PLAN ADMINISTRATOR AGREEMENT
THIS PLAN ADMINISTRATOR AGREEMENT (the "Agreement") is made as of the 9th
day of July, 1997 by and between Xxxx-Xxxxxx Automotive, Inc., a corporation
organized under the laws of the State of Delaware having its principal place of
business at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company")
and The Chase Manhattan Bank, a national banking association having its
principal place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Chase" or the "Plan Administrator").
Recitals
WHEREAS, the Company desires to implement a stock purchase plan, registered
with the Securities and Exchange Commission (the "Commission"), that enables new
investors to purchase shares of Company Common Stock directly through the Plan
and permits them to receive or reinvest the dividends paid on stock held under
the Plan, which is referred to as the "Dividend Reinvestment and Stock Purchase
Plan" (the "Plan"); and
WHEREAS, the Company desires to appoint Chase as its agent and
Administrator for the Plan and Chase desires to accept this appointment;
NOW THEREFORE, in consideration of the mutual covenants, promises and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Acceptance of Appointment. Subject to the terms, conditions, and
descriptions set forth in this Agreement, the Company hereby appoints Chase to
act as and Chase hereby agrees to act as the Company's agent under the Plan and
as the Administrator of the Plan. Chase agrees that, in addition to the
obligations and duties described in this Agreement, it will administer the Plan
pursuant to the provisions of the Dividend Reinvestment and Stock Purchase Plan
Prospectus, dated July 14, 1997 (attached hereto as Exhibit A) and as hereafter
amended, which document is expressly incorporated herein by reference and
referred to as the "Plan Document." Nothing in this Agreement will be construed
or interpreted to amend or modify the terms of the Plan Document in any way, and
in the event of any apparent conflict between the terms of this Agreement and
the provisions of the Plan Document, the terms of the Plan Document shall
prevail.
2. Plan Services. As Plan Administrator, Chase agrees that it will (i)
perform or arrange for the performance of the administrative services that are
designated in this Agreement and the Plan Document as being Chase's
responsibility or that of an independent agent retained by Chase for such
purpose; (ii) perform or arrange for the performance of such other ancillary or
related administrative services as the Company may from time to time reasonably
request Chase to perform for the Plan, specifically including all of the
services described in the Plan Document as being provided by the Plan
Administrator or its independent agents; and (iii) perform in accordance with
applicable laws and regulations, including without limitation the Securities
Exchange Act of 1934 (the "Exchange Act") and interpretations thereof by the
Commission (including without limitation SEC Release No. 34-35041, dated
December 1, 1994, and SEC Release Nos. 33-7375/34-38067, dated December 20,
1996).
3. Administrative Duties. The Plan Administrator:
(a) shall have no duties or obligations other than those specifically set
forth in this Agreement and the Plan Document or as may subsequently
be agreed to in writing between the Plan Administrator and the
Company. Without limiting the foregoing, nothing herein shall impose
any fiduciary duty upon the Plan Administrator to any Plan participant
("Participant" or "Participants"), except as expressly set forth in
the Plan Document regarding the Plan Administrator s services as agent
to Participants;
(b) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or
genuineness of any Company securities purchased or sold in connection
with the Plan, and will not be required to, and will not, make
representations as to the validity, sufficiency, value or genuineness
of any Company securities;
(c) shall not be obligated to take any legal action hereunder, if,
however, the Plan Administrator determines to take any such legal
action hereunder, and where the taking of such action might, in its
judgment, subject or expose it to any expense or liability, the Plan
Administrator shall not be required to act unless it shall have been
furnished with an indemnity satisfactory to it;
(d) may rely on and shall be fully authorized and protected in acting or
refraining from acting based upon any certificate, instrument,
opinion, notice, letter, telegram, telex, facsimile transmission or
other document or security delivered to and reasonably believed by the
Plan Administrator to be genuine and to have been signed by the proper
person or persons;
(e) shall not be liable or responsible for any failure on the part of the
Company or any Participant to comply with any of their respective
obligations relating to the Plan or under law, including without
limitation obligations under applicable state and federal securities
laws and regulations;
(f) shall have no obligation to make any payment unless it has received
the necessary immediately available funds to make such payment in
full;
(g) may consult with counsel satisfactory to the Plan Administrator,
including counsel to the Company, and the advice of such counsel, when
accepted in good faith, shall be full and complete authorization and
protection in respect of any action taken, suffered, or omitted by the
Plan Administrator hereunder in accordance with the advice of such
counsel;
(h) may perform any of its duties hereunder either directly or by or
though agents which are "independent of the issuer" within the meaning
of Rule 10b-18 under the Exchange Act, as amended (except for purchase
and sale orders submitted by Participants and enrollees, including
accompanying funds, all of which will be handled only by the Plan
Administrator's personnel), provided that (i) any activities that
constitute transfer agent functions, as defined in Section 3(a)(25) of
the Exchange Act, must be conducted either by the Plan Administrator
itself or by a service organization that is a transfer agent
registered under the Exchange Act; and (ii) no such agent shall
receive compensation based on the number and types of orders or
transactions processed through the Plan. The Plan Administrator shall
be as fully responsible to the Company for the acts and omissions of
any agent, supplier, or subcontractor the Plan Administrator appoints
as for its own acts and omissions.
