EX-99.(K)(1) FORM OF STOCK TRANSFER AGENCY AGREEMENT
Published on February 13, 2007
Exhibit k(l)
STOCK TRANSFER AGENCY AGREEMENT
between
TRIANGLE CAPITAL CORPORATION
and
THE BANK OF NEW YORK
Dated as of February ___, 2007
ACCOUNT NUMBER(S) ___________________________
STOCK TRANSFER AGENCY AGREEMENT
AGREEMENT, made as of February [___], 2007 by and between TRIANGLE CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of Maryland (hereinafter referred to
as the Customer), and THE BANK OF NEW YORK, a New York trust company (hereinafter referred to as
the Bank).
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the following
meanings:
1. Business Day shall be deemed to be each day on which the Bank is open for business.
2. Certificate shall mean any notice, instruction, or other instrument in writing,
authorized or required by this Agreement to be given to the Bank by the Customer which is signed by
any Officer, as hereinafter defined, and actually received by the Bank.
3. Officer shall be deemed to be the Customers Chief Executive Officer, President, any Vice
President, the Secretary, the Treasurer, the Controller, any Assistant Treasurer, and any Assistant
Secretary duly authorized by the Board of Directors of the Customer to execute any Certificate,
instruction, notice or other instrument on behalf of the Customer and named in a Certificate, as
such Certificate may be amended from time to time.
4. Shares shall mean all or any part of each class of the shares of capital stock of the
Customer which from time to time are authorized and/or issued by the Customer and identified in a
Certificate of the Secretary of the Customer under corporate seal, as such Certificate may be
amended from time to time, with respect to which the Bank is to act hereunder.
ARTICLE II
APPOINTMENT OF BANK
APPOINTMENT OF BANK
1. The Customer hereby constitutes and appoints the Bank as its agent to perform the services
described herein and as more particularly described in Schedule I attached hereto (the Services),
and the Bank hereby accepts appointment as such agent and agrees to perform the Services in
accordance with the terms hereinafter set forth.
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2. In connection with such appointment, the Customer shall deliver the following documents to
the Bank:
(a) | A certified copy of the Certificate of Incorporation or other document evidencing the Customers form of organization (the Charter) and all amendments thereto; | ||
(b) | A certified copy of the By-Laws of the Customer; | ||
(c) | A certified copy of a resolution of the Board of Directors of the Customer appointing the Bank to perform the Services and authorizing the execution and delivery of this Agreement; | ||
(d) | A Certificate signed by the Secretary of the Customer specifying: the number of authorized Shares, the number of such authorized Shares issued and currently outstanding, and the names and specimen signatures of all persons duly authorized by the Board of Directors of the Customer to execute any Certificate on behalf of the Customer, as such Certificate may be amended from time to time; | ||
(e) | A Specimen Share certificate for each class of Shares in the form approved by the Board of Directors of the Customer, together with a Certificate signed by the Secretary of the Customer as to such approval and covenanting to supply a new such Certificate and specimen whenever such form shall change; | ||
(f) | An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the validity of the authorized and outstanding Shares, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor); | ||
(g) | A list of the name, address, social security or taxpayer identification number of each Shareholder, number of Shares owned, certificate numbers, and whether any stops have been placed; and | ||
(h) | An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the due authorization by the Customer and the validity and effectiveness of the use of facsimile signatures by the Bank in connection with the countersigning and registering of Share certificates of the Customer. |
3. The Customer shall furnish the Bank with a sufficient supply of blank Share certificates
and from time to time will renew such supply upon request of the Bank. Such blank Share
certificates shall be properly signed, by facsimile or otherwise, by Officers of the Customer
authorized by law or by the By-Laws to sign Share certificates, and, if required, shall bear
the corporate seal or a facsimile thereof.
