Exhibit k.2
Transfer Agency and Service Agreement
Between
Tortoise Gas and Oil Corporation
and
Computershare Trust Company, N.A.
and
Computershare Inc.
Table of Contents
Section 1 Certain Definitions...........................................3
Section 2 Appointment of Agent..........................................3
Section 3 Standard Services.............................................5
Section 4 Dividend Reinvestment Plan Services...........................6
Section 5 Computershare Dividend Disbursing and Payment Services........6
Section 6 Optional Services.............................................7
Section 7 Fees and Expenses.............................................7
Section 8 Representations and Warranties ...............................8
Section 9 Indemnification and Limitation of Liability...................9
Section 10 Damages......................................................11
Section 11 Responsibilities of the Company..............................11
Section 12 Confidentiality..............................................11
Section 13 Term and Termination.........................................12
Section 14 Assignment...................................................13
Section 15 Unaffiliated Third Parties...................................13
Section 16 Miscellaneous................................................14
2
AGREEMENT made as of the 19th day of June, 2007 by and between Tortoise Gas and
Oil Corporation, a corporation, having its principal office and place of
business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ (the "Company"), and
Computershare Inc., a Delaware corporation, and its fully owned subsidiary
Computershare Trust Company, N.A., a federally chartered trust company, having
its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, the "Transfer Agent" or individually,
"Computershare" and the "Trust Company", respectively).
WHEREAS, the Company desires to appoint the Trust Company as sole transfer
agent, registrar and administrator of its dividend reinvestment plan or direct
stock purchase plan, and Computershare as dividend disbursing agent and
processor of all payments received or made by Company under this Agreement;
WHEREAS, the Trust Company and Computershare will each separately provide
specified services covered by this Agreement and, in addition, the Trust Company
may arrange for Computershare to act on behalf of the Trust Company in providing
certain of its services covered by this Agreement; and
WHEREAS, the Trust Company and Computershare 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.
1.1 "Account" shall mean the account of each Shareholder which holds any full or
fractional shares of stock held by such Shareholder, outstanding funds, or
reportable tax information.
1.2 "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.
1.3 "Services" shall mean all services performed by the Transfer Agent pursuant
to this Agreement.
1.4 "Shares" shall mean Company's common stock, par value $0.001 per share, and
Company's preferred stock, par value $_____ per share, authorized by the
Company's Articles of Incorporation, and other classes of Company's stock to be
designated by the Company in writing and which the Transfer Agent agrees to
service under this Agreement.
1.5 "Shareholder" shall mean the holder of record of Shares.
1.6 "Shareholder Data" shall mean all information maintained on the records
database of the Transfer Agent concerning Shareholders.
1.7 "Plans" shall mean any dividend reinvestment, direct stock purchase, or
other investment programs administered for the Company.
2. APPOINTMENT OF AGENT.
2.1 Appointments. The Company hereby appoints the Trust Company to act as sole
transfer agent and registrar for all Shares and as administrator of Plans in
accordance with the terms and conditions hereof and appoints Computershare as
the service provider to the Trust Company and as dividend disbursing agent and
processor of all payments received or made by or on behalf of the Company under
this Agreement, and the Trust Company and Computershare accept the respective
appointments.
3
2.2 Documents. In connection with the appointing of the Trust Company as the
transfer agent and registrar for the Company, the Company has provided or will
provide the attached appointment and corporate authority documents to the
Transfer Agent:
(a) Copies of resolutions appointing the Trust Company as the transfer
agent;
(b) Copies of registration statements and amendments thereto, filed with
the Securities and Exchange Commission, for initial public offerings;
(c) Specimens of all forms of outstanding stock certificates for Shares,
in forms approved by the Board of Directors of the Company, with a
certificate of the Secretary of the Company as to such approval;
(d) Specimens of the signatures of the officers of the Company authorized
to sign stock certificates and authorized to sign written instructions
and requests;
(e) An opinion of counsel for the Company addressed to both the Trust
Company and Computershare with respect to:
(i) The Company's organization and existence under the laws of its
state of organization;
(ii) The status of all Shares of the Company covered by the
appointment under the Securities Act of 1933, as amended (the
"1933 Act"), 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;
(f) A copy of the Articles of Incorporation and By-Laws of the Company;
(g) Copies of all material amendments to the Articles of Incorporation or
By-Laws of the Company made after the date of this Agreement, promptly
after such amendments are made; and
(h) A certificate of the Company 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.
