Transfer Agency and Service Agreement
Among
Technology Investment Capital Corp.
And
EquiServe Trust Company, N.A.
And
EquiServe, Inc.
AGREEMENT made as of the ___________day of _____________, 2003, by and
among Technology Investment Capital Corp, a Maryland corporation, having a
principal office and place of business at 0 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, XX 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 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 (collectively, "Plans"), if any, 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; and
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 and/or
outstanding funds held by such Shareholder or which has 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) "AUTHORIZED OFFICER" shall mean those officers or representatives of the
Customer set forth on Exhibit B attached hereto as such Exhibit B may be
amended in writing from time to time.
(f) "CLOSED ACCOUNT" shall mean an account with a zero share balance, no
outstanding funds or no reportable tax information.
(g) "CUSTOMER ID(S)" shall have the meaning set forth in Section 14.3.
(h) "DATA ACCESS SERVICE" shall have the meaning set forth in Section 14.1.
(i) "DIVIDEND REINVESTMENT PLAN" and "DIRECT STOCK PURCHASE PLAN" shall mean
the Dividend Reinvestment Plan and Direct Stock Purchase Plan,
respectively, of the Customer, if any, under which the Transfer Agent
provides administrative services as set forth in Section 3 and in the Fee
and Service Schedule.
(j) "EFFECTIVE DATE" shall mean the date first stated above.
(k) "FEE AND SERVICE SCHEDULE" shall mean the fees and services set forth in
the "Fee and Service Schedule" attached hereto.
(l) "PASSWORD(S)" shall have the meaning set forth in Section 14.3.
(m) "PROPRIETARY INFORMATION" shall have the meaning set forth in Section 14.4.
(n) "SECURITY PROCEDURES" shall have the meaning set forth in Section 5.1.
(o) "SERVICES" shall mean any and all services to be performed by the Transfer
Agent under this Agreement as further described herein and in the "Fee and
Service Schedule" or other schedules attached hereto.
(p) "SHARE" shall mean Customer's common stock, par value $.01 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.
(q) "SHAREHOLDER" shall mean the holder of record of Shares.
(r) "SHAREHOLDER DATA" shall have the meaning set forth in Section 14.2.
(s) "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, if any, 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 the Customer, the Customer will provide or has
previously provided each of the following documents to the Transfer Agent:
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(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 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:
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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 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, Direct Stock Purchase Plan and other investment programs, if
any, as amended from time to time in accordance with the terms of such
Plans and any 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 the 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; provided that no replacement check shall be issued unless a
stop order has been placed on the original check. 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 any
other Plans, if any, make all payments required to be made under such
plans, including all payments required to be made to the Customer and
perform all other services required to be performed by EQI under the
terms of such Plans and any agreements relating thereto to which EQI
is or will be party.
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
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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, 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 Rule 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 any
Authorized Officer 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.
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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).
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7. FEES AND EXPENSES.
7.1 Fee and Service Schedules. The 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 as
described in Section 16.1 (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 reasonable
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 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.
7.6 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.
7.7 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.
7.8 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.
7.9 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.
7.10 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.
7.11 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,
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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,
TELECOMMUNICATIONS 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.
The Customer represents and warrants to the Transfer Agent that:
9.1 Organization. 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
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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, reasonable 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 material 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.
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10.3 Instructions. At any time the Transfer Agent may apply to any Authorized
Officer 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 good
faith and without negligence or willful misconduct 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, reasonable 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 six (6) 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
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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 any Authorized Officer 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
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(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 or 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 Agent's 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 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.
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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;
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(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.,
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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.
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 deconversion/transition fee in
an amount equal to ten percent (10%) 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 two thousand five hundred dollars
($2,500.00).
16.4 Termination.
This Agreement may be terminated in accordance with the following:
(a) at any time by either party upon sixty (60) days prior written notice
to the other party; 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
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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.
Except as set forth in Section 17.2, 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:
Technology Investment Capital Corp.
0 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopy No.: 000-000-0000
Attn: Xxxx X. Xxxxxxxxx
If to the Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
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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, 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.
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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.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
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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.
TECHNOLOGY INVESTMENT
CAPITAL CORP.
By:
----------------------------------------
Name: XXXX X XXXXXXXXX
--------------------------------------
Title: CHIEF OPERATING OFFICER
-------------------------------------
EQUISERVE, INC. EQUISERVE TRUST COMPANY, N.A.
BY: BY:
---------------------------------- -----------------------------------
NAME: XXXXX X. XXXXX NAME: XXXXX X. XXXXX
-------------------------------- ---------------------------------
TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
------------------------------- --------------------------------
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EXHIBIT B
Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
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