Exhibit 2(k)(2)
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE HIGH YIELD PLUS FUND, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
PAGE
ARTICLE 1 Terms of Appointment; Duties of the Bank.....................1
ARTICLE 2 Fees and Expenses............................................3
ARTICLE 3 Representations and Warranties of the Bank...................3
ARTICLE 4 Representations and Warranties of the Fund...................4
ARTICLE 5 Indemnification..............................................5
ARTICLE 6 Convenants of the Fund and the Bank..........................8
ARTICLE 7 Termination of Agreement.....................................9
ARTICLE 8 Assignment...................................................9
ARTICLE 9 Amendment...................................................10
ARTICLE 10 Massachusetts Law to Apply..................................10
ARTICLE 11 Merger of Agreement.........................................10
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 15th day of April, 1988, by and between THE HIGH
YIELD PLUS FUND, INC., a Maryland corporation, having its principal office and
place of business at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, (the "Fund"),
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company having
its principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its registrar, transfer
agent, dividend disbursing agent and agent in connection with certain other
activities and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Bank to act as, and the Bank
agrees to act as registrar, transfer agent for the Fund's authorized and issued
shares of its common stock ("Shares"), dividend disbursing agent and agent in
connection with any dividend reinvestment plan provided to the Shareholders of
the Fund as set out in the prospectus of the Fund, as declared effective by the
Securities and Exchange Commission.
1.02 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by agreement
between the Fund and the Bank, the Bank shall:
(i) issue and record the appropriate number of Shares as
authorized and hold such Shares in the appropriate
Shareholder account;
(ii) effect transfers of Shares by the registered owners
thereof upon receipt of appropriate documentation;
(iii) prepare and transmit payments for dividends and
distributions declared by the Fund; and
(iv) act as agent for Shareholders pursuant to the
dividend reinvestment plan as amended from time to
time in accordance with the terms of the agreement to
be entered into between each Shareholder and the Bank
in substantially the form attached as Exhibit A
hereto.
(v) maintain records of accounts for and advise the Fund
and its Shareholders of the foregoing.
(b) In addition to and not in lieu of the services set forth in the above
paragraph (a), the Bank shall: (i) perform all of the customary services of a
registrar, transfer agent, dividend disbursing agent and agent of the dividend
reinvestment plan as described in article 1 consistent with those requirements
in effect as at the date of this Agreement. The detailed definition, frequency,
limitations and associated costs (if any) of such services as set out in the
attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing, receiving
and tabulating proxies and mailing Shareholder reports to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts where
applicable, preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all registered Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders and providing
Shareholder account information.
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ARTICLE 2 FEES AND EXPENSES
2.01 For the performance by the Bank pursuant to this Agreement, the
Fund agrees to pay the Bank an annual maintenance fee as set out in the initial
fee schedule attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.02 below may be changed from time to time subject to
mutual written agreement between the Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees to reimburse the Bank for out-of-pocket expenses or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by the Bank at the request or with the consent of
the Fund which are not properly borne by the Bank as part of its duties and
obligations under this Agreement, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses
within five days following the mailing of the respective billing notice. Postage
and the cost of materials for mailing of dividends, proxies, Fund reports and
other mailings to all Shareholder accounts shall be advanced to the Bank by the
Fund at least seven (7) days prior to the mailing date of such materials.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Fund that:
3.01 It is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the
Commonwealth of Massachusetts.
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3.03 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Bank that:
4.01 It is a corporation duly organized and existing and in good
standing under the laws of Maryland.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.04 It is a closed-end, diversified investment company registered
under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is
currently effective and appropriate state securities law filings have been made
with respect to all Shares of the Fund being offered for sale; information to
the contrary will result in immediate notification to the Bank.
4.06 It shall make all required filings under federal and state
securities laws.
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ARTICLE 5 INDEMNIFICATION
5.01 The Bank shall not be responsible for, and the Fund shall
indemnify and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of the Bank or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of this Agreement,
or which arise out of the Fund's lack of good faith, negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Bank or its agents or subcontractors of
information, records and documents which (i) are received by the Bank or its
agents or subcontractors and furnished to it by or on behalf of the Fund, and
(ii) have been prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund. Such other person or firm shall include any former
transfer agent or former registrar, or co-transfer agent or co-registrar.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any written instructions or requests of the Fund's
representative. "Written instructions" means written instructions delivered by
mail, tested telegram cable, telex or facsimile sending device and received by
the Bank or its agents or subcontractors, signed by authorized persons.
(e) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws or regulations of
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any state that such Shares be registered in such state or in violation of any
stop order or other determination or ruling by any federal agency or any state
with respect to the offer or sale of such Shares in such state.
5.02 The Bank shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by the Bank as a result of the Bank's lack of good faith,
negligence or willful misconduct or of any of its agents or subcontractors or
which arise out of the breach of any representation or warranty hereunder.