2.3 Records. Transfer Agent may adopt as part of its records all lists of
holders, records of Company's stock, books, documents and records which have
been employed by any former agent of Company for the maintenance of the ledgers
for the Shares, provided such ledger is certified by an officer of Company or
the prior transfer agent to be true, authentic and complete. The Transfer Agent
shall keep records relating to the Services, in the form and manner it deems
advisable and in compliance with applicable law. The Transfer Agent agrees that
all such records prepared or maintained by it relating to the Services are the
property of the Company and will be preserved, maintained and made available in
accordance with the requirements of law, and will be surrendered promptly to the
Company on and in accordance with its request.
2.4 Shares. Company shall, if applicable, inform Transfer Agent as to (i) the
existence or termination of any restrictions on the transfer of Shares and the
application to or removal from any stock certificate 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 Shareholders.
4
2.5 Certificates. Company 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, or provide Transfer Agent with
documentation required to print on demand stock certificates, as the case may
be.
3. STANDARD SERVICES.
3.1 Share Services. The Transfer Agent shall perform the following Share
Services:
(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; and
(c) Replacement Certificates. The Transfer Agent shall 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 Company harmless,
absent notice to the Company and the Transfer Agent that such
certificates have been acquired by a bona fide purchaser. The Transfer
Agent may, at its option, 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 the Company to issue replacement certificates for
those certificates alleged to have been lost, stolen or destroyed in
lieu of an open penalty bond.
3.2 Unclaimed Property and Lost Shareholders. The Transfer Agent shall report
unclaimed property to each state in compliance with applicable law and shall
comply with Rule 17 Ad-17 promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), for lost shareholders.
3.3 Computer Services. The Transfer Agent shall provide the following computer
Services:
(a) Shareholder Internet Services. The Transfer Agent shall provide
internet access to Company'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 transactions. 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, including any
implied warranty of merchantability or fitness for a particular
purpose and implied warranties arising from course of dealing or
course of performance. Notwithstanding the foregoing, in providing
Shareholder Internet Services, the Transfer Agent will comply with all
applicable laws concerning consent to deliver and delivery of
documents electronically.
(b) Issuer Online. Transfer Agent shall provide Company with access to
Shareholder Data maintained on the Transfer Agent's databases and
computer system through the Internet ("Issuer Online") subject to the
terms and conditions set forth herein and pursuant to the Transfer
Agent's established procedures, to be provided to the Company.
(c) Proprietary Information. The Company acknowledges that the databases,
computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals furnished to the Company by
Transfer Agent as part of Issuer Online, or otherwise, is under the
control and ownership of the Transfer Agent or other third party
(including its affiliates) and constitutes 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
5
Information be deemed Shareholder Data. The Company agrees to treat
all Proprietary Information as confidential in accordance with the
provisions of Section 12 of this Agreement.
(d) Third Party Content. 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 Company 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.
(e) Employees and Agents. Each party shall take reasonable efforts to
advise its employees and agents of their respective obligations
pursuant to this Section 3.3.
4. DIVIDEND REINVESTMENT PLAN SERVICES.
4.1 The Trust Company shall perform all services under the Plans, as the
administrator of such Plans, with the exception of payment processing for which
Computershare has been appointed as agent by Company, and certain other services
that the Trust Company may subcontract to Computershare as permitted by
applicable law (e.g. ministerial services).
4.2 The Transfer Agent shall act as agent for Shareholders pursuant to the Plans
in accordance with the terms and conditions of such Plans.
5. COMPUTERSHARE DIVIDEND DISBURSING AND PAYMENT SERVICES.
5.1 Declaration of Dividends. Upon receipt of a written notice from the
President, any Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of Company declaring the payment of a dividend,
Computershare shall disburse such dividend payments provided that in advance of
the applicable check mailing date, Company furnishes Computershare with
sufficient funds. The payment of such funds to Computershare for the purpose of
being available for the payment of dividends from time to time is not intended
by Company to confer any rights in such funds on Shareholders whether in trust,
contract, or otherwise.
5.2 Stop Payments. Company hereby authorizes Computershare to stop payment of
checks issued in payment of dividends or for sales proceeds, 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 Computershare shall issue
and deliver duplicate checks in replacement thereof, and Company shall indemnify
Transfer Agent against any loss or damage resulting from reissuance of the
checks.
5.3 Tax Withholding. Company hereby authorizes Computershare to deduct from all
dividends declared by Company and disbursed by Computershare, 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.