4. Customer
acknowledges that the Bank is subject to the customer identification
program (Customer Identification Program) requirements
under the USA PATRIOT Act and its implementing regulations, and that
the Bank must obtain, verify and record information that allows the
Bank to identify Customer. Accordingly, prior to opening an account
hereunder the Bank may request information (including but not
limited to the Customers name, physical address, tax
identification number and other information) that will help the Bank
to identify the organization such as organizational documents,
certificate of good standing, license to do business, or any other
information that will allow the Bank to identify Customer. Customer
agrees that the Bank cannot open an account hereunder unless and
until the Bank verifies Customers identity in accordance with
its Customer Identification Program.
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ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Customer shall deliver to the Bank the following documents on or before the effective
date of any increase, decrease or other change in the total number of Shares authorized to be
issued:
(a) | A certified copy of the amendment to the Charter giving effect to such increase, decrease or change; | ||
(b) | An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the validity of the Shares, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable federal law or regulations (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor); and | ||
(c) | In the case of an increase, if the appointment of the Bank was theretofore expressly limited, a certified copy of a resolution of the Board of Directors of the Customer increasing the authority of the Bank. |
2. Prior to the issuance of any additional Shares pursuant to stock dividends, stock splits or
otherwise, and prior to any reduction in the number of Shares outstanding, the Customer shall
deliver the following documents to the Bank:
(a) | A certified copy of the resolutions adopted by the Board of Directors and/or the shareholders of the Customer authorizing such issuance of additional Shares of the Customer or such reduction, as the case may be; | ||
(b) | A certified copy of the order or consent of each governmental or regulatory authority required by law as a prerequisite to the issuance or reduction of such Shares, as the case may be, and an opinion of counsel for the Customer that no other order or consent is required; and | ||
(c) | An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the validity of the Shares, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration, that they have been registered and that the Registration Statement has become effective, or, if exempt, the specific grounds therefor). |
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ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other capital adjustment
requiring a change in the form of Share certificates, the Bank will issue Share certificates in the
new form in exchange for, or upon transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) | A Certificate authorizing the issuance of Share certificates in the new form; | ||
(b) | A certified copy of any amendment to the Charter with respect to the change; | ||
(c) | Specimen Share certificates for each class of Shares in the new form approved by the Board of Directors of the Customer, with a Certificate signed by the Secretary of the Customer as to such approval; | ||
(d) | A certified copy of the order or consent of each governmental or regulatory authority required by law as a prerequisite to the issuance of the Shares in the new form, and an opinion of counsel for the Customer that the order or consent of no other governmental or regulatory authority is required; and | ||
(e) | An opinion of counsel for the Customer, in a form satisfactory to the Bank, with respect to the validity of the Shares in the new form, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such Shares under the Securities Act of 1933, as amended, and any other applicable law or regulation (i.e., if subject to registration, that the Shares have been registered and that the Registration Statement has become effective or, if exempt, the specific grounds therefor). |
2. The Customer shall furnish the Bank with a sufficient supply of blank Share certificates in
the new form, and from time to time will replenish such supply upon the request of the Bank. Such
blank Share certificates shall be properly signed, by facsimile or otherwise, by Officers of the
Customer authorized by law or by the By-Laws to sign Share certificates and, if required, shall
bear the corporate seal or a facsimile thereof.
ARTICLE V
ISSUANCE AND TRANSFER OF SHARES
ISSUANCE AND TRANSFER OF SHARES
1. The Bank will issue and transfer Shares as follows:
(a) The Bank will issue Share certificates upon receipt of a Certificate from an Officer, but
shall not be required to issue Share certificates after it has received from an appropriate federal
or state authority written notification that the sale of Shares has been suspended or discontinued,
and the Bank shall be entitled to rely upon such written notification.
The Bank shall not be responsible for the payment of any original issue or other taxes
required to be paid by the Customer in connection with the issuance of any Shares.
