TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
THE SWISS HELVETIA FUND, INC.
AND
AMERICAN STOCK TRANSFER AND TRUST COMPANY
TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10. |
Terms of Appointment and Duties
Fees and Expenses
Representations and Warranties of the Transfer Agent
Representations and Warranties of the Fund
Indemnification
Confidentiality
Covenants of the Transfer Agent
Termination of Agreement
Assignment and Third Party Beneficiaries
Miscellaneous |
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the __ day of October 2003 by and between THE SWISS
HELVETIA FUND, INC., a Delaware corporation (the “Fund”), and AMERICAN
STOCK TRANSFER AND TRUST COMPANY (the “Transfer Agent”).
WHEREAS, the Fund desires to appoint the Transfer Agent as its
transfer agent and registrar and the Transfer Agent desires to accept such
appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
| 1. |
Terms of Appointment and Duties.
|
| 1.1 |
Transfer Agency Services. Subject to the terms and
conditions set forth in this Agreement, the Fund hereby employs and appoints the Transfer
Agent to act as, and the Transfer Agent agrees to act as, its transfer agent and registrar
for the Fund’s authorized and issued shares of its common stock (“Shares”),
administrator for the Fund’s dividend reinvestment plan and dividend disbursing agent
to the stockholders of record of the Fund (“Stockholders”). In accordance with
procedures established from time to time by agreement between the Fund and the Transfer
Agent, the Transfer Agent agrees that it will perform the following services: |
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(a) issue and record the appropriate number of
Shares as authorized and hold such Shares in the appropriate Stockholder account
and advise the Fund and Stockholders of the foregoing;
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(b) effect transfers of Shares by the registered
owners thereof upon receipt of appropriate instructions and
documentation; |
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(c) act as agent for Stockholders pursuant to
dividend reinvestment plans and any other investment programs as in effect from
time to time;
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(d) issue replacement certificates for those
certificates alleged to have been lost, stolen or destroyed, or mutilated stock
certificates, upon receipt of any appropriate indemnity as agreed between the
Transfer Agent and the Fund;
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(e) prepare and transmit payments for dividends
and distributions declared by the Fund; |
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(f) issue replacement checks and place stop orders
on original checks based on a Stockholder’s representation that a check was
not received or was lost, destroyed or stolen or is otherwise beyond the
Stockholder’s control, through no fault of the Stockholder, and cannot be
produced by the Stockholder for presentation and collection, with the Fund
responsible for all losses or claims resulting from such replacement;
and |
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(g) record the issuance of Shares and maintain,
pursuant to Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), a record of the total number of Shares
of the Fund which are authorized (based upon data provided to it by the Fund),
issued and outstanding and provide the Fund on a regular basis with the total
number of Shares which are authorized, issued and outstanding. |
| 1.2 |
Additional Services. In addition to, and neither in lieu
nor in contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
|
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(a) Other Customary Services. Perform the
customary services of a transfer agent and registrar, administrator for the
Fund’s dividend reinvestment plan and dividend disbursing agent, including
but not limited to: preparing Stockholder meeting lists, mailing Stockholder
proxy materials and beneficial owner “search cards” to record owners,
withholding taxes as required by applicable law and making the necessary return
and payment of such taxes in connection therewith, preparing (in consultation
with the Fund) and filing U.S. Treasury Department Forms 1099 and other
appropriate forms for all Stockholders as required by federal or state
authorities with respect to dividends and distributions and distributing any
appropriate tax forms to Stockholders, preparing and mailing confirmation forms
and statements of account to Stockholders for all confirmable transactions in
Stockholder accounts and providing Stockholder account information, in each case
in compliance with applicable law. |
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(b) Unclaimed Property and Lost
Stockholders. The Transfer Agent shall report unclaimed property to each
state in compliance with state law and shall comply with Section 17Ad-17 of the
Exchange Act for lost Stockholders. |
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(c) Certificates. The Transfer Agent shall
ensure that certificates for Shares are issued in accordance with the terms
thereof. |
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(d) Compliance with Office of Foreign Asset
Control (“OFAC”) Regulation. Ensure compliance with any OFAC laws,
regulations, guidance documents, and blocking and notification requirements
applicable to the Fund or the Transfer Agent by adopting appropriate compliance
policies, procedures and internal controls and, in respect of the Fund, with any
procedures as may be provided by the Fund or agreed between the
parties.
|
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(e) Money Laundering. Comply with any
applicable money laundering and currency transaction reporting laws, regulations
and government guidance applicable to the Fund or the Transfer Agent, including
suspicious activity reporting and recordkeeping requirements, and, in respect of
the Fund, with any “money laundering” guidelines as may be provided by
the Fund or agreed between the parties.
|
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(f) Proposed Securities and Tax Laws.
