Transfer Agency and Service Agreement
Among
THE CINTRA SELECT FUND, INC.
and
EquiServe Trust Company, N.A.
and
EquiServe, Inc.
AGREEMENT made as of the ___________day of _____________, 2002, by and
among each of The Cintra Select Fund, Inc., a Maryland corporation registered as
a closed-end investment company, having a principal office and place of business
at 0000 X Xxxxxx, XX Xxxxxxxxxx, X.X. 00000 (the "Customer"), and EquiServe,
Inc., a Delaware corporation, and its fully owned subsidiary EquiServe Trust
Company, N.A., a federally charted trust company doing business at [525
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 or 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000] (collectively, the "Transfer Agent" or individually
"EQI" and the "Trust Company", respectively).
WHEREAS, the Customer desires to appoint the Transfer Agent as sole
transfer agent, registrar, administrator of dividend reinvestment plans, option
plans, and direct stock purchase plans and 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 perform the services related to such appointments;
WHEREAS, the Board of Directors of the Customer has approved appointment of
the 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) "Annual Period" shall mean each twelve (12) month period commencing on the
Effective Date and, thereafter, on each anniversary of the Effective Date.
(e) "Closed Account" shall mean an account with a zero share balance, no
outstanding funds or no reportable tax information.
(f) "Customer ID(s)" shall have the meaning set forth in Section 14.3.
(g) "Data Access Service" shall have the meaning set forth in Section 14.1.
(h) "Dividend Reinvestment Plan" and "Direct Stock Purchase Plan" shall mean the
services as set forth in Section 4 and in the Fee and Service Schedule.
(i) "Effective Date" shall mean the date first stated above.
(j) "Fee and Service Schedule" shall mean the fees and services set forth in the
"Fee and Service Schedule" attached hereto.
(k) "Password(s)" shall have the meaning set forth in Section 14.3.
(l) "Proprietary Information" shall have the meaning set forth in Section 14.3.
(m) "Security Procedures" shall have the meaning set forth in Section 5.1.
(n) "Services" shall mean any and all services as further described herein and
in the "Fee and Service Schedule" or other schedules attached hereto.
(o) "Share" shall mean Customer's common stock, par value $.001 per share
authorized by the Customer's Articles of Incorporation, and other classes of
Customer's stock to be designated by the Customer in writing and for which the
Transfer Agent agrees to service under this Agreement.
(p) "Shareholder" shall mean the holder of record of Shares.
(q) "Shareholder Data" shall have the meaning set forth in Section 14.2.
(r) "Shareholder Internet Services" shall have the meaning set forth in Section
5.1.
2. Appointment of Agent.
2.1 Appointments. The Customer hereby appoints the Transfer Agent to act as
sole transfer agent and registrar for all Shares in accordance with the terms
and conditions hereof and as administrator of Plans and appoints EQI as dividend
disbursing agent and processor of all payments received or made by or on behalf
of the Customer under this Agreement, and the Transfer Agent and EQI accept the
appointments. Customer shall provide Transfer Agent with certified copies of
resolutions dated the date hereof appointing the Trust Company as Transfer
Agent.
2.2 Documents. In connection with the appointing of Transfer Agent as the
transfer agent and registrar for each Customer, the Customer will provide or has
previously provided each of the following documents to the Transfer Agent:
(a) Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission for initial public
offerings;
(b) Specimens of all forms of outstanding stock certificates, in forms
approved by the Board of Directors of the Customer, with a certificate
of the Secretary of the Customer as to such approval;
(c) Specimens of the Signatures of the officers of the Customer
authorized to sign stock certificates and individuals authorized to
sign written instructions and requests; and
(d) An opinion of counsel for the Customer addressed to both the Trust
Company and EQI with respect to:
(i) The Customer's organization and existence under the laws of
its state of organization;
(ii) The status of all Shares of the Customer covered by the
appointment under the Securities Act of 1933, as amended, and any
other applicable federal or state statute; and
(iii) That all issued Shares are, and all unissued Shares will
be, when issued, validly issued, fully paid and non-assessable.
2.3 Records. Transfer Agent may adopt as part of its records all lists of
holders, records of Customer's stock, books, documents and records which have
been employed by any former agent of Customer for the maintenance of the ledgers
for the Customer's shares, provided such ledger is certified by an officer of
Customer or the prior transfer agent to be true, authentic and complete.
