SERVICE AGREEMENT
This Agreement is made this 1st day of July, 1993 by and
between FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York trust company whose
principal office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("FCT") and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRADING FUND, INC., a Delaware corporation
whose principal office is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Customer").
WHEREAS, FCT is in the business of providing transfer agent,
registrar and other services to certain customers and is willing to provide such
services to Customer and act as Customer's agent; and
WHEREAS, Customer wishes FCT to perform such services on its
behalf and wishes to appoint FCT as agent for Customer on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain Definitions.
(a) "Additional Services" shall mean any and all services
which are not Services as set forth in Schedule A, but performed by FCT upon
request of Customer.
(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) "Annual period" shall mean each one year period commencing
on the Effective Date.
(d) "Effective Date" shall mean the date first stated above.
(e) "Out-Of-Pocket Expenses" shall mean any and all reasonable
expenses deemed necessary or desirable by FCT in connection with the provision
of Services or Additional Services to Customer. Out-Of-Pocket Expenses shall
include, but are not limited to, the following:
(i) postage;
(ii) Paper stocks and printing costs for dividend
checks, statements, envelopes, tax and other
forms;
(iii) brokers, registrars, banks and stock
exchange fees;
(iv) long distance telephone, WATS telephone and
all 800 number service and usage telephone
charges not associated with the performance
of Services;
(v) Other specific Out-Of-Pocket Expenses such
as (a) freight and shipping (air and
surface); (b) applicable insurance premiums
in connection with securities mailings; (c)
taxes (sales tax associated with the
procurement of material from vendors and
excise tax applicable to services not
included in Schedule A); (d) travel expenses
incurred at the request of Customer; (e)
messenger and courier services; (f)
archiving of canceled certificates; (g) p.o.
box rentals; (h) computer tapes requested by
Customer; and (i) automated clearing house
processing fees; and
(vi) Such other reasonable expenses paid or
incurred by FCT in connection with this
Agreement.
(f) "Schedule of Fees" shall mean the fees set forth in
schedule C attached hereto.
(g) "Services" shall mean any and all services as further
described in Schedule A attached hereto.
(h) "Stock" shall mean Customer's common stock, par value ____
per share.
2. Appointment.
(a) As of the Effective Date, Customer hereby appoints and
authorizes FCT to act as (i) transfer agent for the transfer of stock
certificates and registrar for the registration of Stock certificates for all
shares of Stock authorized by Customer's Certificate of Incorporation, (ii)
custodian of stockholder records and such other records as FCT may deem
necessary or desirable, (iii) dividend disbursing agent for the purpose of
disbursing dividends payable on the Stock, (iv) administrator of Customer's
Dividend Reinvestment Plan, and (v) to take any and all other actions deemed
necessary or desirable by Pa in connection with this Agreement.
(b) In connection with the original issuance of any Shares of
stock, Customer hereby authorizes and directs FCT to (i) record and countersign
certificates signed by or bearing the facsimile signature of the officers of
Customer authorized by Customer by-laws to sign such certificates, in such names
and in such amounts as Customer may direct in a writing signed by its President
or Vice President and attested to by its Secretary or an Assistant Secretary
under Customer's corporate seal. Such writing shall state that the issuance of
such shares has been duly authorized by the Board of Directors of Customer and
shall request FCT to deliver the certificates to or upon the written order of
the President, Secretary, or Assistant Secretary of Customer and (ii) transfer
on its records, from time to time, certificates for all shares of Stock as may
be surrendered for transfer, and, upon cancellation thereof , to countersign new
certificates for a like amount of Stock, which have been duly signed as set
forth in sub-section 2(b)(i) hereof and to deliver such certificates.
2
(c) FCT may adopt as part of its records all lists of holders
of record 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 to be
true, authentic and complete. Customer hereby indemnifies and holds FCT harmless
from and against any and all losses, claims, fines, penalties or other damages
incurred, directly or indirectly, by FCT arising from, or in any way related to,
any actions taken or omitted to be taken by any former agent of Customer.
(d) Customer shall, if applicable, inform FCT as to (i) the
existence or termination of any restrictions on the transfer of Stock and in the
application to or removal from any certificate of Stock of any legend
restricting the transfer of such Stock or the substitution for such certificate
of a certificate without such legend, (ii) any authorized but unissued Stock
reserved for specific purposes, (iii) any outstanding shares which are
exchangeable for Stock and the basis for exchange, (iv) reserved Stock subject
to option and the details of such reservation and (v) special instructions
regarding dividends and information of foreign holders.
