ii. "Certificate" shall mean any notice, instruction, or other instrument in writing, authorized or required by this Agreement to be given to the Bank by the Customer which is signed by any Officer, as hereinafter defined, and actually received by the...
Exhibit 99.(k)(i)
STOCK TRANSFER AGENCY AGREEMENT
AGREEMENT, made as of ________________, by and between ____________________
____________________, a statutory trust organized and existing under the laws of
the State of Delaware (hereinafter referred to as the "Customer"), and THE BANK
OF NEW YORK, a New York trust company (hereinafter referred to as the "Bank").
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
m.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the following meanings:
i. "Business Day" shall be deemed to be each
day on which the Bank is open for business.
ii. "Certificate" shall mean any notice,
instruction, or other instrument in
writing, authorized or required by this
Agreement to be given to the Bank by the
Customer which is signed by any Officer, as
hereinafter defined, and actually received
by the Bank.
iii. "Officer" shall be deemed to be the
Customer's Chief Executive Officer,
President, any Vice President, the
Secretary, the Treasurer, the Controller,
any Assistant Treasurer, and any Assistant
Secretary duly authorized by the Board of
Directors of the Customer to execute any
Certificate, instruction, notice or other
instrument on behalf of the Customer and
named in a Certificate, as such Certificate
may be amended from time to time.
iv. "Shares" shall mean all or any part of each
class of the shares of capital stock of the
Customer which from time to time are
authorized and/or
1
issued by the Customer and identified in a
Certificate of the Secretary of the
Customer under corporate seal, as such
Certificate may be amended from time to
time, with respect to which the Bank is to
act hereunder.
n.
APPOINTMENT OF BANK
i. The Customer hereby constitutes and
appoints the Bank as its agent to perform
the services described herein and as more
particularly described in Schedule I
attached hereto (the "Services"), and the
Bank hereby accepts appointment as such
agent and agrees to perform the Services in
accordance with the terms hereinafter set
forth.
ii. In connection with such appointment, the
Customer shall deliver the following
documents to the Bank:
1. A certified copy of the Certificate
of Incorporation or other document
evidencing the Customer's form of
organization (the "Charter") and all
amendments thereto;
2. A certified copy of the By-Laws of
the Customer;
3. A certified copy of a resolution of
the Board of Directors of the
Customer appointing the Bank to
perform the Services and authorizing
the execution and delivery of this
Agreement;
4. A Certificate signed by the
Secretary of the Customer
specifying: the number of authorized
Shares, the number of such
authorized Shares issued and
currently outstanding, and the names
and specimen signatures of all
persons duly authorized by the Board
of Directors of the Customer to
execute any Certificate
2
on behalf of the Customer, as such
Certificate may be amended from time
to time;
5. A Specimen Share certificate for
each class of Shares in the form
approved by the Board of Directors
of the Customer, together with a
Certificate signed by the Secretary
of the Customer as to such approval
and covenanting to supply a new such
Certificate and specimen whenever
such form shall change;
6. An opinion of counsel for the
Customer, in a form satisfactory to
the Bank, with respect to the
validity of the authorized and
outstanding Shares, the obtaining of
all necessary governmental consents,
whether such Shares are fully paid
and non-assessable and the status of
such Shares under the Securities Act
of 1933, as amended, and any other
applicable law or regulation (I.E.,
if subject to registration, that
they have been registered and that
the Registration Statement has
become effective or, if exempt, the
specific grounds therefor);
7. A list of the name, address, social
security or taxpayer identification
number of each Shareholder, number
of Shares owned, certificate
numbers, and whether any "stops"
have been placed; and
8. An opinion of counsel for the
Customer, in a form satisfactory to
the Bank, with respect to the due
authorization by the Customer and
the validity and effectiveness of
the use of facsimile signatures by
the Bank in connection with the
countersigning and registering of
Share certificates of the Customer.
3
iii. The Customer shall furnish the Bank with a
sufficient supply of blank Share
certificates and from time to time will
renew such supply upon request of the Bank.
