STOCK TRANSFER AGENCY AGREEMENT between TRIANGLE CAPITAL CORPORATION and THE BANK OF NEW YORK Dated as of February 16, 2007 ACCOUNT NUMBER(S)
Exhibit 10.11
STOCK
TRANSFER AGENCY AGREEMENT
between
TRIANGLE CAPITAL CORPORATION
and
THE BANK OF NEW YORK
Dated as of February 16, 2007
ACCOUNT NUMBER(S)
between
TRIANGLE CAPITAL CORPORATION
and
THE BANK OF NEW YORK
Dated as of February 16, 2007
ACCOUNT NUMBER(S)
1
AGREEMENT, made as of February 16, 2007 by and between
TRIANGLE CAPITAL CORPORATION, a corporation organized and
existing under the laws of the State of Maryland (hereinafter
referred to as the “Customer”), and THE BANK OF NEW
YORK, a New York trust company (hereinafter referred to as the
“Bank”).
W I T N E
S S E T H:
That for and in consideration of the mutual promises hereinafter
set forth, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases
shall have the following meanings:
1. “Business Day” shall be deemed to be
each day on which the Bank is open for business.
2. “Certificate” shall mean any notice,
instruction, or other instrument in writing, authorized or
required by this Agreement to be given to the Bank by the
Customer which is signed by any Officer, as hereinafter defined,
and actually received by the Bank.
3. “Officer” shall be deemed to be the
Customer’s Chief Executive Officer, President, any Vice
President, the Secretary, the Treasurer, the Controller, any
Assistant Treasurer, and any Assistant Secretary duly authorized
by the Board of Directors of the Customer to execute any
Certificate, instruction, notice or other instrument on behalf
of the Customer and named in a Certificate, as such Certificate
may be amended from time to time.
4. “Shares” shall mean all or any part of
each class of the shares of capital stock of the Customer which
from time to time are authorized
and/or
issued by the Customer and identified in a Certificate of the
Secretary of the Customer under corporate seal, as such
Certificate may be amended from time to time, with respect to
which the Bank is to act hereunder.
ARTICLE II
APPOINTMENT
OF BANK
1. The Customer hereby constitutes and appoints the Bank as
its agent to perform the services described herein and as more
particularly described in Schedule I attached hereto (the
“Services”), and the Bank hereby accepts appointment
as such agent and agrees to perform the Services in accordance
with the terms hereinafter set forth.
2. In connection with such appointment, the Customer shall
deliver the following documents to the Bank:
(a) A certified copy of the Certificate of Incorporation or
other document evidencing the Customer’s form of
organization (the “Charter”) and all amendments
thereto;
(b) A certified copy of the By-Laws of the Customer;
(c) A certified copy of a resolution of the Board of
Directors of the Customer appointing the Bank to perform the
Services and authorizing the execution and delivery of this
Agreement;
(d) A Certificate signed by the Secretary of the Customer
specifying: the number of authorized Shares, the number of such
authorized Shares issued and currently outstanding, and the
names and specimen signatures of all persons duly authorized by
the Board of Directors of the Customer to execute any
Certificate on behalf of the Customer, as such Certificate may
be amended from time to time;
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(e) A Specimen Share certificate for each class of Shares
in the form approved by the Board of Directors of the Customer,
together with a Certificate signed by the Secretary of the
Customer as to such approval and covenanting to supply a new
such Certificate and specimen whenever such form shall change;
(f) An opinion of counsel for the Customer, in a form
satisfactory to the Bank, with respect to the validity of the
authorized and outstanding Shares, the obtaining of all
necessary governmental consents, whether such Shares are fully
paid and non-assessable and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable law
or regulation (i.e., if subject to registration, that
they have been registered and that the Registration Statement
has become effective or, if exempt, the specific grounds
therefor);
(g) A list of the name, address, social security or
taxpayer identification number of each Shareholder, number of
Shares owned, certificate numbers, and whether any
“stops” have been placed; and
(h) An opinion of counsel for the Customer, in a form
satisfactory to the Bank, with respect to the due authorization
by the Customer and the validity and effectiveness of the use of
facsimile signatures by the Bank in connection with the
countersigning and registering of Share certificates of the
Customer.
