TRANSFER AGENCY AND REGISTRAR SERVICES AGREEMENT by and between: AMTRUST FINANCIAL SERVICES, INC. and AMERICAN STOCK TRANSFER & TRUST COMPANY Dated: February 3 , 2006
TRANSFER
AGENCY AND REGISTRAR SERVICES
AGREEMENT
by
and
between:
and
AMERICAN
STOCK TRANSFER & TRUST COMPANY
Dated:
February 3 , 2006
Table
of
Contents
|
Section
1.
|
Appointment
of Agent
|
3
|
|
Section
2.
|
Standard
Services
|
4
|
|
Section
3.
|
Fees
and Expenses
|
6
|
|
Section
4.
|
Representations
and Warranties of AST
|
7
|
|
Section
5.
|
Representations
and Warranties of the Company
|
7
|
|
Section
6.
|
Reliance
and Indemnification
|
8
|
|
Section
7.
|
Standard
of Care
|
9
|
|
Section
8.
|
Limitations
on AST’s Responsibilities
|
9
|
|
Section
9.
|
Covenants
of the Company and AST
|
10
|
|
Section
10.
|
Term
and Termination
|
10
|
|
Section
11.
|
Assignment
|
11
|
|
Section
12.
|
Notices
|
11
|
|
Section
13.
|
Successors
|
12
|
|
Section
14.
|
Amendment
|
12
|
|
Section
15.
|
Severability
|
12
|
|
Section
16.
|
Governing
Law
|
13
|
|
Section
17.
|
Descriptive
Headings
|
13
|
|
Section
18.
|
Third
Party Beneficiaries
|
13
|
|
Section
19.
|
Survival
|
13
|
|
Section
20.
|
Merger
of Agreement
|
13
|
|
Section
21.
|
Counterparts
|
13
|
|
Signatures
|
14
|
This
Transfer Agency and Registrar Services Agreement (the “Agreement”), dated as of
February 3, 2006 is between AmTrust Financial Services, Inc., a Delaware
corporation (the “Company”) and American Stock Transfer & Trust Company, a
New York corporation (“AST”).
WHEREAS,
the Company desires the appointment of AST as transfer agent and
registrar;
WHEREAS,
AST desires to accept such appointment and perform the services related to
such
appointment;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties hereby agree as follow:
Section
1. Appointment
of Agent
|
1.01
|
The
Company hereby appoints AST to act as sole transfer agent and registrar
for the common stock of the Company and for any such other shares
as the
Company may request in writing (“the Shares”) in accordance with the terms
and conditions hereof, and AST hereby accepts such
appointment.
|
|
1.02
|
In
connection with the appointment of AST as transfer agent and registrar
for
the Company, the Company shall provide
AST:
|
|
(a)
|
A
Certificate of Appointment in substantially the form furnished by
AST (and
a Supplemental Certificate each time there is any material change
to the
information contained in the original Certificate of Appointment).
It is
agreed, however, that any provisions explicitly addressed in this
Agreement shall govern the relationship between the parties in the
event
of a conflict between the Certificate of Appointment and this
Agreement;
|
|
(b)
|
Specimens
of all forms of outstanding stock certificates, in the forms approved
by
the Board of Directors of the Company, with a certificate of the
Secretary
of the Company as to such approval;
|
|
(c)
|
Specimens
of the signatures of the officers of the Company authorized to sign
stock
certificates and specimens of the signatures of the individuals authorized
to sign written instructions and
requests;
|
3
|
(d)
|
A
copy of the Certificate of Incorporation and by-laws of the Company
and,
on a continuing basis, copies of all material amendments to the
Certificate of Incorporation or by-laws made after the date of this
Agreement (such amendments to be provided promptly after such amendments
are made); and
|
|
(e)
|
A
sufficient supply of blank certificates signed by (or bearing the
facsimile signature of) the officers of the company authorized to
sign
stock certificates and bearing the Company’s corporate seal (if required).
