TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
XXXXXX XXXXXXX CLOSED END FUNDS
AND
COMPUTERSHARE TRUST COMPANY, N.A.
AND
COMPUTERSHARE SHAREHOLDER SERVICES, INC.
Table of Contents
Section 1. Certain Definitions........................................ 4
Section 2. Appointment of Agent....................................... 4
Section 3. Standard Services.......................................... 6
Section 4. Dividend Disbursing Services............................... 7
Section 5. Optional Services and Standards............................ 8
Section 6. Fee and Expenses........................................... 8
Section 7. Representations and Warranties of Transfer Agent........... 9
Section 8. Computer Services.......................................... 10
Section 9. Representations and Warranties of Customer................. 11
Section 10. Indemnification/Limitation of Liability.................... 11
Section 11. Damages.................................................... 13
Section 12. Responsibilities of the Transfer Agent..................... 13
Section 13. Covenants of the Customer and Transfer Agent............... 13
Section 14. Confidentiality............................................ 14
Section 15. Term and Termination....................................... 14
Section 16. Assignment................................................. 16
Section 17. Unaffiliated Third Parties................................. 16
Section 18. Miscellaneous.............................................. 16
Section 18.1 Notices.................................................... 16
Section 18.2 Successors................................................. 17
Section 18.3 Amendments................................................. 17
Section 18.4 Severability............................................... 17
Section 18.5 Governing Law.............................................. 17
Section 18.6 Force Majeure.............................................. 17
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Section 18.7 Third Party Beneficiaries.................................. 17
Section 18.8 Survival................................................... 17
Section 18.9 Priorities................................................. 17
Section 18.10 Merger of Agreement........................................ 17
Section 18.11 Counterparts............................................... 17
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AGREEMENT made as of the 26th day of September 2006, by and among certain
Xxxxxx Xxxxxxx Closed End Funds as set forth in Appendix A, as may be amended
from time to time to add and delete funds, having their principal office and
place of business at Harborside Financial Xxxxxx, Xxxxx XX, Xxxxxx Xxxx, XX
00000 (collectively, the "Customers", or individually, the "Customer"), and
Computershare Trust Company, N.A. and Computershare Shareholder Services, Inc.
(collectively, the "Transfer Agent").
WHEREAS, the Customer desires to appoint the Transfer Agent as sole
transfer agent, registrar and administrator of its dividend reinvestment plan or
direct stock purchase plan, and CSS as dividend disbursing agent and processor
of all payments received or made by Customer under this Agreement.
WHEREAS, the Trust Company and CSS desire to accept such respective
appointments and perform the services related to such appointments;
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 held by such
Shareholder and/or outstanding funds or tax reporting to be done.
(b) "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.
(c) "CLOSED ACCOUNT" shall mean an account with a zero share balance, no
outstanding funds or no reportable tax information.
(d) "SHARE" shall mean Customer's common stock, par value $0.01 per share and
Customer's preferred stock, par value 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.
(e) "SHAREHOLDER" shall mean the holder of record of Shares
(f) "SHAREHOLDER DATA" shall mean all Shareholder, Customer and proxy
information maintained on the records database of the Transfer Agent.
(g) "SHAREHOLDER INTERNET SERVICES" shall have the meaning set forth in Section
5.2
(h) "DIVIDEND REINVESTMENT PLAN" and "DIRECT STOCK PURCHASE PLAN" shall mean
the services as set forth in Section 4 and in the Fee and Service Schedule.
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 and appoints CSS 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 CSS accept the
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appointments. Customer has provided or 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 has provided or will
provide the attached appointment documents to the Transfer Agent, and Customer
corporate authority documents.
(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 CSS 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.
(e) A copy of the Articles of Incorporation and By-Laws of the
Customer;
(f) 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
(g) 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.
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 such shares, provided such ledger is certified by an officer of Customer or
the prior transfer agent to be true, authentic and complete. 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.