2.4 Shares. Customer shall, if applicable, inform Transfer Agent as to (i)
the existence or termination of any restrictions on the transfer of
Shares and in the application to or removal from any certificate of stock of any
legend restricting the transfer of such Shares or the substitution for such
certificate of a certificate without such legend, (ii) any authorized but
unissued Shares reserved for specific purposes, (iii) any outstanding Shares
which are exchangeable for Shares and the basis for exchange, (iv) reserved
Shares subject to option and the details of such reservation and (v) special
instructions regarding dividends and information of foreign holders.
2.5 Customer's Agent. Transfer Agent represents that it is engaged in an
independent business and will perform its obligations under this Agreement as an
agent of Customer.
2.6 Certificates. Customer shall deliver to Transfer Agent an appropriate
supply of stock certificates, which certificates shall provide a signature panel
for use by an officer of or authorized 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.
3. Standard Services.
3.1 Transfer Agent Services. The Transfer Agent will perform the following
services:
In accordance with the procedures established from time to time by
agreement between the Customer and the Transfer Agent, the Transfer Agent
shall:
(a) issue and record the appropriate number of Shares as authorized
and hold such Shares in the appropriate Shareholder account;
(b) effect transfers of Shares by the registered owners thereof upon
receipt of appropriate documentation;
(c) act as agent for Shareholders pursuant to the Dividend
Reinvestment Plan, and other investment programs as amended from time
to time in accordance with the terms of the agreements relating
thereto to which the Transfer Agent is or will be a party; and
(d) issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Transfer Agent
of an open penalty surety bond satisfactory to it and holding it and
the Customer harmless, absent notice to the Customer and the Transfer
Agent that such certificates have been acquired by a bona fide
purchaser. The Transfer Agent, at its option, may issue replacement
certificates in place of mutilated stock certificates upon
presentation thereof without such indemnity. Further, the Transfer
Agent may at its sole option accept indemnification from a Customer to
issue replacement certificates for those certificates alleged to have
been lost, stolen or destroyed in lieu of an open penalty bond.
3.2 EQI Services. In accordance with procedures established from time to
time by agreement between the Customer and EQI, EQI shall:
(a) prepare and transmit payments for dividends and distributions
declared by the Customer, provided good funds for said dividends or
distributions are received by 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 the Customer or the Transfer Agent
under the Dividend Reinvestment Plan, Direct Stock Purchase Plan, and
Plans and make all payments required to be made under such plans,
including all payments required to be made to the Customer.
3.3 Customary Services. The Transfer Agent shall perform all the customary
services of a transfer agent, agent of dividend reinvestment plan, cash purchase
plan and other investment programs as described in Section 3.1 consistent with
those requirements in effect as of the date of this Agreement. 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 the Transfer Agent are set out in the attached Fee and Service
Schedule.
3.4 Compliance with Laws. The Customer agrees that each of the Trust
Company and 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. The 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 the 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, the Transfer
Agent will charge such Customer its then standard fee plus any out-of-pocket
expenses.
3.6 Compliance with Office of Foreign Asset Control ("OFAC") Regulations.
The Transfer Agent shall ensure compliance with OFAC laws.
4. Dividend Disbursing Services.
4.1 Declaration of Dividends. Upon receipt of a written notice from the
President, any Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of Customer declaring the payment of a dividend, EQI shall
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 a 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 Federal or State statutes
subsequently enacted, and to make the necessary return and payment of such tax
in connection therewith.
5. Shareholder Internet Account Access Services.
5.1 Shareholder Internet Services. The Transfer Agent shall provide
internet access to each Customer's shareholders through Transfer Agent's web
site, xxxxxxxxx.xxx ("Shareholder Internet Services"), pursuant to its
established procedures ("Security Procedures"), to allow shareholders to view
their account information and perform certain on-line transaction request
capabilities. The Shareholder Internet Services shall be provided at no
additional charge at this time, other than the transaction fees currently being
charged for the different transactions as described on the Fee and Service
Schedule. The Transfer Agent reserves the right to charge a fee for this service
at any time in the future.
5.2 Scope of Transfer Agent Shareholder Internet Services Obligations.
Transfer Agent shall at all times use reasonable care in performing Shareholder
Internet Services under this Agreement. With respect to any claims for losses,
damages, costs or expenses which may arise directly or indirectly from Security
Procedures which Transfer Agent has implemented or omitted, Transfer Agent shall
be presumed to have used reasonable care if it has followed, in all material
respects, its Security Procedures then in effect. Transfer Agent may, but shall
not be required to, modify such Security Procedures from time to time to the
extent it believes, in good faith, that such modifications will enhance the
security of Shareholder Internet Services. All data and information
transmissions accessed via Shareholder Internet Services are for informational
purposes only, and are not intended to satisfy regulatory requirements or comply
with any laws, rules, requirements or standards of any federal, state or local
governmental authority, agency or industry regulatory body, including the
securities industry, which compliance is the sole responsibility of Customer.
