaction |
| § | Significant changes made in the terms or requirements of this transaction
could require modifications to this Fee schedule |
| § | Project management fee include pre-launch and ongoing services related to
the event, for up to 30 business days. Any application of an additional extension fee will apply for each subsequent two week extension
period or any part thereof, of the offer, commencing immediately following the original offer period. |
| § | Fee schedule assumes the use of Computershare’s standard legal agreement
and Letter of Transmittal |
Exhibit C
LIST OF AFFILIATES
| Shareholder |
|
Certificate Numbers of Old Shares |
|
Disposition |
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SHARES INELIGIBLE FOR EXCHANGE
| Shareholder |
|
Certificate Numbers of Old Shares |
|
Disposition |
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PLANS AFFECTED BY THIS EXCHANGE
| Plan Name |
|
Plan Administrator |
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Disposition |
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Exhibit D
Wire
Instructions
Please
wire all funds RELATED to this Transaction using the following instructions:
| Bank Name: |
|
|
| Account Name: |
|
|
| Account Number: |
|
|
| ABA Routing Number: |
|
|
Ref: ______________________
If you
have any questions, or need additional information please call me.
[
]
Relationship
Manager
Corporate
Actions
T (XXX) XXX-XXX
XXXXXXXXX.XXXXXXXXXXXX@Computershare.com
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