AST may use certificates bearing the signature of a person who at
the time
of use is no longer an officer of the
company.
|
Section
2. Standard
Services
|
2.01
|
In
accordance with the procedures established from time to time by agreement
between the Company and AST, AST shall provide the following
services:
|
|
(a)
|
Create
and maintain shareholder accounts for all
Shares;
|
|
(b)
|
Provide
online access capability for the Company’s personnel, including
“read-only” access to individual shareholder
files;
|
|
(c)
|
Review
transfer documents and certificates for
acceptability;
|
|
(d)
|
Complete
transfer debit and credit
transactions;
|
|
(e)
|
Provide
for the original issuance of shares as directed by the Company
;
|
|
(f)
|
Maintain
Treasury accounts in book entry;
|
|
(g)
|
Furnish
clear, simple, and detailed instructions to shareholders throughout
the
transfer process, as well as clear and concise written explanations
of
rejected transfers;
|
|
(h)
|
Post
transfers to the record system
daily;
|
|
(i)
|
Prepare
a list of shareholders entitled to vote at the annual meeting as
requested
by the Company;
|
|
(j)
|
As
required by the company, mail all proxy materials to shareholders
of
record as of the proxy record date or provide a list of the names
(and
other relevant information) of such shareholders of record to a designated
third party for purposes of such mailing (it being understood, however,
that production of such external files shall be billable as an expense
at
AST’s standard rates for the production of external
tapes);
|
4
|
(k)
|
Tabulate
returned proxy cards;
|
|
(l)
|
Provide
the company with access to shareholder voting records via online
access or
by written report, prior to the Company’s annual
meeting;
|
|
(m)
|
Provide
appropriate responses to electronic, telephonic and written inquiries
from
the Company’s shareholders;
|
|
(n)
|
Provide
an 800 toll-free number and toll number in conjunction with an interactive
telephone system capable of providing information and handling shareholder
requests without talking to a
representative;
|
|
(o)
|
Prepare
and submit appropriate tax and other reports required by State and
Federal
agencies, principal stock exchanges, and shareholders, as requested
by the
Company;
|
|
(p)
|
Issue
replacement certificates for those certificates alleged to have been
lost,
stolen or destroyed, unless AST has received notice that such certificates
were acquired by a bona fide purchaser. AST shall be entitled to
demand an
open penalty surety bond satisfactory to AST holding AST and the
Company
harmless. AST shall be entitled to demand payment of the premium
and
processing fee for such open penalty surety bond from the shareholder.
AST, at its option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof without such
indemnity;
|
|
(q)
|
Compute
quarterly dividend payment for each account as of the record date,
balanced to the official share
position;
|
|
(r)
|
Prepare
and transmit payments for dividends and distributions declared by
the
Company, provided good funds for said dividends or distributions
are
received by AST prior to the scheduled mailing date for said dividends
or
distributions;
|
|
(s)
|
Code
lost accounts to suppress printing and mailing of checks in accordance
with applicable policies and
guidelines;
|
|
(t)
|
Replace
lost or stolen dividend checks at a shareholder’s
request;
|
5
|
(u)
|
Withhold
taxes on dividends at the appropriate rate when applicable;
and
|
|
(v)
|
Administer
an Investors Choice Direct Stock Purchase and Sale program (if
requested).
|
|
2.02
|
The
Company shall have the obligation to discharge all applicable escheat
and
notification obligations. Notwithstanding the foregoing, upon request,
AST
will assist the Company in discharging these
obligations.
|
|
2.03
|
AST
may, at its election, outsource any of the services to be provided
hereunder, but shall retain ultimate responsibility for any of the
services so provided.
|
|
2.04
|
AST
may provide further services to, or on behalf of, the Company as
may be
agreed upon between the Company and
AST.
