Exhibit 2.k(2)
Transfer Agency and Service Agreement
Among
RMK High Income Fund, Inc.
and
EquiServe Trust Company, N.A.
and
EquiServe, Inc.
Table of Contents
Section 1. Certain Definitions...................................1
Section 2. Appointment of Transfer Agent and EQI.................2
Section 3. Standard Services.....................................3
Section 4. Dividend Disbursing Services..........................4
Section 5. Optional Services.....................................5
Section 6. Fee and Expenses......................................5
Section 7. Representations and Warranties of the
Trust Company and EQI................................ 6
Section 8. Representations and Warranties of Customer............7
Section 9. Indemnification/Limitation of Liability...............8
Section 10. Damages...............................................10
Section 11. Responsibilites of Transfer Agent.....................10
Section 12. Covenants of Customer and Transfer Agent..............11
Section 13. Data Access and Proprietary Information...............11
Section 14. Confidentiality.......................................13
Section 15. Terminiation..........................................13
Section 16. Assignment............................................14
Section 17. Unaffiliated Third Parties............................14
Section 18. Miscellaneous.........................................14
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ___ day of June, 2003, by and among RMK High
Income Fund, Inc., a Maryland corporation ("Customer"), and EquiServe, Inc., a
Delaware corporation, and its fully owned subsidiary EquiServe Trust Company,
N.A., a federally charted trust company (collectively, "Transfer Agent" or
individually "EQI" and the "Trust Company", respectively).
WHEREAS, Customer desires to appoint Transfer Agent as sole transfer
agent, registrar, and administrator of its Dividend Reinvestment Plan and EQI as
dividend disbursing agent and processor of all payments received or made by
Customer under this Agreement;
WHEREAS, the Trust Company and EQI desire to accept such respective
appointments and to perform the services related to such appointments; and
WHEREAS, the Board of Directors of Customer has approved appointment of
Transfer Agent;
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) "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.
(c) "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.
(d) "CUSTOMER ID(S)" shall have the meaning set forth in SECTION 13.3.
(e) "DATA ACCESS SERVICE" shall have the meaning set forth in SECTION 13.1.
(f) "DIVIDEND REINVESTMENT PLAN" shall mean the services as set forth in SECTION
4 and in the Fee and Service Schedule.
(g) "EFFECTIVE DATE" shall mean the date first stated above.
(h) "FEE AND SERVICE SCHEDULE" shall mean the fees and services set forth in the
"Fee and Service Schedule" attached hereto.
(i) "PASSWORD(S)" shall have the meaning set forth in SECTION 13.3.
(j) "PROPRIETARY INFORMATION" shall have the meaning set forth in SECTION 13.4.
(k) "SERVICES" shall mean any and all services as further described herein and
in the "Fee and Service Schedule" or other schedules attached hereto.
(l) "SHARES" shall mean Customer's common stock, par value $.0001 per share,
authorized by Customer's Articles of Incorporation and other classes of
Customer's stock to be designated by Customer in writing and for which Transfer
Agent agrees to service under this Agreement.
(m) "SHAREHOLDER" shall mean the holder of record of Shares.
(n) "SHAREHOLDER DATA" shall have the meaning set forth in SECTION 13.2.
2. APPOINTMENT OF TRANSFER AGENT AND EQI.
2.1 APPOINTMENTS. Customer hereby appoints Transfer Agent to act as sole
transfer agent and registrar for all Shares in accordance with the terms and
conditions hereof and as the administrator of its Dividend Reinvestment Plan and
appoints EQI as dividend disbursing agent and processor of all payments received
or made by or on behalf of Customer under this Agreement, and Transfer Agent and
EQI hereby accept such appointments and agree to perform the Services in
accordance with the terms and conditions set forth herein.
