EXHIBIT (2)(k)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the 23rd day of July, 1993 by and between THE
FUTURE GERMANY FUND, INC., established under the laws of the State of Delaware,
(the "Company"), and INVESTORS BANK & TRUST COMPANY, a Massachusetts trust
company (the "Bank").
WITNESSETH:
WHEREAS, the Company desires to appoint the Bank as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and the Bank 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 Company hereby, employs and appoints the Bank to act as, and the
Bank agrees to act as transfer agent for the Company's authorized and issued
shares of beneficial interest ("Shares"), dividend disbursing agent and agent in
connection with any accumulation or similar plans provided to the shareholders
of the Company ("Shareholders") and set out in the currently effective
prospectus of the Company, including without limitation any periodic investment
plan.
1.02. The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time
to time by agreement between the Company and the Bank, the Bank shall:
(i) Accounts: set up accounts on behalf of each
registered Shareholder, and maintain in such account the appropriate
number of Shares of each such Shareholder. The Bank shall maintain
confidential records showing for each Shareholder's account the
following: (i) names, addresses and tax identification numbers; (ii)
numbers of Shares held; (iii) historical information (as available from
prior transfer agents) regarding the account of each Shareholder,
including dividends paid and date and price of all transactions on a
Shareholder's account; (iv) any stop or restraining order placed
against a Shareholder's account; (v) information with respect to
withholdings; (vi) any capital gain or dividend reinvestment order,
plan application, dividend address and correspondence relating to the
current maintenance of a Shareholder's account; (vii) certificate
numbers and denominations for any Shareholders holding certificates;
(viii) any
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information required in order for the Bank to perform the calculations
contemplated or required by this Agreement; and (ix) such other
information and data as may be required by applicable law.
(ii) Transfers: effect transfers of Shares by the
registered owners thereof upon receipt of appropriate instructions and
documentation. If Shares to be transferred are represented by
outstanding certificates, the Bank will, upon surrender to it of the
certificates in proper form for transfer, and upon cancellation
thereof, countersign and issue new certificates for a like number of
Shares and deliver the same. If the Shares to be transferred are not
represented by outstanding certificates, the Bank will, upon an order
therefor by or on behalf of the registered holder thereof in proper
form, credit the same to the transferee on its books. The Bank reserves
the right to refuse to transfer Shares until it is satisfied that the
requested transfer is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers which the
Bank, in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis for any claims adverse to such
transfer. The Bank may, in effecting transfers, rely upon the
provisions of the Uniform Act for the Simplification of Fiduciary
Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time, which in the opinion of legal counsel for
the Company or of its own legal counsel, protect it in not requiring
certain documents in connection with the transfer of Shares, and the
Company shall indemnify the Bank for any act done or omitted by it in
reliance upon such laws or opinions of counsel of the Company or of its
own counsel. The Bank may establish such additional rules and
regulations governing the transfer or registration of Shares as it may
deem advisable and consistent with such rules and regulations generally
adopted by transfer agents, or with the written consent of the Company,
any other rules and regulations.
(iii) Distributions: prepare and transmit payments
for dividends and distributions declared by the Company. The Company
will promptly notify the Bank of the declaration of any dividend or
distribution. The Company shall furnish to the Bank a resolution of the
Board of Directors of the Company certified by its Secretary: (i)
authorizing the declaration of dividends on a specified periodic basis
and authorizing the Bank to rely on oral instructions or a certificate
specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined and the amount
payable per share to Shareholders of record as of the date and the
total amount payable to the Bank on the payment date; or (ii) setting
forth the date of the declaration of any dividend or distribution, the
date of payment thereof, the record date as of which Shareholders
entitled to payment shall be determined, and the amount payable per
share to the Shareholders of record as of that date and the total
amount payable to the Bank on the payment date. Upon receipt of funds
in a dividend disbursing account equal to the cash amount of any
dividend or distribution to be paid out, the Bank will calculate,
prepare and mail checks to Shareholders (at the address as it appears
on the records of the Bank), or (where appropriate) credit such
dividend or
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distribution to the account of Shareholders, and maintain and safeguard
all underlying records. The Bank will replace lost checks at its
discretion and in conformity with regular business practices. The Bank
shall not be liable for any improper payments made in accordance with a
resolution of the Board of Directors of the Company. If the Bank shall
not receive from the Company sufficient cash to make payment to all
Shareholders of the Company as of the record date, the Bank shall, upon
notifying the Company, withhold payment to all Shareholders of record
as of the record date until such sufficient cash is provided to the
Bank.
(iv) Dividend Reinvestment Plan Agent: act as
agent for Shareholders pursuant to any dividend reinvestment plan or
other similar plan as may be agreed upon from time to time by the
Company and the Bank.
