SHAREHOLDER SERVICES AGREEMENT
This Agreement, dated as of the 8th day of November, 1998, made by and
between Weston Portfolios, Inc. (the "Fund) a corporation operating as an
open-end management investment company duly organized and existing under the
laws of the State of Maryland and Fund/Plan Services, Inc. (the "Company"), a
corporation duly organized and existing under the laws of the State of Delaware.
WITNESSETH THAT:
WHEREAS, the Fund consists of a series of Funds, at present namely:
Weston Income Portfolio
Weston Growth Portfolio
WHEREAS, the Fund desires to appoint the Company as its Transfer,
Redemption and Dividend Disbursing Agent as set forth in this Agreement and to
perform certain other functions in connection with these duties; and
WHEREAS, the Company is willing to perform such functions upon the
terms and conditions set forth below; and
WHEREAS, the Fund will cause to be provided certain information to the
Company as set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto, intending to be legally bound, do hereby
agree as follows:
Section 1. The terms as defined in this Section wherever used in this
Agreement, or in any amendment or supplement hereto, shall have the meanings
herein specified unless the context otherwise requires.
The Fund: The term Fund shall mean any series issued by the authority
of the Board of Directors.
Share Certificates: The term Share Certificates shall mean the share
certificates for the Shares of the Fund.
Shareholders: The term Shareholders shall mean the registered owners
from time to time of the Shares of the Fund in accordance with the share
registry records of the Fund.
Shares: The term Shares shall mean the issued and outstanding shares of
the Fund.
Oral Instruction: The term Oral Instruction shall mean an
authorization, instruction, approval, item or set of data, or information of any
kind transmitted to the Company in person or by telephone, telegram, telecopy or
other mechanical or documentary means lacking original signature, by a person or
persons believed in good faith by the Company to be a person or persons
authorized by a resolution of the Board of Directors of the Fund, to give Oral
Instructions on behalf of the Fund.
Written Instruction: The term Written Instruction shall mean an
authorization, instruction, approval, item or set of data or information of any
kind transmitted to the Company in original writing containing original
signatures or a copy of such document transmitted by telecopy including
transmission of such signature believed in good faith by the Company to be the
signature of a person authorized by a resolution of the Board of Directors of
the Fund to give Written Instructions on behalf of the Fund.
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TRANSFER AGENCY
Section 2. The Fund shall furnish to Company as Transfer Agent a
sufficient supply of blank Share Certificates and from time to time will renew
such supply upon the request of Company. Such blank Share Certificates shall be
signed manually or by facsimile signatures of officers of the Fund authorized by
law or the by-laws of the Fund to sign Share Certificates and, if required,
shall bear the corporate seal or a facsimile thereof.
Section 3. Company as Transfer Agent, shall make original issues of
Shares in accordance with Sections 13 and 14 below and with the Fund's
Prospectus upon the written request of the Fund and upon being furnished with
(i) a certified copy of a resolution or resolutions of the Board of Directors of
the Fund authorizing such issue; (ii) an opinion of counsel as to the validity
of such additional Shares; and (iii) necessary funds for the payment of any
original issue tax applicable to such additional Shares.
Section 4. Transfers of Shares shall be registered and new Share
Certificates issued by Company upon surrender of outstanding Share Certificates
(i) in form deemed by Company to be properly endorsed for transfer, (ii) with
all necessary endorsers' signatures guaranteed by a member firm of a national
securities exchange or a commercial bank, accompanied by (iii) such assurances
as Company shall deem necessary or appropriate to evidence the genuiness and
effectiveness of each necessary endorsement, and (iv) satisfactory evidence of
compliance with all applicable laws relating to the payment or collection of
taxes.
Section 5. When mail is used for delivery of Share Certificates Company
shall forward Share Certificates in "non-negotiable" form by first-class mail,
and Share Certificates in "negotiable" form by registered mail, all mail
deliveries to be covered while in transit to the addressee by insurance arranged
for by Company.
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Section 6. In registering transfers Company as Transfer Agent may rely
upon the Uniform Commercial Code or any other statutes which in the opinion of
counsel protect Company and the Fund in not requiring complete documentation, in
registering transfer without inquiry into adverse claims, in delaying
registration for purposes of such inquiry, or in refusing registration where in
its judgment an adverse claim requires such refusal.