5.3 No Other Warranties.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 5.2 OF THIS AGREEMENT, THE
SHAREHOLDER INTERNET SERVICES ARE PROVIDED "AS-IS," ON AN "AS AVAILABLE" BASIS,
AND TRANSFER AGENT HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES PROVIDED BY TRANSFER
AGENT HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE.
6. Optional Services.
To the extent that a Customer elects to engage the Transfer Agent to provide the
services listed below the Customer shall engage the Transfer Agent to provide
such services upon terms and fees to be agreed upon by the parties:
(a) Corporate actions (including inter alia, odd lot buy backs,
exchanges, mergers, redemptions, subscriptions, capital
reorganization, coordination of post-merger services and special
meetings).
7. Fees and Expenses.
7.1 Fee and Service Schedules. Each Customer agrees to pay Transfer Agent
the fees for Services performed pursuant to this Agreement as set forth in the
Fee and Service Schedule attached hereto, for the initial term of the Agreement
(the "Initial Term").
7.2 COLA/Fee Increases. After the Initial Term of the Agreement, providing
that service mix and volumes remain constant, the fees listed in the Fee and
Service Schedule shall be increased (a) by the accumulated change in the
National Employment Cost Index for Service Producing Industries (Finance,
Insurance, Real Estate) for the preceding years of the contract, as published by
the Bureau of Labor Statistics of the United States Department of Labor or (b)
to the Transfer Agent's minimum fee then in effect, whichever is greater. Fees
will be increased on this basis on each successive contract anniversary
thereafter.
7.3 Adjustments. Notwithstanding Section 7.1 above, fees, and the
out-of-pocket expenses and advances identified under Section 7.4 below, may be
changed from time to time as agreed upon in writing between the Transfer Agent
and the Customer.
7.4 Out-of-Pocket Expenses. In addition to the fees paid under Section 7.1
above, the Customer agrees to reimburse the Transfer Agent for out-of-pocket
expenses, including but not limited to postage, forms, telephone, microfilm,
microfiche, taxes, records storage, exchange and broker fees, or advances
incurred by the Transfer Agent for the items set out in Exhibit A attached
hereto. Out-of-pocket expenses may include the costs to transfer agent of
administrative expenses. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Customer, will be
reimbursed by the Customer.
7.5 Conversion Funds. Conversion funding required by any out of proof
condition caused by a prior agents' services shall be advanced to Transfer Agent
prior to the commencement of services.
7.6 Postage. Postage for mailing of dividends, proxies, Customer reports
and other mailings to all Shareholder Accounts shall be advanced to the Transfer
Agent by the Customer prior to commencement of the mailing date of such
materials.
7.7 Invoices. The Customer agrees to pay all fees and reimbursable expenses
within 30 days of the date of the respective billing notice, except for any fees
or expenses that are subject to good faith dispute. In the event of such a
dispute, the Customer may only withhold that portion of the fee or expense
subject to the good faith dispute. The Customer shall notify the Transfer Agent
in writing within twenty-one (21) calendar days following the receipt of each
billing notice if the Customer is disputing any amounts in good faith. If the
Customer does not provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Customer. The Customer shall
settle such disputed amounts within five (5) business days of the day on which
the parties agree on the amount to be paid by payment of the agreed amount. If
no agreement is reached, then such disputed amounts shall be settled as may be
required by law or legal process.
7.8 Taxes. Customer shall pay all sales or use taxes in lieu thereof with
respect to the Services (if applicable) provided by Transfer Agent under this
Agreement.
7.9 Late Payments.
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(a) If any undisputed amount in an invoice of the Transfer Agent (for
fees or reimbursable expenses) is not paid when due, the Customer
shall pay the Transfer Agent interest thereon (from the due date to
the date of payment) at a per annum rate equal to one percent (1.0%)
plus the Prime Rate (that is, the base rate on corporate loans posted
by large domestic banks) published by The Wall Street Journal (or, in
the event such rate is not so published, a reasonably equivalent
published rate selected by Customer on the first day of publication
during the month when such amount was due). Notwithstanding any other
provision hereof, such interest rate shall be no greater than
permitted under applicable provisions of Massachusetts or New Jersey
law.