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(b) Shares will be transferred upon presentation to the Bank of Share certificates in form
deemed by the Bank properly endorsed for transfer, accompanied by such documents as the Bank deems
necessary to evidence the authority of the person making such transfer, and bearing satisfactory
evidence of the payment of applicable stock transfer taxes. In the case of small estates where no
administration is contemplated, the Bank may, when furnished with an appropriate surety bond, and
without further approval of the Customer, transfer Shares registered in the name of the decedent
where the current market value of the Shares being transferred does not exceed such amount as may
from time to time be prescribed by the various states. The Bank reserves the right to refuse to
transfer Shares until it is satisfied that the endorsements on Share certificates are valid and
genuine, and for that purpose it may require, unless otherwise instructed by an Officer of the
Customer, a guaranty of signature by an eligible guarantor institution meeting the requirements
of the Bank, which requirements include membership or participation in STAMP or such other
signature guarantee program as may be determined by the Bank in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. The Bank also
reserves the right to refuse to transfer Shares until it is satisfied that the requested transfer
is legally authorized, and it shall incur no liability for the refusal in good faith to make
transfers which the Bank, in its judgment, deems improper or unauthorized, or until it is satisfied
that there is no basis to any claims adverse to such transfer. The Bank may, in effecting
transfers of Shares, rely upon those provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be amended from time
to time, applicable to the transfer of securities, and the Customer shall indemnify the Bank for
any act done or omitted by it in good faith in reliance upon such laws.
(c) All certificates representing Shares that are subject to restrictions on transfer
(e.g., securities acquired pursuant to an investment representation, securities held by
controlling persons, securities subject to stockholders agreement, etc.), shall be stamped with a
legend describing the extent and conditions of the restrictions or referring to the source of such
restrictions. The Bank assumes no responsibility with respect to the transfer of restricted
securities where counsel for the Customer advises that such transfer may be properly effected.
2. The Bank will issue and transfer Shares in book-entry form as follows:
(a) Shares may be maintained by the Bank in book-entry form known as the Direct Registration
System (DRS) through the Profile Modification System (Profile). DRS is the system
administered by DTC pursuant to which the Bank may register the ownership of uncertificated Shares,
which ownership shall be evidenced by periodic statements issued by the Bank to the Registered
Owners entitled thereto. Upon issuance of Shares, the Shares of each Registered Owner will be
credited to the account of each such Registered Owner. The Registered Owner of Shares is referred
to herein as, or, if there are more than one Registered Owner of the same Shares, such Registered
Owners are collectively referred to herein as, the Registered Owner.
(b) Customer understands that Profile is a required feature of DRS. Profile allows a DTC
participant claiming to act on behalf of the Registered Owner of Shares, to direct the Bank
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to
register a transfer of such Shares to such DTC participant or its nominee without receipt by the
Bank of such prior written authorization from the Registered Owner to register such transfer.
(c) Customer understands the Bank will not verify, determine or otherwise ascertain that the
DTC participant which is claiming to be acting on behalf of a Registered Owner in requesting
registration of transfer and delivery described in subsection (b) has the actual authority to act
on behalf of the Registered Owner (notwithstanding any requirements under the Uniform Commercial
Code). For the avoidance of doubt, the provisions of Article VIII, Sections 5 and 6 shall apply to
the matters arising from the use of DRS/Profile System. The parties agree that the Banks reliance
on and compliance with instructions received by the Bank through the DRS/Profile System in
accordance with this Agreement, shall not constitute negligence or willful misconduct on the part
of the Bank.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
DIVIDENDS AND DISTRIBUTIONS
1. The Customer shall furnish to the Bank a copy of a resolution of its Board of Directors,
certified by the Secretary or any Assistant Secretary, either (i) setting forth the date of the
declaration of a dividend or distribution, the date of accrual or payment, as the case may be, the
record date as of which shareholders entitled to payment, or accrual, as the case may be, shall be
determined, the amount per Share of such dividend or distribution, the payment date on which all
previously accrued and unpaid dividends are to be paid, and the total amount, if any, payable to
the Bank on such payment date, or (ii) authorizing the declaration of dividends and distributions
on a periodic basis and authorizing the Bank to rely on a Certificate setting forth the information
described in subsection (i) of this paragraph.
