EXHIBIT 99.2(k)
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[TRANSFER AGENCY AGREEMENT]
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 1999, by and
between Zazove Convertible Securities Fund, Inc., a Maryland corporation
(the "Fund"), and Sunstone Financial Group, Inc., a Wisconsin corporation
("Sunstone").
R E C I T A L S:
WHEREAS, the Fund is registered under the 1940 Act as a non-
diversified management investment company operating as a closed-end
interval fund; and
WHEREAS, the Fund desires to retain Sunstone to render certain
transfer agency and dividend disbursement services, and Sunstone is willing
to render such services, all in accordance with the terms of this
Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
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In addition to any terms that are defined in the body of this
Agreement, the following capitalized terms shall have the meanings set
forth hereinafter whenever they appear in this Agreement:
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"Authorized Persons" shall mean those individuals who are authorized
to provide Sunstone with oral instructions and to sign written instructions
and requests on behalf of the Fund, whose names shall be certified to
Sunstone from time to time pursuant to Article IV, Paragraph F of this
Agreement.
"Business Day" shall mean each day on which the New York Stock
Exchange is open for trading.
"Current NAV" shall mean the net asset value of the Shares determined
by the Fund as of each Investment Date, in accordance with the requirements
of applicable law.
"Custodian" shall mean UMB Bank, n.a. or any successor custodian
selected by the Fund.
"DDA Account" shall mean Account No. 987-096-4775 with the Custodian,
into which proceeds for redemptions, dividends and other distributions
shall be paid from time to time to permit Sunstone to perform its services
hereunder.
"Investment Date" shall mean the first Business Day of each month
during the term hereof.
"Investment Instructions" shall mean the investment instructions
provided to Sunstone by the Fund from time to time hereunder, in the form
attached hereto as Exhibit A.
"Private Placement Memorandum" shall mean the most recent Private
Placement Memorandum of the Fund received by Sunstone from time to time
during the term hereof.
"Redemption Date" shall mean the last Business Day of each March,
June, September and December during the term hereof.
"Redemption Instructions" shall mean the redemption instructions
provided to Sunstone by the Fund from time to time hereunder, in the form
attached hereto as Exhibit B.
"Repurchase Offer Notification" shall mean the notification provided
by the Fund to its shareholders in advance of each Redemption Date in
accordance with the requirements of Rule 23c-3 under the 1940 Act.
"Shares" shall mean the 25,000,000 shares of common stock, $.01 par
value, which the Fund is authorized to issue pursuant to its Articles of
Incorporation.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
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A. APPOINTMENT.
1. The Fund hereby appoints Sunstone as transfer agent
and dividend disbursing agent of all the Shares of the Fund during the term
of this Agreement, and Sunstone hereby accepts such appointment as transfer
agent and dividend disbursing agent and agrees to perform the duties
thereof as hereinafter set forth.
2. Sunstone shall perform the transfer agent and dividend
disbursing agent services described on Schedule A hereto. To the extent
that the Fund requests Sunstone to perform any additional services,
Sunstone and the Fund shall mutually agree on the services to be
accomplished, the manner of accomplishment and the compensation to which
Sunstone shall be entitled with respect thereto.
3. Sunstone may, in its discretion, appoint in writing other
parties qualified to perform transfer agency services reasonably acceptable
to the Fund (individually, a "Sub-transfer Agent") to carry out some or all
of its responsibilities under this Agreement; provided, however, that
unless the Fund shall enter into a written agreement with such Sub-transfer
Agent, the Sub-transfer Agent shall be the agent of Sunstone and not the
agent of the Fund and, in such event Sunstone shall be fully responsible
for the acts or omissions of such Sub-transfer Agent and shall not be
relieved of any of its responsibilities hereunder by the appointment of
such Sub-transfer Agent.
4. Sunstone shall have no duties or responsibilities
whatsoever hereunder except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation to
carry out any other duties or responsibilities shall be implied in this
Agreement against Sunstone.