(b) The failure by Customer to pay an invoice within 90 days after
receipt of such invoice or the failure by the Customer to timely pay
two consecutive invoices shall constitute a material breach pursuant
to Section 16.4(a) below. The Transfer Agent may terminate this
Agreement for such material breach immediately and shall not be
obligated to provide the Customer with 30 days to cure such breach.
7.10 Services Required by Legislation. Services required by legislation or
regulatory mandate that become effective after the Effective Date of this
Agreement shall not be part of the Services, and shall be billed by appraisal.
7.11 Overtime Charges. Overtime charges will be assessed in the event of a
late delivery to the Transfer Agent of Customer material for mailings to
Shareholders, unless the mail date is rescheduled. Such material includes, but
is not limited to, proxy statements, quarterly and annual reports, dividend
enclosures and news releases.
7.12 Bank Accounts. The 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.
8. Representations and Warranties of Transfer Agent.
8.1 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 and each has full corporate power, authority and legal right to
execute, deliver and perform this Agreement. The execution, delivery and
performance of this Agreement by Transfer Agent has been duly authorized by all
necessary corporate action and constitutes the legal valid and binding
obligation of Transfer Agent enforceable against Transfer Agent in accordance
with its terms.
8.2 Compliance. The execution, delivery and performance of the Agreement by
Transfer Agent will not violate, conflict with or result in the breach of any
material term, condition or provision of, or require the consent of any other
party to, (i) any existing law, ordinance, or governmental rule or regulation to
which Transfer Agent is subject, (ii) any judgement, order, writ, injunction,
decree or award of any court, arbitrator or governmental or regulatory official,
body or authority which is applicable to Transfer Agent, (iii) the incorporation
documents or by-laws of, or any material agreement to which Transfer Agent is a
party.
8.3 Facilities. The Transfer Agent has and will continue to have access to
the necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
8.4 Computer Services. DATA ACCESS SERVICE AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS,
AS AVAILABLE BASIS. TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT
THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER
HEREBY ACKNOWLEDGES THAT THE DATA ACCESS SERVICE MAY NOT BE OR BECOME AVAILABLE
DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM
MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE,
TELECOMMUICATIONS INFRASTRUCTURE OR DELAY OR DISRUPTION ATTRIBUTATLE TO VIRUSES,
DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND
OMISSIONS OF THIRD PARTIES. THEREFORE TRANSFER AGENT EXPRESSLY DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR DATA ACCESS SERVICE
AVAILABILITY, ACCESSABILITY, OR PERFORMANCE.
9. Representations and Warranties of Customer.
Each Customer represents and warrants to the Transfer Agent that:
9.1 Organizations. It is a corporation duly organized and existing and in
good standing under the laws of Maryland;
9.2 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
9.3 Securities Act of 1933. A registration statement under the Securities
Act of 1933, as amended (the "1933 Act") has been filed and is currently
effective, or will be effective prior to the sale of any Shares, and will remain
so effective, and all appropriate state securities law filings have been made
with respect to all the Shares of the Customer being offered for sale except for
any Shares which are offered in a transaction or series of transactions which
are exempt from the registration requirements of the 1933 Act and state
securities laws; information to the contrary will result in immediate
notification to the Transfer Agent.
10. Indemnification/Limitation of Liability.
10.1 Standard of Care. The Transfer Agent shall at all times act in good
faith and agrees to use its best efforts within reasonable time limits to insure
the accuracy of all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors unless
said errors are caused by its negligence, bad faith or willful misconduct or
that of its employees as set forth and subject to the limitations set forth in
Section 10.4 below.