3. The Customer shall furnish the Bank with a sufficient
supply of blank Share certificates and from time to time will
renew such supply upon request of the Bank. Such blank Share
certificates shall be properly signed, by facsimile or
otherwise, by Officers of the Customer authorized by law or by
the By-Laws to sign Share certificates, and, if required, shall
bear the corporate seal or a facsimile thereof.
4. Customer acknowledges that the Bank is subject to the
customer identification program (“Customer Identification
Program”) requirements under the USA PATRIOT Act and its
implementing regulations, and that the Bank must obtain, verify
and record information that allows the Bank to identify
Customer. Accordingly, prior to opening an account hereunder the
Bank may request information (including but not limited to the
Customer’s name, physical address, tax identification
number and other information) that will help the Bank to
identify the organization such as organizational documents,
certificate of good standing, license to do business, or any
other information that will allow the Bank to identify Customer.
Customer agrees that the Bank cannot open an account hereunder
unless and until the Bank verifies Customer’s identity in
accordance with its Customer Identification Program.
ARTICLE III
AUTHORIZATION
AND ISSUANCE OF SHARES
1. The Customer shall deliver to the Bank the following
documents on or before the effective date of any increase,
decrease or other change in the total number of Shares
authorized to be issued:
(a) A certified copy of the amendment to the Charter giving
effect to such increase, decrease or change;
(b) An opinion of counsel for the Customer, in a form
satisfactory to the Bank, with respect to the validity of the
Shares, the obtaining of all necessary governmental consents,
whether such Shares are fully paid and non-assessable and the
status of such Shares under the Securities Act of 1933, as
amended, and any other applicable federal law or regulations
(i.e., if subject to registration, that they have been
registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the
Bank was theretofore expressly limited, a certified copy of a
resolution of the Board of Directors of the Customer increasing
the authority of the Bank.
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2. Prior to the issuance of any additional Shares pursuant
to stock dividends, stock splits or otherwise, and prior to any
reduction in the number of Shares outstanding, the Customer
shall deliver the following documents to the Bank:
(a) A certified copy of the resolutions adopted by the
Board of Directors
and/or the
shareholders of the Customer authorizing such issuance of
additional Shares of the Customer or such reduction, as the case
may be;
(b) A certified copy of the order or consent of each
governmental or regulatory authority required by law as a
prerequisite to the issuance or reduction of such Shares, as the
case may be, and an opinion of counsel for the Customer that no
other order or consent is required; and
(c) An opinion of counsel for the Customer, in a form
satisfactory to the Bank, with respect to the validity of the
Shares, the obtaining of all necessary governmental consents,
whether such Shares are fully paid and non-assessable and the
status of such Shares under the Securities Act of 1933, as
amended, and any other applicable law or regulation
(i.e., if subject to registration, that they have been
registered and that the Registration Statement has become
effective, or, if exempt, the specific grounds therefor).
ARTICLE IV
RECAPITALIZATION
OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split,
recapitalization or other capital adjustment requiring a change
in the form of Share certificates, the Bank will issue Share
certificates in the new form in exchange for, or upon transfer
of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of Share
certificates in the new form;
(b) A certified copy of any amendment to the Charter with
respect to the change;
(c) Specimen Share certificates for each class of Shares in
the new form approved by the Board of Directors of the Customer,
with a Certificate signed by the Secretary of the Customer as to
such approval;
(d) A certified copy of the order or consent of each
governmental or regulatory authority required by law as a
prerequisite to the issuance of the Shares in the new form, and
an opinion of counsel for the Customer that the order or consent
of no other governmental or regulatory authority is
required; and
(e) An opinion of counsel for the Customer, in a form
satisfactory to the Bank, with respect to the validity of the
Shares in the new form, the obtaining of all necessary
governmental consents, whether such Shares are fully paid and
non-assessable and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable law
or regulation (i.e., if subject to registration, that the
Shares have been registered and that the Registration Statement
has become effective or, if exempt, the specific grounds
therefor).
2. The Customer shall furnish the Bank with a sufficient
supply of blank Share certificates in the new form, and from
time to time will replenish such supply upon the request of the
Bank. Such blank Share certificates shall be properly signed, by
facsimile or otherwise, by Officers of the Customer authorized
by law or by the By-Laws to sign Share certificates and, if
required, shall bear the corporate seal or a facsimile thereof.