(e) Customer shall provide to FCT (i) certified copies of
resolutions appointing FCT as Customer's transfer agent; (ii) copies of the
by-laws of Customer, with all amendments of said by-laws, certified by the
Secretary or an Assistant Secretary of customer; (iii) a copy of the articles of
incorporation of Customer with all amendments, certified by the Secretary or
Assistant Secretary of Customer; (iv) specimens of all forms of stock
certificates, including certificates heretofore issued and exchangeable for
present certificates, adopted by Customer and certified to be true and correct
specimens by the Secretary or Assistant Secretary of Customer; (v) opinion of
counsel for Customer, dated as of the day prior to the Effective Date, covering
the validity of the Stock and its registration under the Securities Act of 1933,
as amended, and its registration or qualification under the securities laws of
each state in which registration or qualification is necessary, of all shares
thereof already outstanding and all unissued shares then proposed to be issued,
or stating specifically why such registration or qualification is unnecessary,
and stating what (if any) approval or consent of any commission or governmental
body to such issue is necessary, together with copy of any such approval or
consent certified by an appropriate official; (vi) list of the duly elected
officers of Customer authorized to sign the Stock certificates and to give
instructions to FCT, with specimen signatures of such officers, certified by the
Secretary or Assistant Secretary of Customer, and on which FCT may rely as
altered from time to time by Certificates of Change received from the Secretary
or the Assistant Secretary of Customer; (vii) list of stockholders showing name
and address, certificate numbers of outstanding shares, the number of shares
represented by each certificate, the number of shares held by each stockholder,
the date of issuance of each certificate and a list of certificates against
which stops have been placed, certified by an officer of Customer (in lieu of a
list, the stock ledger, certified to be correct by an officer of Customer, may
be delivered); (viii) instructions with respect to the persons to whom advices
of original issues and transfer or retirement of certificates for shares of
Stock are to be sent, (ix) a certification of the outstanding shares of Stock
executed by the Secretary or Assistant Secretary as of the day prior to the
Effective Date and (x) a certificate to be filed with he New York State Tax
Commission.
3
(f) Customer hereby agrees to provide FCT, from time to time,
with certified copies of any amendment of its by-laws or articles of
incorporation and any written direction under sub-section 2(b) hereof, the
opinion of counsel and any other documents provided for in sub-section 2(e) of
this Agreement, in respect of the Stock then to be issued.
(g) FCT represents that it is engaged in an independent
business and will perform its obligations under this Agreement as an agent of
Customer.
(h) In the event any certificate representing Stock is lost,
stolen, destroyed or otherwise, Customer authorizes FCT, in FCT's sole
discretion, to issue and countersign a replacement certificate or certificates
for the number of shares represented by such lost, stolen, or destroyed
certificates upon being furnished with an affidavit of loss, theft or
destruction and an open penalty bond of indemnity in form satisfactory to FCT,
and to register such replacement certificate or certificates.
(i) Customer shall deliver to FCT an appropriate supply of
Stock certificates, which certificates shall provide a signature panel for use
by an officer of FCT to sign as transfer agent and registrar, and which shall
state that such certificates are only valid after being countersigned and
registered
3. Dividend Disbursing.
(a) Upon receipt of a written notice from the President, any
Vice President, Assistant Secretary, Treasurer or Assistant Treasurer of
Customer declaring the payment of a dividend, FCT shall disburse such dividend
payments provided that in advance of such payment, Customer furnishes FCT with
sufficient funds. The payment of such funds to FCT 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 shareholders whether
in trust or in contract or otherwise.
(b) Customer hereby authorizes FCT 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 FCT shall issue and deliver duplicate checks in replacement
thereof.
(c) FCT is hereby authorized to deduct from all dividends
declared by Customer and disbursed by FCT, 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. Purchase of Services.
During the term of the Agreement, Customer will purchase, and
FCT will provide, any and all services at such fees as set forth in further
detail in the Schedule of lees and any Additional services reasonably requested
by Customer at such fees as mutually agreed to by the parties. After the third
Annual Period, and for each Annual Period subsequent thereto, at the sole
discretion of FCT, the fees hereunder may be subject to an automatic increase,
which increase shall be equal to the percentage change in the Metropolitan New
York Consumer Price Index announced for the immediately preceding Annual Period.
After the third Annual Period, FCT reserves the right to change from time to
time any fees set forth in the Schedule of Fees upon notice to Customer.
5. Billing and Payment.
(a) During each Annual Period, FCT will invoice Customer on a
monthly basis for services, Additional Services, Out-Of-Pocket Expenses and all
other fees and expenses incurred by Customer during such period. Customer will
make payment to FCT by check, or other means acceptable to FCT, within thirty
(30) days of the date of such invoice.