B. DOCUMENTS/RECORDS/AUTHORIZATIONS.
1. In connection with Sunstone's appointment as transfer
agent and dividend disbursing agent, the Fund shall deliver or cause to be
delivered the following documents to Sunstone:
a) A copy of the Articles of Incorporation and By-laws
of the Fund and all amendments thereto, certified by the Secretary of the
Fund;
b) A certificate signed by the President and Secretary
of the Fund specifying the number of authorized Shares and the number of
such authorized Shares issued and currently outstanding, if any;
c) A certified copy of the resolutions of the Board of
Directors of the Fund appointing Sunstone as transfer agent and dividend
disbursing agent and authorizing the execution of this Transfer Agency
Agreement on behalf of the Fund; and
d) Copies of the Fund's Registration Statement, as
amended to date, and the most recently filed Post-Effective Amendment
thereto, filed by the Fund with the Securities and Exchange Commission
under the 1940 Act, together with any applications filed in connection
therewith.
2. The Fund agrees to deliver or to cause to be delivered to
Sunstone in Milwaukee, Wisconsin, at the Fund's expense, all of its
shareholder account records in a format acceptable to Sunstone and all such
other documents, records and information as Sunstone may reasonably request
in order for Sunstone to perform its services hereunder.
3. The Fund agrees to deliver or cause to be delivered to Sunstone
from time to time the certificate required by Article IV, Paragraph F of
this Agreement, signed by an officer of the Fund and designating the names
of Authorized Persons.
ARTICLE III
COMPENSATION & EXPENSES
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A. COMPENSATION. In consideration for its services hereunder as
transfer agent and dividend disbursing agent, the Fund will pay to Sunstone
the compensation set forth on Schedule B attached hereto. The Fund agrees
that Sunstone shall be entitled to receive a fee per account rather than a
flat fee in the event the Fund shall have more than three thousand
shareholders during the term of this Agreement.
B. EXPENSES. The Fund also agrees to promptly reimburse Sunstone
for all out-of-pocket expenses or disbursements incurred by Sunstone in
connection with the performance of services under this Agreement including,
but not limited to, expenses for attendance at Fund board meetings,
postage, express delivery services, freight charges, envelopes, checks,
drafts, forms (continuous or otherwise), preparation and mailing of
Repurchase Offer Notifications and other specially requested reports and
statements, bank account service fees and charges, stationery supplies,
outside printing and mailing firms, magnetic tapes, reels or cartridges (if
sent to the Fund or to a third party at the Fund's request) and magnetic
tape handling charges, on-site and off-site record storage, media for
storage of records (e.g., microfilm, microfiche, optical platters, computer
tapes and disks), and computer equipment installed at the Fund's request on
the Fund's or a third party's premises, to the extent any of the foregoing
are paid by Sunstone. If requested by Sunstone, postage and other out-of-
pocket expenses are payable in advance, and in the event requested, postage
is due at least seven days prior to the anticipated mail date. In the event
Sunstone requests advance payment, Sunstone shall not be obligated to incur
such expenses or perform the related service(s) until payment is received.
C. PAYMENT PROCEDURES. The Fund agrees to pay all amounts due
hereunder within fifteen days of the date reflected on the statement for
such services (the "Due Date"). Service fees are billed monthly, and out-
of-pocket expenses are billed as incurred (unless prepayment is requested
by Sunstone). Sunstone may, at its option, arrange to have various service
providers submit invoices directly to the Fund for payment of reimbursable
out-of-pocket expenses. The Fund is aware that its failure to remit to
Sunstone all amounts due on or before the Due Date will cause Sunstone to
incur costs not contemplated by this Agreement, including, but not limited
to carrying, processing and accounting charges. Accordingly, in the event
that any amounts due hereunder are not received by Sunstone by the Due
Date, the Fund agrees to pay a late charge on the overdue amount equal to
one and one-half percent (1.5%) per month or the maximum amount permitted
by law, whichever is less. Notwithstanding the foregoing, Sunstone shall
not be entitled to collect a late charge unless the Fund fails to remit
payment to Sunstone within three business days after receipt of written
notification from Sunstone of its failure to pay. In addition, the Fund
shall pay reasonable attorney's fees and court costs of Sunstone if any
amounts due Sunstone are collected by or through an attorney. The parties
hereby agree that such late charge represents a fair and reasonable
computation of the costs incurred by reason of the Fund's late payment.