ARTICLE V
ISSUANCE
AND TRANSFER OF SHARES
1. The Bank will issue and transfer Shares as follows:
(a) The Bank will issue Share certificates upon receipt of
a Certificate from an Officer, but shall not be required to
issue Share certificates after it has received from an
appropriate federal or state authority written notification that
the sale of Shares has been suspended or discontinued, and the
Bank shall be entitled to rely
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upon such written notification. The Bank shall not be
responsible for the payment of any original issue or other taxes
required to be paid by the Customer in connection with the
issuance of any Shares.
(b) Shares will be transferred upon presentation to the
Bank of Share certificates in form deemed by the Bank properly
endorsed for transfer, accompanied by such documents as the Bank
deems necessary to evidence the authority of the person making
such transfer, and bearing satisfactory evidence of the payment
of applicable stock transfer taxes. In the case of small estates
where no administration is contemplated, the Bank may, when
furnished with an appropriate surety bond, and without further
approval of the Customer, transfer Shares registered in the name
of the decedent where the current market value of the Shares
being transferred does not exceed such amount as may from time
to time be prescribed by the various states. The Bank reserves
the right to refuse to transfer Shares until it is satisfied
that the endorsements on Share certificates are valid and
genuine, and for that purpose it may require, unless otherwise
instructed by an Officer of the Customer, a guaranty of
signature by an “eligible guarantor institution”
meeting the requirements of the Bank, which requirements include
membership or participation in STAMP or such other
“signature guarantee program” as may be determined by
the Bank in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
The Bank also 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 to any claims adverse to such transfer. The
Bank may, in effecting transfers of Shares, rely upon those
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, applicable to the
transfer of securities, and the Customer shall indemnify the
Bank for any act done or omitted by it in good faith in reliance
upon such laws.
(c) All certificates representing Shares that are subject
to restrictions on transfer (e.g., securities acquired
pursuant to an investment representation, securities held by
controlling persons, securities subject to stockholders’
agreement, etc.), shall be stamped with a legend describing the
extent and conditions of the restrictions or referring to the
source of such restrictions. The Bank assumes no responsibility
with respect to the transfer of restricted securities where
counsel for the Customer advises that such transfer may be
properly effected.
2. The Bank will issue and transfer Shares in book-entry
form as follows:
(a) Shares may be maintained by the Bank in book-entry form
known as the “Direct Registration System”
(“DRS”) through the Profile Modification System
(“Profile”). DRS is the system administered by DTC
pursuant to which the Bank may register the ownership of
uncertificated Shares, which ownership shall be evidenced by
periodic statements issued by the Bank to the Registered Owners
entitled thereto. Upon issuance of Shares, the Shares of each
Registered Owner will be credited to the account of each such
Registered Owner. The Registered Owner of Shares is referred to
herein as, or, if there are more than one Registered Owner of
the same Shares, such Registered Owners are collectively
referred to herein as, the “Registered Owner”.
(b) Customer understands that Profile is a required feature
of DRS. Profile allows a DTC participant claiming to act on
behalf of the Registered Owner of Shares, to direct the Bank to
register a transfer of such Shares to such DTC participant or
its nominee without receipt by the Bank of such prior written
authorization from the Registered Owner to register such
transfer.
(c) Customer understands the Bank will not verify,
determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of a Registered Owner in
requesting registration of transfer and delivery described in
subsection (b) has the actual authority to act on behalf of
the Registered Owner (notwithstanding any requirements under the
Uniform Commercial Code). For the avoidance of doubt, the
provisions of Article VIII, Sections 5 and 6 shall
apply to the matters arising from the use of DRS/Profile System.
The parties agree that the Bank’s reliance on and
compliance with instructions received by the Bank through the
DRS/Profile System in accordance with this Agreement, shall not
constitute negligence or willful misconduct on the part of the
Bank.