Section 7. Company as Transfer Agent may issue new Share Certificates
in place of Share Certificates represented to have been lost, destroyed or
stolen, upon receiving indemnity satisfactory to Company and may issue new Share
Certificates in exchange for and upon surrender of mutilated Share Certificates.
Section 8. In case any officer of the Fund 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 the issuance of such Share
Certificate, Company as Transfer Agent may issue or register such Share
Certificates as the Share Certificates of the Fund notwithstanding such death,
resignation or removal; and the Fund shall file promptly with Company such
approval, adoption or ratification as may be required by law.
Section 9. Company will maintain stock registry records in the usual
form in which it will note the issuance, transfer and redemption of Shares and
the issuance and transfer of Share Certificates, and is also authorized to
maintain an account entitled Unissued Certificate Account in which it will
record the Shares and fractions issued and outstanding from time to time for
which issuance of Share Certificates is deferred. The Fund is responsible to
provide Company reports of Fund Share purchases, redemptions and total Shares
outstanding on the next business day after each net asset valuation. Company is
authorized to keep records, which will be part of the stock transfer records, in
which it will note the names and registered address of Shareholders
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and the number of Shares and fractions from time to time owned by then for which
no Share Certificates are outstanding. Each Shareholder will be assigned a
single account number even though Shares for which Certificates have been issued
will be accounted for separately.
Section 10. Company will issue Share Certificates for Shares of the
Fund, only upon receipt of a written request from a Shareholder. In all other
cases, the Fund authorizes Company to dispense with the issuance and
countersignature of Share Certificates whenever Shares are purchased. In such
case Company as Transfer Agent, shall merely note on its stock registry records
the issuance of the Shares and fractions (if any), shall credit the Unissued
Certificate Account with the Shares and fractions issued and shall credit the
proper number of Shares and fractions to the respective Shareholders. Likewise,
whenever company has occasion to surrender for redemption Shares and fractions
owned by Shareholders, it shall be unnecessary to issue Share Certificates for
redemption purposes. The Fund authorizes Company in such cases to process the
transactions by appropriate entries in its share transfer records, and debiting
of the Unissued Certificate Account and the record of issued Shares outstanding.
Section 11. Company in its capacity as Transfer Agent will, in addition
to the duties and functions above-mentioned, perform the usual duties and
functions of a Stock Transfer Agent for a corporation. It will countersign for
issuance or reissuance Share Certificates representing original issue or
reissued treasury Shares as directed by the Written Instructions of the Fund and
will transfer Share Certificates registered in the name of Shareholders from one
Shareholder to another in the usual manner. Company may rely conclusively and
act without further investigation upon any list, instruction, certification,
authorization, Share Certificate or other instrument or paper believed by it in
good faith to be genuine and unaltered, and to have been signed, countersigned,
or executed by duly authorized person or persons, or upon the
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instructions of any officer of the Fund, or upon the advice of counsel for the
Fund or for Company. Company may record any transfer of Share Certificates which
is believed by it in good faith to have been duly authorized or may refuse to
record any transfer of Share Certificates if in good faith Company in its
capacity as Transfer Agent deems such refusal necessary in order avoid any
liability either to the Fund or to Company. The Fund agrees to indemnify and
hold harmless Company from and against any and all losses, costs, claims, and
liability which it may suffer or incur by reason of so relying or acting or
refusing to act.
Section 12. In case of any request or demand for the inspection of the
share records of the Fund, Company as Transfer Agent, shall endeavor to notify
the Fund and to secure instructions as to permitting or refusing such
inspection. However, Company may exhibit such records to any person in any case
where it is advised by its counsel that it may be held liable for failure so to
do.
ISSUANCE OF SHARES
Section 13. Prior to the daily determination of net asset value in
accordance with the Fund's Prospectus, Company shall process all purchase orders
received since the last determination of the Fund's net asset value.
