Transfer Agency and Service Agreement Between Tortoise Power and Energy Income Company and Computershare Trust Company, N.A. and Computershare Inc.
Between
Tortoise
Power and Energy Income Company
and
Computershare
Trust Company, N.A.
and
Computershare
Inc.
Table of Contents
AGREEMENT made as of
the 21st day of
August, 2007 by and between Tortoise Power and Energy Income Company, a
corporation, having its principal office and place of business at 00000 Xxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx (the “Company”), and Computershare Inc., a
Delaware corporation, and its fully owned subsidiary Computershare Trust
Company, N.A., a federally chartered trust company, having its principal office
and place of business at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (collectively, the
“Transfer Agent” or individually, “Computershare” and the “Trust Company”,
respectively).
WHEREAS, the Company desires
to appoint the Trust Company as sole transfer agent, registrar and administrator
of its dividend reinvestment plan or direct stock purchase plan, and
Computershare as dividend disbursing agent and processor of all payments
received or made by Company under this Agreement;
WHEREAS, the Trust Company and
Computershare will each separately provide specified services covered by this
Agreement and, in addition, the Trust Company may arrange for Computershare to
act on behalf of the Trust Company in providing certain of its services covered
by this Agreement; and
WHEREAS, the Trust Company and
Computershare desire to accept such respective appointments and perform the
services related to such appointments;
NOW THEREFORE, in
consideration of the mutual covenants herein contained, the parties hereto agree
as follows:
1. CERTAIN
DEFINITIONS.
1.1 “Account” shall mean the
account of each Shareholder which holds any full or fractional shares of stock
held by such Shareholder, outstanding funds, or reportable tax
information.
1.2 "Agreement" shall mean this
agreement and any and all exhibits or schedules attached hereto and any and all
amendments or modifications which may from time to time be
executed.
1.3 “Services” shall mean all
services performed by the Transfer Agent pursuant to this
Agreement.
1.4 “Shares” shall mean Company's
common stock, par value $0.001 per share, and Company's preferred stock, par
value $.001 per share, authorized by the Company’s Articles of Incorporation,
and other classes of Company’s stock to be designated by the Company in writing
and which the Transfer Agent agrees to service under this
Agreement.
1.5 “Shareholder” shall mean the
holder of record of Shares.
1.6 “Shareholder Data” shall mean
all information maintained on the records database of the Transfer Agent
concerning Shareholders.
1.7 “Plans” shall mean any
dividend reinvestment, direct stock purchase, or other investment programs
administered for the Company.
2. APPOINTMENT OF AGENT.
2.1 Appointments. The
Company hereby appoints the Trust Company to act as sole transfer agent and
registrar for all Shares and as administrator of Plans in accordance with the
terms and conditions hereof and appoints Computershare as the service provider
to the Trust Company and as dividend disbursing agent and processor of all
payments received or made by or on behalf of the Company under this Agreement,
and the Trust Company and Computershare accept the respective
appointments.
3
2.2 Documents. In
connection with the appointing of the Trust Company as the transfer agent and
registrar for the Company, the Company has provided or will provide the attached
appointment and corporate authority documents to the Transfer
Agent:
|
(a)
|
Copies
of resolutions appointing the Trust Company as the transfer
agent;
|
|
(b)
|
Copies
of registration statements and amendments thereto, filed with the
Securities and Exchange Commission, for initial public
offerings;
|
|
(c)
|
Specimens
of all forms of outstanding stock certificates for Shares, in forms
approved by the Board of Directors of the Company, with a certificate of
the Secretary of the Company as to such
approval;
|
|
(d)
|
Specimens
of the signatures of the officers of the Company authorized to sign stock
certificates and authorized to sign written instructions and
requests;
|
|
(e)
|
An
opinion of counsel for the Company addressed to both the Trust Company and
Computershare with respect to:
|
|
(i)
|
The
Company’s organization and existence under the laws of its state of
organization;
|
|
(ii)
|
The
status of all Shares of the Company covered by the appointment under the
Securities Act of 1933, as amended (the “1933 Act”), and any other
applicable federal or state statute;
and
|
|
(iii)
|
That
all issued Shares are, and all unissued Shares will be, when issued,
validly issued, fully paid and
non-assessable;
|
|
(f)
|
A
copy of the Articles of Incorporation and By-Laws of the
Company;
|
|
(g)
|
Copies
of all material amendments to the Articles of Incorporation or By-Laws of
the Company made after the date of this Agreement, promptly after such
amendments are made; and
|
|
(h)
|
A
certificate of the Company as to the Shares authorized, issued and
outstanding, as well as a description of all reserves of unissued Shares
relating to the exercise of
options.