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ARTICLE VI
DIVIDENDS
AND DISTRIBUTIONS
1. The Customer shall furnish to the Bank a copy of a
resolution of its Board of Directors, certified by the Secretary
or any Assistant Secretary, either (i) setting forth the
date of the declaration of a dividend or distribution, the date
of accrual or payment, as the case may be, the record date as of
which shareholders entitled to payment, or accrual, as the case
may be, shall be determined, the amount per Share of such
dividend or distribution, the payment date on which all
previously accrued and unpaid dividends are to be paid, and the
total amount, if any, payable to the Bank on such payment date,
or (ii) authorizing the declaration of dividends and
distributions on a periodic basis and authorizing the Bank to
rely on a Certificate setting forth the information described in
subsection (i) of this paragraph.
2. Prior to the payment date specified in such Certificate
or resolution, as the case may be, the Customer shall, in the
case of a cash dividend or distribution, pay to the Bank an
amount of cash, sufficient for the Bank to make the payment,
specified in such Certificate or resolution, to the shareholders
of record as of such payment date. The Bank will, upon receipt
of any such cash, (i) in the case of shareholders who are
participants in a dividend reinvestment
and/or cash
purchase plan of the Customer, reinvest such cash dividends or
distributions in accordance with the terms of such plan, and
(ii) in the case of shareholders who are not participants
in any such plan, make payment of such cash dividends or
distributions to the shareholders of record as of the record
date by mailing a check, payable to the registered shareholder,
to the address of record or dividend mailing address. The Bank
shall not be liable for any improper payment made in accordance
with a Certificate or resolution described in the preceding
paragraph. If the Bank shall not receive sufficient cash prior
to the payment date to make payments of any cash dividend or
distribution pursuant to subsections (i) and
(ii) above to all shareholders of the Customer as of the
record date, the Bank shall, upon notifying the Customer,
withhold payment to all shareholders of the Customer as of the
record date until sufficient cash is provided to the Bank.
3. It is understood that the Bank shall in no way be
responsible for the determination of the rate or form of
dividends or distributions due to the shareholders.
4. It is understood that the Bank shall file such
appropriate information returns concerning the payment of
dividends and distributions with the proper federal, state and
local authorities as are required by law to be filed by the
Customer but shall in no way be responsible for the collection
or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent required of
it by applicable law.
ARTICLE VII
CONCERNING
THE CUSTOMER
1. The Customer shall promptly deliver to the Bank written
notice of any change in the Officers authorized to sign Share
certificates, Certificates, notifications or requests, together
with a specimen signature of each new Officer. In the event any
Officer who shall have signed manually or whose facsimile
signature shall have been affixed to blank Share certificates
shall die, resign or be removed prior to issuance of such Share
certificates, the Bank may issue such Share certificates as the
Share certificates of the Customer notwithstanding such death,
resignation or removal, and the Customer shall promptly deliver
to the Bank such approvals, adoptions or ratifications as may be
required by law.
2. Each copy of the Charter of the Customer and copies of
all amendments thereto shall be certified by the Secretary of
State (or other appropriate official) of the state of
incorporation, and if such Charter
and/or
amendments are required by law also to be filed with a county or
other officer or official body, a certificate of such filing
shall be filed with a certified copy submitted to the Bank. Each
copy of the By-Laws and copies of all amendments thereto, and
copies of resolutions of the Board of Directors of the Customer,
shall be certified by the Secretary or an Assistant Secretary of
the Customer under the corporate seal.
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3. Customer hereby represents and warrants:
(a) It is a corporation duly organized and validly existing
under the laws of the State of Maryland.
(b) This Agreement has been duly authorized, executed and
delivered on its behalf and constitutes the legal, valid and
binding obligation of Customer. The execution, delivery and
performance of this Agreement by Customer do not and will not
violate any applicable law or regulation and do not require the
consent of any governmental or other regulatory body except for
such consents and approvals as have been obtained and are in
full force and effect.
ARTICLE VIII
CONCERNING
THE BANK
1. The Bank shall not be liable and shall be fully
protected in acting upon any oral instruction, writing or
document reasonably believed by it to be genuine and to have
been given, signed or made by the proper person or persons and
shall not be held to have any notice of any change of authority
of any person until receipt of written notice thereof from an
Officer of the Customer. It shall also be protected in
processing Share certificates which it reasonably believes to
bear the proper manual or facsimile signatures of the duly
authorized Officer or Officers of the Customer and the proper
countersignature of the Bank.