2. Prior to the payment date specified in such Certificate or resolution, as the case may be,
the Customer shall, in the case of a cash dividend or distribution, pay to the Bank an amount of
cash, sufficient for the Bank to make the payment, specified in such Certificate or resolution, to
the shareholders of record as of such payment date. The Bank will, upon receipt of any such cash,
(i) in the case of shareholders who are participants in a dividend reinvestment and/or cash
purchase plan of the Customer, reinvest such cash dividends or distributions in accordance with the
terms of such plan, and (ii) in the case of shareholders who are not participants in any such plan,
make payment of such cash dividends or distributions to the shareholders of record as of the record
date by mailing a check, payable to the registered shareholder, to the address of record or
dividend mailing address. The Bank shall not be liable for any improper payment made in accordance
with a Certificate or resolution described in the preceding paragraph. If the Bank shall not
receive sufficient cash prior to the payment date to make payments of any cash dividend or
distribution pursuant to subsections (i) and (ii) above to all shareholders of the Customer as of
the record date, the Bank shall, upon notifying the Customer, withhold payment to all shareholders
of the Customer as of the record date until sufficient cash is provided to the Bank.
3. It is understood that the Bank shall in no way be responsible for the determination of the
rate or form of dividends or distributions due to the shareholders.
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4. It is understood that the Bank shall file such appropriate information returns concerning
the payment of dividends and distributions with the proper federal, state and local authorities as
are required by law to be filed by the Customer but shall in no way be responsible for the
collection or withholding of taxes due on such dividends or distributions due to shareholders,
except and only to the extent required of it by applicable law.
ARTICLE VII
CONCERNING THE CUSTOMER
CONCERNING THE CUSTOMER
1. The Customer shall promptly deliver to the Bank written notice of any change in the
Officers authorized to sign Share certificates, Certificates, notifications or requests, together
with a specimen signature of each new Officer. In the event any Officer who shall have signed
manually or whose facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the Bank may issue such
Share certificates as the Share certificates of the Customer notwithstanding such death,
resignation or removal, and the Customer shall promptly deliver to the Bank such approvals,
adoptions or ratifications as may be required by law.
2. Each copy of the Charter of the Customer and copies of all amendments thereto shall be
certified by the Secretary of State (or other appropriate official) of the state of incorporation,
and if such Charter and/or amendments are required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be filed with a certified copy
submitted to the Bank. Each copy of the By-Laws and copies of all amendments thereto, and copies
of resolutions of the Board of Directors of the Customer, shall be certified by the Secretary or an
Assistant Secretary of the Customer under the corporate seal.
3. Customer hereby represents and warrants:
(a) | It is a corporation duly organized and validly existing under the laws of the State of Maryland. | ||
(b) | This Agreement has been duly authorized, executed and delivered on its behalf and constitutes the legal, valid and binding obligation of Customer. The execution, delivery and performance of this Agreement by Customer do not and will not violate any applicable law or regulation and do not require the consent of any governmental or other regulatory body except for such consents and approvals as have been obtained and are in full force and effect. |
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ARTICLE VIII
CONCERNING THE BANK
CONCERNING THE BANK
1. The Bank shall not be liable and shall be fully protected in acting upon any oral
instruction, writing or document reasonably believed by it to be genuine and to have been given,
signed or made by the proper person or persons and shall not be held to have any notice of any
change of authority of any person until receipt of written notice thereof from an Officer of the
Customer. It shall also be protected in processing Share certificates which it reasonably believes
to bear the proper manual or facsimile signatures of the duly authorized Officer or Officers of the
Customer and the proper countersignature of the Bank.
2. The Bank may establish such additional procedures, rules and regulations governing the
transfer or registration of Share certificates as it may deem advisable and consistent with such
rules and regulations generally adopted by bank transfer agents.