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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 Certificate Replacement. The Transfer Agent will perform the following
services:
(a) issue and record the appropriate number of Shares as authorized
and hold such Shares in the appropriate Shareholder 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 and other investment programs as amended from
time to time in accordance with the terms of the agreements
relating thereto to which the Transfer Agent is or will be a
party; and
(d) The Transfer Agent will 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 a 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 Customary Services. The Transfer Agent shall perform all the customary
services of a transfer agent, dividend disbursing agent, agent of dividend
reinvestment plan, cash purchase plan and other investment programs as described
in Section 3.1 consistent with those requirements in effect as of the date of
this Agreement and in compliance with applicable laws as set forth in Section
3.3; provided, however, the Transfer Agent shall not be required to take
shareholder telephone calls or respond to written shareholder inquiries. All
such shareholder inquiries in writing or by telephone shall be handled by
Customer. Any correspondence or telephone inquiries from shareholders received
by the Transfer
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Agent will be forwarded to Customers. The detailed services and definition,
frequency, limitations and associated costs (if any) are set out in the attached
fee and service schedule ("Fee and Service Schedule").
3.3 Compliance with Laws. The Trust Company and CSS are obligated to and
agree to comply with all applicable federal, state and local laws and
regulations, codes, order and government rules in the performance of their
duties under this Agreement.
3.4 Unclaimed Property and Lost Shareholders. The Transfer Agent shall
report unclaimed property to each state in compliance with state law and
Section 17Ad-17 of the Exchange Act of 1934 as amended (the "Exchange Act")
for lost shareholders. If the Customers are not in compliance with
applicable state laws, there will be no charge for the first two years for
this service; provided that after the first two years, the Transfer Agent
will charge Customers its then standard fee plus any out-of-pocket
expenses.
3.5 Compliance with Office of Foreign Asset Control ("OFAC") Regulation.
The Transfer Agent shall ensure compliance with OFAC laws.
4. DIVIDEND DISBURSING AND DIVIDEND REINVESTMENT PLAN SERVICES.
4.1 Declaration of Dividends. Upon receipt of a written notice from the
President, any Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of Customer declaring the payment of a dividend, CSS shall
disburse such dividend payments provided that in advance of such payment,
Customer furnishes CSS with sufficient funds. The payment of such funds to CSS
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 CSS 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 CSS 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. CSS is hereby authorized to deduct from all dividends
declared by Customer and disbursed by CSS, 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.
4.4 Dividend Reinvestment. Receive all payments made to the Customer or the
Transfer Agent under the Dividend Reinvestment Plan and make all payments
required to be made under such plans, including all payments required to be made
to the Customer.
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5. OPTIONAL SERVICES AND STANDARDS.
5.1 Optional Services
To the extent that a Customer elects to engage the Transfer Agent to
provide the services listed below the Customers shall engage the transfer Agent
to provide such services upon terms and fees to be agreed upon by the parties:
(a) Employee Plan Services;
(b) Employee Stock Purchase Plan Programs; and
(c) Corporate actions (including inter alia, odd lot buy backs, exchanges,
mergers, redemptions, subscriptions, capital reorganization,
coordination of post-merger services and special meetings.
In the event that the Customer Vendor provides the above services, the Customer
shall pay the Transfer Agent its standard fees and expenses charged by the
Transfer Agent for services rendered to support the above services rendered by
the Customer Vendor for the benefit of the Customer.
5.2 Shareholder Internet Services. The Transfer Agent shall provide
internet access to Customer's Shareholders through Transfer Agent's web site,
Xxxxxxxxxxxxx.xxx ("Shareholder Internet Services"), pursuant to its established
procedures ("Security Procedures") and fees, to allow Shareholders to view their
account information and perform certain on-line transaction request
capabilities. 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. FEES AND EXPENSES.
6.1 Fee and Service Schedules. 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 (the
"Initial 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 the Term Section of the Fee and Service Schedule.
6.2 Out-of-Pocket Expenses. In addition to the fees paid under Section 6.1
above, the Customer agrees to reimburse the Transfer Agent for out-of-pocket
expenses, including but not limited to postage, Transfer Agent administrative
costs, forms, telephone, microfilm, microfiche, taxes, records storage, exchange
and broker fees, or advances incurred by the Transfer Agent for the items set
out in the Fee and Service Schedule attached hereto. 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.