|
2.3 Records. Transfer
Agent may adopt as part of its records all lists of holders, records of
Company’s stock, books, documents and records which have been employed by any
former agent of Company for the maintenance of the ledgers for the Shares,
provided such ledger is certified by an officer of Company or the prior transfer
agent to be true, authentic and complete. The Transfer Agent shall
keep records relating to the Services, in the form and manner it deems advisable
and in compliance with applicable law. The Transfer Agent agrees that
all such records prepared or maintained by it relating to the Services are the
property of the Company and will be preserved, maintained and made available in
accordance with the requirements of law, and will be surrendered promptly to the
Company on and in accordance with its request.
2.4 Shares. Company
shall, if applicable, inform Transfer Agent as to (i) the existence or
termination of any restrictions on the transfer of Shares and the application to
or removal from any stock certificate of any legend restricting the transfer of
such Shares or the substitution for such certificate of a certificate without
such legend, (ii) any authorized but unissued Shares reserved for specific
purposes, (iii) any outstanding Shares which are exchangeable for Shares and the
basis for exchange, (iv) reserved Shares subject to option and the details of
such reservation, and (v) special instructions regarding dividends and
information of foreign Shareholders.
4
2.5 Certificates. Company
shall deliver to Transfer Agent an appropriate supply of stock certificates,
which certificates shall provide a signature panel for use by an officer of or
authorized xxxxxx for Transfer Agent to sign as transfer agent and registrar,
and which shall state that such certificates are only valid after being
countersigned and registered, or provide Transfer Agent with documentation
required to print on demand stock certificates, as the case may be.
3. STANDARD SERVICES.
3.1 Share
Services. The Transfer Agent shall perform the following Share
Services:
|
(a)
|
issue
and record the appropriate number of Shares as authorized and hold such
Shares in the appropriate Shareholder
Account;
|
|
(b)
|
effect
transfers of Shares by the registered owners thereof upon receipt of
appropriate documentation; and
|
(c) Replacement
Certificates. The Transfer Agent shall issue replacement
certificates for those
certificates
alleged to have been lost, stolen or destroyed upon receipt by the Transfer
Agent of an open penalty surety bond satisfactory to it and holding it and the
Company harmless, absent notice to the Company and the Transfer Agent that such
certificates have been acquired by a bona fide purchaser. The
Transfer Agent may, at its option, issue replacement certificates in place of
mutilated stock certificates upon presentation thereof without such
indemnity. Further, the Transfer Agent may, at its sole option,
accept indemnification from the Company to issue replacement certificates for
those certificates alleged to have been lost, stolen or destroyed in lieu of an
open penalty bond.
|
3.2
|
Unclaimed Property and
Lost Shareholders. The Transfer Agent shall report
unclaimed property to each
state in compliance with applicable law and shall comply with Rule 17
Ad-17 promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), for lost
shareholders.
|
3.3 Computer
Services. The Transfer Agent shall provide the following
computer Services:
|
(a)
|
Shareholder Internet
Services. The Transfer Agent shall provide
internet access to Company’s Shareholders through Transfer Agent’s web
site, xxx.xxxxxxxxxxxxx.xxx (“Shareholder Internet Services”), pursuant to
its established procedures (“Security Procedures”) to allow Shareholders
to view their Account information and perform certain on-line
transactions. The Shareholder Internet Services are provided
“as is,” on an “as available” basis, and Transfer Agent hereby
specifically disclaims any and all representations or warranties, express
or implied, regarding such Services, including any implied warranty of
merchantability or fitness for a particular purpose and implied warranties
arising from course of dealing or course of
performance. Notwithstanding the foregoing, in providing
Shareholder Internet Services, the Transfer Agent will comply with all
applicable laws concerning consent to deliver and delivery of documents
electronically.
|
|
(b)
|
Issuer
Online. Transfer Agent shall provide Company with access
to Shareholder Data maintained on the Transfer Agent’s databases and
computer system through the Internet (“Issuer Online”) subject to the
terms and conditions set forth herein and pursuant to the Transfer Agent’s
established procedures, to be provided to the
Company.
