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EXHIBIT 4.3
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
FOR CORPORATE EQUITY ISSUES
BETWEEN
New Holland N.V.
and
Morgan Guaranty Trust Company of New York
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TABLE OF CONTENTS
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Article 1 Terms of Appointment, Duties of the Bank....................... 2
Article 2 Fees and Expenses.............................................. 4
Article 3 Representations and Warranties of the Bank..................... 5
Article 4 Representations and Warranties of the Company.................. 5
Article 5 Indemnification................................................ 6
Article 6 Standard of Care............................................... 8
Article 7 Covenants of the Company and the Bank.......................... 9
Article 8 Termination of Agreement....................................... 11
Article 9 Assignment..................................................... 11
Article 10 Notices........................................................ 12
Article 11 Amendment...................................................... 13
Article 12 New York Law to Apply.......................................... 13
Article 13 Merger of Agreement............................................ 13
Article 14 Counterparts................................................... 13
SIGNATURES................................................................. 14
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REGISTRAR TRANSFER AGENCY AND SERVICE AGREEMENT
FOR CORPORATE EQUITY ISSUES
AGREEMENT made as of the 6th day of November 1996, by and between New
Holland N.V., a corporation organized under the laws of the Kingdom of the
Netherlands, having its registered office at Prof. Bavincklaan 5, 1183 AT
Amstelveen, The Netherlands (the "Company") and Morgan Guaranty Trust Company of
New York, a New York corporation having its principal office and place of
business at 60 Wall Street, New York, New York 10260 (the "Bank").
WHEREAS, the Company desires to appoint the Bank as its registrar, transfer
agent, dividend disbursing agent and agent in connection with certain other
activities and the Bank desires to accept such appointment;
WHEREAS, if the Company appoints the Bank as registrar it shall do so by
naming the Bank registrar in and the Bank shall be bound by the terms of this
Agreement as it relates to the registrar;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows;
ARTICLE 1 TERMS OF APPOINTMENT; DUTIES OF THE BANK
1.01 Subject to the terms and conditions set forth in this Agreement, the
Company hereby employs and appoints the Bank to act as, and the Bank
agrees to act as registrar (if appointed by the Company), transfer
agent for the Company's authorized and issued common shares, par value
NLG 1.00 each ("Shares") and dividend disbursing agent.
1.02 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Company and the Bank, the Bank shall:
(i) record in the Share register the appropriate number of
authorized Shares;
(ii) record in the Share register transfers of Shares by the
registered owners thereof upon receipt of appropriate
documentation;
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(iii) prepare and transmit payments for dividends and
distributions declared by the Company;
(iv) issue replacement certificates for those
certificates alleged to have been lost, stolen or
destroyed upon receipt by the Bank of
indemnification satisfactory to it and protecting
it, and the Bank at its option, may issue
replacement certificates in place of mutilated
Share certificates upon presentation thereof and
without such indemnity;
(v) when mail is used for delivery by the Bank of
registered Share certificates, the Bank will
forward said certificates in "non-negotiable"
form by first-class mail or by registered mail in
accordance with the Bank's general practice as
transfer agent and the Bank will forward said
certificates in "negotiable" form by registered
mail, all such mail deliveries to be covered
while in transit to the addressee by insurance
arranged for by the Bank and paid for by the
Company;
(vi) prepare a physical print-out of the Share
register of the Company maintained by the Bank on
a monthly basis and promptly mail such print-out
to the Company at its registered office in the
Netherlands or to such other location as the
Company shall request in writing; and
(b) In addition to and not in lieu of the services set forth in
the above paragraph (a), the Bank shall perform all of the
customary services of a registrar, transfer
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agent, and dividend disbursing agent as described in
Article 1 consistent with those requirements in
effect as of the date of this Agreement. The detailed
definition, frequency, limitations and associated
costs (if any) described in the following fee
section, include the fees for providing the general
services related to maintaining all shareholder
accounts, preparing shareholder meeting lists,
mailing proxies, and mailing shareholder reports to
current shareholders, withholding taxes on U.S.
resident and non-resident alien accounts where
applicable, preparing and filing U.S. Treasury
Department Forms 1099 and other appropriate forms
required with respect to dividends and distributions
by federal authorities for all registered
shareholders, preparing and mailing confirmation
forms and statements of account to shareholder
accounts, and providing shareholder account
information.