2.2 DOCUMENTS. In connection with the appointment of Transfer Agent,
Customer will provide or has previously provided each of the following documents
to Transfer Agent:
(a) Copies of Customer's registration statement and amendments thereto
filed with the Securities and Exchange Commission for its initial
public offering;
(b) A certified copy of a resolution of the Board of Directors of
Customer authorizing the appointment of Transfer Agent;
(c) Specimens of the signatures of the officers of Customer authorized
to sign stock certificates, if any, and of individuals authorized
to sign written instructions and requests on behalf of Customer;
and
(d) An opinion of counsel for Customer addressed to both the Trust
Company and EQI with respect to:
(i) Customer's organization and existence under the laws of its
state of organization;
(ii) The status under the Securities Act of 1933, as amended
("Securities Act"), and any other applicable law of Shares
of Customer covered by the appointment (I.E., if subject to
registration, that they have been registered and that
Customer's registration statement has become effective or,
if exempt, the specific grounds therefor); and
(iii) Whether such Shares, when issued, will be validly issued,
fully paid and non-assessable.
2.3 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.
2.4 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.
2.5 CERTIFICATES. Customer generally will not issue certificated shares.
In the event that Customer issues certificates, Customer shall deliver to
Transfer Agent an appropriate supply of such certificates, which certificates
shall provide a signature panel for use by an officer of or authorized ▇▇▇▇▇▇
for Transfer Agent to sign as transfer agent and registrar, and which shall
state that such certificates are only valid after being countersigned and
registered.
3. STANDARD SERVICES.
3.1 TRANSFER AGENT SERVICES. Transfer Agent will perform the following
Services:
In accordance with the procedures established from time to time by
agreement between Customer and Transfer Agent, 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 any other investment programs of Customer as agreed to from
time to time in accordance with the terms of the agreements relating
thereto to which Transfer Agent is or will be a party; and
(d) issue replacement certificates for those certificates issued by
Customer, if any, alleged to have been lost, stolen or destroyed
upon receipt by Transfer Agent of indemnity satisfactory to it and
holding it and Customer harmless, absent notice to Customer and
Transfer Agent that such certificates have been acquired by a bona
fide purchaser. Transfer Agent may, at its option, issue replacement
certificates in exchange for mutilated certificates upon presentation
thereof and without such indemnity.
3.2 EQI SERVICES. In accordance with procedures established from time to
time by agreement between Customer and EQI, EQI shall:
(a) prepare and transmit payments for dividends and distributions declared
by Customer, provided good funds for said dividends or distributions
are received by EQI prior to the scheduled payable date for said
dividends or distributions;
(b) issue replacement checks and place stop orders on original checks
based on Shareholder's representation that a check was not received or
was lost. Such stop orders and replacements will be deemed to have
been made at the request of Customer and Customer shall be responsible
for all losses or claims resulting from such replacement; and
(c) receive all payments made to Customer or Transfer Agent under the
Dividend Reinvestment Plan and make all payments required to be made
under such plan, including all payments required to be made to
Customer.
3.3 CUSTOMARY SERVICES. Transfer Agent shall perform all the customary
services of a transfer agent, dividend reinvestment plan agent and agent of
other investment programs as described in SECTION 3.1 consistent with those
requirements in effect as of the date of this Agreement. EQI shall perform all
the customary services of a dividend disbursing agent and a processor of
payments as described in SECTION 3.2 consistently with those requirements in
effect as of the date of this Agreement. The detailed services and definition,
frequency, limitations and associated costs (if any) of the Services to be
performed by Transfer Agent are set out in the attached Fee and Service
Schedule.
3.4 COMPLIANCE WITH LAWS. Customer agrees that each of the Trust Company
and EQI is obligated to and the Trust Company and EQI agree to comply with all
applicable federal, state and local laws and regulations, codes, order and
government rules in the performance of its duties under this Agreement.