|
|
(c)
|
Proprietary
Information. The Company acknowledges that the
databases, computer programs, screen formats, report formats, interactive
design techniques, and documentation manuals furnished to the Company by
Transfer Agent as part of Issuer Online, or otherwise, is under the
control and ownership of the Transfer Agent or other third party
(including its affiliates) and constitutes copyrighted, trade secret, or
other proprietary information (collectively, “Proprietary Information”) of
substantial value to the Transfer Agent or other third
party. In no event shall Proprietary
|
5
Information
be deemed Shareholder Data. The Company agrees to treat all Proprietary
Information as confidential in accordance with the provisions of Section 12 of
this Agreement.
|
(d)
|
Third Party
Content. Organizations from which the Transfer Agent may
obtain certain data included in the Services are solely responsible for
the contents of such data and the Company agrees to make no claim against
the Transfer Agent arising out of the contents of such third party data,
including, but not limited to, the accuracy
thereof.
|
|
(e)
|
Employees and
Agents. Each party shall take reasonable efforts to
advise its employees and agents of their respective obligations pursuant
to this Section 3.3.
|
4. DIVIDEND REINVESTMENT PLAN SERVICES.
4.1 The
Trust Company shall perform all services under the Plans, as the administrator
of such Plans, with the exception of payment processing for which Computershare
has been appointed as agent by Company, and certain other services that the
Trust Company may subcontract to Computershare as permitted by applicable law
(e.g. ministerial services).
4.2 The
Transfer Agent shall act as agent for Shareholders pursuant to the Plans in
accordance with the terms and conditions of such Plans.
5. COMPUTERSHARE DIVIDEND DISBURSING AND PAYMENT
SERVICES.
5.1 Declaration of
Dividends. Upon receipt of a written notice from the
President, any Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of Company declaring the payment of a dividend,
Computershare shall disburse such dividend payments provided that in advance of
the applicable check mailing date, Company furnishes Computershare with
sufficient funds. The payment of such funds to Computershare for the
purpose of being available for the payment of dividends from time to time is not
intended by Company to confer any rights in such funds on Shareholders whether
in trust, contract, or otherwise.
5.2 Stop
Payments. Company hereby authorizes Computershare to stop
payment of checks issued in payment of dividends or for sales proceeds, but not
presented for payment, when the payees thereof allege either that they have not
received the checks or that such checks have been mislaid, lost, stolen,
destroyed or, through no fault of theirs, are otherwise beyond their control and
cannot be produced by them for presentation and collection, and Computershare
shall issue and deliver duplicate checks in replacement thereof, and Company
shall indemnify Transfer Agent against any loss or damage resulting from
reissuance of the checks.
5.3
Tax
Withholding. Company hereby authorizes Computershare to deduct
from all dividends declared by Company and disbursed by Computershare, as
dividend disbursing agent, the tax required to be withheld pursuant to Sections
1441, 1442 and 3406 of the Internal Revenue Code of 1986, as amended, or by any
federal or state statutes subsequently enacted, and to make the necessary return
and payment of such tax in connection therewith.
5.4 Plan
Payments. Company hereby authorizes Computershare to receive
all payments made to the Company (i.e. optional cash purchases) or the Transfer
Agent under the Plans and make all payments required to be made under such
Plans, including all payments required to be made to the Company.
5.5 Bank
Accounts. The Company acknowledges that the bank accounts
maintained by Computershare in connection with the Services will be in
Computershare’s name and that Computershare may receive investment earnings in
connection with the investment at Computershare’s risk and for its benefit of
funds held in those accounts from time to time.
6
6. OPTIONAL SERVICES.
6.1 Optional
Services To the extent that Company elects to engage any
entity other than the Transfer Agent (“Company Vendor”) to provide any of the
services listed below, the Company shall give the Transfer Agent the right of
first refusal to provide such services upon the same terms and fees as the
Company Vendor:
|
(a)
|
Employee
Stock Purchase or Option Plan services;
and
|
|
(b)
|
Corporate
Actions services (including, inter alia, odd lot buy backs, exchanges,
mergers, redemptions, subscriptions, capital reorganizations, coordination
of post-merger services and special
meetings).
|
6.2 In
the event that the Company Vendor provides the services set forth in Section
6.1, the Company shall pay the Transfer Agent its standard fees and expenses
charged by the Transfer Agent for Services rendered to support the above
Services rendered by the Company Vendor for the benefit of the
Company.