5.4 Plan Payments. Company hereby authorizes Computershare to receive all
payments made to the Company (i.e. optional cash purchases) or the Transfer
Agent under the Plans and make all payments required to be made under such
Plans, including all payments required to be made to the Company.
5.5 Bank Accounts. The Company acknowledges that the bank accounts maintained by
Computershare in connection with the Services will be in Computershare's name
and that Computershare may receive investment earnings in connection with the
investment at Computershare's risk and for its benefit of funds held in those
accounts from time to time.
6
6. OPTIONAL SERVICES.
6.1 Optional Services To the extent that Company elects to engage any entity
other than the Transfer Agent ("Company Vendor") to provide any of the services
listed below, the Company shall give the Transfer Agent the right of first
refusal to provide such services upon the same terms and fees as the Company
Vendor:
(a) Employee Stock Purchase or Option Plan services; and
(b) Corporate Actions services (including, inter alia, odd lot buy backs,
exchanges, mergers, redemptions, subscriptions, capital
reorganizations, coordination of post-merger services and special
meetings).
6.2 In the event that the Company Vendor provides the services set forth in
Section 6.1, the Company shall pay the Transfer Agent its standard fees and
expenses charged by the Transfer Agent for Services rendered to support the
above Services rendered by the Company Vendor for the benefit of the Company.
7. FEES AND EXPENSES.
7.1 Fee and Service Schedules. Company 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 and incorporated herein, for the initial term
of the Agreement (the "Initial Term"). Sixty (60) days before the expiration of
the Initial Term or a Renewal Term (as defined below), whichever is applicable,
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 the Term Section of the Fee and Service Schedule.
7.2 Out-of-Pocket Expenses. In addition to the fees paid under Section 7.1
above, the Company agrees to reimburse the Transfer Agent for reasonable
out-of-pocket expenses incurred by the Transfer Agent as set out in the Fee and
Service Schedule attached hereto.
7.3 Invoices. The Company 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 are subject to good faith dispute. In the event of such a
dispute, the Company may only withhold that portion of the fee or expense
subject to the good faith dispute. The Company 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.
7.4 Late Payments.
(a) If any undisputed amount in an invoice of the Transfer Agent (for fees
or reimbursable expenses) is not paid within 45 days after receipt of
such invoice, the Company shall pay the Transfer Agent interest
thereon (from the due date to the date of payment) at a per annum rate
equal to eighteen percent (18%). Notwithstanding any other provision
hereof, such interest rate shall be no greater than permitted under
applicable provisions of Massachusetts law.
(b) The failure by Company to pay an invoice within 90 days after receipt
of such invoice shall constitute a material breach pursuant to Section
13.4(a) below. The Transfer Agent may terminate this Agreement for
such material breach upon 30 days written notice provided to the
Company which breach has not been cured within 10 days of receipt of
such notice.
7.5 Overtime Charges. Overtime charges will be assessed in the event of a late
delivery to the Transfer Agent of Company 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 and news releases.
7
8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations and Warranties of Transfer Agent. The Transfer Agent
represents and warrants to the Company that:
(a) Governance. The Trust Company is a federally chartered limited purpose
national bank duly organized, validly existing, and in good standing
under the laws of the United States and Computershare is a corporation
duly organized, validly existing, and in good standing under the laws
of the State of Delaware and each has full power, authority and legal
right to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by Transfer Agent has been
duly authorized by all necessary action and constitutes the legal,
valid and binding obligation of Transfer Agent enforceable against
Transfer Agent in accordance with its terms;
(b) Compliance with Laws. The execution, delivery and performance of this
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 judgment, 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
organizational documents or by-laws of the Transfer Agent, or (iv) any
material agreement to which Transfer Agent is a party;
(c) Company's Agent. Transfer Agent is engaged in an independent business
and will perform its obligations under this Agreement as an agent of
Company.
8.2 Representations and Warranties of Company. The Company represents and
warrants to the Transfer Agent that:
(a) Governance. It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland, and it has
full power, authority and legal right to enter into and perform this
Agreement. The execution, delivery and performance of this Agreement
by Company has been duly authorized by all necessary action and
constitutes the legal, valid and binding obligation of Company
enforceable against Company in accordance with its terms;
(b) Compliance with Laws. The execution, delivery and performance of this
Agreement by Company 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 Company is subject, (ii) any
judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority
which is applicable to Company, (iii) the incorporation documents or
by-laws of the Company, (iv) any material agreement to which Company
is a party, or (v) exchange rules; and
(c) Securities Act of 1933. A registration statement under 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 Company 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 by Company.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY.
