EXHIBIT 10.17
FORM OF TRANSFER AGENT AGREEMENT
TRANSFER AGENT AGREEMENT, dated ____________________ between EUROPEAN
MICRO HOLDINGS, INC., a Nevada corporation ("Client") and ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company
("ChaseMellon").
1. APPOINTMENT. Client appoints ChaseMellon as its transfer agent,
registrar and dividend disbursing agent and ChaseMellon accepts such appointment
in accordance with the following terms and conditions for all authorized shares
of each class of stock listed in Schedule A hereto (the "Shares").
2. TERM OF AGREEMENT. This Agreement shall commence on the date hereof
and shall continue for a term of three years. Unless either party gives written
notice of termination of this Agreement at least 60 days prior to the end of the
three-year term, or any successive three-year term, this Agreement shall
automatically renew for an additional three-year term.
In the event this Agreement is terminated by Client, Client's notice
must include a certified resolution of the Board of Directors of Client to such
effect, instructions as to the disposition of records, as well as any additional
documentation reasonably requested by ChaseMellon. Except as otherwise expressly
provided in this Agreement, the respective rights and duties of Client and
ChaseMellon under this Agreement shall cease upon termination of the
appointment.
3. DUTIES OF CHASEMELLON. ChaseMellon will provide all necessary
operational, administrative and management services for Client in the
performance of the stock transfer, registrar, dividend disbursing, and other
related services listed in Schedule B hereto.
4. THE SHARES. Client represents, warrants and covenants to ChaseMellon
that:
(a) the Shares issued and outstanding on the date hereof have been
duly authorized, validly issued and are fully paid and are non-assessable; and
any Shares to be issued hereunder, when issued, shall have been duly authorized,
validly issued and fully paid and will be non-assessable;
(b) the Shares issued and outstanding on the date hereof have been
duly registered under the Securities Act of 1933, as amended, and such
registration has become effective, or are exempt from such registration; and
have been duly registered under the Securities Exchange Act of 1934, as amended,
or are exempt from such registration;
(c) any Shares to be issued hereunder, when issued shall have been
duly registered under the Securities Act of 1933, as amended, and such
registration shall have become effective or shall be exempt from such
registration; and shall have been duly registered under the Securities Exchange
Act of 1934, as amended, or shall be exempt from such registration;
(d) Client has paid or caused to be paid all taxes, if any, which
were payable upon or in respect of the original issuance of the Shares issued
and outstanding on the date hereof; and
(e) The execution and delivery of this Agreement, and the issuance
and any subsequent transfer of the Shares hereunder, do not and will not
conflict with, violate, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under the charter or the by-laws of
Client, and law or regulation, any order to decree of any court or public
authority having jurisdiction or any mortgage, indenture, contract, agreement or
undertaking to which Client is a party or by which it is bound and this
Agreement is enforceable against Client in accordance with its terms, except as
may be limited by bankruptcy, insolvency, moratorium, reorganization and other
similar laws affecting the enforcement of creditors' rights generally.
Client agrees to provide the documentation and notifications listed
in Schedule C hereto.
5. COMPENSATION, EXPENSES, SCOPE OF AGENCY AND INDEMNIFICATION. Client
shall compensate ChaseMellon for its services hereunder in accordance with the
fee schedule agreed to by the parties. Such fees shall be adjusted annually by
the annual percentage of change in the latest Consumer Price Index of All Urban
Consumers (CPI-U) for the Northeast region, 1982-84=100, as published by the
U.S. Department of Labor, Bureau of Labor Statistics. Client shall reimburse
ChaseMellon for all reasonable expenses, disbursements or advances incurred by
it in accordance herewith. All amounts owed to ChaseMellon hereunder are due
upon receipt of the invoice. Delinquent payments are subject to a late payment
charge of one and one half percent (1.5%) per month commencing forty-five (45)
days from the invoice date. Client agrees to reimburse ChaseMellon for any
attorney's fees and any other costs associated with collecting delinquent
payments.