Acceptance of such late charge shall in no event constitute a waiver of the
Fund's default by Sunstone or prevent Sunstone from exercising any other
rights and remedies available to it.
ARTICLE IV
PROCESSING AND PROCEDURES
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A. ISSUANCE, REDEMPTION AND TRANSFER OF SHARES GENERALLY
1. The Fund shall receive and approve all purchase, transfer
and redemption requests with respect to the Shares. Sunstone's obligations
in connection with the purchase, transfer, and redemption of Shares shall
be limited to acting upon the Investment Instructions and Redemption
Instructions received from the Fund. The Fund shall bear the
responsibility and Sunstone shall assume no liability for determining that
purchases, transfers and redemptions meet the requirements established by
the Private Placement Memorandum and all applicable laws, rules and
regulations.
2. Sunstone shall send such statements as are noted on
Schedule A hereto in connection with the purchase and redemption of Shares.
It is understood that certificates for Shares will not be offered by the
Fund or available to investors.
3. Prior to the effective date of any increase or decrease
in the total number of Shares authorized to be issued, or the issuance of
any additional Shares of the Fund pursuant to stock dividends, stock
splits, recapitalizations, capital adjustments or similar transactions, the
Fund agrees to deliver to Sunstone such documents, certificates, reports
and legal opinions as Sunstone may reasonably request.
4. The Fund shall have the sole responsibility for
determining the Current NAV. The Fund shall provide Sunstone with the
Current NAV within five days after each Investment Date during the term
hereof. The Current NAV shall be transmitted in writing and shall be
certified by an officer of the Fund. To expedite the transmission of
information, the Fund may submit the Current NAV via facsimile
transmission. In such event, however, the Fund shall mail the original,
certified Current NAV to Sunstone via first class mail. The Fund
specifically assumes liability for and shall indemnify Sunstone from and
against any damages, claims, suits or actions arising out of (i) any
violations of Rule 23c-3 caused by the Fund's failure to transmit the
Current NAV within the time period required by this paragraph or (ii) any
errors in calculating the Current NAV.
B. NEW AND ADDITIONAL PURCHASES.
1. The Fund shall provide Sunstone with Investment
Instructions on or before each Investment Date during the term of this
Agreement. Within forty-eight (48) hours following receipt of the Current
NAV from the Fund, Sunstone shall cause to be issued to the accounts of
shareholders specified in the Investment Instructions for such Investment
Date, the appropriate number of full and fractional Shares based on the
Current NAV.
2. Sunstone shall not be responsible for the payment of any
original issue or other taxes required to be paid by the Fund in connection
with the issuance of any Shares in accordance with this Agreement.
3. Notwithstanding anything contained herein of the
contrary, Sunstone shall not be required to issue any Shares after it has
received written notification from an Authorized Person or from an
appropriate federal or state authority that the sale of Shares has been
suspended or discontinued, and Sunstone shall be entitled to rely on such
written notification.
C. REDEMPTION OF SHARES.
1. The Fund shall provide Sunstone with Redemption
Instructions on or before each Redemption Date during the term of this
Agreement. Within forty-eight (48) hours following receipt of the current
NAV from the Fund, Sunstone shall cause to be redeemed from the accounts
specified in the Redemption Instructions for such Redemption Date, the
appropriate number of full and fractional Shares based on the Current NAV
for the Investment Date which occurs immediately after the Redemption Date.
