TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this eighth day of October,
1996, by and between X'Xxxxxxxxxxx Funds, Inc., a Maryland corporation
(hereinafter referred to as the "Funds") and Firstar Trust Company, a
corporation organized under the laws of the State of Wisconsin (hereinafter
referred to as the "Agent").
WHEREAS, the Funds are an open-ended management investment company
which are registered under the Investment Company Act of 1940; and
WHEREAS, the Agent is a trust company and, among other things, is in
the business of administering transfer and dividend disbursing agent functions
for the benefit of its customers;
NOW, THEREFORE, the Funds and the Agent do mutually promise and agree
as follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in this Agreement, the
Funds hereby appoint the Agent to act as transfer agent and dividend disbursing
agent.
The Agent shall perform all of the customary services of a transfer
agent and dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to:
A. Receive orders for the purchase of shares;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such
uncertificated shares being held in the appropriate
shareholder account;
C. Process redemption requests received in good order;
D. Pay monies;
E. Process transfers of shares in accordance with the
shareowner's instructions;
F. Process exchanges between funds within the same family of
funds;
G. Issue and/or cancel certificates as instructed; replace
lost, stolen or destroyed certificates upon receipt of
satisfactory indemnification or surety bond;
H. Prepare and transmit payments for dividends and
distributions declared by the Funds;
I. Make changes to shareholder records, including, but not
limited to, address changes in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment,
etc.);
J. Record the issuance of shares of the Funds and maintain,
pursuant to Securities Exchange Act of 1934 Rule 17ad-10(e),
a record of the total number of shares of the Funds which
are authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current
shareholders;
M. Prepare and file U.S. Treasury Department forms 1099 and
other appropriate information returns required with respect
to dividends and distributions for all shareholders;
N. Provide shareholder account information upon request and
prepare and mail confirmations and statements of account to
shareholders for all purchases, redemptions and other
confirmable transactions as agreed upon in writing with the
Funds;
O. Provide a Blue Sky System which will enable the Funds to
monitor the total number of shares sold in each state. In
addition, the Funds shall identify to the Agent in writing
those transactions and assets to be treated as exempt from
the Blue Sky reporting to the Funds for each state. The
responsibility of the Agent for the Funds' Blue Sky state
registration status is solely limited to the initial
compliance by the Funds and the reporting of such
transactions to the Funds.
P. Deal with, and answer in a timely manner, all correspondence
and inquiries relating to the functions of Agent under this
Agreement with respect to the Funds.
Q. Furnish the Funds such information and at such intervals as
is necessary for the Funds to comply with the registration
and/or the reporting requirements (including applicable
escheat laws) of the Securities and Exchange Commission,
Blue Sky authorities or other governmental authorities.
R. Provide to the Funds such information as may reasonably be
required to enable the Funds to reconcile the number of
outstanding Shares between Agent's records and the account
books of the Funds.
2. Compensation
The Funds agree to pay the Agent for performance of the duties listed
in this Agreement. The fees and out-of-pocket expenses payable under this
agreement are set forth in the Schedule of Fees attached hereto and include, but
are not limited to the following:
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printing, postage, forms, stationery, record retention, mailing, insertion,
programming, labels, shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Funds and the Agent.
The Funds agree to pay all fees reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
3. Representations of Agent
The Agent represents and warrants to the Funds that:
A. It is a trust company duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities
Exchange Act of 1934 as amended.
C. It is duly qualified to carry on its business in the state
of Wisconsin;
D. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to
authorize it to enter and perform this Agreement; and
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties
and obligations under this Agreement.
G. It will comply with all applicable requirements of the
Securities Act of 1933 and the Securities Exchange Act of
1934, as amended, the Investment Company Act of 1940, as
amended, and any laws, rules and regulations of governmental
authorities having jurisdiction.
4. Representations of the Funds
The Funds represent and warrant to the Agent that:
A. The Funds are an open-ended diversified investment company
under the Investment Company Act of 1940;
B. The Funds are a corporation organized, existing and in good
standing under the laws of the Investment Company Act of
1940;
C. The Funds are empowered under applicable laws and by their
Corporate Charter and bylaws to enter into and perform this
Agreement;
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D. All necessary proceedings required by the Corporate Charter
have been taken to authorize them to enter into and perform
this Agreement;
E. The Funds will comply with all applicable requirements of
the Securities and Exchange Act of 1933 and 1934, as
amended, the Investment Company Act of 1940, as amended, and
any laws, rules and regulations of governmental authorities
having jurisdiction; and
F. Prior to the funds commencement of operations, a
registration statement under the Securities Act of 1933 will
be effective and will remain effective, and appropriate
state securities laws filing have been made and will
continue to be made, with respect to all shares of the Funds
being offered for sale.
5. Covenants of the Funds and Agent
The Funds shall furnish the Agent a certified copy of the resolution
of the Board of Directors of the Funds authorizing the appointment of the Agent
and the execution of this Agreement. The Funds shall provide to the Agent a copy
of the Corporate Charter, bylaws of the Funds, and all amendments.
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the rules thereunder, the Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed by the Agent
hereunder are the property of the Funds and will be preserved, maintained and
made available in accordance with such section and rules and will be surrendered
to the Funds on and in accordance with its request.