5.03 At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with experienced securities counsel with respect
to any matter arising in connection with the services to be performed by the
Bank under this Agreement, and the Bank and its agents or subcontractors shall
not be liable and shall be indemnified by the Fund for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of such
counsel that such actions or omissions comply with all applicable law. The Bank,
its agents and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Fund, reasonably believed
to be genuine and to have been signed by the proper person or persons, or upon
any instructions, information, data, records or documents provided the Bank or
its agents or subcontractors by telephone, in person, machine readable input,
telex, CRT data entry or other similar means authorized by the Fund, and shall
not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund. The Bank, its agents and
subcontractors shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual or
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facsimile signatures of the officers of the Fund, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
5.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes. In addition, the Bank shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available and the Bank shall further use reasonable care to
minimize the likelihood of such damage, loss of data, delays and/or errors and
should such damage, loss of data, delays and/or errors occur, the Bank shall use
its best efforts to mitigate the effects of such occurrence.
5.05 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in this
Article 5 shall apply, upon the assertion of a claim or the institution of any
agency action or investigation for which either party may be required to
indemnify the other, the party seeking indemnification shall promptly notify the
other party seeking indemnification shall promptly notify the other party of
such assertion, and shall kept he other party advised with respect to all
developments concerning such claim. The party who may be required to indemnify
shall have the option to participate with the party seeking indemnification in
the defense of such claim. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which the other party
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may be required to indemnify it except with the other party's prior written
consent.
ARTICLE 6 CONVENANTS OF THE FUND AND THE BANK
6.01 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors of the Fund
authorizing the appointment of the Bank and the execution and delivery of this
Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the Fund and all
amendments thereto.
6.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonable acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
6.03 The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
6.04 The Bank and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiations 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.
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6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
ARTICLE 7 TERMINATION OF AGREEMENT
7.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other. Any such termination
shall not affect the rights and obligations of the parties under Article 5
hereof.
7.02 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Fund. Additionally, the Bank reserves the right to charge for
any other reasonable expenses associated with such termination and/or a charge
equivalent to the average of three (3) month's fees. In the event that the Fund
designates a successor to any of the Bank's obligations hereunder, the Bank
shall at the expense and direction of the Fund, transfer to such successor a
certified list of the Shareholder of the Fund, a complete record of the account
of each Shareholder, and all other relevant books, records and other data
established or maintained by the Bank hereunder.
ARTICLE 8 ASSIGNMENT
8.01 Except as provided in Section 8.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
8.02 This Agreement shall insure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
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8.03 The Bank may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data Services,
Inc., a Massachusetts corporation ("BFDS") which is duly registered as a
transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange Act of
1934 ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly registered as a transfer
agent pursuant to Section 17A(c)(1) or (iii) a BFDS affiliate; provided,
however, that the Bank shall be as fully responsible to the Fund for the acts
and omissions of any subcontractor as it is for its own acts and omissions.
ARTICLE 9 AMENDMENT
9.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Directors of the Fund.
9.02 In the event the Fund issues additional series of capital stock
in addition to the Shares with respect to which it desires to have the Bank
render services as transfer agent, dividend disbursing agent and agent under the
terms hereof, it shall so notify the Bank in writing, and if the Bank agrees in
writing to provide such services, such additional series of Shares shall become
a Fund hereunder.
ARTICLE 10 MASSACHUSETTS LAW TO APPLY
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
ARTICLE 11 MERGER OF AGREEMENT
11.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
THE HIGH YIELD FUND, INC.
BY:
-------------------------------------
ATTEST:
STATE STREET BANK AND TRUST COMPANY
BY:
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Vice President
ATTEST:
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Assistant Secretary
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XXXXX XXXXXX XXXX AND TRUST COMPANY
REGISTRAR AND TRANSFER AGENT'S CERTIFICATE
THE HIGH YIELD PLUS FUND, INC.
STATE STREET BANK AND TRUST COMPANY, Boston, Massachusetts ("State Street")
certifies as follows:
1. State Street is the duly appointed Registrar and Transfer Agent for the
Common Stock, par value $.01, of The High Yield Plus Fund, Inc.
(the "Fund").
2. Certificates for 10,750,000 shares of said Common Stock duly countersigned
by State Street as Transfer Agent and as Registrar, and duly issued in the
names and denominations specified by Prudential-Bache Securities Inc. as
Representative of the several underwriters have been delivered on the date
of this certificate pursuant to the directions from Prudential-Bache
Securities Inc. to the undersigned.
3. All of said certificates bear the facsimile signatures of the President
and Secretary of the Fund and the facsimile of its corporate seal, and
have been duly countersigned on behalf of State Street, by individuals
authorized to do so, each of whom at the time of affixing his signature
was and still is duly authorized to sign such certificates by the Board of
Directors of State Street.
4. As of the close of business on April 21, 1988, the total number of issued
and outstanding shares of Common Stock, par value $.01 per share, of the
Fund is 11,000.
IN WITNESS WHEREOF, STATE STREET BANK AND TRUST COMPANY has caused this
certificate to be executed in its corporate name by an officer thereunto duly
authorized and its corporate seal to be affixed hereto this 22nd day of April,
1988.
STATE STREET BANK AND TRUST COMPANY
By:
-----------------------------------
Xxxxx X. Xxxxxx
Vice President