|
Section
3. Fees
and Expenses
|
3.01
|
Fees
|
The
Company agrees to pay AST fees for the services performed pursuant to this
agreement in the amount of $1,000. per month. Notwithstanding the foregoing,
in
the event that the scope of services to be provided by AST is increased
substantially, the parties shall negotiate in good faith to determine reasonable
compensation for such additional services.
|
3.02
|
Out-of-Pocket
Expenses
|
|
(a)
|
In
addition to the fees paid under Section 3.01 above, the Company agrees
to
reimburse AST for all reasonable expenses or other charges incurred
by AST
in connection with the provision of services to the Company (including
attorneys fees) at AST’s rates then in
effect.
|
|
(b)
|
Notwithstanding
section 3.03 below, AST reserves the right to request advance payment
for
substantial out-of-pocket
expenditures.
|
|
3.03.
|
Payment
of Fees and Expenses
|
The
Company agrees to pay all fees and reimbursable expenses within twenty (20)
days
following the receipt of a billing notice. Interest charges will accrue on
unpaid balances outstanding for more than sixty (60) days.
|
3.04.
|
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 standard services,
and
shall be billed by agreement.
6
Section
4. Representations
and Warranties of AST
AST
represents and warrants to the Company that:
It
is a
corporation duly organized and validly existing in good standing under the
laws
of the State of New York;
It
is
duly qualified to carry on its business in the State of New York;
It
is
empowered under applicable laws and by its Charter and By-laws to enter into
and
perform this Agreement; and
All
requisite corporate proceedings have been taken to authorize it to enter into
and perform this Agreement.
Section
5. Representations
and Warranties of the Company
The
Company represents and warrants to AST that:
It
is a
corporation duly organized and validly existing and in good standing under
the
laws of Delaware;
It
is
empowered under applicable laws and governing instruments to enter into and
perform this Agreement;
All
corporate proceedings required by said governing instruments and applicable
law
have been taken to authorize it to enter into and perform this
Agreement;
All
certificates representing Shares which were not issued pursuant to an effective
registration statement under the Securities Act of 1933, as amended, bear a
legend in substantially the following form:
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the ”Act”). The shares may not be sold,
transferred or assigned in the absence of an effective registration for these
shares under the Act or an opinion
of the Corporation’s counsel that registration is not required under the
Act.”
7
All
Shares not so registered were issued or transferred in a transaction or series
of transactions exempt from the registration provisions of the Act, and in
each
such issuance or transfer, the Corporation was so advised by its legal
counsel.
Section
6. Reliance
and Indemnification
|
6.01
|
AST
may rely on any written or oral instructions received from any person
it
believes in good faith to be an officer, authorized agent or employee
of
the Company, unless,
prior thereto, (a) the Company shall have advised AST in writing
that it
is entitled to rely only on written instructions of designated officers
of
the Company; (b) it furnishes AST with an appropriate incumbency
certificate for such officers and their signatures; and (c) the Company
thereafter keeps such designation current with an annual (or more
frequent, if required) re-filing. AST may also rely on advice, opinions
or
instructions received from the Company’s legal counsel. AST may, in any
event, rely on advice received from its legal counsel. AST may rely
(a) on
any writing or other instruction believed by it in good faith to
have been
furnished by or on behalf of the Company or a Shareholder; (b) on
any
statement of fact contained in any such writing or other instruction
which
it in good faith does not believe to be inaccurate; (c) on the apparent
authority of any person to act on behalf of the Company or a Shareholder
as having actual authority to the extent of such apparent authority;
(d)
on the authenticity of any signature (manual or facsimile) appearing
on
any writing; and (e) on the conformity to original of any copy. AST
shall
further be entitled to rely on any information, records and documents
provided to AST by a former transfer agent or former registrar on
behalf
of the Company.