(b) FCT may give Customer up to fifteen (15) days advance
written notice of an amount required to be deposited by FCT with the U.S. Postal
Service with respect to postage expenses, in which event, Customer shall remit
such amount to FCT not later than the due date f or such deposit.
(c) The parties agree that, notwithstanding the termination or
this Agreement, all amounts due and owing shall be paid to FCT in accordance
with the terms stated herein.
6. Representations and Covenants of Customer.
Customer represents and warrants as follows:
(a) Customer is a corporation duly incorporated and validly
existing under the laws of its State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform all of its duties and
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Customer have been duly authorized by all necessary corporate
action and constitutes a legal, valid and binding obligation of Customer
enforceable against customer in accordance with its terms.
(b) The execution, delivery and performance of this Agreement
by Customer will not violate, conflict with or result in the breach of any tern,
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 Customer 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 applicable to Customer (iii) or the certificate of incorporation,
by-laws, or any securities of Customer or any material agreement to which
Customer is a party.
5
(c) During the term of this Agreement, Customer will deliver
to FCT such opinions of counsel, duly certified resolutions of boards of
directors and such other certifications or documents, reasonably satisfactory in
form and substance to FCT and its counsel, as FCT in its reasonable judgement
deems necessary or desirable to effect the purposes of this Agreement.
(d) Customer shall notify FCT as soon as possible in advance
of any stock split, stock dividend or similar event which may effect the Stock,
and any bankruptcy, insolvency moratorium or other proceeding in respect of
customer affecting the enforcement of creditor's rights.
7. Representations and covenants of FCT.
FCT represents and warrants as follows:
(a) FCT is a trust company duly organized and validly existing
under the New York State Banking Law and has full corporate power, authority and
legal right to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by FCT have been duly authorized by
all necessary corporate action and constitutes the legal, valid and binding
obligation of FCT enforceable against FCT in accordance with its terms.
(b) The execution, delivery and performance of the Agreement
by FCT 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 FCT
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 applicable to FCT, (iii) the incorporation documents or by-laws of, or
any material agreement to which FCT is a party.
8. Confidential Information.
(a) FCT shall keep confidential any and all technical
information, data and other information concerning the business and activities
of Customer or any of its affiliates which is made available to FCT by Customer
or any of its affiliates in furtherance of this Agreement, except to the extent
such information becomes part of the public domain or disclosure is required by
law, regulation or court order.
(b) Customer agrees that all data, reports or other
information provided to customer in connection with FCT's business operations,
fees or services shall be treated in the same manner as Customer treats its own
confidential and proprietary information and materials and in accordance with
(a) above.
6
9. Term.
Except as set forth in Section 13 hereof, this Agreement shall
become effective on the Effective Date and Shall remain in effect for a period
of three (3) years and, thereafter, may be terminated by either party upon
ninety (90) days prior written notice.
10. Compliance With Laws.
FCT and Customer shall comply with all applicable federal,
state and local laws and regulations, codes, orders and governmental rules and
regulations in connection with all matters relating to this Agreement, and shall
obtain all necessary permits required hereunder.
11. Assignment.
This Agreement shall be binding upon and inure to the benefit
of the parties and their successors and assigns. FCT may (i) assign or transfer
this Agreement and any rights hereunder to a division, affiliate, parent or
subsidiary of FCT, or (ii) employ independent subcontractors or other agents to
perform any and all Services performed by FCT hereunder.
12. Limitation of Liability, Indemnification.
(a) Neither FCT nor any of its officers, employees, affiliates
or subcontractors shall be liable, directly or indirectly, for any losses,
claims, judgements, damages or expenses suffered or incurred by customer, its
affiliates or any person claiming through them, arising out of or relating to
the Services of this Agreement, other than damages or expenses directly related
to the negligence or willful misconduct of FCT.
(b) FCT shall not be liable with respect to (i) any actions
taken upon any paper, certificate or document believed by it to be genuine
and/or to have been signed by the proper person and, in the case of any paper or
document signed by an authorized Customer employee or representative, FCT shall
not be held to have notice of any change of authority of such employee or
representative until timely receipt of written notice thereof from Customer or
(ii) refusing in good faith to transfer a certificate if it is not satisfied as
to the propriety of the requested transfer, or acting pursuant to any direction
given by Customer in accordance with Section 2(d) hereof or otherwise.
Notwithstanding the death, resignation or removal of any officer of Customer
authorized to sign certificates of Stock, FCT may continue to countersign
certificates bearing the manual or facsimile signature of such officer until
otherwise directed in writing by Customer.