3. The Bank may keep such records as it deems advisable but not inconsistent with resolutions
adopted by the Board of Directors of the Customer. The Bank may deliver to the Customer from time
to time at its discretion, for safekeeping or disposition by the Customer in accordance with law,
such records, papers, Share certificates which have been cancelled in transfer or exchange and
other documents accumulated in the execution of its duties hereunder as the Bank may deem
expedient, other than those which the Bank is itself required to maintain pursuant to applicable
laws and regulations, and the Customer shall assume all responsibility for any failure thereafter
to produce any record, paper, cancelled Share certificate or other document so returned, if and
when required. The records maintained by the Bank pursuant to this paragraph which have not been
previously delivered to the Customer pursuant to the foregoing provisions of this paragraph shall
be considered to be the property of the Customer, shall be made available upon request for
inspection by the Officers, employees and auditors of the Customer, and shall be delivered to the
Customer upon request and in any event upon the date of termination of this Agreement, as specified
in Article IX of this Agreement, in the form and manner kept by the Bank on such date of
termination or such earlier date as may be requested by the Customer.
4. The Bank may employ agents or attorneys-in-fact at the expense of the Customer, and shall
not be liable for any loss or expense arising out of, or in connection with, the actions or
omissions to act of its agents or attorneys-in-fact, so long as the Bank acts in good faith and
without negligence or willful misconduct in connection with the selection of such agents or
attorneys-in-fact.
5. The Bank shall only be liable for any loss or damage arising out of its own negligence or
willful misconduct; provided, however, that the Bank shall not be liable for any indirect, special,
punitive or consequential damages.
6. The Customer shall indemnify and hold harmless the Bank from and against any and all claims
(whether with or without basis in fact or law), costs, demands, expenses and liabilities, including
reasonable attorneys fees, which the Bank may sustain or incur or which
may be asserted against the Bank except for any liability which the Bank has assumed pursuant
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to the immediately preceding section. The Bank shall be deemed not to have acted with negligence
and not to have engaged in willful misconduct by reason of or as a result of any action taken or
omitted to be taken by the Bank without its own negligence or willful misconduct in reliance upon
(i) any provision of this Agreement, (ii) any instrument, order or Share certificate reasonably
believed by it to be genuine and to be signed, countersigned or executed by any duly authorized
Officer of the Customer, (iii) any Certificate or other instructions of an Officer, (iv) any
opinion of legal counsel for the Customer or the Bank, or (v) any law, act, regulation or any
interpretation of the same even though such law, act, or regulation may thereafter have been
altered, changed, amended or repealed. Nothing contained herein shall limit or in any way impair
the right of the Bank to indemnification under any other provision of this Agreement.
7. Specifically, but not by way of limitation, the Customer shall indemnify and hold harmless
the Bank from and against any and all claims (whether with or without basis in fact or law), costs,
demands, expenses and liabilities, including reasonable attorneys fees, of any and every nature
which the Bank may sustain or incur or which may be asserted against the Bank in connection with
the genuineness of a Share certificate, the Banks due authorization by the Customer to issue
Shares and the form and amount of authorized Shares.
8. The Bank shall not incur any liability hereunder if by reason of any act of God or war or
other circumstances beyond its control, it, or its employees, officers or directors shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal penalty on account of,
doing or performing any act or thing which by the terms of this Agreement it is provided shall be
done or performed or by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Agreement it is provided shall or may be
done or performed.
9. In
connection with the provision of services under this Agreement, the
Customer may direct the Bank to release information, including
non-public personal information (NPPI), as defined in
Title V of the Gramm Leach Bliley Act and the regulations issued
thereunder, including but not limited to Regulation P of the
Board of Governors of the Federal Reserve, to agents or other third
party service providers, including, without limitation,
broker/dealers, custodians, and depositories. In addition to the
foregoing, Customer consents to the release of information, including
NPPI, to one or more providers of escheatment services for the purpose
of escheatment of unclaimed funds in accordance with the laws of the
various states. The Bank shall not incur any liability for the
release of information in accordance with the foregoing provisions;
and to the extent the Bank incurs any liability as a result of such
release of information, the Customer shall indemnify and hold the
Bank harmless in accordance with Article VIII, Section 6, it
being understood that the release of such information shall not
constitute negligence or willful misconduct.