(v) Records: 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 confidential property of the Company and will be
preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered to the Company on and in
accordance with its request. All records shall be reasonably available
for inspection and use by the Company.
(vi) Certificates: at the expense of the Company,
the Bank shall maintain an adequate supply of blank share certificates
with respect to the Shares providing for the issuance of certificates
to meet the Bank's requirements therefor. Such share certificates shall
be properly signed by facsimile. The Company agrees that,
notwithstanding the death, resignation, or removal of any officer of
the Company whose signature appears on such certificates, the Bank may
continue to countersign certificates which bear such signatures until
otherwise directed by the Company. Share certificates may be issued and
accounted for entirely by the Bank and do not require any third party
registrar or other endorsing party.
(vii) Replacement Certificates: issue replacement
share certificates in lieu of certificates which have been lost,
stolen, mutilated or destroyed, without any further action by the Board
of Directors or any officer of the Company, upon receipt by the Bank of
properly executed affidavits and lost certificate bonds, in form
satisfactory to the Bank with the Company and the Bank as obligees
under the bond. At the discretion of the Bank, and at its sole risk,
the Bank may issue replacement certificates without requiring the
affidavits and lost certificate bonds described above and the Bank
agrees to indemnify the Company against any and all losses or claims
which may arise by reason of the issuance of such new certificates in
the place of the ones allegedly lost, stolen or destroyed.
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(viii) Issuance of Shares: Record the issuance of
Shares of the Company and maintain pursuant to SEC Rule l7Ad-l0(e) a
record of the total number of Shares of the Company which are
authorized, based upon data provided to it by the Company, and issued
and outstanding. The Bank shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of the Company.
(b) In addition to and not in lieu of the services set
forth in the above paragraph (a) or in any Schedule hereto, if any, the Bank
shall: (i) perform all of the customary services of a registrar, transfer agent,
dividend disbursing agent and, as relevant, agent in connection with
accumulation or similar plans (including without limitation any periodic
investment plan), including but not limited to: preparing Shareholder meeting
lists, mailing proxies, receiving and tabulating proxies, mailing Shareholder
reports and prospectuses to current Shareholders, withholding taxes on accounts
as applicable, including non-resident alien accounts, 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 confirmations, and statements of account to
Shareholders for all confirmable transactions in Shareholder accounts,
responding to Shareholder telephone calls and Shareholder correspondence,
preparing and mailing activity statements for Shareholders, and providing
Shareholder account information.
(c) In addition to the duties expressly provided for
herein, the Bank shall perform such other duties and functions and shall be paid
such amounts therefore as may from time to time be agreed to in writing and
attached as a schedule to this Agreement.
(d) Procedures applicable to the services to be performed
hereunder may be established from time to time by agreement between the Company
and the Bank. The Bank shall have the right to utilize any shareholder
accounting and recordkeeping systems which, in its opinion, qualifies to perform
any services to be performed hereunder.
ARTICLE 2.
FEES AND EXPENSES
2.01. For performance by the Bank pursuant to this Agreement, the
Company agrees to pay the Bank such fees 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 Company and the Bank.
2.02. In addition to the fee paid under Section 2.01 above, the
Company 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 Company including,
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without limitation, any equipment or supplies specifically ordered by the
Company or required to be purchased by the Company, will be reimbursed by the
Company.
2.03. The Company agrees to pay all fees and reimbursable expenses
within five days following the mailing of the respective billing notice. Postage
for mailing of dividends, proxies, reports and other mailings to all Shareholder
accounts shall be advanced to the Bank by the Company 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 Company that:
3.01. It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts and registered as a
transfer agent as provided in Section l7A(C) of the Securities Exchange Act of
1934, as amended.
3.02. It is empowered under applicable laws and by its charter and
By-laws to enter into and perform this Agreement.
3.03. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.04. 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 COMPANY
The Company 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 the state of its incorporation as set forth in the
preamble hereto.
4.02. It is empowered under applicable laws and by its charter
documents and By-Laws to enter into and perform this Agreement.
4.03. All proceedings required by said charter documents and By-Laws
have been taken to authorize it to enter into and perform this Agreement.
4.04. It is an closed-end investment company registered under the
Investment Company Act of 1940.
4.05. A registration statement on Form N-2 (including a prospectus
and statement of additional information) under the Securities Act of 1933 is
currently effective and appropriate federal and state securities law filings
have been made and will continue to be made, with respect to all Shares of the
Company being offered for sale.
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ARTICLE 5.
INDEMNIFICATION
5.01. Except as set forth in subparagraph (f) hereof, the Bank shall
not be responsible for, and the Company 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 taken or omitted to be taken by the Bank
or its agent or subcontractors in good faith in 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
an "Authorized Person" (as such term is defined in the Amended and Restated
Custodian Agreement by and between the Bank and the Company of even date
herewith) or on behalf of the Company, (ii) have been prepared and/or maintained
by the Company or any other person or firm on behalf of the Company, and (iii)
were received by the Bank or its agents or subcontractors from a prior transfer
agent.