3.5 UNCLAIMED PROPERTY AND LOST SHAREHOLDERS. Transfer Agent shall report
unclaimed property to each state in compliance with state law and shall comply
with Section 17Ad-17 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for lost Shareholders. If Customer is not in compliance with
applicable state laws, there will be no charge for the first two years for this
service for such Customer, other than a charge of $3.00 per due diligence notice
mailed; provided that after the first two years, Transfer Agent will charge such
Customer its then standard fee plus any reasonable out-of-pocket expenses.
3.6 COMPLIANCE WITH OFFICE OF FOREIGN ASSET CONTROL ("OFAC") LAWS AND
Regulations. Transfer Agent shall ensure compliance with OFAC laws and
regulations.
4. DIVIDEND DISBURSING SERVICES.
4.1 DECLARATION OF DIVIDENDS. Upon receipt of a written notice from the
President, any Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of Customer declaring the payment of a dividend, EQI shall
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disburse such dividend payments provided that, in advance of such payment,
Customer furnishes EQI with sufficient funds. The payment of such funds to EQI
for the purpose of being available for the payment of dividend checks from time
to time is not intended by Customer to confer any rights in such funds on
Customer's Shareholders whether in trust or in contract or otherwise.
4.2 STOP PAYMENTS. Customer hereby authorizes EQI to stop payment of
checks issued in payment of dividends, but not presented for payment, when the
payees thereof allege either that they have not received the checks or that such
checks have been mislaid, lost, stolen, destroyed or, through no fault of
theirs, are otherwise beyond their control and cannot be produced by them for
presentation and collection, and EQI shall issue and deliver duplicate checks in
replacement thereof, and Customer shall indemnify Transfer Agent against any
loss or damage resulting from reissuance of the checks.
4.3 TAX WITHHOLDING. EQI is hereby authorized to deduct from all dividends
declared by Customer and disbursed by EQI, as dividend disbursing agent, the tax
required to be withheld pursuant to Sections 1441, 1442 and 3406 of the Internal
Revenue Code of 1986, as amended, or by any applicable Federal or State statutes
subsequently enacted, and to make the necessary return and payment of such tax
in connection therewith.
5. OPTIONAL SERVICES.
To the extent that Customer elects to engage Transfer Agent to provide the
Services listed below Customer shall engage Transfer Agent to provide such
Services upon terms and fees to be agreed upon by the parties:
(a) Corporate actions (including inter alia, odd lot buy backs, exchanges,
mergers, redemptions, subscriptions, capital reorganization,
coordination of post-merger services and special meetings).
6. FEES AND EXPENSES.
6.1 FEE AND SERVICE SCHEDULE. 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. Such fees and reasonable out-of-pocket
expenses and advances identified in SECTION 6.2 below may be changed from time
to time subject to mutual agreement between Customer and Transfer Agent.
6.2 OUT-OF-POCKET EXPENSES. In addition to the fees paid under SECTION 6.1
above, Customer agrees to reimburse Transfer Agent for reasonable out-of-pocket
expenses, including but not limited to postage, forms, telephone, records
storage or advances incurred by Transfer Agent for the items set out in Exhibit
A attached hereto. In addition, any other out-of-pocket expenses incurred by
Transfer Agent at the request or with the consent of Customer, will be
reimbursed by Customer.
6.3 POSTAGE. Postage for mailing of dividends, proxies, Customer reports
and other mailings to all Shareholder Accounts shall be advanced to Transfer
Agent by Customer prior to commencement of the mailing date of such materials.
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6.4 INVOICES. Customer agrees to pay all fees and reimbursable expenses
within forty-five (45) days of the date of the respective billing notice, except
for any fees or expenses that are subject to good faith dispute. In the event of
such a dispute, Customer may only withhold that portion of the fee or expense
subject to the good faith dispute. Customer shall notify Transfer Agent in
writing within forty-five (45) days following the receipt of each billing notice
if Customer is disputing any amounts in good faith. If Customer does not provide
such notice of dispute within the required time, the billing notice will be
deemed accepted by Customer. 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.
6.5 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.
