REGISTRAR AND TRANSFER AGENCY AGREEMENT
THIS AGREEMENT is made this 4th day of June One Thousand Nine Hundred and
Ninety-Nine
BETWEEN
XXXXXXXXX.XXX plc a public limited company incorporated in and under the laws of
England and Wales whose registered office is at 0 Xxxxxxx Xxxx, Xxxxxxx Xxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx XX0 0XX, Xxxxxxx (hereinafter called the Company') of
the first part and
THE BANK OF BERMUDA LIMITED a company incorporated in and under the laws of
Bermuda whose registered office is at Bank of Xxxxxxx Xxxxxxxx, 0 Xxxxx Xxxxxx,
Xxxxxxxx XX 00, Xxxxxxx (hereinafter called the "Bank") of the second part.
WHEREAS:-
(A) The Company is desirous of appointing a Registrar and Transfer Agent of the
shares of the Company; and
(B) The Bank has agreed to act as Registrar and Transfer Agent of the shares of
the Company upon the terms and conditions hereinafter contained.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
--------------
(A) In this Agreement and in all amendments hereto the following words and
expressions shall, where not inconsistent with the context, have the
following meanings respectively:-
"Board" shall mean the board of directors of the Company.
"Articles" shall mean the Memorandum and Articles of Association of the
Company for the time being in force.
"Directors" shall mean the directors of the Company.
"Shareholders" shall mean the shareholders of the Company.
(B) Unless the context otherwise requires words and expressions contained in
this Agreement shall bear the same meaning as in the Articles.
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(C) Unless the context otherwise requires words importing the singular number
shall include the plural and vice versa, words importing the masculine
gender shall include the feminine and words importing persons shall include
firms and companies and vice versa.
(D) The division of this Agreement into sections, clauses and sub-clauses and
the insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation hereof.
2. APPOINTMENT OF REGISTRAR AND TRANSFER AGENT
-------------------------------------------
The Company HEREBY APPOINTS the Bank to be and the Bank HEREBY AGREES to
act as Registrar and Transfer Agent for the Company from the date hereof upon
the terms and conditions hereinafter contained. The Bank may appoint a
sub-registrar and sub-transfer agent to carry out and discharge all or any of
the obligations of the Bank hereunder provided that consent to such appointment
shall be given by the Board.
3. PROVISION OF FACILITIES
-----------------------
The Bank shall provide and pay an adequate staff and shall provide suitable
office accommodation and other facilities at Bank of Bermuda Building aforesaid
or elsewhere in Bermuda as determined by the Bank and notified to the Company
for efficiently performing its functions but the Company shall not be entitled
to the exclusive use of any such accommodation or to the exclusive services of
any member of such staff.
4. DUTIES OF THE BANK
-------------------
(A) During the continuance of this Agreement the Bank shall:-
(a) be responsible for keeping the register of members of the Company (the
"Register") in accordance with the statutory provisions for the time
being in force and the Articles and all other duties incidental
thereto PROVIDED ALWAYS that the Bank shall be permitted to keep the
Register on magnetic tape or disc or in accordance with some other
mechanical or electronic system on condition that it is capable of
being produced in legible form and where any authorised person wishes
to inspect the Register pursuant to sub-clause (e) hereof whilst it is
kept in the aforesaid manner, the Bank shall provide legible evidence
of the contents of the Register;
(b) enter on the Register all issues, allotments, transfers, conversions
or redemptions of shares in accordance with the Articles for the time
being in force;
(c) issue such shares of the Company as are required upon receipt of
proper instructions from the Company;
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(d) take or procure that there are taken reasonable and proper precautions
for the safe custody of the Register, of the share certificates (if
any) of the Company held by the Bank pending issue, of share
certificates (if any) tendered for exchange, replacement, conversion,
redemption or transfer by the holders thereof, of cancelled share
certificates (if any) held by the Bank, of share transfer forms
tendered to the Bank and of all other documents held by it in
performance of its duties hereunder;
(e) receive, record and deal with probates, letters of administration,
powers of attorney, dividend mandates, vesting orders, certificates of
marriage or death, notices of change of name and other documents
affecting the title to shares or any dividends payable thereon
affecting the Register in accordance with the Bank's normal practice
or in accordance with the written instructions of the Company;
(f) make the Register available for inspection as required by law or the
Articles and supply copies of the Register or of any part thereof
within the period allowed by law. The Bank may charge and retain a fee
for supplying such copies, provided that such fee shall not exceed the
amount permitted by law or by the Articles;
(g) prepare and seal on behalf of the Company new certificates and balance
certificates and procure that certificates for shares in the Company
shall be issued or cancelled only in accordance with the provisions of
the Articles;