ChaseMellon may rely and shall be protected in acting or refraining
from acting upon any Client communication authorized by this Agreement; upon any
communication from any predecessor Transfer Agency or co-Transfer Agent or from
any Registrar (other than ChaseMellon), predecessor Registrar or co-Registrar;
and upon any other written instruction, notice, request, direction, consent,
report, certificate, or other instrument, paper or document believed by
ChaseMellon to be genuine. ChaseMellon is authorized to refuse to make any
transfer it deems improper. In the absence of gross negligence or intentional
misconduct on its part, ChaseMellon shall not be liable for any action taken,
suffered, or omitted by it or for any error of judgment made by it in the
performance of its duties under this Agreement.
ChaseMellon may consult with counsel (including internal counsel) whose
advice shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
Client shall indemnify ChaseMellon for, and hold it harmless against,
any loss, liability, claim or expense ("Loss") arising out of or in connection
with its duties under this Agreement, including the costs and expenses of
defending itself against any Loss, unless such Loss shall have been determined
by a court of competent jurisdiction to be a result of ChaseMellon's gross
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negligence or international misconduct. In no case will ChaseMellon be liable
for special, indirect, incidental or consequential loss or damages of any kind
whatsoever (including but not limited to lost profits), even if ChaseMellon has
been advised of the possibility of such damages. Any liability of ChaseMellon
will be limited to the amount of fees paid by Client hereunder.
The obligations of Client under this section shall survive the
termination of this Agreement.
6. NOTICES. All notices, demands and other communications shall be in
writing and sent or delivered to the addresses indicated on the signature page
hereof.
7. MISCELLANEOUS. This Agreement may not be amended or modified in any
manner except by a written agreement signed by both ChaseMellon and Client.
This Agreement shall be governed by, construed and interpreted in
accordance with the laws of the State of New York, without reference to the
choice of law doctrine of such state.
ChaseMellon is acting solely as agent for Client under this Agreement
and owes no duties hereunder to any other person. ChaseMellon undertakes to
perform the duties and only the duties that are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against ChaseMellon.
ChaseMellon may suspend transfers and/or terminate upon thirty (30)
days prior written notice if (1) Client fails to pay fees hereunder or (2) any
proceeding in bankruptcy, reorganization, receivership or insolvency is
commenced by or against the Client, Client shall become insolvent, or shall
cease paying its obligations as they become due or makes any assignment for the
benefit of its creditors.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and assigns of Client and ChaseMellon.
ChaseMellon shall not be liable for any failure or delays arising out
of conditions beyond its reasonable control including, but not limited to, work
stoppages, fires, civil disobedience, riots, rebellions, storms, electrical,
mechanical, computer or communications facilities failures, acts of God or
similar occurrences.
The Schedules hereto are an integral part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
EUROPEAN MICRO HOLDINGS, INC.
By :_________________________________
Name: _________________________________
Title: _________________________________
Address: _________________________________
Attn: _________________________________
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: __________________________________
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Address: 0 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
Attn: Relationship Management
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SCHEDULE A
CHASEMELLON
SHAREHOLDER SERVICES
STOCK SUBJECT TO THE AGREEMENT
NUMBER OF NUMBER OF
AUTHORIZED SHARES AUTHORIZED SHARES
ISSUED AND RESERVED FOR
OUTSTANDING FUTURE ISSUANCE
NUMBER OF (INCLUDING UNDER EXISTING
CLASS OF STOCK AUTHORIZED SHARES TREASURY SHARES) AGREEMENTS
------------------ ------------------ ------------------ ------------------
SCHEDULE B
CHASEMELLON
SHAREHOLDER SERVICES
SERVICES TO BE PROVIDED
ACCOUNT MAINTENANCE FUNCTIONS
/bullet/ Opening new accounts
/bullet/ Posting debits and credits
/bullet/ Maintaining certificate history
/bullet/ Placing and releasing stop transfer notation
/bullet/ Consolidating accounts
/bullet/ Coding accounts requiring special handling (e.g. "bad address,"
"do not mail," "VIP," etc.)