6.6 BANK ACCOUNTS. Customer acknowledges that the bank accounts maintained
by EQI in connection with the Services will be in its name and that EQI may
receive investment earnings in connection with the investment at EQI's risk and
for its benefit of funds held in those accounts from time to time.
7. REPRESENTATIONS AND WARRANTIES OF THE TRUST COMPANY AND EQI.
The Trust Company and EQI represent and warrant to Customer that:
7.1 GOVERNANCE. The Trust Company is a federally chartered limited purpose
national bank duly organized under the laws of the United States and EQI is a
corporation validly existing and in good standing under the laws of the State of
Delaware.
7.2 QUALIFICATION. The Trust Company and EQI are duly qualified to carry
on their business in the State of New York and with the New York Stock Exchange.
7.3 AUTHORITY. The Trust Company and EQI 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 the Trust Company and
EQI have been duly authorized by all necessary corporate action and constitute
the legal, valid and binding obligation of the Trust Company and EQI enforceable
against each in accordance with its terms. The execution, delivery and
performance of this Agreement by the Trust Company and EQI do not and 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 the Trust Company or
EQI is subject, (ii) any judgment, order, writ, injunction, decree or award of
any court, arbitrator or governmental or regulatory official, body or authority
which is applicable to the Trust Company or EQI, (iii) the governing documents
or by-laws of, or any material agreement to which the Trust Company or EQI is a
party.
7.4 REGISTRATION AND COMPLIANCE. The Trust Company and EQI will maintain
their registration as a transfer agent as provided in Section 17(A)(c) of the
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Exchange Act and shall comply with all applicable provisions of Section 17A of
the Exchange Act and the rules promulgated thereunder, as may be amended from
time to time, including rules relating to record retention.
7.5 RECORDS. The Trust Company and EQI shall create and maintain all
records required of it pursuant to their duties hereunder and as set forth in
the Fee and Service Schedule in accordance with all applicable laws, rules and
regulations, including records required by Section 31(a) of the Investment
Company Act of 1940, as amended ("Investment Company Act") and the rules
thereunder. Where applicable, such records shall be maintained by the Trust
Company and EQI for the periods and the places required by Rule 31a-2 under the
Investment Company Act. To the extent required by Section 31 of the Investment
Company Act and the rules thereunder, all such records prepared or maintained by
the Trust Company and EQI relating to the Services to be performed by the Trust
Company or EQI hereunder are the property of the Customer and will be preserved,
maintained and made available in accordance with Section 31 and rules
thereunder, and will be surrendered promptly to Customer on and in accordance
with its request.
7.6 FACILITIES. The Trust Company and EQI have and will continue to have
access to the necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement.
7.7 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. THE TRUST COMPANY AND EQI EXPRESSLY DISCLAIM 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 ATTRIBUTATLE TO VIRUSES,
DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND
OMISSIONS OF THIRD PARTIES. THEREFORE THE TRUST COMPANY AND EQI EXPRESSLY
DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR DATA ACCESS
SERVICE AVAILABILITY, ACCESSABILITY, OR PERFORMANCE.
8. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.
Customer represents and warrants to Transfer Agent that:
8.1 ORGANIZATION. It is a corporation duly organized and existing and in
good standing under the laws of Maryland.
8.2 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
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8.3 SECURITIES ACT. A registration statement under the Securities 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 required state securities law
filings have been made with respect to all the Shares of 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 Transfer Agent.
9. INDEMNIFICATION/LIMITATION OF LIABILITY.
9.1 STANDARD OF CARE. Transfer Agent shall at all times act in good faith
and agrees to use its best efforts within reasonable time limits to ensure 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.
