EQUISERVE
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TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
ASA LIMITED
AND
EQUISERVE, INC.
AND
EQUISERVE TRUST COMPANY, N.A.
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TABLE OF CONTENTS
1. Certain Definitions........................................................3
2. Appointment of Agent.......................................................5
3. Standard Services..........................................................6
4. Dividend Disbursing Services...............................................7
5. Shareholder Internet Account Access Services...............................8
6. Optional Services and Standards............................................9
7. Customer Responsibilities For Employee Plan Services......................11
8. Fees and Expenses.........................................................12
9. Representations and Warranties of Transfer Agent..........................14
10. Representations and Warranties of Customer..............................15
11. Indemnification/Limitation of Liability.................................15
12. Damages.................................................................17
13. Responsibilities of the Transfer Agent..................................17
14. Covenants of the Customer and Transfer Agent............................18
15. Data Access Service and Proprietary Information.........................19
16. Confidentiality.........................................................21
17. Term and Termination....................................................22
18. Assignment..............................................................23
19. Unaffiliated Third Parties..............................................23
20. Miscellaneous...........................................................23
20.1 Notices...............................................................30
20.2 Successors............................................................24
20.3 Amendments............................................................24
20.4 Severability..........................................................24
20.5 Governing Law.........................................................24
20.6 Force Majeure.........................................................24
20.7 Descriptive Headings..................................................24
20.8 Third Party Beneficiaries.............................................25
20.9 Survival..............................................................25
20.10 Priorities..........................................................25
20.11 Merger of Agreement.................................................25
20.12 Counterparts........................................................25
AGREEMENT made as of the 1st day of January, 2003, by and between ASA
Limited, a corporation, having its principal office and place of business LGN
Associates, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (the "Customer"), and
EquiServe, Inc., a Delaware corporation, and its fully owned subsidiary
EquiServe Trust Company, N.A., a federally charted trust company doing business
at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (collectively, the
"Transfer Agent" or individually "EQI" and the "Trust Company", respectively):
WHEREAS, the Customer desires to appoint the Transfer Agent as sole
transfer agent, registrar, administrator of dividend reinvestment plans, option
plans, and direct stock purchase plans and EQI as dividend disbursing agent and
processor of all payments received or made by Customer under this Agreement:
WHEREAS, the Trust Company and EQI desire to accept such respective
appointments and perform the services related to such appointments;
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
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(a) "ACCOUNT" or "ACCOUNTS" shall mean the account of each Shareholder which
account shall hold any full or fractional shares of stock held by such
Shareholder and/or outstanding funds or tax reporting to be done.
(b) "ACCOUNT AGREEMENT" shall have the meaning set forth in SECTION 7.10.
(c) "ADDITIONAL SERVICES" shall mean any and all services which are not
Services as set forth in the Fee and Service Schedule, but performed by Transfer
Agent upon request of Customer.
(d) "AGREEMENT" shall mean this agreement and any and all exhibits or
schedules attached hereto and any and all amendments or modifications, which may
from time to time be executed.
(e) "ANNUAL PERIOD" shall mean each twelve (12) month period commencing on the
Effective Date and, thereafter, on each anniversary of the Effective Date.
(f) "CLOSED ACCOUNT" shall mean an account with a zero share balance, no
outstanding funds or no reportable tax information.
(g) "CUSTOMER ID(S)" shall have the meaning set forth in SECTION 15.3.
(h) "DATA ACCESS SERVICE" shall have the meaning set forth in SECTION 15.1.
(i) "DIVIDEND REINVESTMENT PLAN" and "DIRECT STOCK PURCHASE PLAN" shall mean
the services as set forth in SECTION 4 and in the Fee and Service Schedule.
(j) "EFFECTIVE DATE" shall mean the date first stated above.
(k) "EMPLOYEE STOCK PURCHASE PLAN" and "EMPLOYEE STOCK OPTION PLAN" shall mean
the services as set forth in SECTION 6.
(1) "ENROLLMENT MATERIALS" shall mean the Plan brochure, enrollment card and
other materials prepared by Transfer Agent for distribution to Participants.
(m) "FEE AND SERVICE SCHEDULE" shall mean the fees and services set forth in
the "Fee and Service Schedule" attached hereto.
(n) "GRANT FILE" shall have the meaning set forth in SECTION 7.4.
(o) "OPTIONAL SERVICES" shall mean all services described in SECTION 5.
(p) "PARTICIPANT" OR "PARTICIPANTS" shall mean employees of Customer who have
been granted Options in the Option Plan and Customer's employees who complete
and return a signed enrollment form, which is accepted by Transfer Agent for the
Employee Stock Purchase Plan, or Shareholders enrolled in a Dividend
Reinvestment Plan or Direct Stock Purchase Plan.
(q) "PASSWORD(S)" shall have the meaning set forth in SECTION 15.3.
(r) "PAYROLL FILE" shall mean the file from Customer delivered to Transfer
Agent from time to time setting forth the amount of funds to be delivered on
behalf of each Participant in the Employee Stock Purchase Plan and any
additional information Transfer Agent may reasonably request.
(s) "PLAN" or "PLANS" shall mean the Customer's Employee Stock Purchase Plan
and Customer's Employee Stock Option Plan:
(t) "PROPRIETARY INFORMATION" shall have the meaning set forth in SECTION
15.4.
(u) "SECURITY PROCEDURES" shall have the meaning set forth in SECTION 5.1.
(v) "SERVICES" shall mean any and all services as further described herein and
in the "Fee and Service Schedule" or other schedules attached hereto.
(w) "SESO" shall mean the Simultaneous Exercise and Sale of, Options services
performed by Transfer Agent on behalf of Participants.
(x) "SHARE" shall mean Customer's common stock, authorized by the Customer's
Articles of Incorporation, and other classes of Customer's stock to be
designated by the Customer in writing and for which the Transfer Agent agrees to
service under this Agreement.
(y) "SHAREHOLDER" shall mean the holder of record of Shares.
(z) "SHAREHOLDER DATA" shall have the meaning set forth in SECTION 15.2.
(aa) "SHAREHOLDER INTERNET SERVICES" shall have the meaning set forth in
SECTION 5.1.
2. APPOINTMENT OF AGENT.
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2.1 APPOINTMENTS. The Customer hereby appoints the Transfer Agent to
act as sole transfer agent and registrar for all Shares in accordance with the
terms and conditions hereof and as administrator of Plans and appoints EQI as
dividend disbursing agent and processor of all payments received or made by or
on behalf of the Customer under this Agreement, and the Transfer Agent and EQI
accept the appointments. Customer shall provide Transfer Agent with certified
copies of resolutions dated the date hereof appointing the Trust Company as
Transfer Agent.
2.2 DOCUMENTS. In connection with the appointing of Transfer Agent' as
the transfer agent and registrar for the Customer, the Customer will provide or
has previously provided each of the following documents to the Transfer Agent:
(a) Copies of Registration Statements and amendments thereto,
filed with the Securities and `Exchange Commission- for
initial public offerings;
(b) Specimens of all forms of outstanding stock certificates, in
forms approved by the Board of Directors of the Customer, with
a certificate of the Secretary of the Customer as to such
approval;
(c) Specimens of the Signatures of the officers of the Customer
authorized to sign stock certificates and individuals
authorized to sign written instructions and requests; and
(d) An opinion of counsel for the Customer addressed to both the
Trust Company and EQI with respect to:
(i) The Customer's organization and existence under the
laws of its state of organization;
(ii) The status of all Shares of the Customer covered by the
appointment under the Securities Act of 1933, as
amended, and any other applicable federal or state
statute; and
(iii) That all issued Shares are, and all unissued Shares
will- be, when issued, validly issued, fully paid and
non-assessable.
2.3 RECORDS. Transfer Agent may adopt as part of its records all lists
of holders, records of Customer's stock, books, documents and records which have
been employed by any former agent of Customer for the maintenance of the ledgers
for such shares, provided such ledger is certified by an officer of Customer or
the prior transfer agent to be true, authentic and complete.