/bullet/ Processing address changes
/bullet/ Responding to shareholder correspondence
/bullet/ Providing a general 800 phone number for shareholder inquiries
/bullet/ Obtaining and posting Taxpayer Identification Number certifications
pursuant to IDTCA regulations
/bullet/ Maintaining closed accounts for the purpose of research and tax
reporting
/bullet/ Purging closed accounts that meet selective criteria
/bullet/ providing unlimited on-line access to shareholder records
/bullet/ Training on system access
CERTIFICATE ISSUANCE FUNCTIONS
/bullet/ Qualifying under the rules of the NYSE and AMEX to act in the dual
capacity as transfer agent and registrar
/bullet/ Maintaining mail and window facilities for the receipt of transfer
requests
/bullet/ Maintaining and securing unissued certificate inventory and
supporting documents
/bullet/ Examining issuance or transfer requests to ensure that proper
authority is being exercised
/bullet/ Verifying (to the extent possible) that surrendered certificates are
genuine and have not been altered
/bullet/ Verifying that original issuances are properly authorized and have
necessary regulatory approval
/bullet/ Verifying that Shares issued equal the amount surrendered
/bullet/ Verifying that no stop orders are held against the surrendered
certificates
/bullet/ Issuing and registering new certificates
/bullet/ Recording canceled and issued certificates by registration,
certificate number and Shares
/bullet/ Canceling surrendered certificates and storing for two years
/bullet/ Delivering completed transfers
/bullet/ Processing restricted and legal transfers upon presentment of
appropriate supporting documentation
/bullet/ Preparing Daily Transfer or Management Summary Journals
/bullet/ Replacing lost, destroyed or stolen certificates provided that
ChaseMellon is in receipt of (a) evidence acceptable to it of the
loss, theft or destruction, and (b) a surety bond acceptable to
ChaseMellon sufficient to indemnify and save it and Client harmless
(charge imposed on shareholder)
PROXY AND ANNUAL MEETING FUNCTIONS
/bullet/ Identifyin broken/nominee account requirements to determine amount
of sets of material needed
/bullet/ Preparing and mailing proxy material and Annual Report
/bullet/ Suppressing the mailing of multiple Annual Reports to households
requesting it
/bullet/ Tabulating proxies (both scanner and manual) returned by
shareholders
/bullet/ Identifying shareholders who will attend the Annual Meeting
/bullet/ Providing Inspector(s) of Election for the Annual Meeting
/bullet/ Supporting efforts of any proxy solicitor
/bullet/ Preparing list of record date holders
/bullet/ Preparing report of final vote
/bullet/ Providing remote access to proxy tabulation system
/bullet/ Maintaining an automated link with DTC and ADP to receive
transmissions of broker votes
/bullet/ Processing omnibus proxies for respondent banks
DIVIDEND DISBURSEMENT FUNCTIONS
/bullet/ Preparing and mailing checks
/bullet/ Reconciling checks
/bullet/ Preparing payment register in list or microfiche form
/bullet/ Withholding and filing taxes for non-resident aliens and others
/bullet/ Filing federal tax information returns
/bullet/ Processing "B" and "C" Notices received from the IRS
/bullet/ Mailing required statements (Form 1099) to registered holders
/bullet/ Maintaining stop files and issuing replacement checks
/bullet/ Maintaining payment orders and addresses
/bullet/ Maintaining records to support escheat filings
OTHER SERVICES
/bullet/ Preparing shareholder listings and labels
/bullet/ Preparing analytical reports
/bullet/ Mailing quarterly or periodic reports
/bullet/ Locating lost shareholders through Shareholder Asset Recovery
program ("SHARP")
/bullet/
(If requested, the following services are subject to additional
fees):
/bullet/ Filing escheat reports through Escheat Management Option
FEE SCHEDULE
XXXXX XXXXXX
SHAREHOLDER SERVICES
EUROPEAN MICRO HOLDINGS, INC.