10.2 Customer Indemnity. The Transfer Agent shall not be responsible for,
and the Customer shall indemnify and hold the Transfer Agent harmless from and
against, any and all losses, claims, damages, costs, charges, counsel fees and
expenses, payments, expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided such actions
are taken in good faith and without negligence or willful misconduct;
(b) The Customer's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of the
Customer hereunder;
(c) The reliance or use by the Transfer Agent or its agents or
subcontractors of information, records and documents which (i) are
received by the Transfer Agent or its agents or subcontractors and
furnished to it by or on behalf of the Customer, and (ii) have been
prepared and /or maintained by the Customer or any other person or
firm on behalf of the Customer. Such other person or firm shall
include any former transfer agent or former registrar, or co-transfer
agent or co-registrar or any current registrar where the Transfer
Agent is not the current registrar;
(d) The reliance or use by the Transfer Agent or its agents or
subcontractors of any paper or document reasonably believed to be
genuine and to have been signed by the proper person or persons
including Shareholders or electronic instruction from Shareholders
submitted through the shareholder Internet Services or other
electronic means pursuant to security procedures established by the
Transfer Agent;
(e) The reliance on, or the carrying out by the Transfer Agent or its
agents or subcontractors of any instructions or requests of the
Customer's representatives;
(f) The offer or sale of Shares in violation of any federal or state
securities laws requiring that such Shares be registered or in
violation of any stop order or other determination or ruling by any
federal or state agency with respect to the offer or sale of such
Shares;
(g) The negotiations and processing of all checks, including checks
made payable to prospective or existing shareholders which are
tendered to the Transfer Agent for the purchase of Shares (commonly
known as "third party checks");
(h) Any actions taken or omitted to be taken by any former agent of
Customer and arising from Transfer Agent's reliance on the certified
list of holders; and
(i) The negotiation, presentment, delivery or transfer of Shares
through the Direct Registration System Profile System.
10.3 Instructions. At any time the Transfer Agent may apply to any officer
of the Customer for instruction, and may consult with legal counsel for the
Transfer Agent or the Customer with respect to any matter arising in connection
with the services to be performed by the Transfer Agent under this Agreement,
and Transfer Agent and its agents and subcontractors shall not be liable and
shall be indemnified by the Customer for any action taken or omitted by it in
reliance upon such instructions or upon the advice or opinion of such counsel.
The Transfer Agent, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document reasonably believed to be
genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided the Transfer Agent
or its agents or subcontractors by telephone, in person, machine readable input,
telex, CRT data entry or similar means authorized by the Customer, and shall not
be held to have notice of any change of authority of any person, until receipt
of written notice thereof from the Customer. The Transfer Agent, its agents and
subcontractors shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of officers of the Customer, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
10.4 Transfer Agent Indemnification/Limitation of Liability. Transfer Agent
shall be responsible for and shall indemnify and hold the Customer harmless from
and against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to Transfer Agent's
refusal or failure to comply with the terms of this Agreement, or which arise
out of Transfer Agent's negligence or willful misconduct or which arise out of
the breach of any representation or warranty of Transfer Agent hereunder, for
which Transfer Agent is not entitled to indemnification under this Agreement;
provided, however, that Transfer Agent's aggregate liability during any term of
this Agreement with respect to, arising from, or arising in connection with this
Agreement, or from all services provided or omitted to be provided under this
Agreement, whether in contract, or in tort, or otherwise, is limited to, and
shall not exceed, the amounts paid hereunder by the Customer to Transfer Agent
as fees and charges, but not including reimbursable expenses, during the twelve
(12) calendar months immediately preceding the event for which recovery from the
Transfer Agent is being sought.
10.5 Notice. In order that the indemnification provisions contained in this
Section shall apply, upon the assertion of a claim for which one party
may be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The
indemnifying party shall have the option to participate with the indemnified
party in the defense of such claim or to defend against said claim in its own
name or the name of the indemnified party. The indemnified party shall in no
case confess any claim or make any compromise in any case in which the
indemnifying party may be required to indemnify it except with the indemnifying
party's prior written consent.
11. 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.
12. Responsibilities of the Transfer Agent.
The Transfer Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Customer,
by its acceptance hereof, shall be bound:
12.1 Whenever in the performance of its duties hereunder the Transfer Agent
shall deem it necessary or desirable that any fact or matter be proved or
established prior to taking or suffering any action hereunder, such fact or
matter may be deemed to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant treasurer, the Secretary or any Assistant Secretary of
the Customer and delivered to the Transfer Agent. Such certificate shall be full
authorization to the recipient for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon such certificate.
12.2 The Customer agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Transfer Agent for the carrying out, or performing by the Transfer Agent
of the provisions of this Agreement.
12.3 Transfer Agent, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of the Transfer Agent may buy, sell
or deal in the securities of the Customer or become pecuniary interested in any
transaction in which the Customer may be interested, or contract with or lend
money to the Customer or otherwise act as fully and freely as though it were not
appointed as agent under this Agreement. Nothing herein shall preclude the
Transfer Agent from acting in any other capacity for the Customer or for any
other legal entity.
12.4 No provision of this Agreement shall require the Transfer Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
it shall believe in good faith that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to it.