2. The Bank may establish such additional procedures, rules
and regulations governing the transfer or registration of Share
certificates as it may deem advisable and consistent with such
rules and regulations generally adopted by bank transfer agents.
3. The Bank may keep such records as it deems advisable but
not inconsistent with resolutions adopted by the Board of
Directors of the Customer. The Bank may deliver to the Customer
from time to time at its discretion, for safekeeping or
disposition by the Customer in accordance with law, such
records, papers, Share certificates which have been cancelled in
transfer or exchange and other documents accumulated in the
execution of its duties hereunder as the Bank may deem
expedient, other than those which the Bank is itself required to
maintain pursuant to applicable laws and regulations, and the
Customer shall assume all responsibility for any failure
thereafter to produce any record, paper, cancelled Share
certificate or other document so returned, if and when required.
The records maintained by the Bank pursuant to this paragraph
which have not been previously delivered to the Customer
pursuant to the foregoing provisions of this paragraph shall be
considered to be the property of the Customer, shall be made
available upon request for inspection by the Officers, employees
and auditors of the Customer, and shall be delivered to the
Customer upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX
of this Agreement, in the form and manner kept by the Bank on
such date of termination or such earlier date as may be
requested by the Customer.
4. The Bank may employ agents or attorneys-in-fact at the
expense of the Customer, and shall not be liable for any loss or
expense arising out of, or in connection with, the actions or
omissions to act of its agents or attorneys-in-fact, so long as
the Bank acts in good faith and without negligence or willful
misconduct in connection with the selection of such agents or
attorneys-in-fact.
5. The Bank shall only be liable for any loss or damage
arising out of its own negligence or willful misconduct;
provided, however, that the Bank shall not be liable for any
indirect, special, punitive or consequential damages.
6. The Customer shall indemnify and hold harmless the Bank
from and against any and all claims (whether with or without
basis in fact or law), costs, demands, expenses and liabilities,
including reasonable attorney’s fees, which the Bank may
sustain or incur or which may be asserted against the Bank
except for any liability which the Bank has assumed pursuant to
the immediately preceding section. The Bank shall be deemed not
to have acted with negligence and not to have engaged in willful
misconduct by reason of or as a result of any action taken or
omitted to be taken by the Bank without its own negligence or
willful misconduct in reliance upon (i) any provision of
this Agreement, (ii) any instrument, order or Share
certificate reasonably believed by it to be genuine and to be
signed, countersigned or executed by any duly authorized Officer
of the
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Customer, (iii) any Certificate or other instructions of an
Officer, (iv) any opinion of legal counsel for the Customer
or the Bank, or (v) any law, act, regulation or any
interpretation of the same even though such law, act, or
regulation may thereafter have been altered, changed, amended or
repealed. Nothing contained herein shall limit or in any way
impair the right of the Bank to indemnification under any other
provision of this Agreement.
7. Specifically, but not by way of limitation, the Customer
shall indemnify and hold harmless the Bank from and against any
and all claims (whether with or without basis in fact or law),
costs, demands, expenses and liabilities, including reasonable
attorney’s fees, of any and every nature which the Bank may
sustain or incur or which may be asserted against the Bank in
connection with the genuineness of a Share certificate, the
Bank’s due authorization by the Customer to issue Shares
and the form and amount of authorized Shares.
8. The Bank shall not incur any liability hereunder if by
reason of any act of God or war or other circumstances beyond
its control, it, or its employees, officers or directors shall
be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of this Agreement it is provided
shall be done or performed or by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Agreement it is provided shall
or may be done or performed.
9. In connection with the provision of services under this
Agreement, the Customer may direct the Bank to release
information, including non — public personal
information (“NPPI”), as defined in Title V of
the Gramm Xxxxx Xxxxxx Act and the regulations issued
thereunder, including but not limited to Regulation P of
the Board of Governors of the Federal Reserve, to agents or
other third party service providers, including, without
limitation, broker/dealers, custodians, and depositories. In
addition to the foregoing, Customer consents to the release of
information, including NPPI, to one or more providers of
escheatment services for the purpose of escheatment of unclaimed
funds in accordance with the laws of the various states. The
Bank shall not incur any liability for the release of
information in accordance with the foregoing provisions; and to
the extent the Bank incurs any liability as a result of such
release of information, the Customer shall indemnify and hold
the Bank harmless in accordance with Article VIII,
Section 6, it being understood that the release of such
information shall not constitute negligence or willful
misconduct.