8
9.1 Company Indemnity. The Company shall indemnify and hold the Transfer Agent
harmless from and against, and the Transfer Agent shall not be responsible for,
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
or the breach of any representation or warranty of the Transfer Agent
hereunder;
(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) The reliance or use by the Transfer Agent or its agents or
subcontractors of any information, records, data, and documents which
have been prepared and/or maintained by the Company or any other
person or firm on behalf of the Company and provided to the Transfer
Agent or its agents or subcontractors. 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 (i) any paper or document reasonably believed to be
genuine and to have been signed by the proper person or persons,
including Shareholders, and (ii) electronic instructions from
Shareholders submitted through the Shareholder Internet Services, from
Company through Issuer Online, or through any other electronic means
pursuant to security procedures established by the Transfer Agent;
(e) The negotiation and processing of all checks, including checks made
payable to Shareholders or prospective shareholders that are tendered
to the Transfer Agent for the purchase of Shares (commonly known as
"third party checks"); and
(f) The recognition, acceptance, or processing by the Transfer Agent of
stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of officers of the Company, and the
proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
9.2 Instructions. From time to time, Company may provide Transfer Agent with
instructions concerning the Services. In addition, at any time the Transfer
Agent may apply to any officer of the Company for instruction, and may consult
with legal counsel for the Transfer Agent or the Company 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 Company for any action taken
or omitted by it in reliance upon any Company instructions or upon the advice or
opinion of such counsel. The Transfer Agent shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Company.
9.3 Transfer Agent Indemnification/Limitation of Liability. Transfer Agent shall
be responsible for and shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to: (a) Transfer Agent's
refusal or failure to comply with the terms of this Agreement, (b) Transfer
Agent's negligence or willful misconduct, or (c) Transfer Agent's breach of any
representation or warranty 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 Company to Transfer Agent as fees and charges, but not
including reimbursable expenses, during the thirty-
9
six (36) months immediately preceding the event for which recovery from the
Transfer Agent is being sought.
9.4 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. None of the parties hereto shall settle or
compromise any action, suit, proceeding or claim if such settlement or
compromise provides for an admission of liability on the part of the indemnified
party without such indemnified party's written consent.
10. 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.
11. RESPONSIBILITIES OF THE COMPANY.
11.1 The Company agrees that it will perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such further
and other acts, documents, 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.
11.2 Notification. Company shall notify Transfer Agent as soon as possible in
advance of any stock split, stock dividend or similar event which may affect the
Shares, and of any bankruptcy, insolvency, moratorium or other proceeding
regarding Company affecting the enforcement of creditors' rights.
Notwithstanding any other provision of this Agreement to the contrary, Transfer
Agent will have no obligation to perform any Services under this Agreement
subsequent to the commencement of any bankruptcy, insolvency, moratorium or
other proceeding regarding Company affecting the enforcement of creditors'
rights unless Transfer Agent receives assurance satisfactory to it that it will
receive full payment for such Services.
12. CONFIDENTIALITY.
12.1 Definition. Each party acknowledges and understands that any and all
technical, trade secret, or business information, including, without limitation,
financial information, business or marketing strategies or plans, product
development, Company information, Shareholder information (including any
non-public information of such Shareholder), Proprietary Information, or
proprietary software (including methods or concepts used therein, sources code,
object code, or related technical information) which has been or is disclosed to
the other or has been or is otherwise obtained by the other, its affiliates,
agents or representatives before or during the term of this Agreement (the
"Confidential Information") is confidential and proprietary, constitutes trade
secrets of the owner (or its affiliates), and is of great value and importance
to the success of the owner's (or its affiliates') business. The parties shall
treat the terms and conditions (but not the existence) of this Agreement as the
Confidential Information of the other party. Confidential Information shall not
include any information that is: (a) already known to the other party or its
affiliates at the time of the disclosure; (b) publicly known at the time of the
disclosure or becomes publicly known through no wrongful act or failure of the
other party; (c) subsequently disclosed to the other party or its affiliates on
a non-confidential basis by a third party not having a confidential relationship
with the owner and which rightfully acquired such information; or (d)
independently developed by one party without access to the Confidential
Information of the other.