2. Upon receipt of the Current NAV, the Fund or its designee shall
cause the Custodian to deposit in the DDA Account an amount of cash
sufficient for Sunstone to make redemption payments to those shareholders
specified in the Redemption Instructions. Sunstone shall not be liable for
any improper payments made in accordance with Redemption Instructions. If
Sunstone shall not receive from the Custodian sufficient cash to make
payments of all redemptions listed in the Redemption Instructions, Sunstone
shall, upon notice to the Fund, withhold payment to all shareholders listed
in the Redemption Instructions until sufficient cash is provided to
Sunstone.
3. Upon receipt of the Redemption Instructions and monies paid to
it by the Custodian in connection with a redemption of Shares, Sunstone
shall cancel the redeemed Shares and, after making appropriate deductions
for any withholding of taxes required of it by applicable federal law, make
payment in accordance with the Redemption Instructions.
D. DIVIDENDS AND DISTRIBUTIONS.
1. The Fund shall furnish to Sunstone a copy of a resolution
of its Board of Directors, certified by an Authorized Person, either (i)
setting forth the date of the declaration of a dividend or distribution,
the date of accrual or payment, as the case may be, thereof, the record
date as of which shareholders entitled to payment, or accrual, as the case
may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to Sunstone
on such payment date, or (ii) authorizing the declaration of dividends and
distributions on a periodic basis and authorizing Sunstone to rely on a
certificate of an Authorized Person setting forth the information described
in subsection (i) of this paragraph.
2. In connection with a reinvestment of a dividend or
distribution of Shares of the Fund, Sunstone shall, as of the day a
dividend is declared, as specified in a certificate or resolution described
in paragraph 1, issue Shares of the Fund based on the most recently
determined Current NAV per Share of the Fund.
3. Upon the mail date specified in such certificate or
resolution, as the case may be, the Fund or its designee shall, in the case
of a cash dividend or distribution, cause the Custodian to deposit in the
DDA Account an amount of cash sufficient for Sunstone to make the payment,
as of the mail date, specified in such certificate or resolution, as the
case may be, to the shareholders who were of record on the record date.
Sunstone will, upon receipt of any such cash, make payment of such cash
dividends or distributions to the shareholders of record as of the record
date. Sunstone shall not be liable for any improper payments made in
accordance with a certificate or resolution described in the preceding
paragraph. If Sunstone shall not receive from the Custodian sufficient
cash to make payments of any cash dividend or distribution to all
shareholders of the Fund as of the record date, Sunstone shall, upon notice
to the Fund, withhold payment to all shareholders of record as of the
record date until sufficient cash is provided to Sunstone.
4. It is understood that Sunstone in its capacity as
transfer agent and dividend disbursing agent shall in no way be responsible
for the determination of the rate or form of dividends or capital gain
distributions due to the shareholders pursuant to the terms of this
Agreement. It is further understood that Sunstone shall file with the
Internal Revenue Service and shareholders such appropriate federal tax
forms concerning the payment of dividend and capital gain distributions but
shall in no way be responsible for the collection or withholding of taxes
due on such dividends or distributions due to shareholders except as
required by Section 3406 of the Internal Revenue Code, as amended.
E. RECORDS.
1. Sunstone shall keep such records as are specified in
Schedule C hereto in the form and manner, and for such period, as it may
deem advisable but not inconsistent with the rules and regulations of
appropriate government authorities, in particular Rules 31a-2 and 31a-3
under the 1940 Act. Sunstone may deliver to the Fund from time to time at
Sunstone's discretion, for safekeeping or disposition by the Fund in
accordance with law, such records, papers and documents accumulated in the
execution of its duties as such transfer agent, as Sunstone may deem
expedient, other than those which Sunstone is itself required to maintain
pursuant to applicable laws and regulations. The Fund shall assume all
responsibility for any failure thereafter to produce any record, paper,
canceled Share certificate, or other document so returned, if and when
required. To the extent required by Section 31 of the 1940 Act and the
rules and regulations thereunder, the records specified in Schedule C
hereto maintained by Sunstone, which have not been previously delivered to
the Fund pursuant to the foregoing provisions of this paragraph, shall be
considered to be the property of the Fund, shall be made available upon
request for inspection by the officers, employees, and auditors of the
Fund, and shall be delivered to the Fund promptly upon request and in any
event upon the date of termination of this Agreement, in the form and
manner kept by Sunstone on such date of termination or such earlier date as
may be requested by the Fund. Notwithstanding anything contained herein to
the contrary, Sunstone shall be permitted to maintain copies of any such
records, papers and documents to the extent necessary to comply with the
recordkeeping requirements of federal and state securities laws, tax laws
and other applicable laws.