2.4 SHARES. Customer shall, if applicable, inform Transfer Agent as to
(i) the existence or termination of any restrictions on the transfer of Shares
and in the application to or removal from any certificate of stock of any legend
restricting the transfer of such Shares or the substitution for such certificate
of a certificate without such legend, (ii) any authorized but unissued Shares
reserved for specific purposes, (iii) any outstanding Shares which are
exchangeable for Shares and the basis for exchange, (iv) reserved Shares subject
to option and the details of such reservation. and (v) special instructions
regarding dividends, and information of foreign holders.
2.5 CUSTOMER'S AGENT. Transfer Agent represents that it is engaged in
an independent business and will perform its obligations under this Agreement as
an agent of Customer.
2.6 CERTIFICATES. Customer shall deliver to Transfer Agent an
appropriate supply of stock certificates, which certificates shall provide a
signature panel for use by an officer of or authorized ▇▇▇▇▇▇ for Transfer Agent
to sign as transfer agent and registrar, and which shall state that such
certificates are only valid after being countersigned and registered:
3. STANDARD SERVICES.
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3.1 TRANSFER AGENT SERVICES. The Transfer Agent will perform the
following services:
In accordance with the procedures established from time to time by
agreement between the Customer and the Transfer Agent, the Transfer Agent shall:
(a) issue and record the appropriate number of Shares as
authorized and hold such Shares in the appropriate Shareholder
account;
(b) effect transfers of Shares by the registered owners thereof
upon receipt of appropriate documentation;
(c) act as agent for Shareholders pursuant to the Dividend
Reinvestment Plan, and other investment programs as amended
from time to time in accordance with the terms of the
agreements relating thereto to which the Transfer Agent is or
will be a party; and
(d) issue replacement certificates for those certificates alleged
to have been lost, stolen or destroyed upon receipt by the
Transfer Agent of an open penalty surety bond satisfactory to
it and holding it and the Customer harmless, absent notice to
the Customer and the Transfer Agent that such certificates
have been acquired by a bona fide purchaser. The Transfer
Agent, at its option, may issue replacement certificates in
place of mutilated stock certificates upon presentation
thereof without such indemnity. Further, the Transfer Agent
may at its sole option accept indemnification from a Customer
to issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed in lieu of an
open penalty bond.
3.2 EQI SERVICES. In accordance with procedures established from time
to time by agreement between the Customer and EQI, EQI shall:
(a) prepare and transmit payments for dividends and distributions
declared by the Customer, provided good funds for said
dividends or distributions are received by EQI prior to the
scheduled
payable date for said dividends or distributions;
(b) issue replacement checks and place stop orders on original
checks based on shareholder's representation that a check was
not received or was lost. Such stop orders and replacements
will be deemed to have been made at the request of Customer,
and Customer shall be responsible for all losses or claims
resulting from such replacement; and
(c) Receive all payments made to the Customer or the Transfer
Agent under the Dividend Reinvestment Plan, Direct Stock
Purchase Plan, and Plans and make all payments required to be
made under such plans, including all payments required to be
made to the Customer.
3.3 CUSTOMARY SERVICES. The Transfer Agent shall perform all the
customary services of a transfer agent, agent of dividend' reinvestment plan,
cash purchase plan and other investment programs as described in Section 3.1
consistent with those requirements in effect as of the date of this Agreement.
EQI shall perform all the customary services of a dividend disbursing agent and
a processor of payments as described in Section 3.2 consistently with those
requirements in effect as of the date of this Agreement. The detailed services
and definition, frequency, limitations and associated costs (if any) of the
Services to be performed by the Transfer Agent are set out in the attached: Fee
and Service Schedule.
3.4 COMPLIANCE WITH LAWS. The Customer agrees that each of the Trust
Company and EQI is obligated to and the Trust Company and EQI agree to comply
with all applicable federal, state and local laws and regulations, codes, order
and government rules in the performance of its duties under this Agreement.
3.5 UNCLAIMED PROPERTY AND LOST SHAREHOLDERS. The Transfer Agent shall
report unclaimed property to each state in compliance with state law and
-Section 17Ad-17 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for lost Shareholders. If the Customer is not in compliance
with applicable state laws, there will be no charge for the first two years for
this service, other than a charge of $3.00 per due diligence notice mailed;
provided that after the first two years, the Transfer Agent will charge Customer
its then standard fee plus any out-of-pocket expenses.
3.6 COMPLIANCE WITH OFFICE OF FOREIGN ASSET CONTROL ("OFAC")
REGULATIONS. The Transfer Agent shall ensure compliance with OFAC laws.
4. DIVIDEND DISBURSING SERVICES.
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4.1 DECLARATION OF DIVIDENDS. Upon receipt of a written notice from the
President, any Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of Customer declaring the payment of a dividend, EQI shall
disburse such dividend payments provided that in advance of such payment,
Customer furnishes EQI with sufficient funds. The payment of such funds to EQI
for the purpose of being available for the payment of dividend checks from time
to time is not intended by Customer to confer any rights in such funds on
Customer's Shareholders whether in trust or in contract or otherwise.
4.2 STOP PAYMENTS. Customer hereby authorizes EQI to stop payment of
checks issued in payment of dividends, but not presented for payment, when the
payees thereof allege either that they have not received the checks or that such
checks have been mislaid, lost, stolen, destroyed or, through no fault of
theirs, are otherwise beyond their control and cannot be produced by them for
presentation and collection, and EQI shall issue and deliver duplicate checks in
replacement thereof, and Customer shall indemnify Transfer Agent against any
loss or damage resulting from reissuance of the checks:'
4.3 TAX WITHHOLDING. EQI is hereby authorized to deduct from all
dividends declared by Customer and disbursed by EQI, as dividend disbursing
agent, the tax required to be withheld pursuant to Sections 1441, 1442 and 3406
of the Internal Revenue Code of 1986, as amended, or by any Federal or State
statutes subsequently enacted, and to make the necessary return and payment of
such tax in connection therewith.
5. SHAREHOLDER INTERNET ACCOUNT ACCESS SERVICES.
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5.1 SHAREHOLDER INTERNET SERVICES. The Transfer Agent shall provide
internet access to Customer's shareholders through Transfer Agent's web site,
▇▇▇▇▇▇▇▇▇.▇▇▇ ("Shareholder Internet Services") pursuant to its established
procedures ("Security Procedures"), to allow shareholders to view their account
information and perform certain on-line transaction request capabilities. The
Transfer Agent reserves the right to charge a fee for this service.
5.2 SCOPE OF TRANSFER AGENT SHAREHOLDER INTERNET SERVICES OBLIGATIONS.
Transfer Agent shall at all times use reasonable care in performing Shareholder
Internet Services under this Agreement. In the absence of breach of its duties
under this Agreement, Transfer Agent shall not be liable for any action taken,
suffered, or omitted by it or for any error made by it in the performance of its
services under this Agreement. With respect to any claims for losses, damages,
costs or expenses which may arise directly or. indirectly from Security
Procedures which Transfer Agent has implemented or omitted, Transfer Agent shall
be presumed to have used reasonable care if it in good faith has followed, in
all material respects, its Security Procedures then in effect. Transfer Agent
may, but shall not be required to, modify such Security Procedures from time to
time to the extent it believes, in good faith, that such modifications will
enhance the security of Shareholder Internet Services. All data and information
transmissions accessed via Shareholder Internet Services are for informational
purposes only, and are not intended to satisfy regulatory requirements or comply
with any laws, rules, requirements or standards of any federal, state or local
governmental authority; agency or industry regulatory; body, including the
securities industry, which compliance is the sole responsibility of Customer.
5.3 NO OTHER WARRANTIES.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 5.2 OF THIS AGREEMENT, THE
SHAREHOLDER INTERNET SERVICES ARE PROVIDED "AS-IS," ON AN "AS AVAILABLE" BASIS,
AND TRANSFER AGENT HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES PROVIDED BY TRANSFER
AGENT HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF' DEALING
OR COURSE OF PERFORMANCE.