6. Indemnification; Remedies Upon Breach
The Agent shall exercise reasonable care and diligence, act in good
faith and use its best efforts within reasonable limits in the performance of
its duties under this Agreement. The Agent shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Funds in connection
with matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies beyond
the Agent's control, except a loss resulting from the Agent's refusal or failure
to comply with the terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its duties under this
Agreement. Notwithstanding any other provision of this Agreement, the Funds
shall indemnify and hold harmless the Agent from and against any and all claims,
demands, losses, expenses and liabilities (whether with or without basis in fact
or law) of any and every nature (including reasonable attorneys' fees) which the
Agent may sustain or incur or which may be asserted against the Agent by any
person arising out of any action taken or omitted to be taken by it in
performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction provided to
the Agent which the agent reasonably believes to have been executed by any duly
authorized officer of the Funds, such duly authorized officer to be
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included in a list of authorized officers furnished to the Agent and as amended
from time to time in writing by resolution of the Board of Directors of the
Funds.
Further, the Funds will indemnify and hold the Agent harmless against
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand, action,
or suit as a result of the negligence of the Funds or the principal underwriter
(unless contributed to by the Agent's breach of this Agreement or other
Agreements between the Funds and the Agent, or the Agent's own negligence or bad
faith); or as a result of the Agent acting upon telephone instructions relating
to the exchange or redemption of shares received by the Agent and reasonably
believed by the Agent under a standard of care customarily used in the industry
to have originated from the record owner of the subject shares; or as a result
of acting in reliance upon any genuine instrument or stock certificate signed,
countersigned, or executed by any person or persons authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of the Funds
shall be entitled to inspect the Agent's premises and operating capabilities,
and any and all of the Agent's books and records which relate to any transaction
or function performed by the Agent pursuant to this agreement, at any time
during regular business hours of the Agent, upon reasonable notice to the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Funds may be asked to
indemnify or hold the Agent harmless, the Funds shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that the Agent will use all reasonable care to notify the
Funds promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Funds.
The Funds shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the event that the Funds so elects,
it will so notify the Agent and thereupon the Funds shall take over complete
defense of the claim, and the Agent shall in such situation initiate no further
legal or other expenses for which it shall seek indemnification under this
section. The Agent shall in no case confess any claim or make any compromise in
any case in which the Funds will be asked to indemnify the Agent except with the
Funds' prior written consent.
The Agent shall indemnify and hold the Funds harmless from and against
any and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or
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law) of any and every nature (including reasonable attorneys' fees) which may be
asserted against the Funds by any person arising out of any action taken or
omitted to be taken by the Agent as a result of the Agent's refusal or failure
to comply with the terms of this Agreement, its bad faith, negligence, or
willful misconduct.
7. Confidentiality
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Funds and its
shareholders and shall not be disclosed to any other party, except after prior
notification to and approval in writing by the Funds, which approval shall not
be unreasonably withheld and may not be withheld where the Agent may be exposed
to civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities.
8. Additional Series
The Funds are authorized to issue separate classes of shares of common
stock representing interests in separate investment portfolios. The parties
intend that each portfolio established by the Funds, now or in the future, be
covered by the terms and conditions of this agreement. The portfolios covered by
this Agreement are set forth on Schedule A hereto, as it may be amended from
time to time.
9. Records
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Funds but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the Investment Company Act of 1940 as amended (the "Investment Company Act"),
and the rules thereunder. The Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed by the Agent
hereunder are the property of the Funds and will be preserved, maintained, and
made available with such section and rules of the Investment Company Act and
will be promptly surrendered to the Funds on and in accordance with its request.
10. Wisconsin Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of Wisconsin.
11. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written consent
of the parties.
B. This Agreement may be terminated, without penalty to the
Funds or the Agent, upon ninety (90) day's written notice
given by one party to the other.
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C. This Agreement and any right or obligation hereunder may not
be assigned by either party without the signed, written
consent of the other party.
D. Any notice required to be given by the parties to each other
under the terms of this Agreement shall be in writing,
addressed and delivered, or mailed to the principal place of
business of the other party. If to the Agent, such notice
should be sent to Firstar Trust Company/Mutual Fund Services
located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000. If to the Funds, such notice should be sent to
X'Xxxxxxxxxxx Funds, Inc., 00 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000.
E. In the event that the Funds give to the Agent its written
intention to terminate and appoint a successor transfer
agent, the Agent agrees to cooperate in the transfer of its
duties and responsibilities to the successor, including any
and all unissued and cancelled stock certificates
representing the Funds' shares remaining in its possession,
relevant books, records and other data established or
maintained by the Agent under this Agreement.
F. Should the Funds exercise its right to terminate, all
out-of-pocket expenses associated with the --- movement of
records and material will be paid by the Funds.
X'Xxxxxxxxxxx Funds, Inc. Firstar Trust Company
By: By:
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Print: Print:
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Title: Title:
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Date: Date:
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Attest: Attest:
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October 27, 1998
This agreement is hereby amended, pursuant to resolution of the X'Xxxxxxxxxxx
Funds, Inc. Board of Directors as follows:
Firstar Trust Company is changed to be Firstar Mutual Fund Services, LLC
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