Exhibit 10.13
THIS SERVICE AGREEMENT FOR TRANSFER AGENT SERVICES (this "Agreement")
between North American Insurance Leaders, Inc., a Delaware corporation
("Client") and Mellon Investor Services LLC, a New Jersey limited liability
company ("Mellon"), is dated as of January ___, 2006.
1. Appointment. Client appoints Mellon as its transfer agent, registrar and
dividend disbursing agent and Mellon accepts such appointment in accordance with
the following terms and conditions for all authorized shares of each class of
stock listed in Exhibit A hereto (the "Shares").
2. Term of Agreement. Mellon's appointment hereunder shall commence on the next
business day after the later of (i) the date hereof, or (ii) the date Mellon has
confirmed that Client's records have been converted to Mellon's system (the
"Effective Date"), and shall continue for three years thereafter (the "Initial
Term"). Unless either party gives written notice of termination of this
Agreement at least 60 days prior to the end of the Initial Term, or any
successive three-year term, this Agreement shall automatically renew for
successive additional three-year terms.
3. Duties of Mellon. Commencing on the Effective Date, Mellon shall provide the
services listed in Exhibit B hereto, in the performance of its duties hereunder.
4. Representations, Warranties and Covenants of Client. Client represents,
warrants and covenants to Mellon that:
(a) the Shares issued and outstanding on the date hereof have been duly
authorized, validly issued and are fully paid and are non-assessable; and any
Shares to be issued hereafter, when issued, shall have been duly authorized,
validly issued and fully paid and will be non-assessable;
(b) the Shares issued and outstanding on the date hereof have been duly
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and such registration has become effective, or are exempt from such
registration; and have been duly registered under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or are exempt from such registration;
(c) any Shares to be issued hereafter, when issued, shall have been duly
registered under the Securities Act, and such registration shall have become
effective, or shall be exempt from such registration; and shall have been duly
registered under the Exchange Act, or shall be exempt from such registration;
(d) Client has paid or caused to be paid all taxes, if any, that were
payable upon or in respect of the original issuance of the Shares issued and
outstanding on the date hereof;
(e) the execution and delivery of this Agreement, and the issuance and any
subsequent transfer of the Shares in accordance with this Agreement, do not and
will not conflict with, violate, or result in a breach of, the terms, conditions
or provisions of, or constitute a default under, the charter or the by-laws of
Client, any law or regulation, any
order or decree of any court or public authority having jurisdiction, or any
mortgage, indenture, contract, agreement or undertaking to which Client is a
party or by which it is bound. This Agreement is enforceable against Client in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
moratorium, reorganization and other similar laws affecting the enforcement of
creditors' rights generally; and
(f) Client agrees to provide to Mellon the documentation and notifications
listed in Exhibit C hereto according to the requirements set forth therein.
5. Representations, Warranties and Covenants of Mellon. Mellon represents,
warrants and covenants to Client that:
(a) Mellon is, and for the term of this Agreement shall remain, duly
registered as a transfer agent under the Exchange Act;
(b) subject to Sections 7 and 8(a) hereof, during the term of this
Agreement, Mellon shall comply with its obligations as a transfer agent under
the Exchange Act and the rules and regulations thereunder;
(c) assuming the accuracy of Client's representations and warranties and
compliance by Client with its covenants hereunder, the execution and delivery of
this Agreement, and the performance by Mellon of its obligations in accordance
with this Agreement, do not and will not conflict with, violate, or result in a
breach of, the terms, conditions or provisions of, or constitute a default
under, the organizational documents of Mellon, any law or regulation, any order
or decree of any court or public authority having jurisdiction, or any mortgage,
indenture, contract, agreement or undertaking to which Mellon is a party or by
which it is bound. This Agreement is enforceable against Mellon in accordance
with its terms, except as may be limited by bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting the enforcement of creditors'
rights generally; and
(d) Mellon shall waive any right, title, interest or claim of any kind in
or to any monies to be deposited and held in the trust account by JPMorgan Chase
Bank, NA, as trustee, for the benefit of the public stockholders of the Client's
common stock issued in the initial public offering.
6. Scope of Agency.
(a) Mellon shall act solely as agent for Client under this Agreement and
owes no duties hereunder to any other person. Mellon undertakes to perform the
duties and only the duties that are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this Agreement
against Mellon.
(b) Mellon may rely upon, and shall be protected in acting or refraining
from acting in reliance upon, (i) any communication from Client, any predecessor
Transfer Agent or co-Transfer Agent or any Registrar (other than Mellon),
predecessor Registrar or co-Registrar, or (ii) any written instruction, notice,
request, direction, consent, report, certificate, or other instrument, paper,
document or electronic transmission believed by
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Xxxxxx to be genuine and to have been signed or given by the proper party or
parties. In addition, Mellon is authorized to refuse to make any transfer that
it determines in good faith not to be in good order.