13. Covenants of the Customer and Transfer Agent.
13.1 Customer Corporate Authority. The Customer shall furnish to the
Transfer Agent the following:
(a) A copy of the Articles of Incorporation and By-Laws of the
Customer;
(b) Copies of all material amendments to its Articles of Incorporation
or By-Laws made after the date of this Agreement, promptly after such
amendments are made; and
(c) A certificate of the Customer as to the Shares authorized, issued
and outstanding, as well as a description of all reserves of unissued
Shares relating to the exercise of options, warrants or a conversion
of debentures or otherwise.
13.2 Transfer Agent Facilities. The Transfer Agent hereby agrees to
establish and maintain facilities and procedures reasonably acceptable to the
Customer for the safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any, and for the preparation, use, and
recordkeeping of such certificates, forms and devices.
13.3 Records. The Transfer Agent shall keep records relating to the
services to be performed hereunder, in the form and manner as it may deem
advisable. The Transfer Agent agrees that all such records prepared or
maintained by it relating to the services performed hereunder are the property
of the Customer and will be preserved, maintained and made available in
accordance with the requirements of law, and will be surrendered promptly to the
Customer on and in accordance with its request.
13.4 Confidentiality. The Transfer Agent and the Customer agree that all
books, records, information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by law.
13.5 Non-Solicitation of Transfer Agent Employees. Customer shall not
attempt to hire or assist with the hiring of an employee of EquiServe or
affiliated companies or encourage any employee to terminate their relationship
with EquiServe or its affiliated companies.
13.6 Notification. Customer shall notify Transfer Agent as soon as possible
in advance of any stock split, stock dividend similar event which may affect the
Shares, and any bankruptcy, insolvency, moratorium or other proceeding regarding
Customer affecting the enforcement of creditors' rights. Notwithstanding any
other provision of the Agreement to the contrary, Transfer Agent will have no
obligation to perform any Services under the Agreement subsequent to the
commencement of any bankruptcy, insolvency, moratorium or other proceeding
regarding Customer affecting the enforcement of creditor' rights unless Transfer
Agent receives assurance satisfactory to it that it will receive full payment
for such services. Further, Customer may not assume the Agreement after the
filing of a bankruptcy petition without transfer agents written consent.
14. Data Access Service and Proprietary Information.
14.1 Transfer Agent has developed a data access service that enables the
Customer to access the Customer's shareholder records maintained on Transfer
Agent's computer system through the Internet or remote access, as the case may
be (the "Data Access Service"). The Customer wishes to use such Data Access
Service subject to the terms and conditions set forth herein. Therefore, the
Customer and Transfer Agent agree as follows:
14.2 Access to Shareholder Data.
The Service provided to the Customer pursuant to this Agreement shall
include granting the 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.
14.3 Procedures for Access.
To use the Data Access Service, the Customer must access through the
Internet or remote terminal, as the case may be, pursuant to the procedures
provided by Transfer Agent. Such access is accomplished by entering a unique
Customer identification ("Customer ID(s)") and passwords ("Password(s)")
assigned to the Customer by Transfer Agent. Each Customer ID and Password
assigned to the Customer is for use only by the Customer. The Customer shall
establish and maintain reasonable security and control over all such Customer
IDs and Passwords. Transfer Agent shall maintain reasonable security and control
over each Customer ID. After Transfer Agent assigns the Customer a Password, the
Customer shall change the Password. The Customer recognizes that Transfer Agent
does not have knowledge of the Password, which is selected by the Customer and
is within the Customer's exclusive control after the necessary change. The
Customer may change any Password thereafter at any time. Customer agrees to
notify Transfer Agent immediately if any employee of Customer granted access to
the Data Access Service leaves the employ of the Customer, in order to enable
Transfer Agent to terminate such employee's access.
14.4 Proprietary Information.
The Customer acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Customer by the Transfer Agent as part of the Data
Access Service to access Shareholder Data maintained by the Transfer Agent on
data bases under the control and ownership of the Transfer Agent or other third
party constitute copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the Transfer
Agent or other third party. In no event shall Proprietary Information be deemed
Shareholder Data. The Customer agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it shall not divulge
any Proprietary Information to any person or organization except as may be
provided hereunder. Without limiting the foregoing, the Customer agrees for
itself and its employees and agents:
(a) to refrain from copying or duplicating in any way the Proprietary
Information, other than to print out pages reflecting Shareholder Data
to provide to shareholders or for Customer's internal use;
(b)to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform Transfer Agent in a timely manner of such fact and dispose
of such information in accordance with Transfer Agent's instructions;
(c) to refrain from causing or allowing the Proprietary Information
from being retransmitted to any other computer facility or other
location, except with the prior written consent of Transfer Agent;
(d) that the Customer shall have access only to those authorized
transactions agreed upon by the parties; and
(e) to honor all reasonable written requests made by Transfer Agent to
protect at Transfer Agent's expense the rights of Transfer Agent
Proprietary Information at common law, under federal copyright law and
under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 14.