Monitor proposed securities and tax laws and regulations which may affect the
Transfer Agent’s products and/or services provided hereunder and take
reasonable steps to update its products and/or services to accommodate new
securities and tax laws and regulations applicable to the Transfer Agent in the
time and manner required by such laws and regulations. |
| 2. |
Fees and Expenses. For the performance by the Transfer
Agent pursuant to this Agreement, the Fund agrees to pay the Transfer Agent and
to reimburse the Transfer Agent for out-of-pocket expenses as set forth in the
attached Schedule A. |
3. Representations and
Warranties of the Transfer Agent. The Transfer Agent represents and warrants
to the Fund that:
| 3.1 |
It is registered as a transfer agent under the Exchange Act. |
| 3.2 |
It is a trust company duly organized and existing and in good
standing under the laws of New York and is duly qualified to carry on its
business in New York.
|
| 3.3 |
It is empowered under applicable laws and by its organizational
documents to enter into and perform this Agreement. |
| 3.4 |
All requisite proceedings required by such organizational
documents have been taken to authorize it to enter into and perform this
Agreement.
|
| 3.5 |
It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
|
| 4. |
Representations and Warranties of the Fund. The Fund
represents and warrants to the Transfer Agent that:
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| 4.1 |
It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
|
| 4.2 |
It is empowered under applicable laws and by its articles of
incorporation and by-laws to enter into and perform this Agreement.
|
| 4.3 |
All requisite corporate proceedings required by such articles
of incorporation and by-laws have been taken to authorize it to enter into and
perform this Agreement.
|
| 4.4 |
It is a closed-end management investment company registered under
the Investment Company Act of 1940, as amended.
|
| 4.5 |
A registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective with respect to all
Shares of the Fund being offered for sale.
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| 5.1 |
The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold the Transfer Agent harmless from and against, any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability (“Losses”) arising out of or attributable to:
|
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(a) all actions of the Transfer
Agent or its agents or subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken in good faith and without
negligence or willful misconduct;
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(b) the Fund’s lack of good
faith, negligence or willful misconduct in the performance of this Agreement or
the breach of any representation, warranty or covenant of the Fund hereunder;
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(c) the reasonable reliance by the
Transfer Agent or its agents or subcontractors on: (i) any information, records,
documents, data or stock certificates which are received by the Transfer Agent
or its agents or subcontractors by machine readable input, facsimile, CRT data
entry, electronic instructions or other similar means authorized by the Fund and
which have been prepared, maintained or performed by the Fund or any other
person or firm on behalf of the Fund including but not limited to any
broker-dealer or previous transfer agent; (ii) any instructions or requests of
the Fund or any of its officers; or (iii) any paper or document, including
certificates for Shares, reasonably believed to be genuine, authentic, or signed
by the proper person or persons unless, in each case, such Losses are due to the
negligence of the Transfer Agent arising out of its failure to perform in
accordance with procedures established with the Fund;
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(d) the offer or sale of Shares in
violation of federal or state securities laws requiring that such Shares be
registered or in violation of any stop order or other determination or ruling by
any federal or any state agency with respect to the offer or sale of such
Shares; and
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(e) the negotiation and processing of any checks
including without limitation for deposit into the Fund’s demand deposit
account maintained by the Transfer Agent, unless such Losses are due to the
negligence of the Transfer Agent arising out of its failure to perform in
accordance with procedures established with the Fund.
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| 5.2 |
The Fund shall not be responsible for, and the Transfer Agent
shall indemnify and hold the Fund harmless from and against, any and all Losses
arising out of or attributable to the Transfer Agent’s lack of good faith,
negligence or willful misconduct in the performance of this Agreement or the
breach of any representation, warranty or covenant of the Transfer Agent
hereunder.
|
| 5.3 |
In order that the indemnification provisions contained in this
Section 5 shall apply, upon the assertion of a claim for which a party
(the “Indemnifying Party”) may be required to indemnify the other
party (the “Indemnified Party”), the Indemnified Party shall promptly
notify the Indemnifying Party of such assertion and shall keep the Indemnifying
Party advised with respect to all developments concerning such claim. The
Indemnifying Party shall have the option to participate with the Indemnified
Party in the defense of such claim or to defend against said claim in its own
name or in the name of the Indemnified Party. The Indemnified Party shall in no
case confess any claim or make any compromise in any case in which the
Indemnifying Party may be required to indemnify the Indemnified Party except
with the Indemnifying Party’s prior written consent.