Company shall calculate daily the amount available for investment in
Shares at the net asset value determined by the Company as pricing agent (see
Accounting Services Agreement) as of the close of trading on the New York Stock
Exchange, the number of Shares and fractional Shares to be purchased and the net
asset value to be deposited with the Custodian Company as agent for the
Shareholders, shall place a purchase order daily with the Fund for the proper
number of shares and fractional shares to be purchased and confirm such number
to the Fund in writing.
Section 14. Company having made the calculations provided for in
Section 13, shall thereupon pay over the net asset value of shares purchased to
the Custodian. The proper number of Shares and fractional Shares shall then be
issued daily and credited by Company to the Unissued Certificate Account. The
Shares and fractional Shares purchased for each Shareholder will be credited by
Company
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to his separate Account. Company shall mail to each Shareholder a confirmation
of each purchase, with copies to the Fund if requested. Such confirmations will
show the prior Share balance, the new Share balance, the Shares for which Stock
Certificates are outstanding (if any), the amount invested and the price paid
for the newly purchased Shares.
REDEMPTION
Section 15. Company shall, prior to the daily determination of net
asset value in accordance with the Fund's Prospectus, process all requests from
Shareholders to redeem Shares and determine the number of Shares required to be
redeemed to make monthly payments, automatic payments or the like. Thereupon,
Company shall advise the Fund of the total number of Shares available for
redemption and the number of Shares and fractional Shares requested to be
redeemed. The Company as Pricing Agent shall then determine the applicable net
asset value, whereupon Company shall furnish the Fund with an appropriate
confirmation of the redemption and process the redemption by filing with the
Custodian an appropriate statement and making the proper distribution and
application of the redemption proceeds in accordance with the Fund's Prospectus.
The stock registry books recording outstanding Shares, the Unissued Certificate
Account and the individual account of the Shareholder or Planholder shall be
properly debited.
Section 16. The proceeds of redemption shall be remitted by Company in
accordance with the Fund's Prospectus by check mailed to the Shareholder at his
registered address. If Share Certificates have been issued for Shares being
redeemed, then such Share Certificates and a stock
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power with a signature guarantee of a commercial bank, or a member firm of a
national securities exchange shall accompany the redemption request. If Share
Certificates have not been issued to the redeeming Shareholder, the signature of
the Shareholder on the redemption request must be similarly guaranteed. The Fund
may authorize Company to waive the signature guarantee in certain cases by
Written Instruction.
For the purposes of redemption of Shares which have been purchased
within 15 days of a redemption request, the Fund shall provide Company, from
time to time, with Written Instructions concerning the time within which such
requests may be honored.
Section 17. In lieu of the Company receiving a properly executed
signature guarantee from a commercial bank or trust company, or a member firm of
a national securities exchange, or the National Association of Securities
Dealers, the Fund agrees to indemnify and hold harmless the Company from and
against any and all losses, costs, claims and liability by acting upon a
shareholder(s) signature for redemption.
DIVIDENDS
Section 18. Upon the declaration of each dividend and each capital
gains distribution by the Board of Directors of the Fund, the Fund shall notify
Company of the date of such declaration, the amount payable per share, the
record date for determining the Shareholders entitled to payment, the payment
and the reinvestment date price.
Section 19. On or before each payment date the Fund will transfer, or
cause the Custodian to transfer, to Company in its capacity as Dividend
Disbursing Agent, the total amount of the dividend or distribution currently
payable. Company will, on the designated payment date, automatically reinvest
all dividends in additional shares except in cases where Shareholders have
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elected to receive distribution in cash, in which case Company will mail
distribution checks to the Shareholders for the proper amounts payable to them.
GENERAL PROVISIONS
Section 20. Company shall maintain records (which may be part of the
stock transfer records) in connection with the issuance and redemption of
Shares, and the disbursement of dividends and dividend reinvestments, in which
will be noted the transactions effected for each Shareholder and the number of
Shares and fractional Shares owned by each for which no Share Certificate are
outstanding. Company agrees to make available upon request and to preserve for
the periods prescribed in Rule 31a-2 any records relating to services provided
under this Agreement which are required to be maintained by Rule 31a-1.
Section 21. In addition to the services as Transfer Agent and Dividend
Disbursing Agent as above set forth, Company will perform other services for the
Fund as agreed from time to time, including but not limited to, preparation of
and mailing Federal Tax Information Forms, mailing semi-annual reports of the
Fund, preparation of one annual list of Shareholders, and mailing notices of
Shareholders' meetings, proxies and proxy statements.