(h) in the event that share certificates are issued, prepare and seal on
behalf of the Company new share certificates and balance share
certificates and procure that certificates for shares shall be issued
or cancelled only in accordance with the provisions of the Articles
and in the case of the issue of shares only after satisfying itself
that the Company has received from all applicants all payments in
respect of such issue;
(i) in the event that shares are issued in uncertificated form, the Bank
will issue a notice to each Shareholder evidencing that shares have
been issued, but only after satisfying itself that the Company has
received from all applicants all payments in respect of such issue;
(j) prepare, on and in accordance with instructions of the Company, and
subject to being satisfied that the funds are available to meet the
same, issue warrants or cheques for dividend payments or payment of
redemption moneys on redemption of shares or arrange for payment of
dividends or such redemption moneys to or in accordance with the
instructions of the Shareholders and notify the Company of the amounts
and payees of all cheques and warrants for payments so made;
(k) at any time during the Bank's business hours permit the auditor of the
Company and any duly appointed agent or representative of the Company
at the expense of the Company to audit or inspect the Register and any
other documents or records kept by and still in the possession of the
Bank hereunder and make available all such documents and records in
its possession to such auditor, agent or representative during
business hours whenever reasonably required so to do and afford all
such information, explanations and assistance as such Auditor, agent
or representative may require;
(1) despatch all such circulars, notices of meetings, reports, financial
statements and other written material to all persons entitled to
receive the same under the Articles as the Company may require;
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(m) act as may be required by the Company from time to time as proxy agent
in connection with the holding of meetings of Shareholders, receive
and tabulate votes cast by proxy and communicate to the Company the
results of such tabulation accompanied by appropriate certificates;
(n) deal with and answer all correspondence from or on behalf of the
Shareholders relating to the functions of the Bank under this
Agreement; and
(o) generally perform all the duties usually performed by registrar and
transfer agents of companies including the keeping of all records
required to be kept and made under regulations in Bermuda for the time
being in force.
(B) The Bank shall be deemed to have received proper instructions or
authorisation from the Company upon receipt of written, cabled, telexed or
facsimile instructions signed by such one or more persons as the Directors
of the Company shall from time to time authorise to give such instructions.
A certified copy of the resolution of the Board shall be conclusive
evidence of the authority of any such person to act until the Bank is in
receipt of written notice to the contrary.
5. CONTROL BY DIRECTORS
--------------------
In the performance of its duties hereunder the Bank shall at all times be
subject to the control of and review by the Directors of the Company and the
Directors of the Company and shall in all respects observe and comply with the
Articles and shall comply and conform to all reasonable and proper orders,
directions and regulations of the Directors or the Company and shall well and
faithfully serve the Company and use all reasonable endeavours to promote the
interests thereof.
6. REMUNERATION OF THE BANK
------------------------
(A) The Bank shall be paid by way of remuneration for its services pursuant to
this Agreement fees at such rates as may be agreed from time to time
between the Company and the Bank and failing such agreement in accordance
with the Bank's scale of fees as shall from time to time be in force.
(B) The Bank shall also be entitled to receive from the Company an amount equal
to all out-of-pocket expenses properly incurred by the Bank in carrying out
its duties hereunder.
7. PAYMENTS
--------
Amounts payable by the Company to the Bank pursuant to Clause 6 hereof
shall be paid in United States Dollars in Bermuda at such times to be agreed in
writing from time to time between the Company and the Bank.
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8. DUTIES OF THE COMPANY
---------------------
The Company shall:-
(a) at all times supply or procure the supply to the Bank of blank forms
of certificates as necessary and, in the event of the same being
specially engraved, the plates for engraving the same shall during the
continuance of this Agreement be deposited for safe custody in such
manner and with such persons (and if required in the joint names of
the Company and the Bank) as the Bank may require and the same shall
not be used for the purpose of preparing any forms of certificates
without the written consent of the Bank;
(b) retain for a period of seven years after the termination of the
appointment of the Bank hereunder for any reason whatsoever all
cancelled share certificates and share transfer forms lodged during
the period of such appointment; and
(c) deliver or cause to be delivered from time to time to the Bank
properly certified or authenticated copies of its Articles and all
amendments thereto and of such resolutions, votes or other proceedings
as may be necessary for the Bank in the performance of its duties
hereunder.