2. Sunstone agrees to keep all records and other information
relative to the Fund and its shareholders confidential. In case of any
requests or demands for the inspection of the shareholder records of the
Fund, Sunstone will endeavor to notify the Fund promptly and to secure
instructions from an Authorized Person as to such inspection. Sunstone
reserves the right, however, to exhibit the shareholder records to any
person whenever it believes there is a reasonable likelihood that Sunstone
will be held liable for the failure to exhibit the shareholder records to
such person; provided, however, that in connection with any such disclosure
Sunstone shall promptly notify the Fund that such disclosure has been made
or is to be made. Notwithstanding the foregoing, Sunstone may disclose
information when requested by a shareholder concerning an account as to
which Sunstone reasonably believes such shareholder has a legal or
beneficial interest or when requested by the Fund, the shareholder or the
dealer of record as to such account. Records and information which have
become known to the public through no wrongful act of Sunstone or any of
its employees, agents or representatives shall not be subject to this
paragraph.
F. MISCELLANEOUS. Upon the execution of this Agreement, the
Fund shall provide Sunstone with a certificate containing the names of the
initial Authorized Persons in the form attached hereto as Exhibit C. Any
officer of the Fund has the authority to appoint additional Authorized
Persons, to limit or revoke the authority of any previously designated
Authorized Person, and to certify to Sunstone the names of the Authorized
Persons from time to time. The Fund shall provide Sunstone with an updated
certificate evidencing the appointment, removal or change of authority of
any Authorized Person, it being understood Sunstone shall not be held to
have notice of any change in the authority of any Authorized Person until
receipt of written notice thereof from the Fund.
ARTICLE V
CONCERNING THE FUND
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A. REPRESENTATIONS. The Fund represents and warrants to Sunstone
that:
(a) It is a corporation duly organized and existing under the
laws of the State of Maryland, it is empowered under applicable laws and by
its Articles of Incorporation and By-laws to enter into and perform this
Agreement, and all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(b) Any officer of the Fund has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
previously designated Authorized Person, and to certify to Sunstone the
names of the Authorized Persons.
(c) It is a closed-end management investment company
registered under the 1940 Act that operates as an interval fund.
(c) The Shares are not required to be registered under the
1933 Act.
B. COVENANTS.
1. The Fund will provide to Sunstone copies of all
amendments to its Articles of Incorporation and By-laws made after the date
of this Agreement promptly after they are effective. If requested by
Sunstone, each copy of the Articles of Incorporation and By-laws of the
Fund and copies of all amendments thereto shall be certified by the
Secretary of the Fund.
2. The Fund shall have the ongoing obligation to deliver to
Sunstone the Fund's most recent Private Placement Memorandum as soon as it
becomes available and, for purposes of this Agreement, Sunstone shall not
be deemed to have notice of any information contained in such Private
Placement Memorandum until a reasonable time after it is actually received
by Sunstone.
3. The Fund shall, as part of its initial shareholder
registration procedures, request and obtain from each new shareholder an
original, executed Form W-9. The Fund shall promptly forward all Form W-
9's to Sunstone upon receipt.
4. All requisite steps will be taken by the Fund from time
to time when and as necessary to register the Shares for sale in all states
in which the Shares shall at the time be offered for sale and require
registration. If at any time the Fund receives notice of any stop order or
other proceeding in any such state affecting such registration or the sale
of Shares, or of any stop order or other proceeding under the federal
securities laws affecting the sale of Shares, the Fund will give prompt
notice thereof to Sunstone.