Section 22. Nothing contained in this Agreement is intended to or shall
require Company in any capacity hereunder, to perform any functions or duties on
any holiday, day of special observance or any other day on which Custodian or
the New York Stock Exchange are closed. Functions or duties normally scheduled
to be performed on such days shall be performed on, and as of, the next business
day on which both the New York Stock Exchange and Custodian are open.
Section 23. The Company's compensation shall be as set forth in
Schedule A hereto attached, or shall be set forth in amendments to such
Schedule. The Trust authorizes the
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Company to debit the Trust's custody account for invoices which are rendered for
the services performed for the applicable function three (3) days after the
invoice is transmitted to the Trust by telecopy, regardless of whether or not
written authorization is received by the Company, unless the invoice is being
disputed by the Trust. The original invoice for the service will be mailed to
the Trust after the debiting, with the indication that payment has been made.
Section 24. (a) The Company, its directors, officers, employees,
shareholders and agents shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund in connection with the performance
of this Agreement, except a loss resulting from willful misfeasance, bad faith
or gross negligence on the part of the Company in the performance of its
obligations and duties under this Agreement.
(b) Any person, even though also a director, officer,
employees, shareholder or agent of the Company, who may be or become an officer
trustee employee or agent of the Fund, shall be deemed, when rendering services
to the Fund or acting on any business of the Fund (other than services or
business in connection with the Company's duties hereunder), to be rendering
such services to or acting solely for the Fund and not as a director, officer,
employee, shareholder or agent of, or one under the control or direction of the
Company even though paid by it.
(c) Notwithstanding any other provision of this Agreement,
the Fund shall indemnify and hold harmless the Company, its directors, officers,
employees, shareholders and agents from and against any and all claims, demands,
expenses and liabilities (whether with or without basis in fact or law) of any
and every nature which the Company may sustain or incur or which may be asserted
against the Company by any person by reason of, or as a result of: (i) any
action taken or omitted to by taken by the Company in good faith hereunder; (ii)
in reliance
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upon any certificate, instrument, order or stock certificate or other document
reasonably believed by it to be genuine and to be signed, countersigned or
executed by any duly authorized person upon the Oral Instructions or Written
Instructions of an authorized person of the Fund or upon the opinion of legal
counsel for the Fund or its own counsel; or (iii) any action taken or omitted to
be taken by the Company in connection with its appointment in good faith in
reliance upon any law, act, regulation or interpretation of the same even though
the same may thereafter have been altered, changed, amended or repealed.
However, indemnification under this subparagraph shall not apply to actions or
omissions of the Company or its directors, officers, employees, shareholders or
agents in cases of its or their own negligence, willful misconduct, bad faith,
or reckless disregard of its or their own duties hereunder.
(d) The Company shall give wirtten notice to the Fund
within twenty (20) days business days of receipt by the Company of a written
assertion or claim of any threatened or pending legal proceeding which may be
subject to this indemnification. However, the failure to notify the Fund of such
written assertion or claim shall not operate in any manner whatsoever to relieve
the Fund of any liability arising from this Section or otherwise.
(e) For any legal proceeding giving rise to this
indemnification, the Fund shall be entitled to defend or prosecute any claim in
the name of the Company at its own choosing if it gives written notice to the
Company within twenty (20) business days of receiving notice of such claim.
Notwithstanding the foregoing, the Company may participate in the litigation at
its own expense through counsel of its own choosing. If the Fund does choose to
defend or prosecute such claim, then the parties shall cooperate in the defense
or prosecution thereof and shall furnish such records and other information as
are reasonably necessary.
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(f) The Fund shall not settle any claim without the
Company's express written consent which shall not be unreasonably withheld. The
Company shall not settle any claim without the Fund's express written consent
which shall not be unreasonably withheld.