9. RIGHTS OF THE BANK
------------------
The Bank may:-
(a) at its own expense employ servants or agents in performance of its
duties and the exercise of its rights hereunder;
(b) delegate its functions, powers, discretions, privileges and duties
hereunder or any of them to such person, firm or corporation on such
terms and conditions as are agreed between the Bank and the Company;
(c) use the name of the Company and sign any necessary letters or other
documents for and on behalf of the Company as Registrar and Transfer
Agent of the Company in the performance of its duties hereunder;
(d) act as registrar or transfer agent for any other company, corporation
or body of persons on such terms as may be arranged with such company,
corporation or body of persons and shall not be deemed to be affected
with notice of or to be under any duty to disclose to the Company any
fact or thing which may come to the knowledge of the Bank or any
servant or agent of the Bank in the course of so doing or in any
manner whatever otherwise than in the course of carrying out the
duties of Registrar and Transfer Agent hereunder; and
(e) acquire, hold or deal with for its own account or for the account of
any customer or other person and in its own name or in the name of
such customer or person or of a nominee any shares or securities for
the time being issued by the Company or any investment in which the
Company is authorised to invest and shall not be required to account
to the Company for any profit arising therefrom.
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10. RESPONSIBILITY OF BANK AND INDEMNITY BY COMPANY
-----------------------------------------------
(A) The Bank shall not incur liability by refusing in good faith to perform any
duty or obligation herein which in its judgment is improper or unauthorised
provided that in performing its duties and obligations pursuant to this
Agreement it shall not be required at any time to do or procure the doing
of anything contrary to or in breach of or which constitutes any offence
against any applicable law or regulation then in force.
(B) The Bank shall not, in the absence of negligence or wilful default on the
part of the Bank or its servants, agents or delegates, be liable to the
Company or to any Shareholder for any act or omission in the course of or
in connection with the services rendered by it hereunder or for any loss or
damage which the Company may sustain or suffer as the result or the course
of the discharge by the Bank or its servants, agents or delegates of its
duties hereunder or pursuant hereto and the Bank shall not in any event be
liable for any loss occasioned by reason only of the liquidation,
bankruptcy or insolvency of any servant, agent or delegate appointed
pursuant to the provisions hereof.
(C) The Bank shall not be responsible for the loss or damage to any documents
or other property of the Company or for any failure to fulfil its duties
hereunder if such loss, damage or failure shall be caused by or directly or
indirectly due to war, enemy action, the act of government or other
competent authority, of if any investment exchange or dealing house, riots,
civil disturbance, rebellion, xxxxx, xxxxxxx, accident, fire, strike,
explosion, lock-out or the breakdown, failure or malfunction of any
telecommunication or computer service or any occurence or event beyond the
control of the Bank
(D) The Company agrees to indemnify the Bank from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(other than those resulting from the negligence or wilful default on the
part of the Bank) which may be imposed on, incurred by or asserted against
the Bank in performing its obligations or duties hereunder.
(E) The Bank shall not be liable for any loss suffered by the Company or any
Shareholder, whether caused by delays or otherwise, resulting from
illegible or unclear communications from the Company, Shareholders,
potential investors or any agents thereof.
(F) Where any Proper Instructions or notices or other documentation are given
by way of facsimile transmission the fact that a transmission report
produced by the originator of such transmission discloses that the
transmission was sent shall not be sufficient proof of receipt by the Bank.
The Company agrees to indemnify the Bank from and against any and all
actions, losses, costs, charges,
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expenses and demands of any and every kind which may at any time hereafter
be incurred by the Bank in consequence of accepting and acting upon such
Proper Instructions or notices or other documentation given by facsimile
transmission whether or not such instructions were given by the Company or
any other person duly authorised to give such instructions.
11. FRAUD
-----
In the absence of negligence and provided that the officers, servants or
agents of the Bank are not parties to any fraud, the Bank shall not be
responsible to the Company for registering or issuing certificates in accordance
with forged or fraudulent transfers or for the consequences of any action taken
by the Bank upon the faith of any forged or fraudulent document in any case
where, had the document not been forged or fraudulent, the action taken by the
Bank would have been the normal and reasonable action to be taken.
12. CONFIDENTIALITY AND REPUTATION
------------------------------
(A) Neither party hereto shall, unless compelled so to do by any court of
competent jurisdiction, either before or after the termination of this
Agreement, disclose to any person any information relating to the other
party to this Agreement without the consent of that other party.
(B) Neither party hereto shall do or commit any act or matter or thing which
would or might prejudice or bring into disrepute in any manner the business
or reputation of either of the parties or any Director of any such party.
13. TERMINATION
-----------
(A) This Agreement and the appointment of the Bank hereunder shall continue in
force until terminated by either the Company or the Bank giving to the
other not less than sixty days' notice in writing expiring at any time
provided that this Agreement may be determined forthwith by the Company or
the Bank by notice taking immediate or subsequent effect if:-
(a) the Bank or the Company respectively has broken or is in breach of any
of the terms of this Agreement and shall not have remedied such breach
within thirty days after service of notice requiring the same to be
remedied; or
(b) the Bank or the Company respectively shall go into liquidation (except
a voluntary liquidation for the purposes of reconstruction or
amalgamation on terms previously approved in writing by the other
party).