(i) shall have the authority to take any lawful act which it in good faith
believes is necessary to fulfill its duties as set forth in this
Agreement and the Plan Document.
4. Recordkeeping. The Plan Administrator shall keep appropriate records
concerning the Plan, accounts of Participants, purchases and sales of the
Company's securities made under the Plan, and Participants addresses of record
and shall send Statements of Account and confirmations to each Participant in
accordance with the provisions of the Plan Document. Without limiting the
foregoing, the Plan Administrator shall maintain and retain for a period of not
less than two years from the date of the event the following information: (a)
the dates and substance of any materials distributed in connection with the
Plan; (b) the number of Participants as of the end of each month; (c) the volume
of the Company's securities purchased under the Plan by the Plan Administrator
each week, or if securities are purchased less frequently, the volume of
Company's securities purchased under the Plan by the Plan Administrator each
month; and (d) a record of any period during which the Company or any of its
affiliates is engaged in any other distribution of Common Stock or other Company
securities for purposes of Regulation M under the Exchange Act. The Company
shall notify the Plan Administrator of the commencement and the termination of
any such distribution period on the date of any such commencement or
termination.
5. Termination of Plan Services. The Company may remove the Plan
Administrator upon 30 days' prior written notice to the Plan Administrator. The
Plan Administrator may resign as Plan Administrator upon 30 days' prior written
notice to the Company. Upon any such removal or resignation, the Plan
Administrator shall be relieved and discharged of any further responsibilities
with respect to its duties hereunder; provided that the Plan Administrator shall
cooperate with the Company and any successor administrator in coordinating the
transfer of files, processing of pending activity, and the dissemination of
notifications to Participants.
6. Fees and Expenses. The Plan Administrator may charge the Company
reasonable fees for its services in connection with the Plan (to the extent
consistent with the provisions of the Plan Document), including without
limitation fees for purchase and sale order processing, enrollment, custody,
account maintenance, and dividend reinvestment and shall be reimbursed by the
Company for all its reasonable out-of-pocket costs and expenses. All such fees,
costs and expenses shall be paid by the Company in accordance with the fee
schedule (attached hereto as Exhibit B), except that Participants will be
required to pay a nominal commission and fee for each sale order and a nominal
fee for the issuance of duplicate Statements of Account or transaction notices.
Any adjustment in the amount of any such fees shall be agreed upon by the
Company and the Plan Administrator.
7. Limitation of Liability. The Plan Document shall provide that the
Plan Administrator shall not be liable to Plan Participants for any act done in
good faith, or for any good faith omission to act, including without limitation,
liability arising out of (i) failure to terminate a Participant's account upon
such Participant's death or adjudicated incompetency, prior to the receipt of
notice in writing of such death or adjudicated incompetency; (ii) the prices at
which shares are purchased for the Participant's account; (iii) the times when
purchases are made, as long as the Plan Administrator operates in accordance
with the Plan Document; or (iv) fluctuations in the market value of the
Company's common stock.
8. Indemnification. The Company will indemnify and hold harmless the
Plan Administrator and its officers, directors, shareholders, and agents from
and against any loss, liability, damage or expense (including reasonable
attorneys' fees and expenses) (a "Loss") incurred as a result of the performance
of the Plan Administrator's duties hereunder or under the Plan Document,
provided that such loss is not (a) due to any negligent or bad faith act or
omission by the Plan Administrator; (b) due to a failure by the Plan
Administrator to act in accordance with the provisions of the Plan Document or
with the instructions of the Company consistent therewith; or (c) due to a
breach of the representations, warranties or covenants made by the Plan
Administrator herein.
9. Force Majeure and Prevention of Performance. The Plan Administrator
shall not be liable hereunder for any failure to act or delays in acting that
arise out of conditions beyond its reasonable control including, but not limited
to, work stoppages, fires, civil disobedience, riots, rebellions, storms,
electrical, mechanical, computer or communications facilities failures, acts of
God or similar occurrences. Nonetheless, the Plan Administrator agrees to
provide backup and emergency systems to ensure the uninterrupted and reliable
provision of Plan services by it and its agents throughout the period of this
Agreement. The Plan Administrator shall use reasonable care to minimize the
likelihood of all damage, loss of data, delays, and errors resulting from an
uncontrollable event, and should such damage, loss of data, delays, or errors
occur, the Plan Administrator shall use its best efforts to mitigate the effects
of such occurrence.