14.5 Content. If the Customer notifies the Transfer Agent that any part of
the Data Access Service does not operate in material compliance with the user
documentation provided by the Transfer Agent for such service, the Transfer
Agent shall endeavor in a timely manner to correct such failure. Organizations
from which the Transfer Agent may obtain certain data included in the Services
are solely responsible for the contents of such data and the Customer agrees to
make no claim against the Transfer Agent arising out of the contents of such
third party data, including, but not limited to, the accuracy thereof.
14.6 Transactions. If the transactions available to the Customer include
the ability to originate electronic instructions to the Transfer Agent in order
to (i) effect the transfer or movement of Shares or direct EQI to transfer cash
or (ii) transmit Shareholder information or other information, then in such
event the Transfer Agent shall be entitled to rely on the validity and
authenticity of such instructions without undertaking any further inquiry as
long as such instructions are undertaken in conformity with security procedures
established by the Transfer Agent from time to time.
15. Confidentiality.
15.1 Covenant. The Transfer Agent and the Customer agree that they will
not, at any time during the term of this Agreement or after its termination,
reveal, divulge, or make known to any person, firm, corporation or other
business organization, any customers' lists, trade secrets, cost figures and
projections, profit figures and projections, or any other secret or confidential
information whatsoever, whether of the Transfer Agent or of the Customer, used
or gained by the Transfer Agent or the Customer during performance under this
Agreement. The Customer and the Transfer Agent further covenant and agree to
retain all such knowledge and information acquired during and after the term of
this Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of the
Transfer Agent or the Customer and their successors and assigns. The above
prohibition of disclosure shall not apply to the extent that the Transfer Agent
must disclose such data to its sub-contractor or agent for purposes of providing
services under this Agreement.
15.2 Request for Records. In the event that any requests or demands are
made for the inspection of the Shareholder records of the Customer, other than
request for records of Shareholders pursuant to standard subpoenas from state or
federal government authorities (e.g., in divorce and criminal actions), the
Transfer Agent will endeavor to notify the Customer and to secure instructions
from an authorized officer of the Customer as to such inspection. The Transfer
Agent expressly reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by counsel that it may be held liable for
the failure to exhibit the Shareholder records to such person or if required by
law or court order.
16. Term and Termination.
16.1 Term. The Initial Term of this Agreement shall be two (2) years from
the date first stated above unless terminated pursuant to the provisions of this
Section 16. Unless a terminating party gives written notice to the other party
sixty (60) days before the expiration of the Initial Term this Agreement will
renew automatically from year to year ("Renewal Term"). Sixty (60) days before
the expiration of the Initial Term or a Renewal Term the parties to this
Agreement will agree upon a Fee Schedule for the upcoming Renewal Term. If no
new fee schedule is agreed upon, the fees will increase as set forth in Section
7.2.
16.2 Early Termination. Notwithstanding anything contained in this
Agreement to the contrary, should Customer desire to move any of its Services
provided by the Transfer Agent hereunder to a successor service provider prior
to the expiration of the then current Initial or Renewal Term, or without the
required notice period, the Transfer Agent shall make a good faith effort to
facilitate the conversion on such prior date, however, there can be no guarantee
that the Transfer Agent will be able to facilitate a conversion of Services on
such prior date. In connection with the foregoing, should Services be converted
to a successor service provider, or if the Customer is liquidated or its assets
merged or purchased or the like with another entity which does not utilize the
services of the Transfer Agent, the fees payable to the Transfer Agent shall be
calculated as if the services had remained with the Transfer Agent until the
expiration of the then current Initial or Renewal Term and calculated at
existing rates on the date notice of termination was given to the Transfer
Agent, and the payment of fees to the Transfer Agent as set forth herein shall
be accelerated to the date prior to the conversion or termination of services.
Section 16.2 shall not apply if the Transfer Agent is terminated for cause under
Section 16.4(a) of this Agreement.