10. At any time the Bank may apply to an Officer of the Customer for written instructions with
respect to any matter arising in connection with the Banks duties and obligations under this
Agreement, and the Bank shall not be liable for any action taken or omitted to be taken by the Bank
in good faith in accordance with such instructions. Such application by the Bank for instructions
from an Officer of the Customer may, at the option of the Bank, set forth in writing any action
proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations
under this Agreement and the date on and/or after which such action shall be taken, and the Bank
shall not be liable for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless, prior to taking or
omitting to take any such action, the Bank has received written instructions in response to such
application specifying the action to be taken or omitted. The Bank may consult counsel to the
Customer or its own counsel, at the expense of the Customer, and shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the advice or opinion of
such counsel.
11. When mail is used for delivery of non-negotiable Share certificates, the value of which
does not exceed the limits of the Banks Blanket Bond, the Bank shall send such non-negotiable
Share certificates by first class mail, and such deliveries will be covered while in
transit by the Banks Blanket Bond. Non-negotiable Share certificates, the value of which
exceed
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the limits of the Banks Blanket Bond, will be sent by insured registered mail. Negotiable
Share certificates will be sent by insured registered mail. The Bank shall advise the Customer of
any Share certificates returned as undeliverable after being mailed as herein provided for.
12. The Bank may issue new Share certificates in place of Share certificates represented to
have been lost, stolen or destroyed upon receiving instructions in writing from an Officer and
indemnity satisfactory to the Bank. Such instructions from the Customer shall be in such form as
approved by the Board of Directors of the Customer in accordance with applicable law or the By-Laws
of the Customer governing such matters. If the Bank receives written notification from the owner
of the lost, stolen or destroyed Share certificate within a reasonable time after he has notice of
it, the Bank shall promptly notify the Customer and shall act pursuant to written instructions
signed by an Officer. If the Customer receives such written notification from the owner of the
lost, stolen or destroyed Share certificate within a reasonable time after he has notice of it, the
Customer shall promptly notify the Bank and the Bank shall act pursuant to written instructions
signed by an Officer. The Bank shall not be liable for any act done or omitted by it pursuant to
the written instructions described herein. The Bank may issue new Share certificates in exchange
for, and upon surrender of, mutilated Share certificates.
13. The Bank will issue and mail subscription warrants for Shares, Shares representing stock
dividends, exchanges or splits, or act as conversion agent upon receiving written instructions from
an Officer and such other documents as the Bank may deem necessary.
14. The Bank will supply shareholder lists to the Customer from time to time upon receiving a
request therefor from an Officer of the Customer.
15. In case of any requests or demands for the inspection of the shareholder records of the
Customer, the Bank will notify the Customer and endeavor to secure instructions from an Officer as
to such inspection. The Bank reserves the right, however, to exhibit the shareholder records to
any person whenever it is advised by its counsel that there is a reasonable likelihood that the
Bank will be held liable for the failure to exhibit the shareholder records to such person.
16. At the request of an Officer, the Bank will address and mail such appropriate notices to
shareholders as the Customer may direct.
17. Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under
no duty or obligation to inquire into, and shall not be liable for:
(a) | The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith, or the authority of the Customer to request such issuance, sale or transfer; | ||
(b) | The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority of the Customer to request such purchase; |
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(c) | The legality of the declaration of any dividend by the Customer, or the legality of the issue of any Shares in payment of any stock dividend; or | ||
(d) | The legality of any recapitalization or readjustment of the Shares. |
18. The Bank shall be entitled to receive and the Customer hereby agrees to pay to the Bank
for its performance hereunder (i) out-of-pocket expenses (including legal expenses and attorneys
fees) incurred in connection with this Agreement and its performance hereunder, and (ii) the
compensation for services as set forth in Schedule I.