Such blank Share certificates shall be
properly signed, by facsimile or otherwise,
by Officers of the Customer authorized by
law or by the By-Laws to sign Share
certificates, and, if required, shall bear
the corporate seal or a facsimile thereof.
o.
AUTHORIZATION AND ISSUANCE OF SHARES
i. The Customer shall deliver to the Bank the
following documents on or before the
effective date of any increase, decrease or
other change in the total number of Shares
authorized to be issued:
1. A certified copy of the amendment to
the Charter giving effect to such
increase, decrease or change;
2. An opinion of counsel for the
Customer, in a form satisfactory to
the Bank, with respect to the
validity of the Shares, the
obtaining of all necessary
governmental consents, whether such
Shares are fully paid and
non-assessable and the status of
such Shares under the Securities Act
of 1933, as amended, and any other
applicable federal law or
regulations (I.E., if subject to
registration, that they have been
registered and that the Registration
Statement has become effective or,
if exempt, the specific grounds
therefor); and
3. In the case of an increase, if the
appointment of the Bank was
theretofore expressly limited, a
certified copy of a resolution of
the Board of Directors of the
Customer increasing the authority of
the Bank.
4
ii. Prior to the issuance of any additional
Shares pursuant to stock dividends, stock
splits or otherwise, and prior to any
reduction in the number of Shares
outstanding, the Customer shall deliver the
following documents to the Bank:
1. A certified copy of the resolutions
adopted by the Board of Directors
and/or the shareholders of the
Customer authorizing such issuance
of additional Shares of the Customer
or such reduction, as the case may
be;
2. A certified copy of the order or
consent of each governmental or
regulatory authority required by law
as a prerequisite to the issuance or
reduction of such Shares, as the
case may be, and an opinion of
counsel for the Customer that no
other order or consent is required;
and
3. An opinion of counsel for the
Customer, in a form satisfactory to
the Bank, with respect to the
validity of the Shares, the
obtaining of all necessary
governmental consents, whether such
Shares are fully paid and
non-assessable and the status of
such Shares under the Securities Act
of 1933, as amended, and any other
applicable law or regulation (I.E.,
if subject to registration, that
they have been registered and that
the Registration Statement has
become effective, or, if exempt, the
specific grounds therefor).
p.
RECAPITALIZATION OR CAPITAL ADJUSTMENT
i. In the case of any negative stock split,
recapitalization or other capital
adjustment requiring a change in the form
of Share certificates, the Bank will issue
Share certificates in the new form in
exchange for, or
5
upon transfer of, outstanding Share
certificates in the old form, upon
receiving:
1. A Certificate authorizing the
issuance of Share certificates in
the new form;
2. A certified copy of any amendment to
the Charter with respect to the
change;
3. Specimen Share certificates for each
class of Shares in the new form
approved by the Board of Directors
of the Customer, with a Certificate
signed by the Secretary of the
Customer as to such approval;
4. A certified copy of the order or
consent of each governmental or
regulatory authority required by law
as a prerequisite to the issuance of
the Shares in the new form, and an
opinion of counsel for the Customer
that the order or consent of no
other governmental or regulatory
authority is required; and
5. An opinion of counsel for the
Customer, in a form satisfactory to
the Bank, with respect to the
validity of the Shares in the new
form, the obtaining of all necessary
governmental consents, whether such
Shares are fully paid and
non-assessable and the status of
such Shares under the Securities Act
of 1933, as amended, and any other
applicable law or regulation (I.E.,
if subject to registration, that the
Shares have been registered and that
the Registration Statement has
become effective or, if exempt, the
specific grounds therefor).
ii. The Customer shall furnish the Bank with a
sufficient supply of blank Share
certificates in the new form, and from time
to time will replenish such supply upon the
request of the Bank. Such blank Share
certificates shall be
6
properly signed, by facsimile or otherwise,
by Officers of the Customer authorized by
law or by the By-Laws to sign Share
certificates and, if required, shall bear
the corporate seal or a facsimile thereof.
q.