(c) The Bank shall provide additional services on behalf
of the Company (i.e., escheatment services) which may
be agreed upon in writing between the Company and the
Bank.
ARTICLE 2 FEES AND EXPENSES
2.01 For the performance by the Bank pursuant to this Agreement,
the Company agrees to pay the Bank an annual maintenance fee
as set out in a separate fee schedule. Such fees and
out-of-pocket expenses and advances identified under Section
2.02 below may be changed from time to time subject to mutual
written agreement between the company and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the
Company agrees to reimburse the Bank for out-of-pocket
expenses, including but not limited to
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confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage or advances incurred
by the Bank for the items set out in the separate fee schedule herein
referred to. In addition, any other expenses incurred by the Bank at
the request or with the consent of the Company will be reimbursed by
the Company.
2.03 The Company agrees to pay all fees and reimbursable expenses due to
the Bank in accordance herewith within thirty days following the
receipt of the respective billing notice. Upon the request of the
Bank, postage and the cost of materials for mailing of dividends,
proxies, Company reports and other mailings to all shareholder
accounts shall be advanced to the Bank by the Company on or before the
mailing of such materials.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Company that:
3.01 It is a trust company duly organized and existing and in good standing
under the laws of the State of New York.
3.02 It is duly qualified to carry on its business in the State of New
York.
3.03 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.05 It has access to the necessary facilities, equipment and personnel to
perform its duties and obligations under this Agreement.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Bank that:
4.01 It is a corporation duly organized and validly existing under the laws
of its jurisdiction of incorporation.
4.02 It is empowered under applicable laws and by its corporate
organization documents to enter into and perform this Agreement.
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4.03 All corporate proceedings required by said organization documents have
been taken to authorize it to enter into and perform this Agreement.
4.04 A registration statement under the Securities Act of 1933 is currently
effective and appropriate state securities law filings have been made
with respect to all Shares of the Company being offered for sale;
information to the contrary will result in immediate notification to
the Bank.
4.05 It shall make all filings under federal and state securities laws with
regard to the Shares required to be made by or on behalf of the
Company.
ARTICLE 5 INDEMNIFICATION
5.01 The Bank shall not be responsible for, and the Company shall indemnify
and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses
and liability arising out of or attributable to:
(a) All actions of the Bank or its agents or subcontractors required
to be taken pursuant to the Agreement, provided that such actions
are taken in good faith and without gross negligence or willful
misconduct.
(b) The Company's lack of good faith, negligence or misconduct or
which arise out of the breach of any representation or warranty
of the Company hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records and documents which (i)
are received by the Bank or its agents or subcontractors and
furnished to it by or on behalf of the Company, and (ii) have
been prepared and/or maintained by the Company or any other
authorized person or firm on behalf of the Company. To the extent
applicable, such other authorized person or firm shall include
any former transfer agent or former registrar, or co-transfer
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agent or co-registrar or any current registrar where the Bank is not
the current registrar.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Company's
authorized representative.
(e) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state
or in violation of any stop order or other determination or ruling by
any federal agency or any state with respect to the offer or sale of
such Shares in such state.