|
| 5.4 |
No party shall be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not limited to,
lost or anticipated profits, occasioned by a breach of any provision of this
Agreement even if apprised of the possibility of such damages.
|
| 6.1 |
The Fund and the Transfer Agent agree that they will not, at any
time during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other business
organization any customers’ lists, trade secrets, cost figures and
projections, profit figures and projections, or any other secret or confidential
information whatsoever, including Nonpublic Personal Information as defined
below (“Confidential Information”), whether of the Transfer Agent or
of the Fund, used or gained by the Transfer Agent or the Fund during performance
under this Agreement. The Fund and the Transfer Agent further covenant and agree
to retain all such Confidential Information acquired during and after the term
of this Agreement in trust for the sole benefit of the other party and their
successors and assigns. In the event of breach of the foregoing by either party,
the breaching party acknowledges that its obligation to protect the other
party’s Confidential Information is essential to the business interests of
such other party and that the disclosure of such Confidential Information in
breach of this Agreement would cause such other party immediate, substantial and
irreparable harm, the value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other remedies that may
be available in law, equity, or otherwise for the disclosure or use of the
Confidential Information in breach of this Agreement, such other party shall be
entitled to seek and obtain a temporary restraining order, injunctive relief, or
other equitable relief against the continuance of such breach. The above
prohibition of disclosure shall not apply to the extent that the Transfer Agent
must disclose such data to its subcontractor or a Fund agent for purposes of
providing services under this Agreement or, in the case of Nonpublic Personal
Information, in compliance with the redisclosure and reuse restrictions in
Regulation S-P, as defined below, and the Fund’s Privacy Policy. The
Transfer Agent shall use its best efforts to require such subcontractors to
agree that the Fund’s Confidential Information be kept in strictest
confidence and used solely for the purposes of performing this Agreement.
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| 6.2 |
In the event that any requests or demands are made for the
inspection of the Stockholder records of the Fund, other than request for
records of Stockholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the Transfer Agent
will notify the Fund and secure instructions from an authorized officer of the
Fund as to such inspection. The Transfer Agent expressly reserves the right,
however, to exhibit the Stockholder records to any person whenever it is advised
by counsel that it may be held liable for the failure to exhibit the Stockholder
records to such person or if required by law or court order.
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| 6.3 |
(a) Nonpublic Personal Information (as defined in
Regulation S-P promulgated by the Securities and Exchange Commission,
“Regulation S-P”) relating to Stockholders or prospective Stockholders
shall be considered confidential information (“Nonpublic Personal
Information”). The Transfer Agent shall use its best efforts to (i) cause
its directors, officers and employees to be informed of and to agree to be bound
by the provisions of this Agreement regarding Nonpublic Personal Information and
(ii) maintain physical, electronic and procedural safeguards reasonably designed
to protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, Nonpublic Personal Information. |
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(b) Upon the earlier of (i) the Fund’s
request or (ii) the termination of this Agreement, the Transfer Agent will
return all Nonpublic Personal Information, in whatever form or media, retaining
no copies, other than as required to be retained by the Transfer Agent under
applicable laws or regulation. The Fund will have the right to perform on-site
audits of records, accounts and procedures relating to the Transfer Agent’s
use and protection of Nonpublic Personal Information at the Transfer
Agent’s facilities in accordance with reasonable procedures and at
reasonable frequencies.
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| 7. |
Covenants of the Transfer Agent. |
| 7.1 |
The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting devices, if
any, and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
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| 7.2 |
The Transfer Agent shall keep records relating to the services to
be performed hereunder, in the form and manner as it may deem advisable. The
Transfer Agent agrees that all such records prepared or maintained by the
Transfer Agent relating to the services to be performed by the Transfer Agent
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with applicable law, and will be surrendered
promptly to the Fund on and in accordance with its request.
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| 7.3 |
The Transfer Agent will provide for back-up of its computer files
and data with respect to the Fund. The Transfer Agent will maintain a
comprehensive Disaster Recovery Plan and will provide the Fund with a summary of
its Disaster Recovery Plan upon the reasonable request of the Fund.