ISSUANCE AND TRANSFER OF SHARES
i. The Bank will issue Share certificates upon
receipt of a Certificate from an Officer,
but shall not be required to issue Share
certificates after it has received from an
appropriate federal or state authority
written notification that the sale of
Shares has been suspended or discontinued,
and the Bank shall be entitled to rely upon
such written notification. The Bank shall
not be responsible for the payment of any
original issue or other taxes required to
be paid by the Customer in connection with
the issuance of any Shares.
ii. Shares will be transferred upon
presentation to the Bank of Share
certificates in form deemed by the Bank
properly endorsed for transfer, accompanied
by such documents as the Bank deems
necessary to evidence the authority of the
person making such transfer, and bearing
satisfactory evidence of the payment of
applicable stock transfer taxes. In the
case of small estates where no
administration is contemplated, the Bank
may, when furnished with an appropriate
surety bond, and without further approval
of the Customer, transfer Shares registered
in the name of the decedent where the
current market value of the Shares being
transferred does not exceed such amount as
may from time to time be prescribed by the
various states. The Bank reserves the right
to refuse to transfer Shares until it is
satisfied that the endorsements on Share
certificates are valid and genuine, and for
that purpose it may require, unless
otherwise instructed by an Officer of the
Customer, a guaranty of signature by an
7
"eligible guarantor institution" meeting
the requirements of the Bank, which
requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Bank in addition to, or
in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended. The Bank also reserves
the right to refuse to transfer Shares
until it is satisfied that the requested
transfer is legally authorized, and it
shall incur no liability for the refusal in
good faith to make transfers which the
Bank, in its judgment, deems improper or
unauthorized, or until it is satisfied that
there is no basis to any claims adverse to
such transfer. The Bank may, in effecting
transfers of Shares, rely upon those
provisions of the Uniform Act for the
Simplification of Fiduciary Security
Transfers or the Uniform Commercial Code,
as the same may be amended from time to
time, applicable to the transfer of
securities, and the Customer shall
indemnify the Bank for any act done or
omitted by it in good faith in reliance
upon such laws.
iii. All certificates representing Shares that
are subject to restrictions on transfer
(E.G., securities acquired pursuant to an
investment representation, securities held
by controlling persons, securities subject
to stockholders' agreement, etc.), shall be
stamped with a legend describing the extent
and conditions of the restrictions or
referring to the source of such
restrictions. The Bank assumes no
responsibility with respect to the transfer
of restricted securities where counsel for
the Customer advises that such transfer may
be properly effected.
r.
DIVIDENDS AND DISTRIBUTIONS
i. The Customer shall furnish to the Bank a
copy of a resolution of its Board of
Directors,
8
certified by the Secretary or any Assistant
Secretary, either (i) setting forth the
date of the declaration of a dividend or
distribution, the date of accrual or
payment, as the case may be, the record
date as of which shareholders entitled to
payment, or accrual, as the case may be,
shall be determined, the amount per Share
of such dividend or distribution, the
payment date on which all previously
accrued and unpaid dividends are to be
paid, and the total amount, if any, payable
to the Bank on such payment date, or (ii)
authorizing the declaration of dividends
and distributions on a periodic basis and
authorizing the Bank to rely on a
Certificate setting forth the information
described in subsection (i) of this
paragraph.
ii. Prior to the payment date specified in such
Certificate or resolution, as the case may
be, the Customer shall, in the case of a
cash dividend or distribution, pay to the
Bank an amount of cash, sufficient for the
Bank to make the payment, specified in such
Certificate or resolution, to the
shareholders of record as of such payment
date. The Bank will, upon receipt of any
such cash, (i) in the case of shareholders
who are participants in a dividend
reinvestment and/or cash purchase plan of
the Customer, reinvest such cash dividends
or distributions in accordance with the
terms of such plan, and (ii) in the case of
shareholders who are not participants in
any such plan, make payment of such cash
dividends or distributions to the
shareholders of record as of the record
date by mailing a check, payable to the
registered shareholder, to the address of
record or dividend mailing address. The
Bank shall not be liable for any improper
payment made in accordance with a
Certificate or resolution described in the
preceding paragraph. If the Bank shall not
receive sufficient cash prior to the
payment date to make payments of any cash
dividend or distribution pursuant to
subsections (i) and (ii) above to all
shareholders of the Customer as of
9
the record date, the Bank shall, upon
notifying the Customer, withhold payment to
all shareholders of the Customer as of the
record date until sufficient cash is
provided to the Bank.