|
|
6.02
|
AST
shall not be responsible for, and the Company shall indemnify and
hold AST
harmless from and against, any and all losses, damages, costs, charges,
judgments, fines, amounts paid in settlement, counsel fees and expenses,
payments, general expenses and/or liability arising out of or attributable
to:
|
|
(a)
|
AST’s
(and/or its agents’ or subcontractors’) actions performed in its capacity
as transfer agent and/or registrar, provided that such actions are
taken
in good faith and without gross negligence or willful
misconduct;
|
|
(b)
|
The
Company’s lack of good faith, negligence or willful misconduct or the
breach of any representation or warranty of the Company
hereunder;
|
|
(c)
|
Any
action(s) taken in accordance with section 6.01
above;
|
8
|
(d)
|
Any
action(s) performed pursuant to a direction or request issued by
a
statutory, regulatory, governmental or quasi-governmental body (AST
shall,
however, provide the Company with prior notice when practicable,
unless
AST is not permitted to do so);
|
|
(e)
|
Any
reasonable expenses, including attorney fees, incurred in seeking
to
enforce the foregoing indemnities.
|
|
6.03
|
AST
will research the records delivered to it on its appointment as agent
if
it receives a stock certificate not reflected in said records. If
neither
the Company nor AST is able to reconcile said certificate with said
records (so that the transfer of said certificate on the records
maintained by AST would create an overissue), the Company shall either
increase the number of its issued shares, or acquire and cancel a
sufficient number of issued shares, to correct the
overissue.
|
|
6.04
|
The
foregoing indemnities shall not terminate on termination of AST’s acting
as transfer agent and/or registrar, and they are irrevocable. AST’s
acceptance of its appointment as transfer agent and/or registrar,
evidenced by its acting as such for any period, shall be deemed sufficient
consideration for the foregoing
indemnities.
|
Section
7. Standard
of Care
AST
shall, at all times, act in good faith. AST agrees to use its best efforts,
within reasonable time limits, to ensure the accuracy of all services performed
under this Agreement.
Section
8. Limitations
on AST’s Responsibilities
AST
shall
not be responsible for the validity of the issuance, presentation or transfer
of
stock; the genuineness of endorsements; the authority of presentors; or the
collection or payment of charges or taxes incident to the issuance or transfer
of stock. AST may, however, delay or decline an issuance or transfer if it
deems
it to be in its or the Company’s best interests to receive evidence or assurance
of such validity, authority, collection or payment. AST shall not be responsible
for any discrepancies in its records or between its records and those of the
Company, if it is a successor transfer agent or successor registrar, unless
no
discrepancy existed in the records of the Company and any predecessor transfer
agent or predecessor registrar. AST shall not be deemed to have notice of,
or to
be required to inquire regarding, any provision of the Company’s charter,
certificate of incorporation, or by-laws, any court or administrative order,
or
any other document, unless it is specifically advised of such in a writing
from
the Company, which writing shall set forth the manner in which it affects the
Shares. In no event shall AST be responsible for any transfer or issuance not
effected by it.
9
IN
NO
EVENT SHALL AST HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY,
INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA
OR
COST OF COVER.
AST’S
LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED
THE AGGREGATE AMOUNT OF ALL FEES (EXCLUDING EXPENSES) PAID OR PAYABLE UNDER
THIS
AGREEMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE
FIRST
EVENT GIVING RISE TO LIABILITY.
Section
9. Covenants
of the Company and AST
|
9.01
|
AST
agrees to establish and maintain facilities and procedures reasonably
acceptable to the Company for the safekeeping of stock
certificates.
|
|
9.02
|
AST
shall keep records relating to the services to be performed hereunder,
in
the form and manner as it may deem advisable. AST agrees that all
such
records prepared or maintained by it relating to the services performed
hereunder are the property of the Company and will be preserved,
maintained and made available to the Company in accordance with the
requirements of law, and will be surrendered promptly to the Company
on
and in accordance with its request provided that the Company has
satisfactorily performed its obligations under Sections 3.01, 3.02,
10.03
and 10.05 hereof, to the extent applicable. Notwithstanding the foregoing,
AST shall be entitled to destroy or otherwise dispose of records
belonging
to the Company in accordance with AST’s standard document and record
retention practices and/or
procedures.
|
|
9.03
|
AST
and the Company agree that all confidential 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 by law or
as
permitted by AST’s privacy policy as then in
effect.
|
Section
10. Term
and Termination
|
10.01
|
The
initial term of this Agreement shall be three (3) years from the
date
first referenced above and the appointment shall automatically be
renewed
for further three years successive terms without further action of
the
parties, unless written notice is provided by either party at least
90
days prior to the end of the initial or any subsequent three year
period.