5.02 At any time the Bank may apply to any authorized officer of the Company for
instructions, and may consult with competent legal counsel of its choosing
(which may be in-house counsel at the Bank) with respect to any matter
arising in connection with the services to be performed by the Bank under
this Agreement, and the Bank and its agents or subcontractors shall not be
liable and shall be indemnified by the Company for any action taken or
omitted by it in good faith reliance upon such instructions or upon the
opinion of such counsel. The Bank, its authorized agents and its
subcontractors shall be protected and indemnified in acting upon any paper
or document furnished by or on behalf of the Company reasonably believed to
be genuine and to have been signed by the proper person or persons, or upon
any instruction, information, data, records or documents provided the Bank
or its agents or subcontractors by telephone, in person, machine readable
input, telex, CRT data entry or other similar means authorized by the
Company, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from
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the Company. The Bank, its agents and subcontractor shall also be
protected and indemnified in recognizing Share certificates which are
reasonably believed to bear the proper manual or facsimile signatures
of the officers of the Company, and the proper countersignature of any
former transfer agent or former registrar, or of a co-transfer agent
or co-registrar.
5.03 In the event any 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 damages resulting from such
failure to perform or otherwise from such causes.
5.04 None of the parties to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement
or any consequential damages arising out of any act or failure to act
hereunder.
5.05 In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which the Company
may be required to indemnify the Bank, the Bank shall promptly notify
the Company of such assertion, and shall keep the Company advised with
respect to all developments concerning such claim. The Company shall
have the right to defend against said claim in its own name or in the
name of the Bank or at its option to participate with the party
seeking indemnification in the defense of such claim. The Bank shall
not under any circumstances confess any claim or make any compromise
in any case in which the Company may be required to indemnify it
except with the Company's prior written consent.
ARTICLE 6 STANDARD OF CARE
6.01 The Bank shall not be liable for loss or damage due to errors unless
said errors are caused by the gross
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negligence, bad faith, or willful misconduct of any of its employees.
ARTICLE 7 COVENANTS OF THE COMPANY AND THE BANK
7.01 The Company shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors of
the Company authorizing the execution and delivery of this
Agreement and the appointment of the Bank;
(b) A copy of its corporate organization documents and all amendments
thereto.
(c) A certificate of the Secretary of the Company certifying the
total number of Shares authorized for issuance and the legal
description of the Shares.
(d) A legal opinion of counsel to the Company covering validity of
the Shares and their registration or exemption from registration
under the Securities Act of 1933, as amended.
(e) A list of all officers of the Company who shall be authorized to
give instructions hereunder, along with the addresses and phone
numbers for each. At least three persons shall at all times be
set forth on such list.
7.02 The bank hereby agrees to establish and maintain facilities and
procedures for safekeeping of Share 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.
7.03 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. The Bank
agrees that all such records prepared or maintained by the Bank
relating to the services to be performed by the Bank hereunder are
the property of the Company and will be preserved, maintained and made
available in accordance with the
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requirements of the law, and will be surrendered promptly to
the Company on and in accordance with its request.
7.04 The Bank and the Company agree that all 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.
7.05 In case of any requests or demands for the inspection of the
shareholder records of the Company, the Bank will endeavor
to notify the Company and to secure instructions from an
authorized officer of the Company as to such inspection. The
Bank reserves the right, however, upon three business days
prior written notice to the Company, to exhibit the
shareholder records to any person whenever it is advised by
counsel which the Bank believes to be competent and to possess
the requisite expertise that it may be held liable for the
failure to exhibit the shareholder records to such person.
Notwithstanding the foregoing, if counsel to the Bank advises
the Bank that an inspection is required in less than the
three business days in which the Bank would be required to
give prior notice to the Company, the Bank may permit such
inspection notwithstanding the failure to give such three
business day prior notice. It is hereby acknowledged by the
Company that the Bank's then current U.S. counsel for the
majority of the Bank's depositary receipt and/or transfer
agent matters shall be deemed satisfactory for purposes of
issuing any opinions for the Bank hereunder.
7.06 The Company shall provide the Bank as soon as practicable
after the date hereof with a mechanism to enable registered
and beneficial owners of Shares to obtain at source the
favorable withholding tax
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treatment provided by the Tax Convention of December 18, 1992
between The Netherlands and the United States.