iii. It is understood that the Bank shall in no
way be responsible for the determination of
the rate or form of dividends or
distributions due to the shareholders.
iv. It is understood that the Bank shall file
such appropriate information returns
concerning the payment of dividends and
distributions with the proper federal,
state and local authorities as are required
by law to be filed by the Customer but
shall in no way be responsible for the
collection or withholding of taxes due on
such dividends or distributions due to
shareholders, except and only to the extent
required of it by applicable law.
s.
CONCERNING THE CUSTOMER
i. The Customer shall promptly deliver to the
Bank written notice of any change in the
Officers authorized to sign Share
certificates, Certificates, notifications
or requests, together with a specimen
signature of each new Officer. In the event
any Officer who shall have signed manually
or whose facsimile signature shall have
been affixed to blank Share certificates
shall die, resign or be removed prior to
issuance of such Share certificates, the
Bank may issue such Share certificates as
the Share certificates of the Customer
notwithstanding such death, resignation or
removal, and the Customer shall promptly
deliver to the Bank such approvals,
adoptions or ratifications as may be
required by law.
ii. Each copy of the Charter of the Customer
and copies of all amendments thereto shall
be certified by the Secretary of State (or
other
10
appropriate official) of the state of
incorporation, and if such Charter and/or
amendments are required by law also to be
filed with a county or other officer or
official body, a certificate of such filing
shall be filed with a certified copy
submitted to the Bank. Each copy of the
By-Laws and copies of all amendments
thereto, and copies of resolutions of the
Board of Directors of the Customer, shall
be certified by the Secretary or an
Assistant Secretary of the Customer under
the corporate seal.
iii. Customer hereby represents and warrants:
1. It is a statutory trust duly
organized and validly existing under
the laws of Delaware.
2. This Agreement has been duly
authorized, executed and delivered
on its behalf and constitutes the
legal, valid and binding obligation
of Customer. The execution, delivery
and performance of this Agreement by
Customer do not and will not violate
any applicable law or regulation and
do not require the consent of any
governmental or other regulatory
body except for such consents and
approvals as have been obtained and
are in full force and effect.
t.
CONCERNING THE BANK
i. The Bank shall not be liable and shall be
fully protected in acting upon any writing
or document reasonably believed by it to be
genuine and to have been given, signed or
made by the proper person or persons and
shall not be held to have any notice of any
change of authority of any person until
receipt of written notice thereof from an
Officer of the Customer. It shall also be
protected in processing Share certificates
which it reasonably believes to bear
11
the proper manual or facsimile signatures
of the duly authorized Officer or Officers
of the Customer and the proper
countersignature of the Bank.
ii. The Bank may establish such additional
procedures, rules and regulations governing
the transfer or registration of Share
certificates as it may deem advisable and
consistent with such rules and regulations
generally adopted by bank transfer agents.
iii. The Bank may keep such records as it deems
advisable but not inconsistent with
resolutions adopted by the Board of
Directors of the Customer. The Bank may
deliver to the Customer from time to time
at its discretion, for safekeeping or
disposition by the Customer in accordance
with law, such records, papers, Share
certificates which have been cancelled in
transfer or exchange and other documents
accumulated in the execution of its duties
hereunder as the Bank may deem expedient,
other than those which the Bank is itself
required to maintain pursuant to applicable
laws and regulations, and the Customer
shall assume all responsibility for any
failure thereafter to produce any record,
paper, cancelled Share certificate or other
document so returned, if and when required.