INITIAL TERM OF AGREEMENT: THREE (3) YEARS
---------------
FEE NOT SUBJECT TO INCREASE: TWO (2) YEARS
(DURING INITIAL TERM ONLY) ---------------
SERVICE FEES
FLAT MONTHLY FEE $ 750.00
PLUS $.50 PER CHECK IF DIVIDENDS ARE INITIATED
The above fee will be charged for all services listed in Schedule B and will be
subject to the following allowances:
Number of open accounts maintained 1,000
Number of options/restricted items processed 25
Number of quarterly report mailings 4
Number of other mailings per year (one 1
enclosure)
Number of certificates and credits posted 300
Number of enclosures - annual meeting mailing 4
Number of lists, labels, reports, analyses 10
Number of Inspectors of Election 1
Number of respondent bank omnibus proxies 10
To the extent the above allowances are exceeded, the following fees will apply:
For each account maintained (per year) $4.50
For each option or restricted item $10.00
processed
For each certificate issued $1.50
Mailings See Attached
Lists/Labels/Analyses See Attached
For each additional Inspector of Election $250.00
For each respondent bank omnibus proxy $100.00
XXXXX XXXXXX
SHAREHOLDER SERVICES
EXPENSES AND OTHER CHARGE
FEES AND OUT OF POCKET EXPENSES. All charges and fees, out of pocket
costs, expenses and disbursements of ChaseMellon are due and payable by Client
upon receipt of an invoice from ChaseMellon. Client shall pay for postage by
mail date.
The cost of stationary and supplies, such as transfer sheets,
dividend checks, etc., together with any disbursement for telephone, postage,
mail insurance, travel for annual meeting, link-up charges for ADP/IECA, tape
charges for DTC, etc. are billed in addition to the above fees.
For companies who participate in the Direct Registration System
(DRS), ChaseMellon will provide a "sell" feature for liquidation of book-entry
shares held on behalf of a shareholder. Upon receipt of a sell request by the
registered shareholder, The Chase Manhattan Bank or Mellon Bank, N.A. will
process the request and remit the proceeds to the shareholder in the form of a
check (less the appropriate fees). The charge for each such sale is $15.00 plus
$0.12 per share.
INITIAL FEE. A fee of $3,000.00 will be imposed for any additional
activities associated with the acceptance of appointments involving initial
public offerings (IPO's), secondary offerings or closings. The initial fee will
cover the issuance of up to 200 certificates. Certificates issued over this
threshold will be billed at $1.50 each.
TERMINATION FEE. In the event Client terminates prior to the termination
of the initial term of this Agreement, the Client shall pay ChaseMellon a fee of
one dollar ($1.00) per registered shareholder account then maintained for the
Client on ChaseMellon's records, subject to a minimum fee of two thousand five
hundred dollars ($2,500.00). This fee, subject to change upon written
notification to the Client by ChaseMellon, is separate from any other amounts
payable by the Client to ChaseMellon incidental to such termination, such as,
the cost to produce and ship records, reports and unused certificate stock to a
successor agent. It is also separate from any other fees for services under this
Agreement, which would be accrued and payable by the Client to ChaseMellon prior
to such termination. ChaseMellon may withhold the Client's records, reports and
unused certificate stock from a successor agent pending the Client's payment in
full of its fees and expenses owed under this Agreement.
CONVERSION. There is usually no charge for converting the Client's files
to ChaseMellon's system with the exception of outstanding check history from the
current agent's file. A review of the current rules and formats will be made to
determine if any situation exists
which will require extraordinary effort to complete the conversion. Any charge
will be discussed with the Client prior to work commencing.
INTEREST. In the event Client shall default in the payment of any such
charges, such defaulted sums shall bear interest or finance charges at the
maximum applicable legal rate and all costs and expenses of effecting collection
of any said sums, including a reasonable attorney's fee, shall be paid by
Client.