6. OPTIONAL SERVICES AND STANDARDS.
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6.1 OPTIONAL SERVICES.
To the extent that Customer elects to engage the Transfer Agent to provide the
services listed below the Customer shall engage the Transfer Agent to provide
such services upon terms and fees to be agreed upon by the parties:
(a) Employee plan services;
(b) Employee Stock Purchase Plan Programs; and
(c) Corporate actions (including inter alia, odd lot buy backs,
exchanges, mergers, redemptions, subscriptions, capital
reorganization, coordination of post-merger services and
special meetings).
6.2 STANDARDS.
Optional Services shall be provided as follows:
(a) Transfer Agent shall, as exercise and sales agent for Customer
in connection with the Employee Stock Option Plan, execute the
Options granted by Customer to Participants and sell any
related Shares in accordance with Transfer Agent's generally
applicable guidelines for plans of this type. Transfer Agent
shall establish an Account for each such Participant and shall
maintain a record of each transaction in such Account.
(b) In executing purchases and sales of Shares in connection with
the Plans, Transfer Agent shall act independently of Customer
and shall not consult with or be directed or influenced by
Customer in any way. Subject only to the provisions of the
Agreement, Transfer Agent shall have full discretion as to all
matters relating to such purchases, including determining the
number of Shares, if any, to be purchased on any day or at any
time of that day, the prices paid for such Shares, the markets
on which such purchases are made, and the persons (including
the brokers-dealers) from or through whom such purchases are
made.
(c) Transfer Agent shall not be obligated to purchase Shares for
any Participant of the Employee Stock Purchase Plan until
Transfer Agent (i) is advised by EQI of its receipt from the
Customer for each such purchase of available funds (which, in
the case of ands transmitted by check, shall mean funds
cleared for payment by EQI's bank), (ii) receives the Payroll
File from Customer, and (iii) reconciles the funds received by
EQI with the Payroll File to determine that he aggregate
amount of funds received correspond to the aggregate of the
amounts specified in the Payroll File.
(d) Transfer Agent shall provide Enrollment Materials to Customer
for distribution to each potential Participant, which
materials shall include, when properly completed, the forms
accepted by Transfer Agent to establish an Account. These
Enrollment Materials shall be Transfer Agent's standard forms
(unless otherwise requested by Customer and agreed to in
advance by Transfer Agent, in which event, Customer shall be
charged a fee). In the event another firm has previously
provided services similar to those provided by Transfer Agent
hereunder in respect to the Plan, Transfer Agent shall' not be
obligated to receive in any Account assets from such firm
until it has accepted properly completed Enrollment Materials
from each Participant involved and reconciled the assets
received with information received from such firm or Customer
detailing the allocation of those assets to each relevant
Account; provided that Transfer Agent shall have no
responsibility for determining the accuracy of the information
received or for the reconciling of such information with any
Participant's entitlements under the Plan.
(e) Transfer Agent shall provide exercise forms and information
materials regarding SESO to Customer for distribution to each
Participant in the Employee Stock Option Plan, which material
shall include, when properly completed, authorization for
Transfer Agent to sell the Shares. These materials shall be
Transfer Agent's standard forms (unless otherwise requested by
Customer and agreed to in advance by Transfer Agent, in which
event, Customer shall be charged a fee pursuant to SECTION 8
of this Agreement).
(f) Transfer Agent shall transmit to each Participant all proxy
statements, annual reports, meeting notices and other
materials received from Customer with respect to Shares
acquired pursuant to the Plan and held in the Participant's
Account. Proxies shall be voted with respect to full Shares
held in a Participant's Account in accordance with the
Participant's instructions duly delivered to Transfer Agent.
(g) Transfer Agent shall prepare and distribute periodically to
each Participant a statement as to the Share acquired for the
Participant's Account under the Plan. Transfer Agent shall
provide Customer with summary data regarding Plan Accounts as
reasonably requested by Customer and replacement transaction
information upon request.
(h) Transfer Agent shall maintain a record of all Options granted
by Customer to Participants of the Employee Stock Option Plan
including any restricted share awards, and the date each
Option granted vests in each account. Transfer Agent shall
report to Customer the date on which such Participant
exercises an Option and, on a periodic basis, any and all
Account information reasonably requested by Customer, in such
form as mutually agreed to by the parties. Transfer Agent
shall prepare and distribute to each Participant a statement
as to the Options'
granted, Shares acquired and Shares sold for each Account
under the Plan.
7. CUSTOMER RESPONSIBILITIES FOR EMPLOYEE PLAN SERVICES.
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7.1 PAYROLL FILES. Customer; shall furnish to Transfer Agent, in a
format prescribed by Transfer Agent, all Payroll Files and employee payroll and
other information which, Transfer Agent may require in order to, perform its
Services or calculate its fees under the Agreement. In particular, but not by
way of limitation, Customer shall notify Transfer Agent in the manner specified
by Transfer Agent of the name and Account number of each Participant who
terminates participation in the Plan whether by reason of termination of
employment with Customer, cessation of payroll deductions or otherwise. Transfer
Agent shall be entitled to rely upon the accuracy and completeness of all
information which it reasonably believes to have been furnished to it by
Customer or at Customer's direction and shall have no duty to inquire about such
information or about the application of any funds, securities or other assets
held by Customer under the Plan.
7.2 ENROLLMENT MATERIALS. Customer shall distribute to each of its
employees, and to each employee of any subsidiary or affiliate of Customer
participating in the Plan who is eligible to become a Participant, a copy of the
Enrollment Materials or a copy of the SESO exercise form and shall be solely
responsible for collecting and delivering to Transfer Agent a new account
application properly completed and executed by each-Participant. Customer shall
in no event permit an employee who has not attained the age of majority in the
state in which the employee resides to become a Participant and shall refuse to
accept Enrollment Materials completed by such an individual.
7.3 EMPLOYEE DEDUCTIONS. Customer shall collect all amounts deductible
pursuant to the Employee Share Purchase Plan from the compensation of
Participants and any other amounts contributed by the Participants pursuant to
the Plan and shall make all required contributions, if any, in accordance with
such' Plan, and shall hold such amounts until delivered to EQI.
7.4 PAYROLL AND GRANT FILES. Customer shall deliver each Payroll File
and grant file ("Grant File") to Transfer Agent in a machine-readable format
conforming to specifications furnished by Transfer Agent from time to time. If a
Payroll File or Grant File does not conform to such specifications, processing
of such Payroll File by Transfer Agent shall not be required. Each Payroll File
shall be reconciled by Customer against the funds and/or Shares referenced in
such file prior to delivery of the file to Transfer Agent. If any Payroll File
or Grant File submitted to Transfer Agent is incomplete, incorrect or
subsequently changed by Customer, Transfer Agent shall not be required to
correct, change or otherwise prepare such file for processing unless Customer
pays additional fees for customized and manual processing.
7.5 PAYMENT OF FUNDS. All remittances of funds by Customer to EQI with
respect to the Employee Share Purchase Plan shall be made either by check or by
wire transfer in accordance with instructions received from EQI: All Payroll
Files and Grant Files shall be delivered to Transfer Agent at the place and in
the manner specified in instructions transmitted by Transfer Agent to Customer.
7.6 CUSTOMER DELIVERIES: All funds paid to EQI and all Payroll Files
and Grant Files delivered to Transfer Agent on behalf of Customer and any of its
subsidiaries participating in the Plan, as well as all other notices and
instructions relating to the plan or this Agreement, shall be delivered by the
department, office or source within Customer, or other person acting on behalf
of Customer, specified by Customer. For purposes of the Agreement, any action
taken by any person acting on behalf of Customer shall be considered as an
action by Customer. Delivery of funds or Payroll Files or Grant Files other than
in accordance with SECTION 7.4 and SECTION 7.5 shall not constitute delivery
within the meaning of the Agreement:
7.7 REPORTS AND STATEMENTS. Each report and statement issued by
Transfer Agent shall be deemed correct unless Transfer Agent receives written
notice of any incorrectness, incompleteness or inaccuracy in the report or
statement within thirty (30) days.