7. FEES AND EXPENSES.
7.1 Fee and Service
Schedules. Company agrees to pay
Transfer Agent the fees for Services performed pursuant to this Agreement as set
forth in the Fee and Service Schedule attached hereto and incorporated herein,
for the initial term of the Agreement (the “Initial Term”). Sixty
(60) days before the expiration of the Initial Term or a Renewal Term (as
defined below), whichever is applicable, the parties to this Agreement will
agree upon a Fee Schedule for the upcoming Renewal Term. If no new
fee schedule is agreed upon, the fees will increase as set forth in the Term
Section of the Fee and Service Schedule.
7.2 Out-of-Pocket
Expenses. In addition to the fees paid under Section 7.1
above, the Company agrees to reimburse the Transfer Agent for reasonable
out-of-pocket expenses incurred by the Transfer Agent as set out in the Fee and
Service Schedule attached hereto.
7.3 Invoices. The
Company agrees to pay all fees and reimbursable expenses within 30 days of the
date of the respective billing notice, except for any fees or expenses that are
subject to good faith dispute. In the event of such a dispute, the
Company may only withhold that portion of the fee or expense subject to the good
faith dispute. The Company shall settle such disputed amounts within
five (5) business days of the day on which the parties agree on the amount to be
paid by payment of the agreed amount. If no agreement is reached,
then such disputed amounts shall be settled as may be required by law or legal
process.
7.4 Late
Payments.
|
(a)
|
If
any undisputed amount in an invoice of the Transfer Agent (for fees or
reimbursable expenses) is not paid within 45 days after receipt of such
invoice, the Company shall pay the Transfer Agent interest thereon (from
the due date to the date of payment) at a per annum rate equal to twelve
percent (12%). Notwithstanding any other provision hereof, such
interest rate shall be no greater than permitted under applicable
provisions of Massachusetts law.
|
|
(b)
|
The
failure by Company to pay an invoice within 90 days after receipt of such
invoice shall constitute a material breach pursuant to Section
13.4(a) below. The Transfer Agent may terminate this
Agreement for such material breach upon 30 days written notice provided to
the Company which breach has not been cured within 10 days of receipt of
such notice.
|
7.5 Overtime
Charges. Overtime charges will be assessed in the event of a
late delivery to the Transfer Agent of Company material for mailings to
Shareholders, unless the mail date is rescheduled. Such material
includes, but is not limited to, proxy statements, quarterly and annual reports
and news releases.
7
8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations and
Warranties of Transfer Agent. The Transfer Agent represents
and warrants to the Company that:
|
(a)
|
Governance. The
Trust Company is a federally chartered limited purpose national bank duly
organized, validly existing, and in good standing under the laws of the
United States and Computershare is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and
each has full power, authority and legal right to execute, deliver and
perform this Agreement. The execution, delivery and performance
of this Agreement by Transfer Agent has been duly authorized by all
necessary action and constitutes the legal, valid and binding obligation
of Transfer Agent enforceable against Transfer Agent in accordance with
its terms;
|
|
(b)
|
Compliance with
Laws. The execution, delivery and performance of this
Agreement by Transfer Agent will not violate, conflict with or result in
the breach of any material term, condition or provision of, or require the
consent of any other party to, (i) any existing law, ordinance, or
governmental rule or regulation to which Transfer Agent is subject, (ii)
any judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority which
is applicable to Transfer Agent, (iii) the organizational documents or
by-laws of the Transfer Agent, or (iv) any material agreement to which
Transfer Agent is a party;
|
|
(c)
|
Company’s
Agent. Transfer Agent is engaged in an independent
business and will perform its obligations under this Agreement as an agent
of Company.