LEGAL, TECHNOLOGICAL EXPENSES. Certain legal expenses may be incurred in
resolving matters not anticipated in the normal course of business. This may
result in a separate charge to cover our expenses in resolving such matters;
provided that any legal expenses charged to the Client shall be reasonable.
In the event any Federal regulation and/or state or local law are
enacted which require ChaseMellon to make any technological improvements and/or
modifications to our current system, Client shall reimburse ChaseMellon, on a
pro rata basis proportionate to the Client's registered shareholder base, for
the costs associated with making such required technological improvements and/or
modifications.
OTHER SERVICES. Fees for any services not specified, such as maintaining
mail lists, storing canceled certificates after the initial two year period,
escheating unclaimed property to the states, stock splits, exchanges, tenders,
solicitation mailings and coding of dividend reinvestment and ACH accounts,
etc., will be based on ChaseMellon's standard fees at the time of the request
or, if no standard fees have been established, an appraisal of the work to be
performed.
CHASEMELLON SHAREHOLDER SERVICES
LISTS/LABELS/ANALYSES
FEE SCHEDULE
LISTS
Per name listed 0.35
LABELS
Per label printed .035
ANALYSES
Per name passed on data base .01
Per name listed in report .035
(MINIMUM charge for each of the above services will be based on 1,000 names
listed or passed on data base or labels printed.)
OUT-OF-POCKET EXPENSES
Any expenses of this nature, which include but are not limited to telephone,
facsimile transmissions, postage, insurance, messenger, stationery, etc., will
be billed in addition to the above stated fees.
XXXXX XXXXXX SHAREHOLDER SERVICES
MAILING SERVICES
FEE SCHEDULE
ADDRESSING
Addressing mailing medium (per name) .035
AFFIXING
Affixing labels (per label) .035
INSERTING
Inserting Enclosures (Machine)
u Enclosure (per piece) .040
2nd Enclosure (per piece) 0.25
3rd Enclosure (per piece) 0.20
4th Enclosure (per piece) .015
Inserting Enclosures (Manual)
Charge will be determined based on analysis of work to be performed.
(MINIMUM charge for each of the above mailing services will be based on 1,000
names, labels or pieces.)
OUT OF POCKET EXPENSES
Any expenses of this nature, which include but are not limited to telephone,
facsimile transmissions, postage, insurance, messenger, stationery, etc., will
be billed in addition to the above stated fees.
SCHEDULE C
CHASEMELLON
SHAREHOLDER SERVICES
DOCUMENTS AND NOTIFICATIONS TO BE DELIVERED TO CHASEMELLON
UPON EXECUTION OF THIS AGREEMENT
Client shall provide ChaseMellon with the following:
1. An adequate supply of Share certificates.
2. A copy of the resolutions adopted by the Board of Directors of Client
appointing ChaseMellon as Transfer Agent and/or Registrar and Dividend
Disbursing Agent, as the case may be, duly certified by the Secretary or
Assistant Secretary of Client under the corporate seal.
3. A Copy of the Certificate of Incorporation of Client, and all amendments
thereto, certified by the Secretary of State of the state of incorporation.
4. A copy of the By-laws of Client as amended to date, duly certified by the
Secretary of Client under the corporate seal.
5. A certificate of the Secretary or an Assistant Secretary of Client, under its
corporate seal, stating that:
a) this Agreement has been executed and delivered pursuant to the
authority of Client's Board of Directors;
b) the attached specimen Share certificate(s) are in substantially the
form submitted to and approved by Client's Board of Directors for current use
and the attached specimen Share certificates for each Class of Stock with issued
and outstanding Shares are in the form previously submitted to and approved by
Client's Board of Directors for past use;
c) the attached list of existing agreements pursuant to which Shares have
been reserved for future issuance specifying the number of reserved Shares
subject to each such existing agreement and the substantive provisions thereof,
is true and complete, or no Shares have been reserved for future issuance.