10
12.2. Use and Disclosure. All Confidential Information relating to a party will
be held in confidence by the other party to the same extent and with at least
the same degree of care as such party protects its own confidential or
proprietary information of like kind and import, but in no event using less than
a reasonable degree of care. Neither party will disclose, duplicate, publish,
release, transfer or otherwise make available Confidential Information of the
other party in any form to, or for the use or benefit of, any person or entity
without the other party's consent. Each party will, however, be permitted to
disclose relevant aspects of the other party's Confidential Information to its
officers, affiliates, agents, subcontractors and employees to the extent that
such disclosure is reasonably necessary for the performance of its duties and
obligations under this Agreement and such disclosure is not prohibited by the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 (15 U.S.C. 6801 et seq.), as it may be amended
from time to time (the "GLB Act"), the regulations promulgated thereunder or
other applicable law. Each party will establish commercially reasonable controls
to ensure the confidentiality of the Confidential Information and to ensure that
the Confidential Information is not disclosed contrary to the provisions of this
Agreement, the GLB Act or any other applicable privacy law. Without limiting the
foregoing, each party will implement such physical and other security measures
as are necessary to (a) ensure the security and confidentiality of the
Confidential Information; (b) protect against any threats or hazards to the
security and integrity of the Confidential Information; and (c) protect against
any unauthorized access to or use of the Confidential Information. To the extent
that any duties and responsibilities under this Agreement are delegated to an
agent or other subcontractor, the party ensures that such agent and
subcontractor are contractually bound to confidentiality terms consistent with
the terms of this Section 12.
12.3. Required or Permitted Disclosure. In the event that any requests or
demands are made for the disclosure of Confidential Information, other than
requests to Computershare for records of Shareholders pursuant to standard
subpoenas from state or federal government authorities (e.g., in divorce and
criminal actions), the party will notify the other party to secure instructions
from an authorized officer of such party as to the request and to enable the
other party the opportunity to obtain a protective order or other confidential
treatment. Each party expressly reserves the right, however, to disclose the
Confidential Information to any person whenever it is advised by counsel that it
may be held liable for the failure to disclose such Confidential Information or
if required by law or court order.
12.4 Unauthorized Disclosure. As may be required by law and without limiting
either party's rights in respect of a breach of this Section, each party will:
(a) promptly notify the other party in writing of any unauthorized
possession, use or disclosure of the other party's Confidential
Information by any person or entity that may become known to such
party;
(b) promptly furnish to the other party full details of the unauthorized
possession, use or disclosure; and
(c) promptly use commercially reasonable efforts to prevent a recurrence
of any such unauthorized possession, use or disclosure of Confidential
Information.
12.5 Costs. Each party will bear the costs it incurs as a result of compliance
with this Section 12.
13. TERM AND TERMINATION.
13.1 Term. The Initial Term of this Agreement shall be one (1) year from the
date first stated above unless terminated pursuant to the provisions of this
Section 13. This Agreement will renew automatically from year to year (each a
"Renewal Term"), unless a terminating party gives written notice to the other
party not less than sixty (60) days before the expiration of the Initial Term or
Renewal Term, whichever is in effect.
13.2 Early Termination. Notwithstanding anything contained in this Agreement to
the contrary, should Company desire to move any of its Services provided by the
Transfer Agent hereunder to a successor service
11
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, the fees payable to the Transfer
Agent shall be calculated as if the Services had remained with the Transfer
Agent until the expiration of the then current Initial or Renewal Term 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. This Section 13.2 shall not apply if the Transfer Agent is
terminated for cause under Section 13.4 of this Agreement, or in the event of a
liquidation of the Company. Once this Agreement is terminated, any and all other
Services provided by Transfer Agent for the Company will be deemed terminated on
said date.
13.3 Expiration or Termination of Term. In the event of the expiration or
termination of this Agreement by either party, all reasonable out-of-pocket
expenses associated with the movement of records and material will be borne by
the Company. Additionally, the Transfer Agent will charge a
de-conversion/transition fee in an amount equal to 10% of the aggregate fees
incurred by Company during the immediately preceding twelve (12) month period,
provided, however, such fee shall in no event be less than three thousand, seven
hundred and fifty ($3,750.00) dollars.
13.4 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 any party, at any time, in the event that during the term of this
Agreement, a bankruptcy or insolvency proceeding is filed by or
against any other unaffiliated party or a trustee or receiver is
appointed for any substantial part of such other party'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 such other party does
not succeed in having such order lifted or stayed within sixty (60)
days from the date of its entry), or such other party 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
of business.
