TRANSFER AGENCY AND REGISTRAR SERVICES
AGREEMENT
by and between:
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and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Dated: ___________ , 2007
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Table of Contents
Section 1. Appointment of Agent 3
Section 2. Standard Services 4
Section 3. Fees and Expenses 6
Section 4. Representations and Warranties of AST 7
Section 5. Representations and Warranties of the Issuer 7
Section 6. Reliance and Indemnification 8
Section 7. Standard of Care 9
Section 8. Limitations on AST's Responsibilities 9
Section 9. Covenants of the Issuer and AST 10
Section 10. Term and Termination 10
Section 11. Assignment 11
Section 12. Notices 11
Section 13. Successors 12
Section 14. Amendment 12
Section 15. Severability 12
Section 16. Governing Law 13
Section 17. Descriptive Headings 13
Section 18. Third Party Beneficiaries 13
Section 19. Survival 13
Section 20. Merger of Agreement 13
Section 21. Counterparts 13
Signatures 14
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TRANSFER AGENCY AND REGISTRAR SERVICES AGREEMENT
This Transfer Agency and Registrar Services Agreement (the
"Agreement"), dated as of _________________, 2007 is between _________________,
a __________________ (the "Issuer") and American Stock Transfer & Trust Company,
a New York corporation ("AST").
WHEREAS, the Issuer desires the appointment of AST as transfer agent
and registrar;
WHEREAS, AST desires to accept such appointment and perform the
services related to such appointment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as follow:
Section 1. APPOINTMENT OF AGENT
1.01 The Issuer hereby appoints AST to act as sole transfer agent and
registrar for the common stock of the Issuer and/or for any such
other securities as the Issuer may request in writing ("the
Securities") in accordance with the terms and conditions hereof,
and AST hereby accepts such appointment.
1.02 In connection with the appointment of AST as transfer agent and
registrar for the Issuer, the Issuer shall provide AST:
(a) A Certificate of Appointment in substantially the form
furnished by AST (and a Supplemental Certificate each time
there is any material change to the information contained in
the original Certificate of Appointment). It is agreed,
however, that any provisions explicitly addressed in this
Agreement shall govern the relationship between the parties
in the event of a conflict between the Certificate of
Appointment and this Agreement;
(b) Specimens of all forms of outstanding certificates, in the
forms approved by the Board of Directors of the Issuer, with
a certificate of the Secretary of the Issuer as to such
approval;
(c) Specimens of the signatures of the officers of the Issuer
authorized to sign certificates and specimens of the
signatures of the individuals authorized to sign written
instructions and requests;
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(d) A copy of the Certificate of Incorporation and by-laws of
the Issuer and, on a continuing basis, copies of all
material amendments to the Certificate of Incorporation or
by-laws made after the date of this Agreement (such
amendments to be provided promptly after such amendments are
made); and
(e) A sufficient supply of blank certificates signed by (or
bearing the facsimile signature of) the officers of the
Issuer authorized to sign certificates and bearing the
Issuer's corporate seal (if required). AST may use
certificates bearing the signature of a person who at the
time of use is no longer an officer of the Issuer.
Section 2. STANDARD SERVICES
2.01 In accordance with the procedures established from time to time
by agreement between the Issuer and AST, AST shall provide the
following services:
(a) Create and maintain securityholder accounts for all
Securities;
(b) Provide online access capability for the Issuer's personnel,
including "read-only" access to individual securityholder
files;
(c) Review transfer documents and certificates for
acceptability;
(d) Complete transfer debit and credit transactions;
(e) Provide for the original issuance of securities as directed
by the Issuer ;
(f) Maintain Treasury accounts in book entry;
(g) Furnish clear, simple, and detailed instructions to
securityholders throughout the transfer process, as well as
clear and concise written explanations of rejected
transfers;
(h) Post transfers to the record system daily;
(i) Prepare a list of securityholders entitled to vote at the
annual meeting as requested by the Issuer;
(j) As required by the Issuer, mail all proxy materials to
securityholders of record as of the proxy record date or
provide a list of the names (and other relevant information)
of such securityholders of record to a designated third
party for purposes of such mailing (it being understood,
however, that production of such external files shall be
billable as an expense at AST's standard rates for the
production of external tapes);
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(k) Tabulate returned proxy cards;
(l) Provide the Issuer with access to securityholder voting
records via online access or by written report, prior to the
Issuer's annual meeting;
(m) Provide appropriate responses to electronic, telephonic and
written inquiries from the Issuer's securityholders;
(n) Provide an 800 toll-free number and toll number in
conjunction with an interactive telephone system capable of
providing information and handling securityholder requests
without talking to a representative;
(o) Prepare and submit appropriate tax and other reports
required by State and Federal agencies, principal stock
exchanges, and securityholders, as requested by the Issuer;
(p) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed, unless AST
has received notice that such certificates were acquired by
a bona fide purchaser. AST shall be entitled to demand an
open penalty surety bond satisfactory to AST holding AST and
the Issuer harmless. AST shall be entitled to demand payment
of the premium and processing fee for such open penalty
surety bond from the securityholder. AST, at its option, may
issue replacement certificates in place of mutilated
certificates upon presentation thereof without such
indemnity;
(q) Compute quarterly dividend payment for each account as of
the record date, balanced to the official share position;
(r) Prepare and transmit payments for dividends and
distributions declared by the Issuer, provided good funds
for said dividends or distributions are received by AST
prior to the scheduled mailing date for said dividends or
distributions;
(s) Code lost accounts to suppress printing and mailing of
checks in accordance with applicable policies and
guidelines;
(t) Replace lost or stolen dividend checks at a securityholder's
request; and
(u) Withhold taxes on dividends at the appropriate rate when
applicable.