|
8.2 Representations and
Warranties of Company. The Company represents and warrants to the
Transfer Agent that:
|
(a)
|
Governance. It
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland, and
it has full power, authority and legal right to enter into and perform
this Agreement. The execution, delivery and performance of this
Agreement by Company has been duly authorized by all necessary action and
constitutes the legal, valid and binding obligation of Company enforceable
against Company in accordance with its
terms;
|
|
(b)
|
Compliance with
Laws. The execution, delivery and performance of this
Agreement by Company will not violate, conflict with or result in the
breach of any material term, condition or provision of, or require the
consent of any other party to, (i) any existing law, ordinance, or
governmental rule or regulation to which Company is subject, (ii) any
judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority which
is applicable to Company, (iii) the incorporation documents or by-laws of
the Company, (iv) any material agreement to which Company is a party, or
(v) exchange rules; and
|
|
(c)
|
Securities Act of
1933. A registration statement under the 1933 Act has
been filed and is currently effective, or will be effective prior to the
sale of any Shares, and will remain so effective, and all appropriate
state securities law filings have been made with respect to all the Shares
of the Company being offered for sale except for any Shares which are
offered in a transaction or series of transactions which are exempt from
the registration requirements of the 1933 Act and state securities laws;
information to the contrary will result in immediate notification to the
Transfer Agent by Company.
|
8
9. INDEMNIFICATION AND LIMITATION OF LIABILITY.
9.1 Company
Indemnity. The Company shall indemnify and hold the Transfer
Agent harmless from and against, and the Transfer Agent shall not be responsible
for, any and all losses, claims, damages, costs, charges, counsel fees and
expenses, payments, expenses and liability arising out of or attributable
to:
|
(a)
|
all
actions of the Transfer Agent or its agents or subcontractors required to
be taken pursuant to this Agreement provided such actions are taken in
good faith and without negligence or willful misconduct or the breach of
any representation or warranty of the Transfer Agent
hereunder;
|
|
(b)
|
The
Company’s lack of good faith, negligence or willful misconduct or the
breach of any representation or warranty of the Company
hereunder;
|
|
(c)
|
The
reliance or use by the Transfer Agent or its agents or subcontractors of
any information, records, data, and documents which have been prepared
and/or maintained by the Company or any other person or firm on behalf of
the Company and provided to the Transfer Agent or its agents or
subcontractors. Such other person or firm shall include any
former transfer agent or former registrar, or co-transfer agent or
co-registrar or any current registrar where the Transfer Agent is not the
current registrar;
|
|
(d)
|
The
reliance or use by the Transfer Agent or its agents or subcontractors of
(i) any paper or document reasonably believed to be genuine and to have
been signed by the proper person or persons, including Shareholders, and
(ii) electronic instructions from Shareholders submitted through the
Shareholder Internet Services, from Company through Issuer Online, or
through any other electronic means pursuant to security procedures
established by the Transfer Agent;
|
|
(e)
|
The
negotiation and processing of all checks, including checks made payable to
Shareholders or prospective shareholders that are tendered to the Transfer
Agent for the purchase of Shares (commonly known as “third party checks”);
and
|
|
(f)
|
The
recognition, acceptance, or processing by the Transfer Agent of stock
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of officers of the Company, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
|
9.2 Instructions. From
time to time, Company may provide Transfer Agent with instructions concerning
the Services. In addition, at any time the Transfer Agent may apply
to any officer of the Company for instruction, and may consult with legal
counsel for the Transfer Agent or the Company with respect to any matter arising
in connection with the Services to be performed by the Transfer Agent under this
Agreement, and Transfer Agent and its agents and subcontractors shall not be
liable and shall be indemnified by the Company for any action taken or omitted
by it in reliance upon any Company instructions or upon the advice or opinion of
such counsel. The Transfer Agent shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Company.
9.3 Transfer Agent
Indemnification/Limitation of Liability. Transfer Agent shall be
responsible for and shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to: (a) Transfer Agent’s
refusal or failure to comply with the terms of this Agreement, (b) Transfer
Agent’s negligence or willful misconduct, or (c) Transfer Agent’s breach of any
representation or warranty hereunder, for which Transfer Agent is not entitled
to indemnification under this Agreement; provided, however, that Transfer
Agent’s aggregate liability during any term of this Agreement with respect to,
arising from, or arising in connection with this
9
Agreement,
or from all Services provided or omitted to be provided under this Agreement,
whether in contract, or in tort, or otherwise, is limited to, and shall not
exceed, the amounts paid hereunder by the Company to Transfer Agent as fees and
charges, but not including reimbursable expenses, during the thirty-six (36)
months immediately preceding the event for which recovery from the Transfer
Agent is being sought.