6.3 Conversion Funds. Conversion funding required by any out of proof
condition caused by a prior agents' services shall be advanced to Transfer Agent
prior to the commencement of services.
6.4 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
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subject to the good faith dispute. 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.
6.5 Late Payments.
(a) If any undisputed amount in an invoice of the Transfer Agent (for
fees or reimbursable expenses) is not paid within 30 days after receipt of
such invoice, 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 Transfer Agent) published by the New York
edition of 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 the greater/lesser rate permitted under applicable provisions
of 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
15.3(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.
6.6 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 and news
releases.
6.7 Bank Accounts. The Customer acknowledges that the bank accounts
maintained by CSS in connection with the Services will be in its name and that
CSS may receive investment earnings in connection with the investment at CSS's
risk and for its benefit of funds held in those accounts from time to time.
7. REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT.
7.1 Governance. The Trust Company is a federally chartered limited purpose
national bank duly organized under the laws of the United States and CSS 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.
7.2 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,
body or authority which is
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applicable to Transfer Agent, (iii) the incorporation documents or by-laws of,
or any material agreement to which Transfer Agent is a party.
7.3 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
7.4 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
7.5 It will comply with all applicable sections of the Exchange Act
necessary to enter into and perform this Agreement.
7.6 It has and will continue to have a commercially reasonable disaster
recovery plan.
8. COMPUTER SERVICES
8.1 Transfer Agent has developed a data access service that enables the
Customer to access the Customer's Shareholder records maintained on the 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.
8.2 Procedures for Access. 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 each Customer ID.
After Transfer Agent assigns the Customer a Password, the Customer shall change
the Password. The Password is within the Customer's exclusive control after the
necessary change. 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.
8.3 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 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;
(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 the Transfer Agent;
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(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.
8.4 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.
8.5 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
CSS 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.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 8.
9. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.
The Customer represents and warrants to the Transfer Agent that:
9.1 Organizations. 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 due to errors unless
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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,
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 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 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; and
(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 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").
10.3 Instructions. At any time the Transfer Agent may apply to any officer
of the Customer 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
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, counsel fees, payments,
expenses and liability arising out of or attributable to Transfer
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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 $1,000,000.00 (one million dollars).
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 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.
12.1 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.
12.2 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 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.
13.2 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 Customers and will be preserved, maintained and made available in
accordance with the requirements of
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law, and will be surrendered promptly to the Customers on and in accordance with
its request, to the extent such surrender does not conflict with, or is not
prohibited by, applicable laws.
14. CONFIDENTIALITY.
14.1 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.
14.2 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., 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.
15. TERM AND TERMINATION.
15.1 Term. The Initial Term of this Agreement shall be three (3) years from
the date first stated above unless terminated pursuant to the provisions of this
Section 15. 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"). If, after the Initial
Term, any party to this Agreement may terminate this Agreement by providing
notice to the other parties 60 days prior to the anticipated termination date.
Sixty (60) days prior to the Initial Term or a Renewal Term, the parties to this
Agreement will mutually agree upon a Fee Schedule for the upcoming Renewal Term.
15.2 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. In connection with the foregoing, should services be converted
to a successor service provider, or if the Customer is liquidated or its assets
merged or purchased or the like with another entity which does not utilize the
services of the Transfer Agent, the fees payable to the Transfer Agent shall be
calculated as if the services had remained with the Transfer Agent until the
expiration of the then current Initial or Renewal Term and calculated at
existing rates on the date notice of termination was given to the Transfer
Agent, and the payment of fees to the Transfer Agent as set forth herein shall
be accelerated to the date prior to the conversion or termination of services.
Section 15.2 shall not apply if the Transfer Agent is terminated for cause under
Section 15.4(a) of this Agreement. Once this Agreement is terminated, any and
all other services provided by Transfer Agent for the Customer will be deemed
terminated on said date.