5. The Fund will comply with all applicable requirements of
the 1933 Act, the 1934 Act, the 1940 Act, blue sky laws, and any other
applicable laws, rules and regulations, including, but not limited to,
filing all notices required by Rule 23c-3 under the 0000 Xxx.
6. The Fund agrees that prior to effecting any change in the
Private Placement Memorandum which would increase or alter the duties and
obligations of Sunstone hereunder, it shall advise Sunstone of such
proposed change at least 30 days prior to the intended date of the change,
and shall proceed with such change only if it shall have received the
written consent of Sunstone thereto, which consent shall not be
unreasonably withheld.
ARTICLE VI
CONCERNING THE TRANSFER AGENT
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A. REPRESENTATIONS. Sunstone represents and warrants to the Fund
that:
(a) It is a corporation duly organized and existing under the
laws of the State of Wisconsin, is empowered under applicable law and by
its Articles of Incorporation and By-laws to enter into and perform this
Agreement, and all requisite proceedings have been taken to authorize it to
enter into and perform this Agreement.
(b) It is duly registered as a transfer agent under Section
17A of the 1934 Act to the extent required.
B. LIMITATION OF LIABILITY; INDEMNIFICATION.
1. Sunstone shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, provided that Sunstone acted or omitted to act in good faith and
in the absence of willful misfeasance, negligence or reckless disregard of
its duties under this Agreement. Sunstone shall not be liable in acting
upon any writing, document or instructions reasonably believed by it to be
genuine and to have been signed or made by an Authorized Person or verbal
instructions which the individual receiving the instructions on behalf of
Sunstone reasonably believes to have been given by an Authorized Person,
and Sunstone shall not be held to have any notice of any change of
authority of any person until receipt of written notice thereof from the
Fund or such person.
2. The Fund agrees to indemnify and hold harmless Sunstone,
its employees, agents, members, officers and nominees from and against any
and all claims, demands, actions and suits, whether groundless or
otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature
and character arising out of or in any way relating to Sunstone's actions
taken or nonactions with respect to the performance of services under this
Agreement or based, if applicable, upon reliance on information, records,
instructions (oral or written) or requests given or made to Sunstone by the
Fund, its officers, directors, agents or representatives; provided that
this indemnification shall not apply to actions or omissions of Sunstone in
cases of its own failure to act in good faith or as a result of its own
willful misfeasance or negligence, and further provided that prior to
confessing any claim against it which may be the subject of this
indemnification, Sunstone shall give the Fund written notice of and
reasonable opportunity to defend against said claim in its own name or in
the name of Sunstone. The indemnity and defense provisions provided
hereunder shall indefinitely survive the termination of this Agreement.
3. Sunstone assumes no responsibility hereunder, and shall
not be liable, for any damage, loss of data, errors, delay or any other
loss whatsoever caused by events beyond its reasonable control. Sunstone
will, however, take all reasonable steps to minimize service interruptions
for any period that such interruption continues beyond Sunstone's control.
4. In no event and under no circumstances shall either party
to this Agreement be liable to anyone, including, without limitation to the
other party, for consequential damages for any act or failure to act under
any provision of this Agreement even if advised of the possibility thereof.
5. Notwithstanding any of the provisions of this Agreement,
Sunstone shall be under no duty or obligation under this Agreement to
inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares,
the sufficiency of the amount to be received therefor, or the authority of
the Fund, as the case may be, to request such sale or issuance;
(b) The determination of whether any purchaser of the
Shares constitutes an Accredited Investor within the meaning of Rule 501(a)
under Regulation D of the 1933 Act;
(c) The legality of a transfer of Shares or of a
purchase or redemption of any Shares, the propriety of the amount to be
paid therefor, or the authority of the Fund, as the case may be, to request
such transfer or redemption, under Rule 23c-3 of the 1940 Act or under any
other applicable law or regulation;
(d) The legality of the declaration of any dividend by
the Fund, or the legality of the issue of any Shares in payment of any
stock dividend, or the legality of any recapitalization or readjustment of
Shares.