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2.02 The Issuer shall have the obligation to discharge all applicable
escheat and notification obligations. Notwithstanding the
foregoing, upon request, AST will assist the Issuer in
discharging these obligations.
2.03 AST may, at its election, outsource any of the services to be
provided hereunder, but shall retain ultimate responsibility for
any of the services so provided.
2.04 AST may provide further services to, or on behalf of, the Issuer
as may be agreed upon between the Issuer and AST.
Section 3. FEES AND EXPENSES
3.01 Fees
The Issuer agrees to pay AST fees for the services performed
pursuant to this agreement in the amount of $_____________ per
month. Notwithstanding the foregoing, in the event that the scope
of services to be provided by AST is increased substantially, the
parties shall negotiate in good faith to determine reasonable
compensation for such additional services.
3.02 OUT-OF-POCKET EXPENSES
(a) In addition to the fees paid under Section 3.01 above, the
Issuer agrees to reimburse AST for all reasonable expenses
or other charges incurred by AST in connection with the
provision of services to the Issuer (including attorneys
fees) at AST's rates then in effect.
(b) Notwithstanding section 3.03 below, AST reserves the right
to request advance payment for substantial out-of-pocket
expenditures.
3.03. PAYMENT OF FEES AND EXPENSES
The Issuer agrees to pay all fees and reimbursable expenses
within twenty (20) days following the receipt of a billing
notice. Interest charges will accrue on unpaid balances
outstanding for more than sixty (60) days.
3.04 SERVICES REQUIRED BY LEGISLATION
Services required by legislation or regulatory mandate that
become effective after the effective date of this Agreement shall
not be part of the standard services, and shall be billed by
agreement.
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Section 4. REPRESENTATIONS AND WARRANTIES OF AST
AST represents and warrants to the Issuer that:
It is a corporation duly organized and validly existing in good
standing under the laws of the State of New York;
It is duly qualified to carry on its business in the State of New
York;
It is empowered under applicable laws and by its Charter and
By-laws to enter into and perform this Agreement; and
All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The Issuer represents and warrants to AST that:
It is a ___________ duly organized and validly existing and in
good standing under the laws of ___________________;
It is empowered under applicable laws and governing instruments
to enter into and perform this Agreement;
All corporate proceedings required by said governing instruments
and applicable law have been taken to authorize it to enter into
and perform this Agreement;
All certificates representing Securities which were not issued
pursuant to an effective registration statement under the
Securities Act of 1933, as amended, bear a legend in
substantially the following form:
"The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended
(the "Act"). The securities may not be sold, transferred or
assigned in the absence of an effective registration for
these securities under the Act or an opinion of the
Corporation's counsel that registration is not required
under the Act."
All Securities not so registered were issued or transferred in a
transaction or series of transactions exempt from the
registration provisions of the Act, and in each such issuance or
transfer, the Corporation was so advised by its legal counsel.