7.07 Before countersigning for original issue any registered
certificates the Company shall furnish the Bank with
sufficient funds in U.S. dollars to pay all applicable stock
stamp taxes, if any, on such issue. The Bank shall be
entitled to rely on the information furnished to the Bank by
the Company regarding the amount of such tax. The Company
will indemnify the Bank and hold it harmless for any
additional amounts the Bank becomes liable to pay. If no such
taxes are payable, the Bank shall be furnished with an
opinion of counsel to that effect.
ARTICLE 8 TERMINATION OF AGREEMENT
8.01 This Agreement may be terminated by either party upon ninety
(90) days written notice to the other. However, the Bank may
terminate this Agreement upon written notice to the Company,
if the Company has breached its obligation set forth in
Article 2 by failing to make payment of invoices for a period
of three consecutive months and the Company has failed to
cure such breach within five business days of receipt of such
notice.
8.02 Should the Company exercise its right to terminate, all
out-of-pocket expenses associated with the movement of
records and material will be borne by the Company.
ARTICLE 9 ASSIGNMENT
9.01 Except as provided in Section 9.03 below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by any party without the written consent of the
other parties.
9.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors
and assigns.
9.03 The Bank may, without further consent on the part of the
Company, subcontract for the performance hereof with (i)
Boston Equiserve Limited Partnership which is duly registered
as a transfer agent pursuant to Section
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17A(c)(1) of the Securities Exchange Act of 1934 ("Section
17A(c)(1)"), (ii) a subsidiary thereof duly registered as a transfer
agent pursuant to Section 17A(c)(1), or (iii) an affiliate thereof;
provided, however, that the Bank shall be as fully responsible to the
Company for the acts and omissions of any subcontractor as it is for
its own acts and omissions.
ARTICLE 10 NOTICES
10.01 The Company will furnish the Bank with forms of important notices in
sufficient quantities to be sent to the registered owners of Shares
resident in the United States and/or banks, brokers and nominees and
nonresidents of the United States holding Shares, setting forth
information relating to the payment of dividends.
10.02 All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends
a confirming copy of such notice by a recognized overnight delivery
service (charges prepaid), or (b) by registered or certified mail
with return receipt requested (postage prepaid), or (c) by a
recognized overnight delivery service (with charges prepaid) or (d)
in the case of the print-out of the share register pursuant to
Section 1.02(a)(vi), by postal carrier. Any such notice shall be
sent:
if to the Bank, to:
Morgan Guaranty Trust Company
of New York
60 Wall Street (36th Floor)
New York, New York 10260
Attention: ADR Administration
Fax: (212) 648-5104 or 5105
or to such other address as the Bank shall have specified to the Company in
writing.
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if to the Company, to:
New Holland N.V.
950 Great West Road
Brentford, Middlesex TW8 9ES
United Kingdom
Attn: Corporate Secretary
Fax: 44-181-479-8841
or to such other address as the Company shall have specified to the Bank in
writing.
Notices under this Section 10.02 shall be deemed given when first received.
ARTICLE 11 AMENDMENT
11.01 This Agreement may be amended or modified by a written agreement
executed by each party and authorized or approved by a resolution of
the Boards of Directors of the Company.
ARTICLE 12 NEW YORK LAW TO APPLY
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New
York applicable to contracts executed and to be fully performed
within such State.
ARTICLE 13 MERGER OF AGREEMENT
13.01 This Agreement constitutes the entire agreement among the parties
hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
ARTICLE 14 COUNTERPARTS
14.01 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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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly executed officers, as of the day and year first above written.
NEW HOLLAND N.V.
By: /s/ ROBERTO MIOTTO
-----------------------------------
Name: Roberto Miotto
Title: Vice President, General Counsel
and Secretary
ATTEST:
[ILLEGIBLE]
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Morgan Guaranty Trust Company
of New York
By: /s/ JORDANA CHUTTER
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Name: Jordana Chutter
Title: Vice President
ATTEST:
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