Section 25. Company is authorized, upon receipt of Written Instructions
from the Fund, to make payment upon redemption of Shares without a signature
guarantee. The Fund hereby agrees to indemnify and hold Company its successors
and assigns, harmless of and from any and all expenses, damages, claims, suits,
liabilities, actions, demands, losses whatsoever arising out of or in connection
with a payment by Company upon redemption of Shares without a signature
guarantee and upon the request of Company the Fund shall assume the entire
defense of any action, suit or claim subject to the foregoing indemnity. Company
shall notify the Fund of any such action, suit or claim within 30 days after
receipt by Company of notice thereof.
Section 26. The Fund shall file with Company a certified copy of each
resolution of its Board of Directors authorizing the execution of Written
Instructions or the transmittal of Oral Instructions, as provided in Section 1
of this Agreement.
Section 27. This Agreement may be amended from time to time by a
supplemental agreement executed by the Fund and the Company.
Section 28. The Fund or the Company may give written notice to the
other of the termination of this Agreement, such termination to take effect at
the time specified in the notice not less than 120 days after the giving of the
notice. Upon the effective termination date, subject to payment to the Company
by the Fund of all amounts due to the Company as of said date, the Company shall
make available to the fund or its designated recordkeeping successor, all of the
records of the Fund maintained under this Agreement then in the Company's
possession.
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Section 29. Any notice or other communication required by or permitted
to be given in connection with this Agreement shall be in writing, and shall be
delivered in person or sent by first class mail, postage prepaid, to the
respective parties as follows:
If to the Fund:
West Portfolios, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
If to the Company:
Fund/Plan Services, Inc.
X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, President
Section 30. The Fund represents and warrants to Company that the
execution and delivery of this Shareholder Services Agreement by the undersigned
officers of the Fund has been duly and validly authorized by resolution of the
Board of Directors of the Fund.
Section 31. This Agreement may be executed in two or more counterparts,
each of which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 32. 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 the Fund without the
written consent of Company or by Company without the written consent of the Fund
authorized or approved by a resolution of its Board of Directors.
Section 33. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers and their corporate seals hereunto duly
affixed and attested, as of the day and year first above written.
WESTON PORTFOLIOS, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------
Title: President
-------------------------
(SEAL)
Attest: /s/ XXXX XXXXXXXXXX
----------------------
Fund/Plan Services, Inc.
By: /s/ XXXX X. XXXXXXXXX
----------------------------
Title: President
(SEAL)
Attest: /s/ X. X. XXXXXX
----------------------
Schedule A
WESTON INCOME PORTFOLIO
MUTUAL FUND FEE SCHEDULE
QUARTERLY DIVIDEND INCLUDING ONE CAPITAL GAIN DISTRIBUTION
Transfer Agent, Dividend Disbursing Agent and Shareholder Accounting Agent
$8.40 Per Shareholder Account (1/12th payable monthly)
Minimum monthly fee of $825.00
Services
- Opening new accounts and entering demographic data into shareholder
base
- 100% quality control of new accounts opened
- Processing all investments
- Processing tax ID certifications and handling backup withholding
- Issuing and cancelling certificates
- Replacing lost certificates
- Processing partial and complete redemptions and systematic withdrawal
plans
- Regular and legal transfers of accounts
- Processing dividends and preparation of Quarterly statements to
shareholders. (Monthly statements can be provided at the same rate).
- Blue Sky Reports. This indicates shares sold to investors in various
states. There is also a "warning system" that informs the Fund when it
is within a certain percentage of the shares registered in the state,
or within a certain time period when the registration statement is up
for renewal.
- Maintaining shareholder records of certificate and whole and
fractional unissued shares
- Changing shareholders' addresses, dividend status, etc.
- Daily or periodic reports on numbers of shares, accounts, etc.
- Addressing and tabulating annual proxy cards
- Supplying an annual stockholder list
- Preparation of federal tax information forms to include 1099's, 1099B,
1042's, etc. to shareholder and IRS
- Replying to shareholder correspondence other than that for Fund
performance or Fund-related inquiries
Optional Services
-----------------
There are also optional services available. Fees and descriptions for
any of these services will be provided upon request.
In addition, all out-of-pocket expenses shall be separately charged; i.e.,
expenses such as postage, stationery, retention of records, mailing, insurance,
conversion, etc., and expenses in the development of Agreements between the
Client and Fund/Plan Services, Inc.