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Section 6. RELIANCE AND INDEMNIFICATION
6.01 AST may rely on any written or oral instructions received from
any person it believes in good faith to be an officer, authorized
agent or employee of the Issuer, UNLESS, prior thereto, (a) the
Issuer shall have advised AST in writing that it is entitled to
rely only on written instructions of designated officers of the
Issuer; (b) it furnishes AST with an appropriate incumbency
certificate for such officers and their signatures; and (c) the
Issuer thereafter keeps such designation current with an annual
(or more frequent, if required) re-filing. AST may also rely on
advice, opinions or instructions received from the Issuer's legal
counsel. AST may, in any event, rely on advice received from its
legal counsel. AST may rely (a) on any writing or other
instruction believed by it in good faith to have been furnished
by or on behalf of the Issuer or a Securityholder; (b) on any
statement of fact contained in any such writing or other
instruction which it in good faith does not believe to be
inaccurate; (c) on the apparent authority of any person to act on
behalf of the Issuer or a Securityholder as having actual
authority to the extent of such apparent authority; (d) on the
authenticity of any signature (manual or facsimile) appearing on
any writing; and (e) on the conformity to original of any copy.
AST shall further be entitled to rely on any information, records
and documents provided to AST by a former transfer agent or
former registrar on behalf of the Issuer.
6.02 AST shall not be responsible for, and the Issuer shall indemnify
and hold AST harmless from and against, any and all losses,
damages, costs, charges, judgments, fines, amounts paid in
settlement, counsel fees and expenses, payments, general expenses
and/or liability arising out of or attributable to:
(a) AST's (and/or its agents' or subcontractors') actions
performed in its capacity as transfer agent and/or
registrar, provided that such actions are taken in good
faith and without gross negligence or willful misconduct;
(b) The Issuer's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty
of the Issuer hereunder;
(c) Any action(s) taken in accordance with section 6.01 above;
(d) Any action(s) performed pursuant to a direction or request
issued by a statutory, regulatory, governmental or
quasi-governmental body (AST shall, however, provide the
Issuer with prior notice when practicable, unless AST is not
permitted to do so);
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(e) Any reasonable expenses, including attorney fees, incurred
in seeking to enforce the foregoing indemnities.
6.03 AST will research the records delivered to it on its appointment
as agent if it receives a certificate not reflected in said
records. If neither the Issuer nor AST is able to reconcile said
certificate with said records (so that the transfer of said
certificate on the records maintained by AST would create an
overissue), the Issuer shall either increase the number of its
issued securities, or acquire and cancel a sufficient number of
issued securities, to correct the overissue.
6.04 The foregoing indemnities shall not terminate on termination of
AST's acting as transfer agent and/or registrar, and they are
irrevocable. AST's acceptance of its appointment as transfer
agent and/or registrar, evidenced by its acting as such for any
period, shall be deemed sufficient consideration for the
foregoing indemnities.
Section 7. STANDARD OF CARE
AST shall, at all times, act in good faith. AST agrees to use its
best efforts, within reasonable time limits, to ensure the
accuracy of all services performed under this Agreement.
Section 8. LIMITATIONS ON AST'S RESPONSIBILITIES
AST shall not be responsible for the validity of the issuance,
presentation or transfer of securities; the genuineness of
endorsements; the authority of presentors; or the collection or
payment of charges or taxes incident to the issuance or transfer
of securities. AST may, however, delay or decline an issuance or
transfer if it deems it to be in its or the Issuer's best
interests to receive evidence or assurance of such validity,
authority, collection or payment. AST shall not be responsible
for any discrepancies in its records or between its records and
those of the Issuer, if it is a successor transfer agent or
successor registrar, unless no discrepancy existed in the records
of the Issuer and any predecessor transfer agent or predecessor
registrar. AST shall not be deemed to have notice of, or to be
required to inquire regarding, any provision of the Issuer's
charter, certificate of incorporation, or by-laws, any court or
administrative order, or any other document, unless it is
specifically advised of such in a writing from the Issuer, which
writing shall set forth the manner in which it affects the
Securities. In no event shall AST be responsible for any transfer
or issuance not effected by it.
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IN NO EVENT SHALL AST HAVE ANY LIABILITY FOR ANY INCIDENTAL,
SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY
LOSS OF PROFITS, REVENUE, DATA OR COST OF COVER.
AST'S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF ALL FEES
(EXCLUDING EXPENSES) PAID OR PAYABLE UNDER THIS AGREEMENT IN THE
TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST
EVENT GIVING RISE TO LIABILITY.
Section 9. COVENANTS OF THE ISSUER AND AST
9.01 AST agrees to establish and maintain facilities and procedures
reasonably acceptable to the Issuer for the safekeeping of
certificates.