19. The Bank shall not be responsible for any money, whether or not represented by any check,
draft or other instrument for the payment of money, received by it on behalf of the Customer, until
the Bank actually receives and collects such funds.
20. The Bank shall have no duties or responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this Agreement, and no covenant or obligation
shall be implied against the Bank in connection with this Agreement.
ARTICLE IX
TERMINATION
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to the other party a
notice in writing specifying the date of such termination, which shall be not less than 60 days
after the date of receipt of such notice. In the event such notice is given by the Customer, it
shall be accompanied by a copy of a resolution of the Board of Directors of the Customer, certified
by its Secretary, electing to terminate this Agreement and designating a successor transfer agent
or transfer agents. In the event such notice is given by the Bank, the Customer shall, on or
before the termination date, deliver to the Bank a copy of a resolution of its Board of Directors
certified by its Secretary designating a successor transfer agent or transfer agents. In the
absence of such designation by the Customer, the Bank may designate a successor transfer agent. If
the Customer fails to designate a successor transfer agent and if the Bank is unable to find a
successor transfer agent, the Customer shall, upon the date specified in the notice of termination
of this Agreement and delivery of the records maintained hereunder, be deemed to be its own
transfer agent and the Bank shall thereafter be relieved of all duties and responsibilities
hereunder. Upon termination hereof, the Customer shall pay to the Bank such compensation as may be
due to the Bank as of the date of such termination, and shall reimburse the Bank for any
disbursements and expenses made or incurred by the Bank and payable or reimbursable hereunder.
ARTICLE X
MISCELLANEOUS
MISCELLANEOUS
1. The indemnities contained herein shall be continuing obligations of the Customer, its
successors and assigns, notwithstanding the termination of this Agreement.
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2. Any notice or other instrument in writing, authorized or required by this Agreement to be
given to the Customer shall be sufficiently given if addressed to the Customer and mailed or
delivered to it at 3600 Glenwood Avenue, Suite 104, Raleigh NC 27612, or at such other place as the
Customer may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be
given to the Bank shall be sufficiently given if addressed to the Bank and mailed or delivered to
it at its office at 101 Barclay Street (11E), New York, New York 10286 or at such other place as
the Bank may from time to time designate in writing.
4. This Agreement may not be amended or modified in any manner except by a written agreement
duly authorized and executed by both parties. Any duly authorized Officer may amend any
Certificate naming Officers authorized to execute and deliver Certificates, instructions, notices
or other instruments, and the Secretary or any Assistant Secretary may amend any Certificate
listing the Shares.
5. This Agreement shall extend to and shall be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall not be assignable
by either party without the prior written consent of the other party, and provided, further, that
any reorganization, merger, consolidation, or sale of assets, by the Bank shall not be deemed to
constitute an assignment of this Agreement.
6. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York. The parties agree that, all actions and proceedings arising out of this Agreement or
any of the transactions contemplated hereby, shall be brought in the United States District Court
for the Southern District of New York or in a New York State Court in the County of New York and
that, in connection with any such action or proceeding, submit to the jurisdiction of, and venue
in, such court. Each of the parties hereto also irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim arising out of this Agreement or the transactions
contemplated hereby.
7. This Agreement may be executed in any number of counterparts each of which shall be deemed
to be an original; but such counterparts, together, shall constitute only one instrument.
8. The provisions of this Agreement are intended to benefit only the Bank and the Customer,
and no rights shall be granted to any other person by virtue of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective corporate officers, thereunto duly authorized and their respective corporate seals to be
hereunto affixed, as of the day and year first above written.
Attest:
|
TRIANGLE CAPITAL CORPORATION | |||
By: | ||||
Name: | ||||
Title: | ||||
Attest:
|
THE BANK OF NEW YORK | |||
By: | ||||
Name: | ||||
Title: | ||||
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SCHEDULE I
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