9.2 CUSTOMER INDEMNITY. Transfer Agent shall not be responsible for, and
Customer shall indemnify and hold Transfer Agent harmless from and against, any
and all losses, claims, damages, costs, charges, counsel fees and expenses,
payments, expenses and liability arising out of or attributable to:
(a) All actions of Transfer Agent required to be taken pursuant to this
Agreement, provided such actions are taken in good faith and without
negligence or willful misconduct;
(b) Customer's lack of good faith, negligence or willful misconduct or the
breach of any representation or warranty of Customer hereunder;
(c) The reliance or use by Transfer Agent of information, records and
documents which (i) are received by Transfer Agent and furnished to it
by Customer or Customer's representatives, and (ii) have been prepared
and /or maintained by Customer or Customer's representatives;
(d) The reliance on, or carrying out by Transfer Agent of, any
instructions or requests of Customer's representatives;
(e) 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; and
(f) The negotiation, presentment, delivery or transfer of Shares through
the Direct Registration System Profile System.
9.3 INSTRUCTIONS. At any time Transfer Agent may apply to any officer of
Customer for instruction, and may consult with legal counsel, with respect to
any matter arising in connection with the Services to be performed by Transfer
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Agent under this Agreement, and Transfer Agent shall not be liable for any
action taken or omitted to be taken by Transfer Agent in good faith in
accordance with such instructions or in reliance upon the opinion of such
counsel. Transfer Agent 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 Transfer Agent by telephone, in person, machine
readable input, telex, CRT data entry or similar means authorized by Customer,
and shall not be held to have notice of any change of authority of any person,
until receipt of written notice thereof from Customer. Transfer Agent shall also
be protected in processing stock certificates, if any, which it reasonably
believes to bear the proper manual or facsimile signatures of the duly
authorized officer or officers Customer and the proper countersignature of
Transfer Agent.
9.4 TRANSFER AGENT INDEMNIFICATION. Transfer Agent shall be responsible
for and shall indemnify and hold 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 Transfer Agent
is not entitled to indemnification under this Agreement.
9.5 FORCE MAJEURE. Notwithstanding anything to the contrary contained
herein, Transfer Agent shall not incur any liability hereunder if by reason of
any act of God or war or other circumstances beyond its control, it 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, provided it maintains and implements a disaster recovery plan
designed to comply with applicable laws and regulations. To the best of its
knowledge, the various procedures and systems which Transfer Agent has
implemented or will implement with regard to safeguarding from loss or damage
attributable to fire, theft or any other cause (including provision for
twenty-four (24) hours-a-day restricted access) of Customer's records and other
data and Transfer Agent's records, data, equipment, facilities and other
property used in the performance of its obligations hereunder are adequate and
Transfer Agent will make such changes therein from time to time as in its
judgment are required for the secure performance of its obligations hereunder.
Transfer Agent maintains adequate insurance to enable it to continue its
operations as described herein. Transfer Agent shall notify Customer should any
of its current insurance coverage be changed for any reason. Such notification
shall include the date of change and reason or reasons therefore. Transfer Agent
shall notify Customer of any claims against it whether or not they may be
covered by insurance and shall notify Customer from time to time as may be
appropriate, and at least within thirty (30) days following the end of each
fiscal year of Transfer Agent of the total outstanding claims made by Transfer
Agent under its insurance coverage.
9.6 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
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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.
10. DAMAGES.
NO PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO,
LOSS OF ANTICIPATED PROFITS, OCCASIONED BY A BREACH OF ANY PROVISION OF THIS
AGREEMENT EVEN IF APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. RESPONSIBILITIES OF TRANSFER AGENT.
Transfer Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which Customer, by
its acceptance hereof, shall be bound:
11.1 Whenever in the performance of its duties hereunder 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
Customer and delivered to Transfer Agent. Such certificate shall be full
authorization to the recipient for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon such certificate
provided the action taken is without negligence, bad faith or willful
misfeasance.
11.2 Transfer Agent, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of Transfer Agent may buy, sell or
deal in the securities of Customer or become pecuniary interested in any
transaction in which Customer may be interested, or contract with or lend money
to Customer or otherwise act as fully and freely as though it were not appointed
as agent under this Agreement. Nothing herein shall preclude Transfer Agent from
acting in any other capacity for Customer or for any other legal entity.