The records maintained by the Bank pursuant
to this paragraph which have not been
previously delivered to the Customer
pursuant to the foregoing provisions of
this paragraph shall be considered to be
the property of the Customer, shall be made
available upon request for inspection by
the Officers, employees and auditors of the
Customer, and shall be delivered to the
Customer upon request and in any event upon
the date of termination of this Agreement,
as specified in Article IX of this
Agreement, in the form and manner kept by
the Bank on such date of termination or
such earlier date as may be requested by
the Customer.
12
iv. The Bank may employ agents or
attorneys-in-fact at the expense of the
Customer to perform its obligations
hereunder, and shall not be liable for any
loss or expense arising out of, or in
connection with, the actions or omissions
to act of its agents or attorneys-in-fact,
so long as the Bank acts in good faith and
without negligence or willful misconduct in
connection with the selection of such
agents or attorneys-in-fact.
v. The Bank shall only be liable for any loss
or damage arising out of its own negligence
or willful misconduct, provided, however,
that the Bank shall not be liable for any
indirect, special, punitive or
consequential damages.
vi. The Customer shall indemnify and hold
harmless the Bank from and against any and
all claims (whether with or without basis
in fact or law), costs, demands, expenses
and liabilities, including reasonable
attorney's fees, which the Bank may sustain
or incur or which may be asserted against
the Bank except for any liability which the
Bank has assumed pursuant to the
immediately preceding section. The Bank
shall be deemed not to have acted with
negligence and not to have engaged in
willful misconduct by reason of or as a
result of any action taken or omitted to be
taken by the Bank without its own
negligence or willful misconduct in
reliance upon (i) any provision of this
Agreement, (ii) any instrument, order or
Share certificate reasonably believed by it
to be genuine and to be signed,
countersigned or executed by any duly
authorized Officer of the Customer, (iii)
any Certificate or other written
instructions of an Officer, (iv) any
opinion of legal counsel for the Customer
or the Bank, or (v) any law, act,
regulation or any interpretation of the
same even though such law, act, or
regulation may thereafter have been
altered, changed, amended or repealed.
Nothing contained herein shall limit or in
any way impair the right of the Bank
13
to indemnification under any other
provision of this Agreement.
vii. Specifically, but not by way of limitation,
the Customer shall indemnify and hold
harmless the Bank from and against any and
all claims (whether with or without basis
in fact or law), costs, demands, expenses
and liabilities, including reasonable
attorney's fees, of any and every nature
which the Bank may sustain or incur or
which may be asserted against the Bank in
connection with the genuineness of a Share
certificate, the Bank's due authorization
by the Customer to issue Shares and the
form and amount of authorized Shares.
viii. The Bank shall not incur any liability
hereunder if by reason of any act of God or
war or other circumstances beyond its
control, it, or its employees, officers or
directors shall be prevented, delayed or
forbidden from, or be subject to any civil
or criminal penalty on account of, doing or
performing any act or thing which by the
terms of this Agreement it is provided
shall be done or performed or by reason of
any nonperformance or delay, caused as
aforesaid, in the performance of any act or
thing which by the terms of this Agreement
it is provided shall or may be done or
performed.
ix. At any time the Bank may apply to an
Officer of the Customer for written
instructions with respect to any matter
arising in connection with the Bank's
duties and obligations under this
Agreement, and the Bank shall not be liable
for any action taken or omitted to be taken
by the Bank in good faith in accordance
with such written instructions. Such
application by the Bank for instructions
from an Officer of the Customer may, at the
option of the Bank, set forth in writing
any action proposed to be taken or omitted
to be taken by the Bank with respect to its
duties or obligations under this Agreement
and the date on and/or after which such
action
14
shall be taken, and the Bank shall not be
liable for any action taken or omitted to
be taken in accordance with a proposal
included in any such application on or
after the date specified therein unless,
prior to taking or omitting to take any
such action, the Bank has received written
instructions in response to such
application specifying the action to be
taken or omitted. The Bank may consult
counsel to the Customer or its own counsel,
at the expense of the Customer, and shall
be fully protected with respect to anything
done or omitted by it in good faith in
accordance with the opinion of such
counsel.