ARTICLE VII
TERM
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1. This Agreement shall remain in full force and effect
until December 31, 1999, (the "Initial Term") and thereafter shall
automatically extend for additional, successive twelve (12) month terms
unless earlier terminated as provided below.
2. Either of the parties hereto may terminate this Agreement
at any time after the Initial Term by giving to the other party a notice in
writing specifying the date of such termination, which shall be not less
than sixty (60) days after the date of receipt of such notice. In the
event such notice is given by the Fund, it shall be accompanied by a copy
of a resolution of the Board of Directors of the Fund, certified by the
Secretary or any Assistant Secretary, electing to terminate this Agreement
and designating the successor transfer agent or transfer agents. In the
event such notice is given by Sunstone, the Fund shall on or before the
termination date, deliver to Sunstone a copy of a resolution of its Board
of Directors certified by the Secretary or any Assistant Secretary
designating a successor transfer agent or transfer agents. In the absence
of such designation by the Fund, the Fund shall upon the date specified in
the notice of termination of this Agreement and delivery of the records
maintained hereunder, be deemed to be its own transfer agent and Sunstone
shall thereby be relieved of all duties and responsibilities pursuant to
this Agreement. Fees and out-of-pocket expenses incurred by Sunstone, but
unpaid by the Fund upon such termination, shall be immediately due and
payable upon and notwithstanding such termination.
3. In the event this Agreement is terminated as provided
herein, Sunstone, upon the written request of the Fund, shall deliver the
records of the Fund to the Fund or its successor transfer agent in the form
maintained by Sunstone at the expense of the Fund. The Fund shall be
responsible to Sunstone for all out-of-pocket expenses and for the costs
and expenses associated with the preparation and delivery of such media,
including: (a) any custom programming requested by Fund in connection with
the preparation of such media; (b) transportation of forms and other
materials used in connection with the processing of Fund transactions by
Sunstone; and (c) transportation of records and files in the possession of
Sunstone. In addition, Sunstone shall be entitled to such compensation as
the parties may mutually agree for any services requested by the Fund in
connection with the termination of this Agreement or the liquidation or
merger of the Fund. Sunstone shall not reduce the level of service
provided to the Fund following notice of termination by the Fund.
ARTICLE VIII
MISCELLANEOUS
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A. NOTICES. Any notice required or permitted by Article VII to be
given by either party to the other shall be in writing and shall be deemed
to have been given when sent by either a well-recognized overnight delivery
service or by registered or certified mail, postage prepaid, return receipt
requested, to the addresses listed below, or to such other location as
either party may from time to time designate in writing:
IF TO SUNSTONE: Sunstone Financial Group, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
IF TO THE FUND: Zazove Convertible Securities Fund, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
B. AMENDMENTS/ASSIGNMENTS.
1. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties with the
formality of this Agreement.
2. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns. This
Agreement shall not be assignable by either party without the written
consent of the other party except that Sunstone may assign this Agreement
to an affiliate with advance written notice to the Fund.
C. WISCONSIN LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin. If any
part, term or provision of this Agreement is determined by the courts or
any regulatory authority having jurisdiction over the issue to be illegal,
in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights
and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
D. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
E. NON-EXCLUSIVE; OTHER AGREEMENTS. The services of Sunstone
hereunder are not deemed exclusive and Sunstone shall be free to render
similar services to others. Except as specifically provided herein, this
Agreement does not in any way affect any other agreements entered into
among the parties hereto and any actions taken or omitted by any party
hereunder shall not affect any rights or obligations of any other party
hereunder.
F. CAPTIONS. The captions in the Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective corporate officer, thereunto duly
authorized, as of the day and year first above written.
SUNSTONE FINANCIAL GROUP, INC. ZAZOVE CONVERTIBLE
SECURITIES FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
(Signature) (Signature)
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
(Name) (Name)
President Secretary and Director
(Title) (Title)
12-23-98 12/21/98
(Date Signed) (Date Signed)