(b) Any action taken or omitted to be taken by the Bank
in connection with its appointment in good faith in reliance upon any law, act,
regulation or interpretation of the same even though the same may thereafter
have been altered, changed, amended or repealed.
(c) The Company's refusal or failure to comply with the
terms of this Agreement, or which arise out of the Company's lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Company hereunder.
(d) The reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests, whether written or
oral, of Authorized Persons of the Company.
(e) The offer or sale of Shares by the Company in
violation of any requirement under the federal securities laws or regulations or
the securities laws or regulations of 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 Company harmless from
and against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributed to any action or failure or
omission to act by the Bank as a result of the Bank's negligence, willful
misfeasance or misconduct in the performance of its duties or negligent
disregard of its obligations and duties hereunder.
5.03. At any time the Bank may apply to any officer of the Company
for instructions, and may consult with legal 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
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Company for any action taken or omitted by it in reliance upon such instructions
received from an Authorized Person or upon the opinion of such counsel. 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 Company, 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
Bank or its agents or subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Company, and shall not be held to
have notice of any change of authority of any person, until receipt of written
notice thereof from the Company. 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 facsimile signatures of the
officer of the Company, and one proper countersignature of any former transfer
agent or 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, interruption
of electrical power or other utilities, equipment or transmission failure or
damage reasonably beyond its control or other causes reasonably beyond its
control, such party shall not be liable to the other for any damages resulting
from such failure to perform or otherwise from such causes.
5.05. In order that the indemnification provisions contained in this
Article 5 shall apply, upon the assertion of a claim for which either 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 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 may be required to indemnify it except with the
other party's prior written consent, which consent shall not be unreasonably
withheld.
ARTICLE 6.
COVENANTS OF THE COMPANY AND THE BANK
6.01. The Company shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Directors
of the Company authorizing the appointment of the Bank and the execution and
delivery of this Agreement.
(b) A copy of the charter documents and By-Laws of the
Company and all amendments thereto.
(c) Copies of each vote of the Directors designating
authorized persons to give instructions to the Bank.
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(d) Certificates as to any change in any officer,
Director or Authorized Person of the Company.
(e) If applicable, a specimen of the certificate of
Shares of the Company in the form approved by the Directors, with a certificate
of the Secretary of the Company as to such approval.
(f) Specimens of all new certificates for Shares,
accompanied by the Directors' resolutions approving such forms.
(g) All account application forms and other documents
relating to shareholder accounts or relating to any plan, program or service
offered by the Company.
(h) A list of Shareholders of the Company with the name,
address and tax identification number of each Shareholder, and the number of
Shares of the Company held by each, certificate numbers and denominations (if
any certificates have been issued), lists of any account against which stops
have been placed, together with the reasons for said stops, and the number of
Shares redeemed by the Company.
(i) An opinion of counsel for the Company with respect to
the validity of the Shares and the status of such Shares under the Securities
Act of 1933.
(j) Copies of the Company registration statement on Form
N-2, its current prospectus and statement of additional information, if any.
(k) Such other certificates, documents or opinions as may
mutually be deemed necessary or appropriate for the Bank in the proper
performance of its duties.
6.02. The Bank hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Company 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 and the Company 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.
6.04. In case of any requests or demands for the inspection of the
Shareholder records of the Company, the Bank will endeavor to notify the Company
and to secure instructions from an Authorized Person of the Company as to such
instruction. 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.
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ARTICLE 7.
TERM OF AGREEMENT
7.01. This Agreement shall become effective on the date hereof (the
"Effective Date") and shall continue in effect from year to year thereafter,
provided that this Agreement may be terminated by either party at any time
without payment of any penalty upon ninety (90) days written notice to the
other. In the event such notice is given by the Company, it shall be accompanied
by a resolution of the Board of Directors, certified by the Secretary, electing
to terminate this Agreement and designating a successor transfer agent.
7.02. Should the Company exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Company. Additionally, the Bank reserves the right to charge for
any other reasonable expenses associated with such termination.
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 inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
8.03. The Bank, may without further consent on the part of the
Company, subcontract for the performance of services to be provided hereunder to
third parties, including any affiliate of the Bank, provided that the Bank shall
remain liable hereunder for any acts or omissions of any subcontractor as if
performed by the Bank.
ARTICLE 9.
AMENDMENT
9.01. This Agreement may be amended or modified by a written
agreement executed by both parties.
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.
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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.
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 FUTURE GERMANY FUND, INC.
By:_____________________________________
ATTEST:
_________________________________
INVESTORS BANK & TRUST COMPANY
By:_____________________________________
ATTEST:
_________________________________
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