16.3 Expiration of Term. After the expiration of the Initial Term or
Renewal Term whichever currently in effect, should either party exercise its
right to terminate, all reasonable out-of-pocket expenses or costs associated
with the movement of records and material will be borne by the Customer.
Additionally, the Transfer Agent reserves the right to charge for any other
reasonable expenses associated with such termination and a
de-conversion/transition fee in an amount equal to [25%] of the aggregate fees
incurred by Customer during the immediately preceding twelve (12) month period,
provided, however, such fee shall in no event be less than [five thousand
dollars].
16.4 Termination.
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This Agreement may be terminated in accordance with the following:
(a) at any time by any party upon a material breach of a
representation, covenant or term of this Agreement by any other
unaffiliated party which is not cured within a period not to exceed
thirty (30) days after the date of written notice thereof by one of
the other parties; and
(b) by Transfer Agent, at any time, in the event that during the term
of this Agreement, a bankruptcy or insolvency proceeding is filed by
or against Customer or a trustee or receiver is appointed for any
substantial part of Customer's property (and in a case of involuntary
bankruptcy, insolvency or receivership proceeding, there is entered an
order for relief, or order appointing a receiver or some similar order
or decree and Customer does not succeed in having such order lifted or
stayed within sixty (60) days from the date of its entry), or Customer
makes an assignment of all or substantially all of its property for
the benefit of creditors or ceases to conduct its operations in the
normal course or business.
16.5 Records. Upon receipt of written notice of termination, the parties
will use commercially practicable efforts to effect an orderly termination of
this Agreement. Without limiting the foregoing, Transfer Agent will deliver
promptly to Customer, in machine readable form on media as reasonably requested
by Customer, all Shareholder and other records, files and data supplied to or
compiled by Transfer Agent on behalf of Customer.
17. Assignment.
17.1 Affiliates. The Transfer Agent may, without further consent of the
Customer assign its rights and obligations hereunto to any affiliated transfer
agent registered under Section 17A(c)(2) of the Exchange Act.
17.2 Sub-contractors. Transfer Agent may, without further consent on the
part of Customer, subcontract with other subcontractors for telephone and
mailing services as may be required from time to time; provided, however, that
the Transfer Agent shall be as fully responsible to the Customer for the acts
and omissions of any subcontractor as it is for its own acts and omissions.
18. Unaffiliated Third Parties.
Nothing herein shall impose any duty upon the Transfer Agent in connection
with or make the Transfer Agent liable for the actions or omissions to act of
unaffiliated third parties such as, by way of example and not limitation,
airborne services, the U.S. mails and telecommunication companies, provided, if
the Transfer Agent selected such company, the Transfer Agent shall have
exercised due care in selecting the same.
19. Miscellaneous.
19.1 Notices.
Any notice or communication by the Transfer Agent or the Customer to the
other is duly given if in writing and delivered in person or mailed by first
class mail, postage prepaid, telex, telecopier or overnight air courier
guaranteeing next day delivery, to the other's address:
If to the Customer:
The Cintra Select Fund, Inc.
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
If to the Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
The Transfer Agent and the Customer may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
19.2 Successors.
All the covenants and provisions of this agreement by or for the benefit of
the Customer or the Transfer Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
19.3 Amendments.
This Agreement may be amended or modified by a written amendment executed
by the parties hereto and, to the extent required, authorized or approved by a
resolution of the Board of Directors of the Customer.
19.4 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.
19.5 Governing Law.
This Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
19.6 Force Majeure.
Notwithstanding anything to the contrary contained herein, Transfer Agent
shall not be liable for any delays or failures in performance resulting from
acts beyond its reasonable control including, without limitation, acts of God,
terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due to power failures or
mechanical difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest.
19.7 Descriptive Headings.
Descriptive headings of the several sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
19.8 Third Party Beneficiaries.
The provisions of this Agreement are intended to benefit only the Transfer
Agent, the Customer and their respective permitted successors and assigns. No
rights shall be granted to any other person by virtue of this agreement, and
there are no third party beneficiaries hereof.
19.9 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.
19.10 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.
19.11 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.
19.12 Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by one of its officers thereunto duly authorized, all as of the date
first written above.
The Cintra Select Fund, Inc.
By:_____________________
Name:___________________
Title:___________________
EquiServe, Inc. EquiServe Trust Company, N.A.
By:_____________________ By:_____________________
Name:__________________ Name:___________________
Title:___________________ Title:___________________