7.8 CONTENT OF COMMUNICATIONS. Customer shall obtain the prior written
consent of Transfer Agent to any reference to Transfer Agent or to Services to
be furnished by Transfer Agent in any communication or document pertaining to
the Plan not prepared by Transfer Agent; provided that Transfer Agent shall have
no responsibility or liability for the content of any such communication or
document.
7.9 ERRORS. Customer will promptly notify Transfer Agent of any errors
or omissions in information supplied by Customer. In such an event, or in the'
event Transfer Agent executes a purchase of Shares and subsequently discovers an
error or omission in information supplied to it by Customer, Transfer Agent's
sole obligation shall be to use reasonable efforts to correct any resulting
errors in any reports prepared for Customer or any Participant, and Customer
assumes responsibility for any loss incurred by Transfer Agent.
7.10 ACCOUNT AGREEMENTS. Each Account established for a Participant may
be used by the Participant for transactions in such securities (including
securities not issued by Customer) and other assets as are allowable for
investment by Transfer Agent. The relationship between Transfer Agent and each
Participant with respect to the Account and transactions therein shall be
governed by a separate agreement between them (an "Account Agreement") which
constitutes part of the Enrollment Materials. Each Account Agreement, unless
previously terminated, shall survive the termination of the Agreement, and each
Account Agreement and the fees and commissions applied thereunder may be amended
from time to time in accordance with the terms thereof without notice to or
consent from Customer. Transfer Agent may, at its own expense, solicit
indications of interest from or make offers to the Participants regarding
securities, or other assets or services upon the consent of Customer, but
Customer shall have no responsibility to assist Transfer Agent or make any
recommendations to Participants in this regard.
8. FEES AND EXPENSES.
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8.1 FEE AND SERVICE SCHEDULES. Customer agrees to pay Transfer Agent
the fees for Services performed pursuant to this Agreement as set forth in the
Fee and Service Schedule attached hereto, for the initial term of the Agreement
(the "Initial Term").
8.2 COLA/FEE INCREASES. After the Initial Term of the Agreement,
providing that service mix and volumes remain constant, the fees listed in the
Fee and Service Schedule shall be increased (a) by the accumulated change in the
National Employment Cost Index for Service Producing Industries (Finance,
Insurance, Real Estate) for the preceding years of the contract, as published by
the Bureau of Labor Statistics of the United States Department of Labor or (b)
to the Transfer Agent's minimum fee then in effect, whichever is greater. Fees
will be increased on this basis on each successive contract anniversary
thereafter.
8.3 ADJUSTMENTS. Notwithstanding SECTION 8.1 above, fees, and the
out-of-pocket expenses and advances identified under SECTION 8.4 below, may be
changed from time to time as agreed upon in writing between the Transfer Agent
and the Customer.
8.4 OUT-OF-POCKET EXPENSES. In addition to the fees paid under SECTION
8.1 above, the Customer agrees to reimburse the Transfer Agent for reasonable
out-of-pocket expenses, including but not limited to postage, forms, telephone,
microfilm, microfiche, taxes, records storage, exchange and broker fees, or
advances incurred by the Transfer Agent for the items set out in Exhibit A
attached hereto. Out-of-pocket expenses may include the costs to transfer agent
of administrative expenses. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Customer, will be
reimbursed by the Customer.
8.5 CONVERSION FUNDS. Conversion funding required by any out of proof
condition caused by a prior agents' services shall be advanced to Transfer Agent
prior to the commencement of services.
8.6 POSTAGE. Postage for mailing of dividends, proxies, Customer
reports and other mailings to all Shareholder Accounts shall be advanced to the
Transfer Agent by the Customer prior to commencement of the mailing date of
such` materials.
8.7 INVOICES. The Customer agrees to pay all fees and reimbursable
expenses within 30 days of the date of the respective billing notice, except for
any fees or expenses that axe subject to good faith dispute. In the event of
such a dispute, the Customer may only withhold that portion of the fee or
expense subject to the good faith dispute. The Customer shall notify the
Transfer Agent in writing within twenty-one (21) calendar days following the
receipt of each billing notice if the Customer is disputing any amounts in good
faith. If the Customer does not provide such notice of dispute within the
required time, the billing notice will be deemed accepted by the Customer. The
Customer shall settle such disputed amounts within five (5) business days of the
day on which the parties agree on the amount to be paid by payment of the -
agreed amount. If no agreement is reached, then such disputed amounts shall be
settled as may be required by law or legal process.
8.8 TAXES. Customer shall pay all sales or use taxes' in lieu thereof
with respect to the Services (if applicable) provided by Transfer Agent under
this Agreement.
8.9 LATE PAYMENTS.
(a) If any undisputed amount in an invoice of the Transfer Agent (for
fees or reimbursable expenses) is not paid when due, the Customer shall, pay the
Transfer Agent interest thereon (from the due date to the date of payment) at a
per annum rate equal to one percent (1.0%) plus the Prime Rate (that is, the
base rate on corporate loans posted by large domestic banks) published by The
Wall Street Journal (or, in the event such rate is not so published, a
reasonably equivalent published rate selected by Customer on the first day of
publication during the month when such amount was due). Notwithstanding any
other provision hereof, such interest rate shall be no greater than permitted
under applicable provisions of Massachusetts or New Jersey law.
(b) The failure by Customer to pay an invoice within 90 days after
receipt of such invoice or the failure by the Customer to timely pay two
consecutive invoices shall constitute a material breach pursuant to SECTION
17:4(a) below. The Transfer' Agent may terminate this Agreement for such
material breach immediately and shall not be obligated to provide the Customer
with 30 days to cure such breach.
8.10 SERVICES REQUIRED BY LEGISLATION. Services required by legislation
or regulatory mandate that become effective after the Effective Date of this
Agreement shall not be part of the Services, and shall be billed by appraisal.
8.11 OVERTIME CHARGES: Overtime charges will be assessed in the event
of a late delivery to the Transfer Agent of Customer material for mailings to
Shareholders, unless the mail date is rescheduled. Such material includes, but
is not limited to, proxy statements, quarterly and annual reports, dividend
enclosures and news releases.
8.12 BANK ACCOUNTS. The Customer acknowledges that the bank accounts
maintained by EQI in connection with the Services will be in its name and that
EQI may receive investment earnings in, connection with the investment at EQI's
risk and for its benefit of funds held in those accounts from time to time.
9. REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT.
------------------------------------------------
9.1 GOVERNANCE. The Trust Company is a federally chartered limited
purpose national bank duly organized under the laws of the United States and EQI
is a corporation validly existing and in good standing under the laws of the
State of Delaware and each has full corporate power, authority and legal right
to execute, deliver and perform' this Agreement. The execution, delivery and
performance of this Agreement by Transfer Agent has been duly authorized by all
necessary corporate action and constitutes the legal valid and binding
obligation of Transfer Agent enforceable against Transfer Agent in accordance
with its terms.
9.2 COMPLIANCE. The execution, delivery and performance of the
Agreement by Transfer Agent will not violate, conflict with or result in the
breach of any material term, condition or provision of, or require the consent
of any other party to, (i) any existing law, ordinance, or governmental rule or
regulation to which Transfer Agent is subject, (ii) any judgement, order, writ,
injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which is applicable to Transfer Agent,
(iii) the incorporation documents or by-laws of , or any material agreement to
which Transfer Agent is a party.
9.3 FACILITIES. The Transfer Agent has and will continue to have access
to the necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.4 COMPUTER SERVICES. DATA ACCESS SERVICE AND ALL COMPUTER PROGRAMS
AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT
THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER
HEREBY ACKNOWLEDGES THAT THE DATA ACCESS SERVICE MAY NOT BE OR BECOME AVAILABLE
DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT' LIMITATION PERIODIC SYSTEM
MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE,
TELECOMMUNICATIONS INFRASTRUCTURE OR DELAY OR DISRUPTION ATTRIBUTABLE TO
VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS
AND OMISSIONS OF THIRD PARTIES. THEREFORE TRANSFER AGENT EXPRESSLY DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR DATA ACCESS SERVICE
AVAILABILITY, ACCESSABILITY, OR PERFORMANCE.
10. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.
------------------------------------------
The Customer represents and warrants to the Transfer Agent that:
10.1 ORGANIZATIONS. It is a corporation duly organized and existing and
in good standing under the laws' of South Africa;
10.2 GOVERNANCE. It is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and perform this Agreement.
All corporate proceedings required by said Articles of Incorporation, By-Laws
and applicable law have been taken to authorize it to enter into and perform
this Agreement; and
10.3 SECURITIES ACT OF 1933. A registration statement under the
Securities Act of 1933, as amended (the "1933 Act") has been filed and is
currently effective, or will be effective prior to the sale of any Shares, and
will remain so effective, and all appropriate state securities law filings have
been made with respect to all the Shares of the Customer being offered for sale
except for any Shares which are offered in a transaction or series of
transactions which are exempt from the registration requirements of the 1933 Act
and state securities laws; information to the contrary will result in immediate
notification to the Transfer Agent.
11. INDEMNIFICATION/LIMITATION OF LIABILITY.
---------------------------------------
11.1 STANDARD OF CARE. The Transfer Agent shall at all times act in
good faith and agrees to use its best efforts within reasonable time limits to
insure the accuracy of all services performed under this Agreement, but assumes
no responsibility and shall not be liable for loss or damage due to errors
unless said errors are caused by its negligence, bad faith or willful misconduct
or that of its employees as set forth and subject to the limitations set forth
in Section 11.4 below.
11.2 CUSTOMER INDEMNITY. The Transfer Agent shall not be responsible
for, and the Customer shall indemnify and hold the Transfer Agent harmless from
and against, any and all losses, claims, damages, costs, charges, counsel fees
and expenses, payments, expenses and liability arising out of or attributable
to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided such actions are taken
in good faith and without negligence or willful misconduct;
(b) The Customer's lack of good faith; negligence or willful misconduct
or the breach of any representation or warranty of the Customer hereunder;
(c) The reliance or use by the Transfer Agent or its agents or
subcontractors of information, records and documents which (i) are received by
the Transfer Agent or its agents or subcontractors and furnished to it by or on
behalf of the Customer, and (ii) have been prepared and for maintained by the
Customer or any other person or firm on behalf of the- Customer. Such other
person or firm' shall include any former transfer agent or former registrar, or
co-transfer agent or co-registrar or any current registrar where the Transfer
Agent is not the current registrar;
(d) The reliance or use by the Transfer Agent or its agents or
subcontractors of any paper or document reasonably believed` to be genuine and
to have been signed by the proper person or persons including Shareholders or
electronic instruction from Shareholders submitted through the shareholder
Internet Services or other electronic means pursuant to security procedures
established by the Transfer Agent;
(e) The reliance on, or the carrying out by the Transfer Agent or its
agents or subcontractors of any instructions or requests of the Customer's
representatives;
(f) The offer or sale of Shares in violation of any federal or state
securities laws requiring that such Shares be registered or in violation of any
stop order or other determination or ruling by any federal or state agency with
respect to the offer or sale of such Shares;
(g) The negotiations and processing of all `checks, including checks
made payable to prospective or existing shareholders which are tendered to the
Transfer Agent for the purchase of Shares (commonly known as "third party
checks");
(h) Any actions taken or omitted to be taken by any former agent of
Customer and arising from Transfer Agent's reliance on the certified list of
holders; and
(i) The negotiation, presentment, delivery or transfer, of Shares
through the Direct Registration System Profile System:
11.3 INSTRUCTIONS. At anytime the Transfer Agent may apply to any-
officer of the Customer for instruction, and may consult with legal counsel for
the Transfer Agent or the Customer with respect to any matter arising in
connection with the services to be performed by the Transfer Agent under this
Agreement, and Transfer Agent and its agents and subcontractors shall not be
liable and shall be indemnified by the Customer for any action taken or omitted
by it in good faith reliance upon such instructions or upon the advice or
opinion of such counsel. The Transfer Agent, its agents and subcontractors shall
be protected and indemnified in acting upon any paper or document reasonably
believed to be genuine and to have been signed by the proper person or persons,
or upon any instruction, information, data, records or documents provided the
Transfer Agent or its agents or subcontractors by telephone, in person, machine
readable input, telex, CRT data entry or similar means authorized by the
Customer, and shall not be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Customer. The Transfer
Agent, its agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of officers of the Customer, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
11.4 TRANSFER AGENT INDEMNIFICATION/LIMITATION OF LIABILITY. Transfer
Agent shall be responsible for and shall indemnify and hold the Customer
harmless from and against any and all losses, claims, damages, costs, charges,`
counsel fees and reasonable expenses, payments, expenses and liability arising
out of or attributable to Transfer Agent's refusal or failure` to comply with
the terms of this Agreement, or which arise out of Transfer Agent's negligence,
bad faith or willful misconduct or which arise out of the breach of any
representation or warranty of Transfer Agent hereunder, for which Transfer Agent
is not entitled to indemnification under this Agreement; provided, however, that
Transfer Agent's aggregate liability during any term of this Agreement with
respect to, arising from, or arising in connection with this Agreement, or from
all services provided or omitted to be provided under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall not exceed, the
amounts paid hereunder by the Customer to Transfer Agent as fees and charges,
but not` including reimbursable expenses, during the six (6) calendar months
immediately preceding the event for which recovery from the Transfer Agent is
being sought.
11.5 NOTICE. In order that the indemnification provisions contained in
this Section shall apply, upon the assertion of a claim for which one party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The
indemnifying party shall have the option to participate with the indemnified
party in the defense of such claim or to defend against said claim in its own
name or the name of the indemnified party. The indemnified party shall in no
case confess any claim or make any compromise in any case in which the
indemnifying party may be required to indemnify it except with the indemnifying
party's prior' written consent.
12. DAMAGES.
-------
NO PARTY SHALL BE LIABLE 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. RESPONSIBILITIES OF THE TRANSFER AGENT.
--------------------------------------
The Transfer Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Customer,
by its acceptance hereof, shall be bound:
13.1 Whenever in the performance of its duties hereunder the Transfer
Agent shall deem it necessary or desirable that any fact or matter be proved or
established prior to taking or suffering any action hereunder, such fact or
matter may be deemed to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant treasurer, the Secretary or any Assistant Secretary of
the Customer and delivered to the Transfer Agent. Such certificate shall be full
authorization to the recipient for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon such certificate.
13.2 The Customer agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Transfer Agent for the carrying out, or performing by the Transfer Agent
of the provisions of this Agreement.
13.3 Transfer Agent, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of the Transfer Agent may buy, sell
or deal in the securities of the Customer or become pecuniary interested in any
transaction in which the Customer may be interested, or contract with or lend
money to' the Customer or otherwise act as fully and freely As though it were
not appointed as agent under this Agreement. Nothing herein shall preclude the
Transfer Agent from acting in any other capacity for the Customer or for any
other legal entity.
13.4 No provision of this Agreement shall require the Transfer 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.
14. COVENANTS OF THE CUSTOMER AND TRANSFER AGENT.
--------------------------------------------
14.1 CUSTOMER CORPORATE AUTHORITY. The Customer shall furnish to the
Transfer Agent the following:
(a) A copy of the Articles of Incorporation and By-Laws of the
Customer;
(b) Copies of all material amendments to its Articles of
Incorporation or By-Laws made after the date of this
Agreement, promptly after such' amendments are made; and
(c) A certificate of the Customer as to the Shares authorized,
issued and outstanding, as well as a description of all
reserves of unissued Shares relating to the exercise of
options, warrants or a conversion of debentures or otherwise:
14.2 TRANSFER AGENT FACILITIES. The Transfer Agent hereby agrees to
establish and maintain facilities and procedures reasonably acceptable to the
Customer for the safekeeping of stock certificates, check forms and facsimile
signature `imprinting devices, if any, and for the preparation, use, and
recordkeeping of such certificates, forms and devices.