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| 7.4 |
The Transfer Agent shall maintain fidelity insurance in the form
of a standard Financial Institutions Bond covering performance of its duties
under this Agreement.
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| 8. |
Termination of Agreement.
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| 8.1 |
Term. The initial term of this Agreement is two (2) years,
and upon expiration of each term this Agreement renews automatically for an
additional one (1) year period unless either party provides written notice to
the other party of non-renewal of this Agreement at least sixty (60) days prior
to the end of the then-current term, in which case this Agreement will terminate
on the last day of the current term; provided, however, that if either party
materially breaches this Agreement, and such breach continues for a period of
thirty (30) days after notice of such breach is given by the non-breaching
party, the non-breaching party shall have the right to terminate this Agreement
for cause by giving notice of intent to terminate to the other party, and such
notice shall be effective on the date specified therein for such termination
unless the breaching party shall correct such breach prior to the termination
date.
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| 8.2 |
Confidential Information. Subject to any other provision of
this Agreement, upon termination of this Agreement each party shall return to
the other party all copies of Confidential Information received from such other
party hereunder, other than materials or information required to be retained by
such party under applicable law.
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| 8.3 |
Bankruptcy. Either party hereto may terminate this
Agreement by notice to the other party, effective at any time specified therein,
in the event that (a) the other party ceases to carry on its business or (b) an
action is commenced by or against the other party under Title 11 of the United
States Code or a receiver, conservator or similar officer is appointed for the
other party and such suit, conservatorship or receivership is not discharged
within thirty (30) days.
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| 9. |
Assignment and Third Party Beneficiaries.
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| 9.1 |
Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the written consent of the other party. Any
attempt to do so in violation of this Section shall be void. Unless specifically
stated to the contrary in any written consent to an assignment, no assignment
will release or discharge the assignor from any duty or responsibility under
this Agreement.
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| 9.2 |
Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Transfer Agent and the Fund, and the duties
and responsibilities undertaken pursuant to this Agreement shall be for the sole
and exclusive benefit of the Transfer Agent and the Fund. This Agreement shall
inure to the benefit of and be binding upon the parties and their respective
permitted successors and assigns.
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| 9.3 |
This Agreement does not constitute an agreement for a partnership
or joint venture between the Transfer Agent and the Fund. Neither party shall
make any commitments with third parties that are binding on the other party
without the other party’s prior written consent.
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| 10.1 |
Amendment. This Agreement may be amended or modified by a
written agreement executed by both parties.
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| 10.2 |
Delaware Law to Apply. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance with the laws of
the state of Delaware.
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| 10.3 |
Force Majeure. In the event either party is unable to
perform its obligations under the terms of this Agreement because of acts of
God, strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, such party shall not be
liable for damages to the other for any Losses resulting from such failure to
perform or otherwise from such causes, provided that the parties shall take
reasonable steps under the facts and circumstances then prevailing to mitigate
damages arising out of such causes.
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| 10.4 |
Survival. All provisions regarding indemnification,
warranty (other than in Sections 4 and 5), liability, and limits thereon,
and Confidential Information shall survive the termination of this Agreement.
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| 10.5 |
Severability. If any provision or provisions of this
Agreement shall be held invalid, void, unlawful, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected, impaired or invalidated.
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| 10.6 |
Waiver. No waiver by either party or any breach or default
of any of the covenants or conditions herein contained and performed by the
other party shall be construed as a waiver of any succeeding breach of the same
or of any other covenant or condition.
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| 10.7 |
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.
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| 10.8 |
Counterparts. This Agreement may be executed by the parties
hereto on any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
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| 10.9 |
Reproduction of Documents. This Agreement and all
schedules, exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties hereto each agree that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
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| 10.10 |
Notices. All notices and other communications as required
or permitted hereunder shall be in writing and sent by overnight commercial
courier, addressed as follows or to such other address or addresses of which the
respective party shall have notified the other.
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(a) |
If to the Transfer Agent, to:
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: President |
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(b) |
If to the Fund, to:
x/x Xxxxxxxxx Xxxxxxx Xxxx.
0000 Avenue of the Americas, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President |
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf by and through their
duly authorized officers, as of the day and year first above written.
By:_________________________________________
Name:_______________________________________
Title:________________________________________
Date:________________________________________
Attest:_______________________________________
Name:_______________________________________ |
By:_________________________________________
Name:_______________________________________
Title:________________________________________
Date:________________________________________
Attest:_______________________________________
Name:_______________________________________ |
SCHEDULE A
FEE SCHEDULE