9.4 Notice. In order that
the indemnification provisions contained in this Section shall apply, upon the
assertion of a claim for which one party may be required to indemnify the other,
the party seeking indemnification shall promptly notify the other party of such
assertion, and shall keep the other party advised with respect to all
developments concerning such claim. The indemnifying party shall have
the option to participate with the indemnified party in the defense of such
claim or to defend against said claim in its own name or the name of the
indemnified party. The indemnified party shall in no case confess any
claim or make any compromise in any case in which the indemnifying party may be
required to indemnify it except with the indemnifying party’s prior written
consent. None of the parties hereto shall settle or compromise any
action, suit, proceeding or claim if such settlement or compromise provides for
an admission of liability on the part of the indemnified party without such
indemnified party's written consent.
10. DAMAGES.
No party
shall be liable for any incidental, indirect, special or consequential damages
of any nature whatsoever, including, but not limited to, loss of anticipated
profits, occasioned by a breach of any provision of this Agreement even if
apprised of the possibility of such damages.
11. RESPONSIBILITIES OF THE COMPANY.
11.1 The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and other
acts, documents, instruments and assurances as may reasonably be required by the
Transfer Agent for the carrying out, or performing by the Transfer Agent of the
provisions of this Agreement.
11.2 Notification. Company
shall notify Transfer Agent as soon as possible in advance of any stock split,
stock dividend or similar event which may affect the Shares, and of any
bankruptcy, insolvency, moratorium or other proceeding regarding Company
affecting the enforcement of creditors’ rights. Notwithstanding any
other provision of this Agreement to the contrary, Transfer Agent will have no
obligation to perform any Services under this Agreement subsequent to the
commencement of any bankruptcy, insolvency, moratorium or other proceeding
regarding Company affecting the enforcement of creditors’ rights unless Transfer
Agent receives assurance satisfactory to it that it will receive full payment
for such Services.
12. CONFIDENTIALITY.
12.1 Definition. Each
party acknowledges and understands that any and all technical, trade secret, or
business information, including, without limitation, financial information,
business or marketing strategies or plans, product development, Company
information, Shareholder information (including any non-public information of
such Shareholder), Proprietary Information, or proprietary software (including
methods or concepts used therein, sources code, object code, or related
technical information) which has been or is disclosed to the other or has been
or is otherwise obtained by the other, its affiliates, agents or representatives
before or during the term of this Agreement (the “Confidential Information”) is
confidential and proprietary, constitutes trade secrets of the owner (or its
affiliates), and is of great value and importance to the success of the owner’s
(or its affiliates’) business. The parties shall treat the
terms and conditions (but not the existence) of this Agreement as the
Confidential Information of the other party. Confidential Information
shall not include any information that is: (a) already known to the other party
or its affiliates at the time of the disclosure; (b) publicly known at the time
of the disclosure or becomes publicly known through no wrongful act or failure
of the other party; (c) subsequently disclosed to the other party or its
affiliates on a non-confidential basis by a third party not having a
confidential relationship with the owner
10
and which
rightfully acquired such information; or (d) independently developed by one
party without access to the Confidential Information of the other.
12.2. Use and
Disclosure. All Confidential Information relating to a party
will be held in confidence by the other party to the same extent and with at
least the same degree of care as such party protects its own confidential or
proprietary information of like kind and import, but in no event using less than
a reasonable degree of care. Neither party will disclose, duplicate,
publish, release, transfer or otherwise make available Confidential Information
of the other party in any form to, or for the use or benefit of, any person or
entity without the other party's consent. Each party will, however,
be permitted to disclose relevant aspects of the other party's Confidential
Information to its officers, affiliates, agents, subcontractors and employees to
the extent that such disclosure is reasonably necessary for the performance of
its duties and obligations under this Agreement and such disclosure is not
prohibited by the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (15 U.S.C. 6801 et seq.), as it
may be amended from time to time (the “GLB Act”), the regulations promulgated
thereunder or other applicable law. Each party will establish
commercially reasonable controls to ensure the confidentiality of the
Confidential Information and to ensure that the Confidential Information is not
disclosed contrary to the provisions of this Agreement, the GLB Act or any other
applicable privacy law. Without limiting the foregoing, each party
will implement such physical and other security measures as are necessary to
(a) ensure the security and confidentiality of the Confidential
Information; (b) protect against any threats or hazards to the security and
integrity of the Confidential Information; and (c) protect against any
unauthorized access to or use of the Confidential Information. To the
extent that any duties and responsibilities under this Agreement are delegated
to an agent or other subcontractor, the party ensures that such agent and
subcontractor are contractually bound to confidentiality terms consistent with
the terms of this Section 12.