d) each shareholder list provided is true and complete (such certification
may state that it is based upon the certification of the predecessor Transfer
Agent or predecessor Registrar that prepared the list) or no Shares are
outstanding;
e) the name of each stock exchange upon which any of the Shares are listed
and the number and identity of the Shares so listed;
f) the name and address of each co-Transfer Agent, Registrar (other than
ChaseMellon) or co-Registrar for any of the Shares and the extent of its
appointment, or there are no co-Transfer Agents, Registrars (other than
ChaseMellon) or co-Registrars for any of the Shares; and
g) the officer(s) of Client, who executed this Agreement as well as any
certificates or papers delivered to ChaseMellon pursuant to this Agreement, were
validly elected to, and the incumbents of, the offices they purported to hold at
the time of such execution and delivery, and that their signatures on all
documentation are genuine; and upon which is subscribed a certificate of an
officer of client, other than the officer executing the certificate of the
Secretary, stating that the person who executed the certificate of the Secretary
was validly elected to, and is the Secretary or an Assistant Secretary of Client
and that his signature on the certificate is genuine.
6. A shareholder list, preferably in machine readable format, certified as true
and complete by the person preparing the list, for the issued and outstanding
Shares, setting forth as to each holder, his/her name and address, tax
identification number certified by the shareholder pursuant to requirements of
the Internal Revenue Code and applicable regulations, the number of Shares held,
the Share certificate numbers and the existence of any stop orders or other
transfer restrictions.
7. Opinion of counsel for Client, addressed to ChaseMellon, to the effect that:
a) the Shares issued and outstanding on the date hereof have been duly
authorized, validly issued and are fully paid and are non-assessable; and any
Shares to be issued hereunder, when issued, shall have been duly authorized,
validly issued and fully paid and will be non-assessable;
b) the Shares issued and outstanding on the date hereof have been duly
registered under the Securities Act of 1933, as amended, and such registration
has become effective, or are exempt from such registration; and have been duly
registered under the Securities Exchange Act of 1934, as amended, or are exempt
from such registration;
c) Client has paid or caused to be paid all taxes, if any, which were
payable upon or in respect of the original issuance of the Shares issued and
outstanding on the date hereof; and
d) the execution and delivery of this Agreement and the issuance of the
Shares do not and will not conflict with, violate, or result in a breach of, the
terms, conditions or provisions of, or constitute a default under, the charter
or the by-laws of client, any law or regulation, any order or decree of any
court or public authority having jurisdiction, or any mortgage, indenture,
contract, agreement or undertaking to which client is a party or by which it is
bound and this Agreement is enforceable against Client in accordance with its
terms, except as limited by
bankruptcy, insolvency, moratorium, reorganization and other similar laws
affecting the enforcement of creditors' rights generally
8. A completed Internal Revenue Service Form 2678.
NOTIFICATION OF CHANGES
1. Any change in the name of Client, amendment of its certificate of
incorporation or its by-laws;
2. Any change in the title of a Class of Stock from that set forth in Column 1
of Schedule A;
3. Any change in the Number of Authorized Shares form that set forth in Column 2
of Schedule A;
4. Any change in existing agreements or any entry into new agreements changing
the Number of Authorized Shares Reserved for Future Issuance Under Existing
Agreements from that listed in Column 4 of Schedule A hereto;
5. Any change in the number of outstanding Shares subject to stop orders or
other transfer limitations;
6. The listing or delisting of any Shares on any stock exchange;
7. The appointment after the date hereof of any co-Transfer Agent, Registrar
(other than ChaseMellon) or any co-registrar for any of the Shares;
8. The merger of Client into, or the consolidation of Client with, or the sale
or other transfer of the assets of Client substantially as an entirety to,
another person; or the merger or consolidation of another person into or with
Client; and
9. Any other change in the affairs of Client of which ChaseMellon must have
knowledge to perform properly its duties under this Agreement.