14.3 RECORDS. The Transfer Agent shall keep records relating to the
services to be performed hereunder, in the form and manner as it may. deem
advisable. The Transfer Agent agrees that all such records prepared or
maintained by it relating to the services performed hereunder are the property
of the Customer and will be preserved, maintained and made available in
accordance with the requirements of law including the Investment Company Act of
1940, as amended, and the rules thereunder, and will be surrendered promptly to
the Customer on and in accordance with its request.
14.4 CONFIDENTIALITY. The Transfer Agent and the Customer agree that
all books, records, information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required-bylaw.
14.5 NON-SOLICITATION OF TRANSFER AGENT EMPLOYEES. Customer shall not
attempt to hire or assist, with the hiring of an employee of EquiServe or
affiliated companies or encourage any employee to terminate their relationship
with EquiServe or its affiliated companies.
14.6 NOTIFICATION. Customer shall` notify Transfer Agent as soon as
possible in advance of any stock split, stock dividend similar event which may
affect the Shares, and any bankruptcy, insolvency, moratorium or other
proceeding regarding Customer affecting the enforcement of creditors' rights.
Notwithstanding any other provision of the Agreement to the contrary, Transfer
Agent will have no obligation to perform any Services under the Agreement
subsequent to the commencement of any bankruptcy, insolvency, moratorium or
other proceeding regarding Customer affecting the enforcement of creditor'
rights unless Transfer Agent receives assurance satisfactory to it that it will
receive full payment for such services. Further, Customer may not assume the
Agreement after the filing of a -bankruptcy petition without transfer agents
written consent.
15. DATA ACCESS SERVICE AND PROPRIETARY INFORMATION.
-----------------------------------------------
15.1 Transfer Agent has developed a data access service that enables the
Customer to access the Customer's shareholder records maintained on Transfer
Agent's computer system through the Internet or remote access, as the case may
be (the "Data Access Service"). The Customer wishes to use such Data Access
Service subject to the terms and conditions set forth herein. Therefore, the
Customer and Transfer Agent agree as follows:
15.2 ACCESS TO SHAREHOLDER DATA.
The Data Access Service provided to the Customer pursuant to this
Agreement shall include granting the Customer access to the Customer's unique
shareholder information ("Shareholder Data") maintained on the records database
of the computer system, at EquiServe for the :purpose of examining with respect
to an individual shareholder of the Customer such Shareholder's (a) name, (b)
social security or other taxpayer identification number, (c) number of Shares,
(d) address, and' (e) limited dividend payment history.
15.3 PROCEDURES FOR ACCESS.
To use the Data Access Service, the Customer must access through the
Internet or remote terminal; as the case may be, pursuant to the procedures
provided by Transfer Agent. Such access is accomplished by entering a unique
Customer identification ("Customer ID(s)") and passwords ("Password(s)")
assigned to the Customer by Transfer Agent. Each Customer ID and Password
assigned to the Customer is for use only by the Customer. The Customer shall
establish and maintain reasonable security and control over all such Customer
IDs and Passwords. Transfer Agent shall maintain reasonable security and control
over each Customer ID. After Transfer Agent assigns the Customer a Password, the
Customer shall change the Password. The Customer recognizes that Transfer Agent
does not have knowledge of the Password, which is selected by the Customer and
is within the Customer's exclusive control after the necessary change. The
Customer may change any Password thereafter at any time. Customer agrees to
notify Transfer Agent immediately if any employee of Customer granted access to
the Data Access Service leaves the employ of the Customer, in order to enable
Transfer Agent to terminate such employee's access.
15.4 PROPRIETARY INFORMATION.
The Customer acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Customer by the Transfer Agent as part of the Data
Access Service to access Shareholder Data maintained by the Transfer Agent on
data bases under the control and ownership of the Transfer Agent or other third
party constitute copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the Transfer
Agent or other third party. In no event shall Proprietary Information be deemed
Shareholder Data. The Customer agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it shall not divulge
any Proprietary Information to' any person or` organization except as may be
provided hereunder. Without limiting the foregoing, the Customer agrees for
itself and its employees and agents:
(a) to refrain from copying or duplicating in any way the Proprietary
Information, other than to print out pages reflecting Shareholder
Data to provide to shareholders or for Customer's internal use;
(b) to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform Transfer Agent in a timely manner of such fact
and dispose of such information in accordance with Transfer Agent's
instructions;
(c) to refrain from causing or allowing the Proprietary Information
from being retransmitted to any other computer facility or other
location, except with the prior written consent of Transfer Agent;
(d) that the Customer shall have access only to those authorized
transactions agreed upon by the. parties; and
(e) to honor all reasonable written requests made by Transfer Agent to
protect at Transfer Agent's expense the rights of Transfer Agent
Proprietary Information at common law, under federal copyright law
and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 15.
15.5 CONTENT. If the Customer notifies the Transfer Agent that any part
of the Data Access Service does not operate in material compliance with the user
documentation provided by. the Transfer Agent for such service, the Transfer
Agent shall endeavor in a timely manner to correct such failure. Organizations
from which the Transfer Agent may obtain certain data included in the Services
are solely responsible for the contents of such data and the Customer agrees to
make no claim against the Transfer Agent arising out of the contents of such
third party data, including, but not limited to, the accuracy thereof.
15.6 TRANSACTIONS. If the transactions available to the Customer
include the ability to originate electronic instructions to the Transfer Agent
in order to (i) effect the transfer or movement of Shares or direct EQI to
transfer cash or (ii) transmit Shareholder information or other information,
then in such event the Transfer Agent shall be entitled to rely on the validity
and authenticity of such instructions without undertaking any further inquiry as
long as such instructions are undertaken in conformity with security procedures
established by the Transfer Agent from time to time.
16. CONFIDENTIALITY.
---------------
16.1 COVENANT. The Transfer Agent and the Customer agree that they will
not, at any time during the term of this Agreement or after its termination,
reveal, divulge, or make known to any person, firm, corporation or other
business organization, any customers' lists, trade secrets, cost figures and
projections, profit figures and projections, or any other secret or confidential
information whatsoever, whether of the Transfer Agent or of the Customer, used
or gained by the Transfer Agent or the Customer during performance under this
Agreement. The Customer and the Transfer Agent further covenant and agree to
retain all such knowledge and information acquired during and after the term of
this Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of the
Transfer Agent or the Customer and their successors and assigns. The above
prohibition of disclosure shall not apply to the extent that the Transfer Agent
must disclose such data to its subcontractor or agent for purposes of providing
services under this Agreement.
16:2 REQUEST FOR RECORDS. In the event that any requests or demands are
made for the inspection of the Shareholder records of the Customer, other than
request for records of Shareholders pursuant to standard subpoenas from state or
federal government authorities (e.g., in divorce and criminal actions), the
Transfer Agent will endeavor to notify the Customer and to secure instructions
from an authorized officer of the Customer as to such inspection. The Transfer
Agent expressly reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by counsel that it may be held liable for
the failure to exhibit the Shareholder records to such person or if required by
law or court order.
17. TERM AND TERMINATION.
--------------------
17.1 TERM. The Initial Term of this Agreement shall be three (3) years
from the date first stated above unless terminated pursuant to the provisions of
this Section 17. Unless a terminating party gives written notice to the other
party sixty (60) days before the expiration of the Initial Term this Agreement
will renew automatically from year to year ("Renewal Term"). Sixty (60) days
before the expiration of the Initial Term or a Renewal Term the parties to this
Agreement will agree upon a Fee Schedule for the upcoming Renewal Term. If no
new fee schedule is agreed upon, the fees will increase as set forth in Section
8.2.