12.3. Required or Permitted
Disclosure. In the event that any requests or demands are made
for the disclosure of Confidential Information, other than requests to
Computershare for records of Shareholders pursuant to standard subpoenas from
state or federal government authorities (e.g., in divorce and criminal actions),
the party will notify the other party to secure instructions from an authorized
officer of such party as to the request and to enable the other party the
opportunity to obtain a protective order or other confidential
treatment. Each party expressly reserves the right, however, to
disclose the Confidential Information to any person whenever it is advised by
counsel that it may be held liable for the failure to disclose such Confidential
Information or if required by law or court order.
12.4 Unauthorized
Disclosure. As may be required by law and without limiting
either party's rights in respect of a breach of this Section, each party
will:
|
(a)
|
promptly
notify the other party in writing of any unauthorized possession, use or
disclosure of the other party's Confidential Information by any person or
entity that may become known to such
party;
|
|
(b)
|
promptly
furnish to the other party full details of the unauthorized possession,
use or disclosure; and
|
|
(c)
|
promptly
use commercially reasonable efforts to prevent a recurrence of any such
unauthorized possession, use or disclosure of Confidential
Information.
|
12.5 Costs. Each
party will bear the costs it incurs as a result of compliance with this Section
12.
13. TERM AND
TERMINATION.
13.1 Term. The Initial Term
of this Agreement shall be one (1) year from the date first stated above unless
terminated pursuant to the provisions of this Section 13. This
Agreement will renew automatically from year to year (each a “Renewal Term”),
unless a terminating party gives written notice to the other party not less than
sixty (60) days before the expiration of the Initial Term or Renewal Term,
whichever is in
11
effect.
13.2 Early
Termination. Notwithstanding anything contained in this
Agreement to the contrary, should Company desire to move any of its Services
provided by the Transfer Agent hereunder to a successor service provider prior
to the expiration of the then current Initial or Renewal Term, or without the
required notice period, the Transfer Agent shall make a good faith effort to
facilitate the conversion on such prior date, however, there can be no guarantee
that the Transfer Agent will be able to facilitate a conversion of Services on
such prior date. In connection with the foregoing, should Services be
converted to a successor service provider, the fees payable to the Transfer
Agent shall be calculated as if the Services had remained with the Transfer
Agent until the expiration of the then current Initial or Renewal Term and
calculated at existing rates on the date notice of termination was given to the
Transfer Agent, and the payment of fees to the Transfer Agent as set forth
herein shall be accelerated to the date prior to the conversion or termination
of Services. This Section 13.2 shall not apply if the Transfer Agent
is terminated for cause under Section 13.4 of this Agreement, or in the event of
a liquidation of the Company. Once this Agreement is terminated, any
and all other Services provided by Transfer Agent for the Company will be deemed
terminated on said date.
13.3 Expiration or Termination of
Term. In the event of
the expiration or termination of this Agreement by either party, all reasonable
out-of-pocket expenses associated with the movement of records and material will
be borne by the Company. Additionally, the Transfer Agent will charge
a de-conversion/transition fee in an amount equal to 10% of the aggregate fees
incurred by Company during the immediately preceding twelve (12) month period,
provided, however, such fee shall in no event be less than three thousand, seven
hundred and fifty ($3,750.00) dollars.
13.4 Termination. This
Agreement may be terminated in accordance with the following:
|
(a)
|
at
any time by any party upon a material breach of a representation, covenant
or term of this Agreement by any other unaffiliated party which is not
cured within a period not to exceed thirty (30) days after the date of
written notice thereof by one of the other parties;
and
|
|
(b)
|
by
any party, at any time, in the event that during the term of this
Agreement, a bankruptcy or insolvency proceeding is filed by or against
any other unaffiliated party or a trustee or receiver is appointed for any
substantial part of such other party’s property (and in a case of
involuntary bankruptcy, insolvency or receivership proceeding, there is
entered an order for relief, or order appointing a receiver or some
similar order or decree and such other party does not succeed in having
such order lifted or stayed within sixty (60) days from the date of its
entry), or such other party makes an assignment of all or substantially
all of its property for the benefit of creditors or ceases to conduct its
operations in the normal course of
business.
|
14. ASSIGNMENT.
14.1 Consent. Except as
otherwise provided in Section 14.2 below, neither this Agreement nor any rights
or obligations hereunder may be assigned or delegated by the Company or the
Transfer Agent without the written consent of the other.