14. ASSIGNMENT.
14.1 Consent. Except as otherwise provided in Section 14.2 below, neither this
Agreement nor any rights or obligations hereunder may be assigned or delegated
by the Company or the Transfer Agent without the written consent of the other.
14.2 Affiliates. The Transfer Agent may, without further consent of the Company,
upon notice to the Company, assign any of its rights and obligations hereunto to
any affiliated transfer agent registered under Rule 17Ac2 promulgated under the
Exchange Act.
14.3 Sub-contractors. Transfer Agent may, without further consent of the
Company, subcontract with any affiliates, or may subcontract with unaffiliated
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 Company for the acts and omissions of any subcontractor as it
is for its own acts and omissions.
15. 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 (other than sub-contractors referenced in Section
14.3 above) such as, by way of example and not limitation, airborne services,
the U.S.
12
mails and telecommunication companies, provided, if the Transfer Agent selected
such company, the Transfer Agent shall have exercised due care in selecting the
same.
16. MISCELLANEOUS.
16.1 Notices. Any notice or communication by the Transfer Agent or the Company
to the other is duly given if in writing and delivered in person or mailed by
first class mail, postage prepaid, telecopier or overnight air courier
guaranteeing next day delivery, to the other's address:
If to the Company: Tortoise Gas and Oil Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Secretary
If to the Transfer Agent: Computershare Trust Company, N.A.
c/o Computershare Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
16.2 No Expenditure of Funds. 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.
16.3 Successors. All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Transfer Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
16.4 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 Company.
16.5 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.
16.6 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
16.7 Force Majeure. Notwithstanding anything to the contrary contained herein,
no party shall be liable to any other party for any delays or failures in
performance resulting from acts beyond its reasonable control including, without
limitation, acts of God, terrorist acts, shortage of supply, breakdowns or
malfunctions, interruptions or malfunction of computer facilities, or loss of
data due to power failures or mechanical difficulties with information storage
or retrieval systems, labor difficulties, war, or civil unrest.
16.8 Third Party Beneficiaries. The provisions of this Agreement are intended to
benefit only the Transfer Agent, the Company and their respective permitted
successors and assigns. No rights shall be granted to any other person by virtue
of this Agreement, and there are no third party beneficiaries hereof.
13
16.9 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.
16.10 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.
16.11 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.
16.12 No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event any ambiguity or
question or intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by all parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provision of this Agreement.
16.13 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.
[The remainder of page intentionally left blank.]
14
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.
Computershare Inc.
and Computershare Trust Company, N. A. Tortoise Gas and Oil Corporation
On Behalf of Both Entities:
By: By:
------------------------------ ------------------------------
Name: Name:
-------------------------- ----------------------------
Title: Title:
------------------------- ---------------------------
15
================================================================================
FEE AND SERVICE SCHEDULE FOR STOCK TRANSFER SERVICES
between
TORTOISE GAS AND OIL CORPORATION
and
COMPUTERSHARE INC.
and
COMPUTERSHARE TRUST COMPANY, N.A.
This Fee and Service Schedule is by and between, Computershare Inc.
("Computershare") and Computershare Trust Company, N.A. (the "Trust Company"),
(collectively, "Transfer Agent") and Tortoise Gas and Oil Corporation ("the
Company"), whereby the Transfer Agent will perform the following services for
the Company. This Fee and Service Schedule ("Schedule") is an attachment to the
Agreement. Terms used, but not otherwise defined in this Schedule, shall have
the same meaning as those terms in the Agreement.
TERM
The fees set forth in this Schedule shall be effective for a period of one (1)
year, commencing from the effective date of June 19, 2007 (the "Initial Term").
Sixty (60) days before the expiration of the Initial Term or a Renewal Term,
whichever is applicable, the parties to this Agreement will agree upon a Fee
Schedule for the upcoming Renewal Term. If no new fee schedule is agreed upon
prior to the expiration of the then-current Term, provided that service mix and
volumes remain constant, the fees listed in the Schedule shall be increased (a)
by the change in the National Employment Cost Index for Service Producing
Industries (Finance, Insurance, Real Estate) for the preceding year 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 fees then in effect,
whichever is greater, provided that Transfer Agent shall provide information on
such fees at least sixty (60) days prior to the expiration of then-current Term.
FEES
Initial Set-up Fee
There is a one-time set up fee of $1,500 to set-up the master file.
Ongoing Account Management*
This fee covers all administration of the services listed in the services
section except as noted below. Out of pocket costs associated with providing
these services will be charged separately.