x. When mail is used for delivery of
non-negotiable Share certificates, the
value of which does not exceed the limits
of the Bank's Blanket Bond, the Bank shall
send such non-negotiable Share certificates
by first class mail, and such deliveries
will be covered while in transit by the
Bank's Blanket Bond. Non-negotiable Share
certificates, the value of which exceed the
limits of the Bank's Blanket Bond, will be
sent by insured registered mail. Negotiable
Share certificates will be sent by insured
registered mail. The Bank shall advise the
Customer of any Share certificates returned
as undeliverable after being mailed as
herein provided for.
xi. The Bank may issue new Share certificates
in place of Share certificates represented
to have been lost, stolen or destroyed upon
receiving instructions in writing from an
Officer and indemnity satisfactory to the
Bank. Such instructions from the Customer
shall be in such form as approved by the
Board of Directors of the Customer in
accordance with applicable law or the
By-Laws of the Customer governing such
matters. If the Bank receives written
notification from the owner of the lost,
stolen or destroyed Share certificate
within a reasonable time after he has
notice of it, the Bank shall promptly
notify the Customer and shall act
15
pursuant to written instructions signed by
an Officer. If the Customer receives such
written notification from the owner of the
lost, stolen or destroyed Share certificate
within a reasonable time after he has
notice of it, the Customer shall promptly
notify the Bank and the Bank shall act
pursuant to written instructions signed by
an Officer. The Bank shall not be liable
for any act done or omitted by it pursuant
to the written instructions described
herein. The Bank may issue new Share
certificates in exchange for, and upon
surrender of, mutilated Share certificates.
xii. The Bank will issue and mail subscription
warrants for Shares, Shares representing
stock dividends, exchanges or splits, or
act as conversion agent upon receiving
written instructions from an Officer and
such other documents as the Bank may deem
necessary.
xiii. The Bank will supply shareholder lists to
the Customer from time to time upon
receiving a request therefor from an
Officer of the Customer.
xiv. In case of any requests or demands for the
inspection of the shareholder records of
the Customer, the Bank will notify the
Customer and endeavor to secure
instructions from an Officer as to such
inspection. The Bank reserves the right,
however, to exhibit the shareholder records
to any person whenever it is advised by its
counsel that there is a reasonable
likelihood that the Bank will be held
liable for the failure to exhibit the
shareholder records to such person.
xv. At the request of an Officer, the Bank will
address and mail such appropriate notices
to shareholders as the Customer may direct.
xvi. Notwithstanding any provisions of this
Agreement to the contrary, the Bank shall
be under no duty or obligation to inquire
into, and shall not be liable for:
16
1. The legality of the issue, sale or
transfer of any Shares, the
sufficiency of the amount to be
received in connection therewith, or
the authority of the Customer to
request such issuance, sale or
transfer;
2. The legality of the purchase of any
Shares, the sufficiency of the
amount to be paid in connection
therewith, or the authority of the
Customer to request such purchase;
3. The legality of the declaration of
any dividend by the Customer, or the
legality of the issue of any Shares
in payment of any stock dividend; or
4. The legality of any recapitalization
or readjustment of the Shares.
xvii. The Bank shall be entitled to receive and
the Customer hereby agrees to pay to the
Bank for its performance hereunder (i)
out-of-pocket expenses (including legal
expenses and attorney's fees) incurred in
connection with this Agreement and its
performance hereunder, and (ii) the
compensation for services as set forth in
Schedule I.
xviii. The Bank shall not be responsible for any
money, whether or not represented by any
check, draft or other instrument for the
payment of money, received by it on behalf
of the Customer, until the Bank actually
receives and collects such funds.
xix. In no event shall the Bank be required to
accept or act upon any oral instructions;
regardless of the circumstances.
xx. The Bank shall have no duties or
responsibilities whatsoever except such
duties and responsibilities as are
specifically set forth in this Agreement,
and no covenant or obligation
17
shall be implied against the Bank in
connection with this Agreement.
u.