10. At any time the Bank may apply to an Officer of the
Customer for written instructions with respect to any matter
arising in connection with the Bank’s duties and
obligations under this Agreement, and the Bank shall not be
liable for any action taken or omitted to be taken by the Bank
in good faith in accordance with such instructions. Such
application by the Bank for instructions from an Officer of the
Customer may, at the option of the Bank, set forth in writing
any action proposed to be taken or omitted to be taken by the
Bank with respect to its duties or obligations under this
Agreement and the date on
and/or after
which such action shall be taken, and the Bank shall not be
liable for any action taken or omitted to be taken in accordance
with a proposal included in any such application on or after the
date specified therein unless, prior to taking or omitting to
take any such action, the Bank has received written instructions
in response to such application specifying the action to be
taken or omitted. The Bank may consult counsel to the Customer
or its own counsel, at the expense of the Customer, and shall be
fully protected with respect to anything done or omitted by it
in good faith in accordance with the advice or opinion of such
counsel.
11. When mail is used for delivery of non-negotiable Share
certificates, the value of which does not exceed the limits of
the Bank’s Blanket Bond, the Bank shall send such
non-negotiable Share certificates by first class mail, and such
deliveries will be covered while in transit by the Bank’s
Blanket Bond. Non-negotiable Share certificates, the value of
which exceed the limits of the Bank’s Blanket Bond, will be
sent by insured registered mail. Negotiable Share certificates
will be sent by insured registered mail. The Bank shall advise
the Customer of any Share certificates returned as undeliverable
after being mailed as herein provided for.
12. The Bank may issue new Share certificates in place of
Share certificates represented to have been lost, stolen or
destroyed upon receiving instructions in writing from an Officer
and indemnity satisfactory to the Bank. Such instructions from
the Customer shall be in such form as approved by the Board of
Directors of the Customer in accordance with applicable law or
the By-Laws of the Customer governing such matters. If
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the Bank receives written notification from the owner of the
lost, stolen or destroyed Share certificate within a reasonable
time after he has notice of it, the Bank shall promptly notify
the Customer and shall act pursuant to written instructions
signed by an Officer. If the Customer receives such written
notification from the owner of the lost, stolen or destroyed
Share certificate within a reasonable time after he has notice
of it, the Customer shall promptly notify the Bank and the Bank
shall act pursuant to written instructions signed by an Officer.
The Bank shall not be liable for any act done or omitted by it
pursuant to the written instructions described herein. The Bank
may issue new Share certificates in exchange for, and upon
surrender of, mutilated Share certificates.
13. The Bank will issue and mail subscription warrants for
Shares, Shares representing stock dividends, exchanges or
splits, or act as conversion agent upon receiving written
instructions from an Officer and such other documents as the
Bank may deem necessary.
14. The Bank will supply shareholder lists to the Customer
from time to time upon receiving a request therefor from an
Officer of the Customer.
15. In case of any requests or demands for the inspection
of the shareholder records of the Customer, the Bank will notify
the Customer and endeavor to secure instructions from an Officer
as to such inspection. The Bank reserves the right, however, to
exhibit the shareholder records to any person whenever it is
advised by its counsel that there is a reasonable likelihood
that the Bank will be held liable for the failure to exhibit the
shareholder records to such person.
16. At the request of an Officer, the Bank will address and
mail such appropriate notices to shareholders as the Customer
may direct.
17. Notwithstanding any provisions of this Agreement to the
contrary, the Bank shall be under no duty or obligation to
inquire into, and shall not be liable for:
(a) The legality of the issue, sale or transfer of any
Shares, the sufficiency of the amount to be received in
connection therewith, or the authority of the Customer to
request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the
sufficiency of the amount to be paid in connection therewith, or
the authority of the Customer to request such purchase;
(c) The legality of the declaration of any dividend by the
Customer, or the legality of the issue of any Shares in payment
of any stock dividend; or
(d) The legality of any recapitalization or readjustment of
the Shares.