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(B) Termination of this Agreement shall be without prejudice to any claims or
rights which either of the parties hereto may have by reason of any breach
of the other party's obligations and, without prejudice to the generality
of the foregoing, any indemnity provisions and provisions limiting the
liabilities of either party shall survive termination of this Agreement.
14. DELIVERY OF DOCUMENTS
---------------------
Upon the termination of this Agreement the Bank shall hand over to the
Company the Register and all other documents in the possession of the Bank in
its capacity as Registrar and Transfer Agent or in relation to the functions
assigned to it hereunder; provided, however, that the Bank shall not be required
to make any such delivery or payment until full payment shall have been made to
the Bank of all its fees, compensation, costs and expenses due to it under the
provisions of this Agreement.
15. NOTICES
-------
Any notice, instruction or other instrument required or permitted to be
given hereunder may be delivered in person to the offices of the parties as set
forth herein during normal business hours, or delivered prepaid registered mail
or by facsimile to the parties at the following addresses or such other address
as may be notified by either party from time to time.
TO THE COMPANY: XXXXXXXXX.XXX plc
0 Xxxxxxx Xxxx,
Xxxxxxx Xxx,
Xxxxxxxxxxx,
Xxxxxxxxxxxxx XX0 0XX,
England
Attention: Company Secretary
Facsimile: 00-000-000-0000
TO THE BANK: THE BANK OF BERMUDA LIMITED
0 Xxxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: General Manager, Corporate Trust
Facsimile: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, and, in the case of facsimile, immediately on dispatch and if delivered
outside normal business hours it shall be deemed to have
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been received at the next time after delivery when normal business hours
commence. Evidence that the notice, instruction or other instrument was properly
addressed, stamped and put into the post shall be conclusive evidence of
posting.
16. RIGHT TO USE DATA PROCESSING RECORDS
------------------------------------
The Bank is authorised to maintain all accounts, registers, corporate books
and other documents relating to the Company or its affairs on computer records
and to produce at any time during the course of legal proceedings, copies or
reproductions of these documents made by photographic, photostatic or data
processing procedures as juridical proof thereof.
17. TELEPHONE RECORDING
-------------------
The Bank may record all telephone conversations between the Company and the
Bank or between any Shareholder or other person and the Bank in relation to the
affairs of the Company and any such tape recordings may be submitted in evidence
in any proceedings relating to this Agreement.
18. ASSIGNMENT AND AMENDMENT
------------------------
This Agreement shall not be amended or assigned by either the Bank or the
Company save with the consent of the other party hereto.
19. COUNTERPART
-----------
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when executed
and delivered shall constitute an original and all such counterparts together
constitute one and the same instrument.
20. SEVERANCE
---------
If any provision herein shall be determined to be void or unenforceable in
whole or in part for any reason whatsoever such invalidity or unenforceability
shall not affect the remaining provisions or any part thereof contained within
this Agreement and such void or unenforceable provisions shall be deemed to be
severable from any other provision or part thereof herein contained.
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21. PROPER LAW AND JURISDICTION
---------------------------
This Agreement shall be governed by and construed in accordance with the
laws of Bermuda and the courts of Bermuda shall have non-exclusive jurisdiction
to resolve any disputes relating to the terms of this Agreement.
AS WITNESS the hands of the duly authorised signatories of the parties hereto as
of the day and year first above written.
SIGNED BY Xxxx Xxxxxx ) /s/ Xxxx Xxxxxx
duly authorised )
for and on behalf of )
XXXXXXXXX.XXX plc )
in the presence of: )
/s/ Xxxxxx Xxxxxxx
-------------------------
Xxxxxx Xxxxxxx
-------------------------
SIGNED BY Xxxxx Xxxxxxxxxx ) /s/ Xxxxx Xxxxxxxxxx
and Xxxxx Xxxxxxx ) /s/ Xxxxx Xxxxxxx
duly authorised )
for and on behalf of )
THE BANK OF BERMUDA LIMITED )
in the presence of: )
/s/ Will Grant
-------------------------
-------------------------
DATED: 4th June, 1999
-----------------------------------
BETWEEN:
XXXXXXXXX.XXX plc
-and-
THE BANK OF BERMUDA LIMITED
------------------------------------
REGISTRAR AND TRANSFER
AGENCY AGREEMENT
------------------------------------
The Bank of Bermuda Limited
0 Xxxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