14.2 Affiliates. The
Transfer Agent may, without further consent of the Company, upon notice to the
Company, assign any of its rights and obligations hereunto to any affiliated
transfer agent registered under Rule 17Ac2 promulgated under the Exchange
Act.
14.3 Sub-contractors. Transfer
Agent may, without further consent of the Company, subcontract with any
affiliates, or may subcontract with unaffiliated subcontractors, for telephone
and mailing services, as may be required from time to time; provided, however,
that the Transfer Agent shall be as fully responsible to the Company for the
acts and omissions of any subcontractor as it is for its own acts and
omissions.
12
15. UNAFFILIATED THIRD PARTIES.
Nothing
herein shall impose any duty upon the Transfer Agent in connection with or make
the Transfer Agent liable for the actions or omissions to act of unaffiliated
third parties (other than sub-contractors referenced in Section 14.3 above) such
as, by way of example and not limitation, airborne services, the U.S. mails and
telecommunication companies, provided, if the Transfer Agent selected such
company, the Transfer Agent shall have exercised due care in selecting the
same.
16. MISCELLANEOUS.
16.1 Notices. Any notice
or communication by the Transfer Agent or the Company to the other is duly given
if in writing and delivered in person or mailed by first class mail, postage
prepaid, telecopier or overnight air courier guaranteeing next day delivery, to
the other’s address:
|
If
to the Company:
|
Tortoise
Power and Energy Income Company
00000
Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000
Telecopy
No. (000) 000-0000
Attn:
Secretary
|
|
If
to the Transfer Agent:
|
Computershare
Trust Company, N.A.
c/o
Computershare Inc.
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Telecopy
No.: (000) 000-0000
Attn: General
Counsel
|
16.2 No Expenditure of
Funds. No provision of this Agreement shall require the
Transfer Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of its rights if it shall believe in good faith that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
16.3 Successors. All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Transfer Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
16.4 Amendments. This
Agreement may be amended or modified by a written amendment executed by the
parties hereto and, to the extent required, authorized or approved by a
resolution of the Board of Directors of the Company.
16.5 Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provision, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
16.6 Governing Law. This
Agreement shall be governed by the laws of the Commonwealth of
Massachusetts.
16.7 Force Majeure.
Notwithstanding anything to the contrary contained herein, no party shall be
liable to any other party for any delays or failures in performance resulting
from acts beyond its reasonable control including, without limitation, acts of
God, terrorist acts, shortage of supply, breakdowns or
malfunctions,
13
interruptions
or malfunction of computer facilities, or loss of data due to power failures or
mechanical difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest.
16.8 Third Party
Beneficiaries. The provisions of this Agreement are intended to benefit
only the Transfer Agent, the Company and their respective permitted successors
and assigns. No rights shall be granted to any other person by virtue
of this Agreement, and there are no third party beneficiaries
hereof.
16.9 Survival. All
provisions regarding indemnification, warranty, liability and limits thereon,
and confidentiality and protection of proprietary rights and trade secrets shall
survive the termination of this Agreement.
16.10 Priorities. In the
event of any conflict, discrepancy, or ambiguity between the terms and
conditions contained in this Agreement and any schedules or attachments hereto,
the terms and conditions contained in this Agreement shall take
precedence.
16.11 Merger of Agreement.
This Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof,
whether oral or written.
16.12 No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event any
ambiguity or question or intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by all parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
16.13 Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
[The
remainder of page intentionally left blank.]
14
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by one of its officers thereunto duly authorized, all as of the date
first written above.
|
Computershare
Inc. and
Computershare Trust Company, N. A.
On Behalf of Both
Entities:
|
Tortoise Power and Energy Income Company | ||||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
||
|
Name:
Xxxxxx X.
Xxxxxx
|
Name:
Xxxxxxx X.
Xxxxxx
|
||||
|
Title: Managing
Director
|
Title:
Treasurer
|
||||