17.2 EARLY TERMINATION. Notwithstanding anything contained in this
Agreement to the contrary, should Customer desire to move any of its Services
provided by the Transfer Agent hereunder to a successor service provider prior
to the expiration of the then current Initial or Renewal Term, or without the
required notice period, the Transfer Agent shall make a good faith effort to
facilitate the conversion on such prior date, however, there can be no guarantee
that the Transfer Agent will be able to facilitate a conversion of Services on
such prior date. In connection with the foregoing, should Services be converted
to a successor service provider, or if the Customer is liquidated or its assets
merged or purchased or the like with another entity which does not utilize the
services of the Transfer Agent, the fees payable to the Transfer Agent shall be
calculated as if the services had remained with the Transfer Agent for the
ensuing twelve (12) months and calculated at existing rates on the date notice
of termination was given to the Transfer Agent, and the payment of fees to the
Transfer Agent as set forth herein shall be accelerated to the date prior to the
conversion or termination of services. Section 17.2 shall not apply if the
Transfer Agent is terminated for cause under Section 17.4(a) of this Agreement.
17.3 EXPIRATION OF TERM. After the expiration of the Initial Term or
Renewal Term whichever currently in effect, should either party exercise its
right to terminate, all reasonable out-of-pocket expenses or costs associated
with the movement of records and material will be borne by the Customer.
Additionally, the Transfer Agent reserves the `right to' charge for any other
reasonable expenses associated with such termination and a
de-conversion/transition fee in an amount equal to 25% o of the aggregate' fees
incurred by Customer during the immediately preceding twelve (12) month period,
provided, however, such fee shall in no event be less than Five Thousand
($5,000.00).
17.4 TERMINATION.
This Agreement may be terminated in accordance with the following:
(a) at any time by any party upon a material breach of a
representation; covenant or term of this Agreement by any other
unaffiliated party which is not cured within a period not to exceed
thirty (30) days after the date of written notice thereof by one of
the other parties; and
(b) by Transfer Agent, at any time, in the event that during the
term of this Agreement, a bankruptcy or insolvency proceeding is
filed by or against Customer or a trustee or receiver is appointed
for any substantial part of Customer's property (and in a case of
involuntary bankruptcy, insolvency or receivership proceeding,
there
is entered an order for relief, or order appointing a receiver or
some similar order or decree and Customer does not succeed in
having such order lifted or stayed within sixty (60) days from; the
date of its entry), or Customer makes an assignment of all or
substantially all of its property for the benefit of creditors or
ceases to conduct its operations in the normal course or business:
17.5 RECORDS. Upon receipt of written notice of termination, the
parties will use commercially practicable efforts to effect an orderly
termination of this Agreement. Without limiting the foregoing, Transfer Agent
will deliver promptly to Customer, in machine readable form on media as
reasonably requested by` Customer, all Shareholder and other records, files and
data supplied to or compiled by Transfer Agent on behalf of Customer.
18. ASSIGNMENT.
----------
18.1 AFFILIATES. The Transfer Agent may, without further consent of the
Customer assign its rights and obligations hereunto to any affiliated transfer
agent registered under Section 17A(c)(2) of the Exchange Act.
18.2 SUB-CONTRACTORS. Transfer Agent may, without further consent on
the part of Customer, subcontract with other subcontractors for telephone and
mailing services as may be required from time to time; provided, however, that
the Transfer Agent shall be as fully responsible to the Customer for the acts
and omissions of any subcontractor as it is for its own acts and omissions.
19. UNAFFILIATED THIRD PARTIES.
--------------------------
Nothing herein shall impose any duty upon, the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or omissions
to act of unaffiliated third parties such as, by way of example and not
limitation, airborne services, the U.S. mails and telecommunication companies,
provided, if the Transfer Agent selected such company, the Transfer Agent shall
have exercised due care in selecting the same.
20. MISCELLANEOUS.
-------------
20.1 NOTICES.
Any notice or communication by the Transfer' Agent or the Customer to the
other is duly given if in writing and delivered in person or mailed by first
class mail, postage prepaid, telex, telecopier or overnight air courier
guaranteeing next day delivery, to the other's address:
If to the Customer:
ASA Limited
LGN Associates
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
If to the Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: 781) 575-4188
Attn: General Counsel
The Transfer Agent and the Customer may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
20.2 SUCCESSORS.
All the covenants and provisions of this agreement by or for the benefit
of the Customer or the Transfer Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
20.3 AMENDMENTS.
This Agreement may be amended or modified by a written amendment executed
by the parties hereto and, to the extent required, authorized or approved by a
resolution of the Board of Directors of the Customer.
20.4 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.
20.5 GOVERNING LAW.
This Agreement shall be governed by the laws of the State o f New Jersey.
20.6 FORCE MAJEURE.
Notwithstanding anything to the contrary contained herein, Transfer Agent
shall not be liable for any delays or failures in performance resulting from
acts beyond its reasonable control, labor difficulties, war, civil unrest or
acts of terrorism:
20.7 DESCRIPTIVE HEADINGS.
Descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
20.8 THIRD PARTY BENEFICIARIES.
The provisions of this Agreement are intended to` benefit only the
Transfer Agent, the Customer 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.
20.9 SURVIVAL.
All provisions regarding indemnification, warranty, liability and limits
thereon, and confidentiality and protection of proprietary rights and trade
secrets shall survive the termination of this Agreement.
20.10 PRIORITIES.
In the event of any conflict, discrepancy, or ambiguity between the terms
and conditions contained in this Agreement and any schedules or attachments
hereto, the terms and conditions contained in this Agreement shall take
precedence.
20.11 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.
20.12 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all. purposes be deemed to bean original, and all
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by one of its officers thereunto duly authorized, all as of the
date first written above.
ASA LIMITED
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
--------------------------------------
Title: Chairman & Treasurer
-------------------------------------
EQUISERVE, INC.
EQUISERVE TRUST COMPANY, N.A.
ON BEHALF OF BOTH ENTITIES
By:
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Managing Director
--------------------------------------
================================================================================
FEE AND SERVICE SCHEDULE
FOR STOCK TRANSFER SERVICES
BETWEEN
ASA LIMITED
AND
EQUISERVE TRUST COMPANY, N.A.
&
EQUISERVE, INC.
TERM
This Fee and Service Schedule is by and between EquiServe Trust Company N.A. and
EquiServe, Inc., (all collectively "the Transfer Agent") and ASA Limited,
hereinafter referred to as the ("the Customer"), whereby the Transfer Agent will
perform the following services for the Common Stock of the Customer.
The term of this Fee and Service Schedule shall be for a period of THREE (3)
YEARS, commencing from' JANUARY 1, 2003 the effective date of this Fee and
Service Schedule (the "Initial Term"). -
FEES AND SERVICES
TRANSFER AGENT AND REGISTRAR FEES: $24,000 per annum ($2,000 per month)
Includes the standard Transfer Agent and Registrar services as stated in the
following sections:
ADMINISTRATIVE SERVICES
o Annual administrative services as Transfer Agent and Registrar for the
Common. Stock of the Customer
o Assignment of Account Manager
o Remote inquiry access to the Customer records via Internet
MAINTENANCE OF SHAREHOLDER RECORDS
o Administer and maintain up to 2,600 shareholder accounts (additional
accounts to be billed at $ 10.00 each per annum)
o Open and close accounts
o Consolidate duplicate accounts
o Process address changes and other file maintenance
o Prepare new account labels
================================================================================
o Research items returned by P.O. as undeliverable
o Respond to shareholder correspondence by letter and/or telephone
o Maintain shareholder records as required by law
o Solicit taxpayer ID
CERTIFICATE AND BOOK ENTRY ISSUANCEo
-----------------------------------
o Issue stock certificates
o Post book-entry shares
o Register stock certificates
o Post issued and canceled certificates to records
o Provide daily transfer journals
o Process certificates canceled in excess of number issued
o Send stock certificates to shareholders
o Maintain, place and remove stop transfers
o Process stock options
o Process restricted transfers
o Maintenance of Treasury shares on balance board including debit and credit
transactions Process transactions involving special handling such as those
governed by state statutes for fiduciary and corporate transfers
DIVIDEND DISBURSEMENT SERVICES
------------------------------
o Issue dividend checks including computation, preparation and on-line
reconcilement
o Enclose and mail dividend checks (in Zip+4 presort order) - stagger
mailing to allow for receipt by all shareholders on payable date
o Issue replacement dividend checks
o Provide photocopy of paid check upon request
o Prepare quarterly dividend shareholder list
o Annual 1099 forms will be attached to year-end check or statement where
appropriate
DIVIDEND FUNDING: Dividend funds must be deposited with EquiServe no
later than the dividend payment date.