11.3 No provision of this Agreement shall require 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.
12. COVENANTS OF CUSTOMER AND TRANSFER AGENT.
12.1 CUSTOMER CORPORATE AUTHORITY. Customer shall furnish to Transfer
Agent (a) copy of the Articles of Incorporation and By-Laws of 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;
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and (c) a certificate of Customer as to the Shares authorized, issued and
outstanding.
12.2 TRANSFER AGENT FACILITIES. Transfer Agent hereby agrees to establish
and maintain facilities and procedures reasonably acceptable to Customer for the
safekeeping of stock certificates, if any, check forms and facsimile signature
imprinting devices, if any, and for the preparation, use, and recordkeeping of
such certificates, forms and devices.
12.3 NOTIFICATION. Customer shall notify Transfer Agent as soon as
possible in advance of any stock split, stock dividend or any similar event
which may affect the Shares, and any bankruptcy, insolvency, moratorium or other
proceeding regarding Customer affecting the enforcement of creditors' rights.
13. DATA ACCESS SERVICE AND PROPRIETARY INFORMATION.
13.1 Transfer Agent has developed a data access service that enables
Customer to access Customer's Shareholder records maintained on Transfer Agent's
computer system through the Internet or remote access, as the case may be (the
"Data Access Service"). Customer wishes to use such Data Access Service subject
to the terms and conditions set forth herein. Therefore, Customer and Transfer
Agent agree as follows:
13.2 ACCESS TO SHAREHOLDER DATA.
The Service provided to Customer pursuant to this Agreement shall include
granting Customer access to the Shareholder, Customer and proxy information
("Shareholder Data") maintained on the records database for the purpose of
examining, maintaining, editing, or processing transactions with respect to
Shareholder Data.
13.3 PROCEDURES FOR ACCESS.
To use the Data Access Service, 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
Customer by Transfer Agent. Customer ID and Password assigned to Customer is for
use only by Customer. 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 Customer ID. After Transfer Agent
assigns Customer a Password, Customer shall change the Password. Customer
recognizes that Transfer Agent does not have knowledge of the Password, which is
selected by Customer and is within Customer's exclusive control after the
necessary change. 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 Customer, in
order to enable Transfer Agent to terminate such employee's access.
13.4 PROPRIETARY INFORMATION.
Customer acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to Customer by Transfer Agent as part of the Data Access
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Service to access Shareholder Data maintained by Transfer Agent on data bases
under the control and ownership of Transfer Agent or other third party
constitute copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to Transfer Agent
or other third party. In no event shall Proprietary Information be deemed
Shareholder Data. Customer agrees to treat all Proprietary Information as
proprietary to 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, 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 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 13.
13.5 CONTENT. If Customer notifies Transfer Agent that any part of the
Data Access Service does not operate in material compliance with the user
documentation provided by Transfer Agent for such service, Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from which
Transfer Agent may obtain certain data included in the Services are solely
responsible for the contents of such data and Customer agrees to make no claim
against Transfer Agent arising out of the contents of such third party data,
including, but not limited to, the accuracy thereof.
13.6 TRANSACTIONS. If the transactions available to Customer include the
ability to originate electronic instructions to Transfer Agent in order to (i)
effect the transfer or movement of Shares or direct EQI to transfer cash or (ii)
transmit Shareholder information or other information, then in such event
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 Transfer Agent from time to time.
14. CONFIDENTIALITY.
14.1 CONFIDENTIAL INFORMATION. Transfer Agent agrees that all books,
records, information and data pertaining to the business of Customer or its
prior, present or potential shareholders which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement shall remain
confidential, shall be used only for the purposes contemplated by this
Agreement, and shall not be voluntarily disclosed to any other person, except as
may required by law or which Transfer Agent reasonably deems to be necessary for
the performance of the Services hereunder.