(c) In connection with any question of law arising in the course of Mellon
performing its duties hereunder, Mellon may consult with legal counsel
(including internal counsel) whose advice shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by Mellon hereunder in good faith and in reasonable reliance thereon.
(d) Any instructions given by Client to Mellon orally shall be confirmed in
writing by Client as soon as practicable. Mellon shall not be liable or
responsible and shall be fully authorized and protected for acting, or failing
to act, in accordance with any oral instructions that do not conform with the
written confirmation received in accordance with this Section 6(d).
7. Indemnification. Client shall indemnify Mellon for, and hold it harmless
against, any loss, liability, claim or expense ("Loss") arising out of or in
connection with its duties under this Agreement or this appointment, including
the reasonable costs and reasonable expenses of defending itself against any
Loss or enforcing this Agreement, except to the extent that such Loss shall have
been determined by a court of competent jurisdiction to be a result of Mellon's
gross negligence or intentional misconduct.
8. Limitation of Liability.
(a) In the absence of gross negligence or intentional misconduct on its
part, Mellon shall not be liable for any action taken, suffered, or omitted by
it or for any error of judgment made by it in the performance of its duties
under this Agreement. In no event will Mellon be liable for special, indirect,
incidental, consequential or punitive loss or damages of any kind whatsoever
(including but not limited to lost profits), even if Mellon has been advised of
the possibility of such damages. Any liability of Mellon will be limited in the
aggregate to an amount equal to twelve (12) times the monthly administrative fee
to be paid by Client as set forth in Exhibit B hereto.
(b) If any question or dispute arises with respect to Mellon's duties
hereunder, Mellon shall not be required to act or be held liable or responsible
for its failure or refusal to act until the question or dispute has been (i)
resolved (and, if appropriate, Mellon may file a suit in interpleader or for a
declaratory judgment for such purpose) by a final judgment of a court of
competent jurisdiction that is binding on all parties interested in the matter
and is no longer subject to review or appeal, or (ii) settled by a written
document satisfactory to Mellon and executed by Client. For such purpose, Mellon
may, but shall not be obligated to, require the execution of such a document.
9. Force Majeure. Mellon shall not be liable for any failures, delays or losses,
arising directly or indirectly out of conditions beyond its reasonable control,
including, but not limited to, acts of government, exchange or market ruling,
suspension of trading, work stoppages or labor disputes, civil disobedience,
riots, rebellions, electrical or mechanical failure, computer hardware or
software failure, communications facilities
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failures including telephone failure, war, terrorism, insurrection, fires,
earthquakes, storms, floods, acts of God or similar occurrences.
10. Market Data. Client acknowledges that Mellon may provide real-time or
delayed quotations and other market information and messages ("Market Data"),
which Market Data is provided to Mellon by certain national securities exchanges
and associations who assert a proprietary interest in Market Data disseminated
by them but do not guarantee the timeliness, sequence, accuracy or completeness
thereof. Client agrees and acknowledges that Mellon shall not be liable in any
way for any loss or damage arising from or occasioned by any inaccuracy, error,
delay in, omission of, or interruption in any Market Data or the transmission
thereof.
11. Termination.
(a) Client may terminate this agreement if (i) Mellon defaults on any of
its material obligations hereunder and such default remains uncured thirty (30)
days after Mellon's receipt of notice of such default from Client; or (ii) any
proceeding in bankruptcy, reorganization, receivership or insolvency is
commenced by or against Mellon, Mellon shall become insolvent or shall cease
paying its obligations as they become due or makes any assignment for the
benefit of its creditors.
(b) Mellon may suspend providing services hereunder or terminate this
Agreement if (i) Client fails to pay amounts due hereunder or defaults on any of
its material obligations hereunder and such failure or default remains uncured
thirty (30) days after Client's receipt of notice of such failure or default
from Mellon; (ii) any proceeding in bankruptcy, reorganization, receivership or
insolvency is commenced by or against Client, Client shall become insolvent, or
shall cease paying its obligations as they become due or makes any assignment
for the benefit of its creditors; or (iii) Client is acquired by or is merged
with or into another entity where Client is not the Surviving company.
(c) Upon termination of this Agreement, all fees earned and expenses
incurred by Mellon up to and including the date of such termination shall be
immediately due and payable to Mellon on or before the effective date of such
termination.