$1000.00* Per Month
* If the average volume of transactions, inquiries, or telephone calls
significantly increases during the term of this Agreement as a result
of outside factors or unforeseen circumstances for which the Transfer
Agent is not the proximate cause, the Transfer Agent and the Company
shall negotiate an additional fee.
Direct Filing of Abandoned Property
• Annual administration $1,500
• Due Diligence $3.00 per account
• State report fee $125 per report ($25 for nil report)
• Account processed $1.00 per account escheated
Lost Shareholder Services
• SEC Electronic Database Search $3.00 per account searched
Page 1
================================================================================
SERVICES
Initial Public Offering Services
• Assignment of IPO Team Closing Specialist
• Copy of IPO Handbook
• QuickCert Set Up (if applicable)
• Administrative coordination with working group relative to the
offering
• Attendance at closing, if requested (out of pocket expenses associated
with attendance at closing will be billed as incurred)
• Electronic delivery of shares to underwriters at the time of closing
Administrative Services
• Annual administrative services as Transfer Agent and Registrar for the
common stock of the company
• Assignment of relationship manager
Account Maintenance
• Maintain 500 registered shareholder accounts (additional accounts
billed at $6.00 each per year)
• Create new shareholder accounts
• Post and acknowledge address changes
• Process other routine file maintenance adjustments
• Post all transactions, including debit and credit certificates to the
shareholder file
• Respond to requests for audit confirmations
• Obtain W-9 and W8-BEN certifications
• Perform OFAC (Office of Foreign Asset Control) and Patriot Act
reporting
• Obtain tax certifications
Share Issuance
• Design and produce generic stock certificates (subject to the Company
providing required information)
• Issue, cancel and register shares
• Process all legal transfers as appropriate
• Combine certificates into larger and/or smaller denominations
• Replace lost certificates in accordance with UCC guidelines and
Transfer Agent's policy (subject to shareholder-paid fee and bond
premium)
• Place, maintain and remove stop-transfer notations
Shareholder Communications
• Provide company-specific Shareholder contact number;
• Provide IVR 24/7 (subject to system maintenance);
• Respond to Shareholder inquiries (written, e-mail and web);
• Record all Shareholder calls;
• Scan and image incoming correspondence from Shareholders;
Direct Registration System ("DRS")
• Register, issue and transfer DRS book-entry shares
• Issue DRS statements of holding
• Process Web, IVR, telephone and written sale requests for DRS shares
(sale fees charged to Shareholder), pursuant to the terms and
conditions, including applicable fees, of the DRS Sales Facility
Online Access
• Provide Internet access to "Issuer Online," desktop access to
corporate and Shareholder information administered by Computershare,
which permits data management including running standard reports such
as Top 10 - 200 Shareholder lists, submitting real-time inquiries such
as an issued capital query, and reporting by holding range
Page 2
================================================================================
• Provide Internet access to "Investor Centre," which provides
Shareholder account information, transaction capabilities, and
downloadable forms and FAQs
Annual Meeting Services
• Prepare a certified full shareholder list as of the annual meeting
record date
• Address proxy cards for all registered shareholders
• Coordinate the mailing of the proxy card, proxy statement, return
envelope and Annual Report to all registered Shareholders
• Provide affidavit of mailing
• Receive, open and exam returned proxy cards
• Tabulate returned proxy cards
• Maintain ADP link to receive broker/bank vote transmissions
• Provide online access to proxy vote status
• Provide copies of shareholder comments
• Re-mail conflicting vote proxies and improperly executed proxies
• Attend annual meeting as Inspector of Election (travel expenses billed
as incurred)
• Provide Final Vote certification
• Prepare a final annual meeting list reflecting how each account
has voted on each proposal
• Broker search and beneficial or "street holder" distribution (by
appraisal)
Disbursement Services
• Receive all funds before or on mail date by 11:00 a.m., Eastern
Standard Time via Federal Funds Wire, ACH or Demand Deposit Account
debit
• Coordinate the mailing of checks or, upon proper request by a
registered shareholder, and provided that funds are on hand at the
Transfer Agent on or prior to the payment date, make payment to such
shareholder through the Automated Clearing House("ACH") (subject to
additional fees) in accordance with the instructions provided by the
shareholder
• Prepare and file Federal Information Returns (Form 1099) of funds paid
in a year
• Prepare and file State Information Returns of funds paid in a year to
shareholders resident within such state
• Prepare and file annual withholding return (Form 1042) and payments to
the government of income taxes withheld from non-resident aliens
• Coordinate the mailing of tax forms to shareholders
• Replace lost checks
• Reconcile paid and outstanding checks