14.2 REQUEST FOR RECORDS. In the event that any requests or demands are
made for the inspection of the Shareholder records of Customer, other than
requests for records of Shareholders pursuant to standard subpoenas from state
or federal government authorities (e.g., in divorce and criminal actions),
Transfer Agent will endeavor to notify Customer and to secure instructions from
an authorized officer of Customer as to such inspection. 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.
15. TERMINATION.
15.1 Any of the parties hereto may terminate this Agreement by giving to
the other parties a notice in writing specifying the date of such termination,
which shall be not less than one hundred twenty (120) days after the date of
receipt of such notice. In the event such notice is given by Customer, it shall
be accompanied by a copy of a resolution of the Board of Directors of 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 Transfer Agent, Customer shall, on or before the termination date, deliver to
Transfer Agent 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 Customer, Transfer Agent may designate a
successor transfer agent. If Customer fails to designate a successor transfer
agent and if Transfer Agent is unable to find a successor transfer agent,
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 Transfer Agent shall thereafter be relieved of all duties
and responsibilities hereunder. Upon termination hereof, Customer shall pay to
Transfer Agent such compensation as may be due to Transfer Agent as of the date
of such termination, and shall reimburse Transfer Agent for any disbursements
and expenses made or incurred by Transfer Agent and payable or reimbursable
hereunder. Transfer Agent shall, promptly upon such termination, transfer all
records and shall cooperate in the transfer of such duties and responsibilities.
15.2 Notwithstanding the foregoing, 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
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(b) by any party, at any time, in the event that during the term of this
Agreement, a bankruptcy or insolvency proceeding is instituted by or
against another party or a trustee or receiver is appointed for any
substantial part of another party's property (and in a case of
involuntary bankruptcy, insolvency or receivership proceeding, there
is entered an order for relief, or order appointing a receiver or some
similar order or decree and the other party or parties do not succeed
in having such order lifted or stayed within sixty (60) days from the
date of its entry), or another party makes an assignment of all or
substantially all of its property for the benefit of creditors or
ceases to conduct its operations in the normal course or business.
15.3 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.
16. ASSIGNMENT.
16.1 AFFILIATES. Transfer Agent may, without further consent of Customer
assign its rights and obligations hereunto to any affiliated transfer agent
registered under Section 17A(c)(2) of the Exchange Act and is qualified to
perform all duties required under this Agreement. Transfer Agent will not assign
its rights and obligations to any other person without the prior written consent
of Customer.
16.2 SUBCONTRACTORS. Transfer Agent may, without further consent on the
part of Customer, subcontract with other subcontractors for telephone and
mailing services as may be required from time to time; provided, however, that
Transfer Agent shall be as fully responsible to Customer for the acts and
omissions of any subcontractor as it is for its own acts and omissions.
17. UNAFFILIATED THIRD PARTIES.
Nothing herein shall impose any duty upon Transfer Agent in connection
with or make 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
Transfer Agent selected such company, Transfer Agent shall have exercised due
care in selecting the same.
18. MISCELLANEOUS.
18.1 NOTICES.
Any notice or communication by Transfer Agent or 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 Customer:
RMK High Income Fund, Inc.
Fifty ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
Transfer Agent and Customer may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
18.2 SUCCESSORS.
All the covenants and provisions of this agreement by or for the benefit
of Customer or Transfer Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
18.3 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 Customer.
18.4 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.
18.5 GOVERNING LAW.
This Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
18.6 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.
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18.7 THIRD PARTY BENEFICIARIES.
The provisions of this Agreement are intended to benefit only Transfer
Agent, 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.
18.8 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.
18.9 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.
18.10 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.
18.11 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.
RMK HIGH INCOME FUND, INC.
By:
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EQUISERVE, INC. EQUISERVE TRUST COMPANY, N.A.
By: By:
-------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------ -------------------------------
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