INVESTMENT PLAN SERVICES
------------------------
o Administration of registered plan wherein Customer pays fees and
commissions
o Maintain Dividend Reinvestment Accounts
o Reinvest quarterly dividends
o Acknowledge and process voluntary cash investments
o Prepare and mail statements
o Process terminations and withdrawals
o Mail authorization cards to new shareholders
o Acknowledge enrollment in plan and establish new accounts
o Act as certificate depository
================================================================================
o Respond to shareholder telephone/mail inquiries concerning the plan
TAX AND REGULATORY COMPLIANCE
-----------------------------
o Prepare and mail forms 1099 and 1099B to open and closed accounts
o Prepare and mail replacement form 1099 and 1099B as requested
o Withhold foreign tax and prepare 1042 issuance
o Withhold appropriate percentage of dividend from eligible shareholders
o Mail Form W-9 to applicable new shareholders who did not certify TIN
o Process certification Form W-9
o Prepare and file state reports
o Audit confirmation annually
ANNUAL MEETING SERVICES
-----------------------
o Prepare a full stockholder list as of the Annual Meeting Record Date
o Facilitate preparation and mailing of search cards to banks, brokers and
nominee accounts
o Combine multiple classes of stock or employee plans on. one (1) proxy card
o Prepare proxy cards
o Enclose and mail annual report, proxy, proxy statement and business reply
envelope
o Prepare labels for Common in descending zip code order
o Tabulate proxies, up to six (6) proposals (OCR and on-line tabulation)
o Provide daily report of voting status
o Provide inspectors of election at annual meeting (travel and lodging
expenses billed as an out-of-pocket)
o Prepare final shareholder voted-unvoted list as of annual, meeting
reflecting how each shareholder has voted on each proposal
o Provide proxies containing shareholder comments
o Provide on-line reporting capability to client and proxy solicitor
SHAREHOLDER RESPONSE CENTER SERVICES
------------------------------------
o Provide account status and balance information to shareholders
o Update addresses
o Place stops and replace outstanding dividend checks
o Respond to shareholder inquiries
o Consolidate accounts
o Place precautionary stops against stolen certificates
OPTIONAL
o Provide access to dedicated or shared 800 toll-free service to shareholders
(telephone usage and line expenses billed as incurred)
SHAREHOLDER INFORMATION REPORTS
-------------------------------
o Provide geographic, social and share range analysis - quarterly
NOTE: We will work with you to determine your reporting needs.
BILLING DEFINITION OF NUMBER OF ACCOUNTS
----------------------------------------
For billing purposes, the number of accounts will be based on open accounts on
file at the beginning of each billing period, plus any new accounts added during
that period. Open accounts are defined as those accounts with a share balance or
outstanding funds or tax reporting to be done.
ITEMS NOT COVERED
ADDITIONAL SERVICES
-------------------
Items not included in the fees and services set forth in this Fee and Service
Schedule including, but not limited to, services associated with the payment of
a stock dividend, stock split, corporate reorganization, unclaimed property, or
any services associated with a special project, as well as employee plans, are
to be billed separately on an appraisal basis.
Services required by legislation or regulatory fiat, which become effective
after the date of acceptance of this Fee and Service Schedule shall not be a
part of the Standard Services and shall be billed by appraisal. All additional
services not specifically covered under, this Fee and Service Schedule will be
billed by appraisal, as applicable.
RIGHTS AGENT SERVICES (IF APPLICABLE)
-------------------------------------
o Acting as Rights Agent under the terms of the Rights Agreement and any
amendments thereof.
o New Rights Agreement, first year administration
Fee.........................................................$4,750
o Annual Fee thereafter, and for existing Rights
Agreements..................................................$3,750
INTERNET SERVICES FOR SHAREHOLDER ACCESS (ADDITIONAL CHARGES BASED ON SERVICE
LEVEL)
o Provide shareholder account access
o Share balance
o Account activity
o Book-entry, history
o Details regarding most recent dividend disbursement
o Statement regarding outstanding checks
o Reinvestment option
o Sell and issue book-entry shares
o Current market price (20 minute delay) and historical price
information
o Request investment plan brochure and various forms relating to ACH
debit and credit
o Request duplicate tax forms and book-entry statements as well as a
certificate transcript
o Provide access to printable forms
o Glossary of terms
o General stock transfer information
o Proxy voting via Internet or phone
o Paperless annual meeting services
o Provide quick and easy email links to our customer service
representatives and answers to commonly asked questions
o Provide links to company direct purchase plans
o Provide hot links to client's web site
INVESTOR PAID SERVICES
----------------------
o Replace lost or stolen certificates............... $50.00/transaction
(shareholder losses only)
o Liquidate investment plan (company paid).......... $15.00/transaction
o Market price information or cost basis..No charge first two (2) years
($5.00 per additional year- maximum fee of $25.00)
o Photocopies of paid checks........................ $35.00/transaction
o Duplicate 1099.................................... $25:00/transaction
(No charge for previous three (3) years)
o Returned check fee................................ $20.00/per check
o Confirmation of account balance for party other than registered
shareholder........................................$50.00
o Investment Plan statement, older than two (2) calendar
years..............................................$5:00/per year
(Maximum of $25.00)
ACCEPTANCE
In witness whereof, the parties hereto have caused this Fee and Service Schedule
to be executed by their respective officers, hereunto duly agreed and
authorized, as of the effective date of this Fee and Service Schedule.
ASA LIMITED
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
--------------------------------------
Title: Chairman & Treasurer
-------------------------------------
EQUISERVE, INC.
EQUISERVE TRUST COMPANY, N.A.
ON BEHALF OF BOTH ENTITIES
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Managing Director
--------------------------------------
THIS FEE AND SERVICE SCHEDULE SHALL SERVE AS AN ATTACHMENT TO THE TRANSFER
AGENCY AND STOCK TRANSFER SERVICES AGREEMENT DATED, JANUARY 1, 2003.
EXHIBIT A
OUT OF POCKET EXPENSES
Out of pocket expenses associated with, but not limited to, the following are
not included in the fees quoted in this Fee and Service Schedule and are
billable as incurred.
POSTAGE (Outgoing and Business Reply)
ENVELOPES
LABELS
FORMS AND STATIONERY- AND PROXY CARDS
FULFILLMENT, I.E., TRANSFER PACKAGES, NEW ACCOUNT PACKAGES
PROXY PROOF SET-UP
RECORD RETENTION
INSURANCE PREMIUMS (Mailing certificates)
DELIVERY AND FREIGHT CHARGES (including overnight delivery; Airborne Express,
FedEx, etc.)
TYPESETTING (proxy cards, due diligence mailings, etc.)
PRINTING (proxy cards, etc.)
DESTRUCTION OF EXCESS/OBSOLETE MATERIAL
DTC TRADE TRANSACTION: EXPENSES (Treasury buybacks, etc.)
CUSTODY SETTLEMENT CHARGES
TELEPHONE USAGE AND LINE EXPENSES
LOST SHAREHOLDER PROGRAM DATABASE SEARCH
PLEASE NOTE:
Good funds to cover postage expenses in excess of $5,000 for shareholder
mailings must be received in full by 12:00 p.m. Eastern Time on the scheduled
mailing date. Postage expenses less than $5,000 will be billed as incurred.