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15.3 Expiration of Term. After the expiration of the Initial Term or
Renewal Term whichever currently is in effect, should either party exercise its
right to terminate, all reasonable out-of-pocket expenses associated with the
movement of records and material will be borne by the Customer. Additionally,
the Transfer Agent will charge a de-conversion/transition fee in an amount equal
to 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 one thousand ($1,000.00) dollars.
15.4 Termination.
This Agreement may be terminated in accordance with the following:
(a) at any time by any party upon a material breach of a
representation, covenant or term of this Agreement by any other
unaffiliated party which is not cured within a period not to
exceed thirty (30) days after the date of written notice thereof
by one of the other parties; 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 benefit of creditors or ceases to conduct its operations
in the normal course or business.
15.5 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 Customers, in machine readable form on media as reasonably requested
by Customers, all stockholder and other records, files and data supplied to or
compiled by Transfer Agent on behalf of Customers.
15.6 Privacy Act Information Definition:
(a) Definition: Transfer Agent may receive information from Customer or may come
into possession of information that Customer is required to protect under Title
V of the Xxxxxx-Xxxxx-Xxxxxx Act of 1999 ("Privacy Act") in connection with
providing services to Customer under this Agreement. For purposes of this
Agreement, "Privacy Act Information" shall mean the following types of
information and other information of a similar nature (whether or not reduced to
writing): Shareholder Information, non public personal information including
"personally identifiable financial information" whether provided directly by the
Shareholder in connection with obtaining a service or obtained from other
sources, Shareholder financial information, Shareholder names and other
information related to Shareholders.
(b) Ownership: All notes, data, reference, materials, memoranda, documentation
and records, in any way incorporating or reflecting any of the Privacy Act
Information shall belong exclusively at all times to Customer. Transfer Agent
agrees to turn over shareholder records to Customer upon request or upon
termination of this Agreement, subject to applicable law.
(c) Confidentiality: Transfer Agent agrees during the term of this Agreement and
thereafter to hold in confidence and not to directly or indirectly reveal,
report, publish, disclose or transfer any of the Privacy Act Information to any
person or entity, or utilize any of the Privacy
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Act Information for any purpose, except in connection with providing services
hereunder or as required by law; provided, however, Transfer Agent may disclose
such Privacy Act Information to its third-party vendors for purposes of
performing services for Customer provided such third party vendors are
contractually bound to keep such information confidential.
16. ASSIGNMENT.
16.1 Consent. Except as otherwise provided in Section 16.2 below, neither
this Agreement nor any rights or obligations hereunder may be assigned or
delegated by either party without the written consent of the other.
16.2 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. The
Transfer Agent may not assign its rights or obligations to unaffiliated
third parties without the written consent of the Customer.
16.3 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.
17. UNAFFILIATED THIRD PARTIES.
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.
18. MISCELLANEOUS
18.1 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:
Xxxxxx Xxxxxxx Trust
Harborside Xxxxxxxxx Xxxxxx
Xxxxx XX
Xxxxxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
If to the Transfer Agent:
Computershare Trust Company, N.A.
c/o Computershare Shareholder Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
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18.2 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.
18.3 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.
18.4 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.
18.5 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without reference to its conflicts of law
provisions.
18.6 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, shortage of supply, 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.
18.7 Third Party Beneficiaries. 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.
18.8 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.
18.9 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.
18.10 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.
18.11 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.
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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.
XXXXXX XXXXXXX CLOSED END FUNDS SET FORTH IN APPENDIX A
("XXXXXX XXXXXXX CLOSED-END FUNDS")
BY: /s/ Xxxxx Xxxxxxx
--------------------------------------------
NAME: XXXXX XXXXXXX
TITLE: TREASURER AND CHIEF FINANCIAL OFFICER
OF EACH OF THE XXXXXX XXXXXXX CLOSED-END
FUNDS
COMPUTERSHARE SHAREHOLDER SERVICES, INC.
COMPUTERSHARE TRUST COMPANY, N.A.
ON BEHALF OF BOTH ENTITIES
BY: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
NAME: XXXXXXX X. XXXXXXX
TITLE: SENIOR MANAGING DIRECTOR
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APPENDIX A
Xxxxxx Xxxxxxx China A Share Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Domestic Debt Fund, Inc.
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