(d) In addition to the payments required in paragraph 11(c) above, if this
Agreement is terminated by Client for any reason other than pursuant to
paragraph 11(a) above or by Mellon pursuant to paragraph 11(b) above, then
Client shall pay a termination fee, due and payable to Mellon on or before the
effective date of such termination, calculated as follows: (i) if the
termination occurs prior to the first anniversary of the commencement date of
the current term (the "Commencement Date"), then the termination fee shall equal
twelve (12) times the average monthly invoice charged to Client by Mellon
hereunder, (ii) if the termination occurs on or after the first anniversary of
the Commencement Date but prior to the second anniversary of the Commencement
Date, then the termination fee shall equal nine (9) times the average monthly
invoice charged to Client by Mellon hereunder, and (iii) if the termination
occurs on or after the second anniversary of the Commencement Date, then the
termination fee shall equal six (6) times the average monthly invoice charged to
Client by
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Xxxxxx hereunder. For purposes of this paragraph, fees for non-recurring events
shall be excluded when calculating the average monthly invoice charged to Client
by Mellon.
(e) Prior to termination of this Agreement, Client shall provide Mellon
with written instructions as to the disposition of records, as well as any
additional documentation reasonably requested by Mellon. Except as otherwise
expressly provided in this Agreement, the respective rights and duties of Client
and Mellon under this Agreement shall cease upon termination of this Agreement.
12. Lost Certificates. Mellon shall not be obligated to issue a replacement
share certificate for any share certificate reported to have been lost,
destroyed or stolen unless Mellon shall have received: (i) an affidavit of such
loss, destruction or theft; (ii) a bond of indemnity in form and substance
satisfactory to Mellon; and (iii) payment of all applicable fees. Shareholders
may obtain such a bond of indemnity from a surety company of the shareholder's
choice, provided the surety company satisfies Mellon's minimum requirements.
13. Confidentiality. In connection with the performance of Mellon's duties on
behalf of Client under this Agreement, Mellon shall obtain confidential
information related to Client or its stockholders that is not available to the
general public ("Confidential Information"). Mellon agrees that the Confidential
Information shall be held and treated by Mellon, its directors, officers,
employees, affiliates, agents and subcontractors (collectively,
"Representatives") in confidence and except as hereinafter provided, shall not
be disclosed in any manner whatsoever except as otherwise required by law,
regulation, subpoena or governmental authority. Confidential Information shall
be used by Mellon and its Representatives only for the purposes for which
provided and shall be disclosed by Mellon only to those Representatives who have
a need to know in order to accomplish the business purpose in connection with
which the Confidential Information has been provided. Information shall no
longer be considered Confidential Information at such time as such information
becomes publicly available
14. Publicity. Neither party will issue a news release, public announcement,
advertisement, or other form of publicity concerning the existence of this
Agreement or the Services to be provided hereunder without obtaining the prior
written approval of the other party, which may be withheld in the other party's
sole discretion.
15. Lost Stockholders. Mellon shall conduct such database searches to locate
lost stockholders as are required by Rule 17Ad-17 under the Exchange Act,
without charge to the stockholder. If a new address is so obtained in a database
search for a lost stockholder, Mellon shall conduct a verification mailing and
update its records for such stockholder accordingly. If a new address is not so
obtained for any lost stockholders, Mellon may conduct a more in-depth search
for the purpose of locating such lost stockholders using the services of a
locating service provider selected by Mellon and receive compensation from such
locating service provider for processing and other services Mellon provides in
connection with the in-depth search. The fee charged to the located stockholder
by the locating service provider may not exceed the lesser of 35% of the asset
value of such stockholder's property or the maximum statutory fee permitted by
the applicable state jurisdiction.
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16. Compensation and Expenses.
(a) Commencing on the Effective Date, Client shall compensate Mellon for
its services hereunder in accordance with the fee schedules listed in Exhibit B
hereto, with such fees to be pro-rated for partial terms. After the second
anniversary of the Effective Date, such fees may be adjusted annually, on or
about each anniversary of the Effective Date, by the annual percentage of change
in the latest Consumer Price Index of All Urban Consumers (CPI-U) United States
City Average, as published by the U.S. Department of Labor, Bureau of Labor
Statistics plus one half percent (0.5%).
(b) All amounts owed to Mellon hereunder are due within thirty (30) days of
the invoice date. Delinquent payments are subject to a late payment charge of
one and one half percent (1.5%) per month commencing forty-five (45) days from
the invoice date. Client agrees to reimburse Mellon for any attorney's fees and
any other costs associated with collecting delinquent payments.