10. Choice of Law. This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of New York, without
reference to the choice of law doctrine of such state.
11. Modification and Amendments. This Agreement may not be amended or
modified in any manner except by a written agreement signed by both the Plan
Administrator and the Company.
12. Assignments. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors and assigns of the
Plan Administrator and the Company; provided, however, that neither party hereto
may assign its rights or obligations hereunder without the prior written consent
of the other party.
13. Notice. Any notice required to be given under this Agreement shall be
sent via facsimile transmission or certified/registered mail to the respective
parties at the following addresses:
If to the Company:
Xxxxxxx X. Xxxxxxxx
General Counsel
Xxxx-Xxxxxx Automotive, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
If to the Plan Administrator:
Xxxxxx Xxxxxx
Vice President
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Fax: (000) 000-0000
Notice shall be deemed to have been given on the date reflected in the
proof or evidence of delivery, or if none, on the date actually received. Any
party may from time to time change its address for notification purposes by
giving the other party written notice of the new address and the date upon which
it will become effective.
14. Waiver. No delay, omission or forbearance on the part of a party
herein to exercise any right, option, duty or power arising out of any breach or
default by another party hereto of any of the terms, provisions or covenants
contained herein, shall constitute a waiver by the non-defaulting party to
enforce any such right, option, duty or power as against the defaulting party or
as to a subsequent breach or default of the defaulting party.
15. Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof, whether written or oral.
16. Severability. In the event any one or more of the provisions of this
Agreement is held to be invalid or unenforceable, the remaining provisions of
this Agreement will be unimpaired, and the invalid or unenforceable provision
will be replaced by a mutually acceptable provision which, being valid and
enforceable, comes closest to the intention of the parties regarding the invalid
or unenforceable provision. Wherever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid pursuant to
applicable laws. If any provision of this Agreement shall be prohibited by or
invalid pursuant to applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision of the remaining provisions of this Agreement.
17. Performance Standard. The Company and the Plan Administrator agree to
perform all Plan services and other obligations under this Agreement in a
timely, accurate and thorough manner.
18. Confidentiality. The Company and the Plan Administrator each agree
that all information received from the other pursuant to this Agreement shall be
considered and kept as confidential information and agree that said information
shall not be divulged to any person, firm, corporation, or any other entity
except upon the direct written authorization of the other party which originally
provided the information being sought. Neither party shall make use of, or
indirectly furnish or divulge, any such confidential or proprietary information.
Each party shall make reasonable efforts by instruction or otherwise to ensure
that its employees or other persons permitted access to such information comply
fully with all obligations hereunder with respect to the security and
nondisclosure of such confidential information. The requirements with respect
to the confidential and proprietary nature of information set forth herein shall
not cease but shall survive the termination of this Agreement.
19. Legal Compliance. The Plan Administrator agrees to perform all
aspects of this Agreement in a timely, accurate and thorough manner and to
comply with all relevant federal, state, stock exchange, and other legal
requirements pertinent to the performance of services under the Plan. The Plan
Administrator shall be as fully responsible to the Company for the legal
compliance of any subcontractor, supplier or other agent used by the Plan
Administrator in any connection with Plan services required to be performed
hereunder as it is for the legal compliance of its own acts and omissions. The
Plan Administrator warrants that it is familiar with the relevant legal
requirements applicable to the Plan and Plan services to be provided, and the
Plan Administrator undertakes to keep apprised of changes in the relevant legal
requirements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
XXXX-XXXXXX AUTOMOTIVE, INC.
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
Address: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: ChaseMellon Shareholder Services
EXHIBIT B
Xxxx-Xxxxxx Automotive, Inc.
DIRECT PURCHASE PLAN FEES
Fee Item Amount Paid By
Annual program administration fee $5,000.00 Company
Fulfillment processing $1.25 per
fulfillment Company
(includes Blue Sky Transmittal Letter)
Participant setup $1.00 per
participant Company
Reinvestment of quarterly dividend $1.50 per
participant Company
Reinvestment Trading Fee $0.12 per share Company
Purchase of shares with initial
investment: by check $5.00 Company
by ACH Debit $5.00 Company
Trading fee $0.12 per share Company
Purchase of shares with additional $5.00 Company
investment
Trading fee $0.12 per share Company
Sale of Shares $15.00 Participant
Trading fee $0.12 Participant
Duplicate statement - prior year $20.00 Participant
Returned Check/ACH Transaction $25.00 Participant
Inactive participant fee $2.00 N.A.
Annual - per participant
Other services including but not
limited Per Stock Company
to: Certificate Issuance Transfer
Transfer of shares Agency Contract
Out of pocket expenses including
but not limited to: As incurred Company
800 numbers, forms/brochures
Postage/Stationery