9.02 AST shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. AST
agrees that all such records prepared or maintained by it
relating to the services performed hereunder are the property of
the Issuer and will be preserved, maintained and made available
to the Issuer in accordance with the requirements of law, and
will be surrendered promptly to the Issuer on and in accordance
with its request provided that the Issuer has satisfactorily
performed its obligations under Sections 3.01, 3.02, 10.03 and
10.05 hereof, to the extent applicable. Notwithstanding the
foregoing, AST shall be entitled to destroy or otherwise dispose
of records belonging to the Issuer in accordance with AST's
standard document and record retention practices and/or
procedures.
9.03 AST and the Issuer agree that all confidential books, records,
information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation
or the carrying out of this Agreement shall remain confidential,
and shall not be voluntarily disclosed to any other person,
except as may be required by law or as permitted by AST's privacy
policy as then in effect.
Section 10. TERM AND TERMINATION
10.01 The initial term of this Agreement shall be three (3) years from
the date first referenced above and the appointment shall
automatically be renewed for further three years successive terms
without further action of the parties, unless written notice is
provided by either party at least 90 days prior to the end of the
initial or any subsequent three year period. The term of this
appointment shall be governed in accordance with this paragraph,
notwithstanding the cessation of active trading in the securities
of the Issuer.
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10.02 In the event that AST commits any continuing breach of its
material obligations under this Agreement, and such breach
remains uncured for more than sixty (60) days after written
notice by the Issuer (which notice shall explicitly reference
this provision of the Agreement), the Issuer shall be entitled to
terminate this agreement with no further payments other than (a)
payment of any amounts then outstanding under this Agreement and
(b) payment of any amounts required pursuant to Section 10.05
hereof.
10.03 In the event that the Issuer terminates this Agreement other than
pursuant to Sections 10.01 and 10.02 above, the Issuer shall be
obligated to immediately pay all amounts that would have
otherwise accrued during the term of the Agreement pursuant to
Section 3 above, as well as the charges accruing pursuant to
Section 10.05 below.
10.04 In the event that the Issuer commits any breach of its material
obligations to AST, including non-payment of any amount owing to
AST, and such breach remains uncured for more than sixty (60)
days, AST shall have the right to terminate or suspend its
services without further notice to the Issuer. During such time
as AST may suspend its services, AST shall have no obligation to
act as transfer agent and/or registrar on behalf of the Issuer,
and shall not be deemed its agent for such purposes. Such
suspension shall not affect AST's rights under the Certificate of
Appointment or this Agreement.
10.05 Should the Issuer elect not to renew this Agreement or otherwise
terminate this Agreement, AST shall be entitled to reasonable
additional compensation for the service of preparing records for
delivery to its successor or to the Issuer, and for forwarding
and maintaining records with respect to certificates received
after such termination. AST shall be entitled to retain all
transfer records and related documents until all amounts owing to
AST have been paid in full. AST will perform its services in
assisting with the transfer of records in a diligent and
professional manner.
Section 11. ASSIGNMENT
Neither this Agreement, nor any rights or obligations hereunder,
may be assigned by either party without the written consent of
the other party.
Section 12. NOTICES
Any notice or communication by AST or the Issuer 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 to the other's address:
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If to the Issuer:
...............................
...............................
-------------------------------
Telecopy no:...................
If to AST:
Xx. Xxxxxx Xxxxxxxxx
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
With a copy to:
American Stock Transfer & Trust Company
Attn: General Counsel
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
AST and the Issuer may, by notice to the other, designate
additional or different addresses for subsequent notices or
communications.
Section 13. SUCCESSORS
All the covenants and provisions of this Agreement by or for
the benefit of the Issuer or AST shall bind and inure to the
benefit of their respective successors and assigns hereunder.
Section 14. AMENDMENT
This agreement may be amended or modified by a written
amendment executed by both parties hereto.
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Section 15. 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, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated. To the
extent that any provision hereof is deemed to be unenforceable
under applicable law, it shall be deemed replaced by an
enforceable provision to the same or nearest possible effect.
Section 16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
New York.
Section 17. DESCRIPTIVE HEADINGS
Descriptive headings of the several sections of this Agreement
are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
Section 18. THIRD PARTY BENEFICIARIES
The provisions of this Agreement are intended to benefit only
AST and the Issuer and their respective 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.
Section 19. SURVIVAL
All provisions regarding indemnification, liability and limits
thereon shall survive the termination of this Agreement.
Section 20. 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.
Section 21. 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.
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By.____________________________
Name:__________________________
Title:_________________________
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:__________________________
Name:________________________
Title:________________________
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