(c) Client shall be charged for certain expenses advanced or incurred by
Mellon in connection with Mellon's performance of its duties hereunder. Such
charges include, but are not limited to, stationery and supplies, such as
transfer sheets, dividend checks, envelopes, and paper stock, as well as any
disbursements for telephone, mail insurance, electronic document creation and
delivery, travel expenses for annual meetings, link-up charges from Automatic
Data Processing Inc. and tape charges from The Depository Trust Company. While
Mellon endeavors to maintain such charges (both internal and external) at
competitive rates, these charges will not, in all instances, reflect actual
out-of-pocket costs, and in some instances may include handling charges to cover
internal processing and use of Mellon's billing systems.
(d) With respect to any shareholder mailings processed by Mellon, Client
shall be charged postage as an out-of-pocket expense at postage rates that may
not reflect all available or utilized postal discounts, such as presort or NCOA
discounts. Client shall, at least one business day prior to mail date, provide
immediately available funds sufficient to cover all postage due on such mailing.
For any dividend mailing, Client shall, no later than 10am Eastern Time on the
mail date for the dividend, provide immediately available funds sufficient to
pay the aggregate amount of dividends to be paid. Any material shareholder
mailing schedule changes, including, but not limited to, delays in delivering
materials to Mellon or changes in a mailing commencement date, may result in
additional fees and/or expenses.
(e) Upon expiration or termination of this Agreement, Client shall pay
Mellon a fee for deconversion services (e.g., providing shareholder lists and
files, producing and shipping records, answering successor agent inquiries).
This fee shall be based on Mellon's then-current deconversion fee schedule.
Mellon may withhold the Client's records, reports and unused certificate stock
pending Client's payment in full of all fees and expenses owed to Mellon under
this Agreement.
17. Notices. All notices, demands and other communications given pursuant to
this Agreement shall be in writing, shall be deemed effective on the date of
receipt, and may
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be sent by facsimile, overnight delivery service, or by certified or registered
mail, return receipt requested to:
If to Client: with an additional copy to:
North American Insurance Leaders, Inc. Shearman & Sterling LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxxxxxxxx Xxx., XX
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. de Jonge Attn: Xxxxxx X. Xxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
If to Mellon: with an additional copy to:
Mellon Investor Services LLC Mellon Investor Services LLC
Newport Office Center VII Newport Office Center VII
000 Xxxxxxxxxx Xxxx. 000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Relationship Management Attn: Legal Department
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
18. Submission to Jurisdiction; Foreign Law.
(a) The parties irrevocably (i) submit to the non-exclusive jurisdiction of
any New York State court sitting in New York City or the United States District
Court for the Southern District of New York in any action or proceeding arising
out of or relating to this Agreement, and (ii) waive, to the fullest extent they
may effectively do so, any defense based on inconvenient forum, improper venue
or lack of jurisdiction to the maintenance of any such action or proceeding.
(b) Mellon shall not be required hereunder to comply with the laws or
regulations of any country other than the United States of America or any
political subdivision thereof. Mellon may consult with foreign counsel, at
Client's expense, to resolve any foreign law issues that may arise as a result
of Client or any other party being subject to the laws or regulations of any
foreign jurisdiction.
19. Miscellaneous.
(a) Amendments. This Agreement may not be amended or modified in any manner
except by a written agreement signed by both Client and Mellon.
(b) Governing Law. This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
(c) Survival of Terms. Sections 7, 8 and 16 hereof shall survive
termination of this Agreement and Mellon's appointment hereunder.
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(d) Assignment. This Agreement may not be assigned, or otherwise
transferred, in whole or in part, by either party without the prior written
consent of the other party, which the other party will not unreasonably
withhold, condition or delay. Any attempted assignment in violation of the
foregoing will be void.
(e) Headings. The headings contained in this Agreement are for the purposes
of convenience only and are not intended to define or limit the contents of this
Agreement.
(f) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is found to violate a law, it will
be severed from the rest of the Agreement and ignored.
(g) Counterparts. This Agreement may be executed manually in any number of
counterparts, each of which such counterparts, when so executed and delivered,
shall be deemed an original, and all such counterparts when taken together shall
constitute one and the same original instrument.
(h) Entire Agreement. This Agreement constitutes the entire understanding
of the parties with respect to the subject matter hereof and supercedes all
prior written or oral communications, understandings, and agreements with
respect to the subject matter of this Agreement. The parties acknowledge that
the Exhibits hereto are an integral part of this Agreement.
(i) Benefits of this Agreement. Nothing in this Agreement shall be
construed to give any person or entity other than Mellon and Client any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of Mellon and Client.
[The remainder of this page has been intentionally left blank.
Signature page follows.]
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Exhibit 10.13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
NORTH AMERICAN INSURANCE LEADERS, INC.
By:
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Name: Xxxxxxx X. de Jonge
Title: President
MELLON INVESTOR SERVICES LLC
By:
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Name:
Title:
