Transfer Agency and Service Agreement
Between
Alliance National Municipal Income Fund, Inc.
and
EquiServe Trust Company, N.A.
and
EquiServe Limited Partnership
Table of Contents
Section 1. Certain Definitions...........................4
Section 2. Appointment of Agent..........................6
Section 3. Standard Services.............................7
Section 4. Dividend Disbursing Services..................8
Section 5. Shareholder Internet Account Access
Services......................................9
Section 6. Optional Services and Standards...............10
Section 7. Customer Responsibilites For Employee
Plan Services.................................12
Section 8. Fee and Expenses..............................14
Section 9. Representations and Warranties of
Transfer Agent................................15
Section 10. Representations and Warranties of Customer....16
Section 11. Indemnification/Limitation of
Liability.....................................17
Section 12. Damages.......................................19
Section 13. Responsibilites of the Transfer Agent.........19
Section 14. Covenants of the Customer and
Transfer Agent................................20
Section 15. Data Access and Propreitary Information.......21
Section 16. Confidentiality...............................23
Section 17. Term and Terminiation.........................23
Section 18. Assignment....................................24
Section 19. Unaffiliated Third Parties....................25
Section 20. Miscellaneous.................................25
Section 20.1. Notice........................................25
Section 20.2. Successors....................................25
2
Section 20.3. Amendments....................................26
Section 20.4. Severability..................................26
Section 20.5. Governing Law.................................26
Section 20.6. Force Majeure.................................26
Section 20.7. Descriptive Headings..........................26
Section 20.8. Third Party Beneficiaries.....................26
Section 20.9. Survival......................................26
Section 20.10. Priorities....................................27
Section 20.11. Merger of Agreement...........................27
Section 20.12 Counterparts..................................27
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AGREEMENT made as of the ___________day of _____________,
2001, by and between Alliance National Municipal Income Fund,
Inc. a corporation, having its principal office and place of
business at ________________ (the "Customer"), and EquiServe
Limited Partnership, a Delaware limited partnership, and its
fully owned subsidiary EquiServe Trust Company, N.A., a federally
charted trust company doing business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇] (collectively, the "Transfer Agent"
or individually "ELP" 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 ELP as dividend disbursing agent and processor of all
payments received or made by Customer under this Agreement.
NOW THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Certain Definitions.
(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.
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(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.
(l) "Enrollment Materials" shall mean the Plan brochure,
enrollment card and other materials prepared by Transfer Agent
for distribution to Participants.
"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.
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(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, par value
____ per share and Customer's preferred stock, par value ______
per share 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.
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 ELP 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 ELP 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
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(d) An opinion of counsel for the Customer
addressed to both the Trust Company and ELP
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.
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3. Standard Services.
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 ELP Services. In accordance with procedures
established from time to time by agreement between the Customer
and ELP, ELP 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 ELP prior to
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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.
ELP 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 ELP is obligated to and the Trust
Company and ELP 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.
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3.6 Compliance with Office of Foreign Asset Control
("OFAC") Regulations. The Transfer Agent shall ensure compliance
with OFAC laws.
4. Dividend Disbursing Services.
4.1 Declaration of Dividends. Upon receipt of a
written notice from the President, any Vice President, Assistant
Secretary, Treasurer or Assistant Treasurer of Customer declaring
the payment of a dividend, ELP shall disburse such dividend
payments provided that in advance of such payment, Customer
furnishes ELP with sufficient funds. The payment of such funds
to ELP 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 ELP 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 ELP 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. ELP is hereby authorized to
deduct from all dividends declared by Customer and disbursed by
ELP, 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.
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 Shareholder Internet Services shall be
provided at no additional charge at this time, other than the
transaction fees currently being charged for the different
transactions as described on the Fee and Service Schedule. The
Transfer Agent reserves the right to charge a fee for this
service at any time in the future.
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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 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.
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,
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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 ELP of its receipt
from the Customer for each such purchase of
available funds (which, in the case of
funds transmitted by check, shall mean
funds cleared for payment by ELP's bank),
(ii) receives the Payroll File from
Customer, and (iii) reconciles the funds
received by ELP with the Payroll File to
determine that the aggregate amount of
funds received correspond to the aggregate
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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
13
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.
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
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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 ELP.
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 ELP with
respect to the Employee Share Purchase Plan shall be made either
by check or by wire transfer in accordance with instructions
received from ELP. 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 ELP 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
15
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.
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8. Fees and Expenses.
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 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
are subject to good faith dispute. In the event of such a
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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
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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 ELP in connection with the
Services will be in its name and that ELP may receive investment
earnings in connection with the investment at ELP'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 ELP is a limited partnership
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,
TELECOMMUICATIONS INFRASTRUCTURE OR DELAY OR DISRUPTION
19
ATTRIBUTATLE 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
___________;
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:
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(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 /or 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;
21
(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 any time 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 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, damages, costs, charges, counsel fees, 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 or
willful misconduct or which arise out of the breach of any
representation or warranty of Transfer Agent hereunder, for which
22
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
23
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.
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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, 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 by law.
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
25
(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.
26
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
27
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 ELP 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 sub-contractor 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.
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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 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. 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% 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 $3,750.00
29
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 17(A)(c)(2) of the Securities and 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
30
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:
Company Name
Address
Address, Zip
Telecopy No.: ( ) xxx-xxxx
Attn:
If to the Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe Limited Partnership
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇.........................
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.
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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
Commonwealth of Massachusetts.
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 including, without limitation, acts of God, 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.
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.
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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 be an 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.
ALLIANCE NATIONAL MUNICIPAL INCOME FUND, INC.
By: _________________________
Name: ______________________
Title: ______________________
EQUISERVE LIMITED PARTNERSHIP
By: _________________________
Name: _______________________
Title: ______________________
EQUISERVE TRUST COMPANY, N.A.
33
By: _________________________
Name: _______________________
Title: ______________________
34
00250209.AL0