(c) Customer shall indemnity and hold FCT harmless from and
against any and all liabilities, claims, lawsuits, settlements, judgements,
costs, penalties, expenses, fees (including reasonable attorneys' fees) in
connection with or in any way related to this Agreement and for any action taken
or omitted to be taken by it in good faith believing it to be a proper
performance of its powers and duties hereunder, including any action taken or
omitted to be taken by FCT in accordance with any directions given by Customer
or pursuant to advice given by counsel for Customer. In addition, Customer
shall, upon the request of FCT, undertake, at Customer's expense, the defense of
any suit or claim brought against FCT in connection with the performance of
Service to be performed by it under this Agreement; provided, however, that
Customer shall have no obligation to defend any such suit or claim which arises
as a result of the negligence or willful misconduct of FCT.
7
NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OR 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.
13. Termination.
(a) This Agreement may be terminated at any time by Customer
or FCT upon a material breach of a representation, covenant or term of this
Agreement by the other which is not cured within a period not to exceed thirty
(30) days after the date of written notice thereof by the other party;
(b) 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, FCT will deliver promptly to
Customer, in machine readable form on media as reasonably requested by Customer,
all stockholder and other records, files and data supplied to or compiled by FCT
on behalf of Customer.
(c) In the event of the termination of this Agreement,
Customer. will pay to FCT any and all reasonable expenses associated with the
conversion of Customer records to Customer or to another transfer agent and a
termination fee in an amount equal to $1.50 per account, which fee in no event
shall be less than One Thousand Dollars ($1,000).
14. Notices.
Any notice, request, demand, waiver, consent, approval or
other communication which is required or permitted hereunder shall be deemed
given only if delivered personally or sent by telegram, telephonic facsimile or
by (regular) first class mail, postage prepaid, as follows:
If to Customer to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trading Fund
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Assistant Secretary
IF to FCT to: First Chicago Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
8
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as of
the date delivered, telegraphed or mailed.
15. Genera1.
(a) Entire Agreement - This Agreement, together with all
exhibits attached hereto and all materials incorporated herein by reference,
constitutes the entire agreement between the parties with respect to the subject
matter hereof, and supersedes all prior agreements, undertakings and
negotiations, oral or written, between the parties concerning the subject matter
hereof.
(b) Amendments - Except as expressly provided in this
Agreement, no modification, waiver or amendment of any term or condition of this
Agreement shall be effective unless it is in writing and duly executed by the
party against which it is to be enforced.
(c) Severability - In the event any term or provision of this
Agreement is declared invalid or unenforceable in any circumstances by a court
of competent jurisdiction, the remainder of this Agreement, and the application
of such provision in any other circumstances, shall not be affected thereby.
(d) Headings - Section headings are for convenience only and
do not control or affect the meaning or interpretation of any terms and
provisions of this Agreement.
(e) Governing Law - This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York.
(f) Submission to Jurisdiction - Customer hereby consents to
the jurisdiction of the courts of the State of New York and the United States
District Court for the Southern District of New York in connection with any
controversy arising out of or relating to this Agreement.
(g) Waiver - No omission or delay by FCT or Customer at any
time to enforce any right or remedy which either party may have to require
performance of any of the terms, covenants or provisions of this Agreement,
shall be deemed a waiver of such right or remedy, not shall such omission or
delay in any way affect the right of either party to enforce thereafter such
terms, covenants or provisions. No waiver of any term, covenant or provision of
this Agreement shall be binding upon FCT or Customer unless made in writing and
duly executed by the party to be charged therewith. No waiver of any term,
covenant or provision of this Agreement shall be construed as a waiver of any
other term, covenant or provision of this Agreement, or as a consent to any
subsequent waiver of any term, covenant or provision of this Agreement.
9
(h) Remedies - The remedies available to FCT or Customer under
this Agreement Shall be deemed to be cumulative any may be exercised by either
party successively or concurrently; such remedies are not intended to limit any
right or remedy available to either party at law or in equity.
(i) Representations - The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the parties hereto and their administrators, legal representatives, successors
and assigns, and shall not be construed as conferring any rights on any other
persons.
(j) Force Majeure - Notwithstanding anything to the contrary
contained herein, FCT 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, breakdown or malfunction,
interruptions or malfunction of computer facilities, loss of data due to power
failures or mechanical difficulties with information storage or retrieval
systems or labor difficulties.
(k) Survivorship - The provisions of Article 8 and 12 shall
survive any expiration or termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRADING FUND, INC.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Senior Managing Director
10