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than 30 days after the date of receipt of such notice. In the
event such notice is given by the Customer, it shall be accompanied by a copy of
a resolution of the Board of Directors of the Customer, certified by its
Secretary, electing to terminate this Agreement and designating a successor
transfer agent or transfer agents. In the event such notice is given by the
Bank, the Customer shall, on or before the termination date, deliver to the Bank
a copy of a resolution of its Board of Directors certified by its Secretary
designating a successor transfer agent or transfer agents. In the absence of
such designation by the Customer, the Bank may designate a successor transfer
agent. If the Customer fails to designate a successor transfer agent and if the
Bank is unable to find a successor transfer agent, the Customer shall, upon the
date specified in the notice of termination of this Agreement and delivery of
the records maintained hereunder, be deemed to be its own transfer agent and the
Bank shall thereafter be relieved of all duties and responsibilities hereunder.
Upon termination hereof, the Customer shall pay to the Bank such compensation as
may be due to the Bank as of the date of such termination, and shall reimburse
the Bank for any disbursements and expenses made or incurred by the Bank and
payable or reimbursable hereunder.
v.
MISCELLANEOUS
i. The indemnities contained herein shall be
continuing obligations of the Customer, its
successors and assigns, notwithstanding the
termination of this Agreement.
ii. Any notice or other instrument in writing,
authorized or required by this Agreement to
be given to the Customer shall be
sufficiently given if addressed to the
Customer and mailed or delivered to it at
1065 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇, or at such other place as the
Customer may from time to time designate in
writing.
iii. Any notice or other instrument in writing,
authorized or required by this Agreement to
be
18
given to the Bank shall be sufficiently
given if addressed to the Bank and mailed
or delivered to it at its office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or at such other place as the Bank
may from time to time designate in writing.
iv. This Agreement may not be amended or
modified in any manner except by a written
agreement duly authorized and executed by
both parties. Any duly authorized Officer
may amend any Certificate naming Officers
authorized to execute and deliver
Certificates, instructions, notices or
other instruments, and the Secretary or any
Assistant Secretary may amend any
Certificate listing the shares of capital
stock of the Customer for which the Bank
performs Services hereunder.
v. This Agreement shall extend to and shall be
binding upon the parties hereto and their
respective successors and assigns;
provided, however, that this Agreement
shall not be assignable by either party
without the prior written consent of the
other party, and provided, further, that
any reorganization, merger, consolidation,
or sale of assets, by the Bank shall not be
deemed to constitute an assignment of this
Agreement.
vi. This Agreement shall be governed by and
construed in accordance with the laws of
the State of New York. The parties agree
that, all actions and proceedings arising
out of this Agreement or any of the
transactions contemplated hereby, shall be
brought in the United States District Court
for the Southern District of New York or in
a New York State Court in the County of New
York and that, in connection with any such
action or proceeding, submit to the
jurisdiction of, and venue in, such court.
Each of the parties hereto also irrevocably
waives all right to trial by jury in any
action, proceeding or counterclaim arising
19
out of this Agreement or the transactions
contemplated hereby.
vii. This Agreement may be executed in any
number of counterparts each of which shall
be deemed to be an original; but such
counterparts, together, shall constitute
only one instrument.
viii. The provisions of this Agreement are
intended to benefit only the Bank and the
Customer, and no rights shall be granted to
any other person by virtue of this
Agreement.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
Attest:
-----------------------------------------
By:
----------------------------- --------------------------------------
Name: Name:
Title: Title:
Attest: THE BANK OF NEW YORK
By:
----------------------------- --------------------------------------
Name:
---------------------------------
Title:
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21
SCHEDULE I
NON-PROFILE
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STOCK TRANSFER AGENCY AGREEMENT
between
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and
THE BANK OF NEW YORK
Dated as of _________
ACCOUNT NUMBER(S) [________________]
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