• Code "undeliverable" accounts to suppress mailing dividend checks to
same
• Keep records of accumulated uncashed checks
• Perform the following duties as required by the Interest and Dividend
Tax Compliance Act of 1983:
• Withhold tax from shareholder accounts not in compliance with the
provisions of the Act
• Reconcile and report taxes withheld, including additional 1099
reporting requirements, to the Internal Revenue Service
• Mail to new accounts who have had taxes withheld, to inform them
of procedures to be followed to curtail subsequent back-up
withholding
• Perform shareholder file adjustments to reflect certification of
accounts
Reinvestment Services
• Administer and maintain plan accounts
• Establish new participant accounts
• Distribute plan literature
• Reinvest cash distributions
• Provide for ACH investments (subject to additional fees), if
applicable
• Coordinate the mailings statement to plan participants when activity
occurs
• Process sale, termination and withdrawal requests (if applicable)
• Supply summary reports for each transaction
Page 3
================================================================================
• Provide certificate safekeeping (if applicable)
Global Payments Service
• Allow shareholders to elect to receive sale proceeds and payments in
foreign currencies (subject to certain geographic restrictions) by
check or by electronic funds transfer in accordance with Transfer
Agent's guidelines (fees paid by Shareholders)
Direct Filing of Abandoned Property
• Coordinate the mailing of due diligence notices to all qualifying
Shareholder accounts as defined by the State filing matrix
• Process returned Due Diligence notices and remit property to
Shareholders prior to escheatment
• Prepare and file Preliminary and Final Abandoned Property Reports
• Prepare and file checks for each state covering unclaimed funds as per
state requirements
• Maintain records of each state filing and update shareholder files
accordingly
• Issue and file stock certificate(s) registered to the applicable
state(s) representing returned (RPO) certificates and underlying Share
positions
• Retain, as required by law or otherwise, records of property escheated
to the several States and respond, after appropriate research, to
Shareholder inquiries relating to same
Lost Owner/Shareholder Search Services
• Perform electronic database searches in accordance with SEC
requirements
• Update new addresses provided by search firm
• Send verification form to Shareholder to validate address
• Reissue abandoned property held to Shareholders upon receipt of signed
verification form
Additional Services
Items not included in the fees and services set forth in this Schedule
including, but not limited to, services associated with the payment of a stock
dividend, stock split, corporate reorganization, restricted stock vestment
program, or any services associated with a special project 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 Schedule shall not be a part of the Standard
Services and shall be billed by appraisal. All additional services not
specifically covered under this Schedule will be billed by appraisal, as
applicable.
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. An open account shall mean the account of each Shareholder which
account shall hold any full or fractional Shares of stock held by such
Shareholder, outstanding funds, or reportable tax information.
Out-of-Pocket Expenses
In addition to the fees above, the Company agrees to reimburse the Transfer
Agent for reasonable out-of-pocket expenses, including but not limited to
postage, forms, telephone, taxes, records storage, exchange and broker fees, or
advances incurred by the Transfer Agent for the items set out in Exhibit A
attached hereto. In addition, any other expenses incurred by the Transfer Agent
at the request or with the consent of the Company, will be reimbursed by the
Company.
Page 4
================================================================================
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.
Computershare Inc.
and Computershare Trust Company, N. A. Tortoise Gas and Oil Corporation
On Behalf of Both Entities:
By: By:
------------------------------ ------------------------------
Name: Name:
-------------------------- ----------------------------
Title: Title:
------------------------- ---------------------------
This Fee and Service Schedule shall serve as an attachment to the Transfer
Agency and Stock Transfer Services Agreement dated June 19, 2007.
Page 5
================================================================================
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
• Forms and stationery
• Printing
• Enclosing (proxy cards, checks, etc.)
• Fulfillment (transfer packages, new account packages, DRIP enrollment
packages)
• Proxy proof set-up
• Record retention
• Insurance premiums (mailing certificates)
• Delivery and freight charges (including overnight delivery; Airborne
Express, FedEx, etc.)
• Destruction of excess/obsolete material
• Telephone usage and line expenses
• NCOA searches
• SAS70 reports
Please Note:
Good funds to cover postage expenses in excess of $10,000 for Shareholder
mailings must be received in full by 12:00 p.m. Eastern Time on the scheduled
mailing date. Postage expenses less than $10,000 will be billed as incurred.
Page 6