18. The Bank shall be entitled to receive and the Customer
hereby agrees to pay to the Bank for its performance hereunder
(i) out-of-pocket expenses (including legal expenses and
attorney’s fees) incurred in connection with this Agreement
and its performance hereunder, and (ii) the compensation
for services as set forth in Schedule I.
19. The Bank shall not be responsible for any money,
whether or not represented by any check, draft or other
instrument for the payment of money, received by it on behalf of
the Customer, until the Bank actually receives and collects such
funds.
20. The Bank shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or
obligation shall be implied against the Bank in connection with
this Agreement.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the
date of such termination, which shall be not less than
60 days after the date of receipt of such
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notice. In the event such notice is given by the Customer, it
shall be accompanied by a copy of a resolution of the Board of
Directors of the Customer, certified by its Secretary, electing
to terminate this Agreement and designating a successor transfer
agent or transfer agents. In the event such notice is given by
the Bank, the Customer shall, on or before the termination date,
deliver to the Bank a copy of a resolution of its Board of
Directors certified by its Secretary designating a successor
transfer agent or transfer agents. In the absence of such
designation by the Customer, the Bank may designate a successor
transfer agent. If the Customer fails to designate a successor
transfer agent and if the Bank is unable to find a successor
transfer agent, the Customer shall, upon the date specified in
the notice of termination of this Agreement and delivery of the
records maintained hereunder, be deemed to be its own transfer
agent and the Bank shall thereafter be relieved of all duties
and responsibilities hereunder. Upon termination hereof, the
Customer shall pay to the Bank such compensation as may be due
to the Bank as of the date of such termination, and shall
reimburse the Bank for any disbursements and expenses made or
incurred by the Bank and payable or reimbursable hereunder.
ARTICLE X
MISCELLANEOUS
1. The indemnities contained herein shall be continuing
obligations of the Customer, its successors and assigns,
notwithstanding the termination of this Agreement.
2. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Customer shall be
sufficiently given if addressed to the Customer and mailed or
delivered to it at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx
XX 00000, or at such other place as the Customer may from time
to time designate in writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Bank shall be
sufficiently given if addressed to the Bank and mailed or
delivered to it at its office at 000 Xxxxxxx Xxxxxx (00X), Xxx
Xxxx, Xxx Xxxx 00000 or at such other place as the Bank may from
time to time designate in writing.
4. This Agreement may not be amended or modified in any
manner except by a written agreement duly authorized and
executed by both parties. Any duly authorized Officer may amend
any Certificate naming Officers authorized to execute and
deliver Certificates, instructions, notices or other
instruments, and the Secretary or any Assistant Secretary may
amend any Certificate listing the Shares.
5. This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable
by either party without the prior written consent of the other
party, and provided, further, that any reorganization, merger,
consolidation, or sale of assets, by the Bank shall not be
deemed to constitute an assignment of this Agreement.
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The
parties agree that, all actions and proceedings arising out of
this Agreement or any of the transactions contemplated hereby,
shall be brought in the United States District Court for the
Southern District of New York or in a New York State Court in
the County of New York and that, in connection with any such
action or proceeding, submit to the jurisdiction of, and venue
in, such court. Each of the parties hereto also irrevocably
waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions
contemplated hereby.
7. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original;
but such counterparts, together, shall constitute only one
instrument.
8. The provisions of this Agreement are intended to benefit
only the Bank and the Customer, and no rights shall be granted
to any other person by virtue of this Agreement.
10
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective corporate officers,
thereunto duly authorized and their respective corporate seals
to be hereunto affixed, as of the day and year first above
written.
|
Attest:
|
TRIANGLE CAPITAL CORPORATION | |
|
/s/ Xxxxx
Xxxxxxxx
|
By: /s/ Xxxxxxx
X. Xxxxxx, III
|
|
|
|
||
| Name: Xxxxxxx X. Xxxxxx, III | ||
| Title: President and CEO | ||
|
Attest:
|
THE BANK OF NEW YORK | |
|
/s/ Xxxx
XxXxxx
|
By: /s/ Xxxx
Xxxxxxxxx
|
|
|
|
||
| Name: Xxxx Xxxxxxxxx | ||
| Title: Vice President |
11
SCHEDULE I
12