The term of this appointment shall be governed in accordance with
this
paragraph, notwithstanding the cessation of active trading in the
capital
stock of the Company.
|
10
|
10.02
|
In
the event that AST commits any continuing breach of its material
obligations under this Agreement, and such breach remains uncured
for more
than sixty (60) days after written notice by the Company (which notice
shall explicitly reference this provision of the Agreement), the
Company
shall be entitled to terminate this agreement with no further payments
other than (a) payment of any amounts then outstanding under this
Agreement and (b) payment of any amounts required pursuant to Section
10.05 hereof.
|
|
10.03
|
In
the event that the Company terminates this Agreement other than pursuant
to Sections 10.01 and 10.02 above, the Company shall be obligated
to
immediately pay all amounts that would have otherwise accrued during
the
term of the Agreement pursuant to Section 3 above, as well as the
charges
accruing pursuant to Section 10.05
below.
|
|
10.04
|
In
the event that the Company commits any breach of its material obligations
to AST, including non-payment of any amount owing to AST, and such
breach
remains uncured for more than forty-five (45) days, AST shall have
the
right to terminate or suspend its services without further notice
to the
Company. During such time as AST may suspend its services, AST shall
have
no obligation to act as transfer agent and/or registrar on behalf
of the
Company, and shall not be deemed its agent for such purposes. Such
suspension shall not affect AST’s rights under the Certificate of
Appointment or this Agreement.
|
|
10.05
|
Should
the Company elect not to renew this Agreement or otherwise terminate
this
Agreement, AST shall be entitled to reasonable additional compensation
for
the service of preparing records for delivery to its successor or
to the
Company, and for forwarding and maintaining records with respect
to
certificates received after such termination. AST shall be entitled
to
retain all transfer records and related documents until all amounts
owing
to AST have been paid in full. AST will perform its services in assisting
with the transfer of records in a diligent and professional
manner.
|
Section
11. Assignment
Neither
this Agreement, nor any rights or obligations hereunder, may be assigned by
either party without the written consent of the other party.
11
Section
12. Notices
Any
notice or communication by AST or the Company 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 to the other’s address:
If
to the
Company:
▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy
no: (▇▇▇) ▇▇▇-▇▇▇▇
If
to
AST:
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
American
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
American
Stock Transfer & Trust Company
Attn:
General Counsel
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
AST
and
the Company may, by notice to the other, designate additional or different
addresses for subsequent notices or communications.
Section
13. Successors
All
the
covenants and provisions of this Agreement by or for the benefit of the Company
or AST shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section
14. Amendment
This
agreement may be amended or modified by a written amendment executed by both
parties hereto.
12
Section
15. Severability
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. To the extent that any provision hereof is deemed
to be
unenforceable under applicable law, it shall be deemed replaced by an
enforceable provision to the same or nearest possible effect.
Section
16. Governing
Law
This
Agreement shall be governed by the laws of the State of New York.
Section
17. 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.
Section
18. Third
Party Beneficiaries
The
provisions of this Agreement are intended to benefit only AST and the Company
and their respective 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.
Section
19. Survival
All
provisions regarding indemnification, liability and limits thereon shall survive
the termination of this Agreement.
Section
20. 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.
Section
21. 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.
13
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.
By.____________________________
Name:__________________________
Title:___________________________
AMERICAN
STOCK TRANSFER &
TRUST
COMPANY
By:__________________________
Name:________________________
Title:_________________________
14