TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this ____ day of
_____________, 1997, by and between XXXXXXX FUNDS, INC., presently
consisting of one portfolio, THE XXXXXXX GROWTH FUND (hereinafter referred
to as the "Fund"), and FIRSTAR TRUST COMPANY, a corporation organized
under the laws of the State of Wisconsin (hereinafter referred to as the
"Agent").
WHEREAS, the Fund is an open-ended management investment company
which is 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 Fund 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 Fund hereby employs and appoints 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 in accordance with the instructions of
redeeming shareholders;
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 Fund;
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 Fund and
maintain, pursuant to Securities Exchange Act of 1934 Rule
17ad-10(e), a record of the total number of shares of the Fund
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 with the Fund; and
O. Provide a Blue Sky System which will enable the Fund
to monitor the total number of shares sold in each state. In
addition, the Fund shall identify to the Agent in writing those
transactions and assets to be treated as exempt from the Blue
Sky reporting to the Fund for each state. The responsibility of
the Agent for the Fund's Blue Sky state registration status is
solely limited to the initial compliance by the Fund and the
reporting of such transactions to the Fund.
2. COMPENSATION
The Fund agrees to pay the Agent for performance of the duties
listed in this Agreement; the fees and out-of-pocket expenses include, but
are not limited to the following: 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 Fund and the Agent.
The Fund agrees to pay all fees and 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 Fund 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 FUND
The Fund represents and warrants to the Agent that:
A. The Fund is an open-ended diversified investment
company under the Investment Company Act of 1940;
B. The Fund is a corporation or business trust organized,
existing, and in good standing under the laws of Maryland;
C. The Fund is empowered under applicable laws and by its
Corporate Charter and bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Corporate
Charter have been taken to authorize it to enter into and
perform this Agreement;
E. The Fund will comply with all applicable requirements
of the Securities and Exchange Acts 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. A registration statement under the Securities Act of
1933 is currently effective and will remain effective, and
appropriate state securities law filings have been made and will
continue to be made, with respect to all shares of the Fund
being offered for sale.
5. COVENANTS OF FUND AND AGENT
The Fund shall furnish the Agent a certified copy of the
resolution of the Board of Directors of the Fund authorizing the
appointment of the Agent and the execution of this Agreement. The Fund
shall provide to the Agent a copy of the Corporate Charter, bylaws of the
Fund, 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 Fund and will be
preserved, maintained and made available in accordance with such section
and rules and will be surrendered to the Fund on and in accordance with
its request.
6. INDEMNIFICATION; REMEDIES UPON BREACH
The Agent shall exercise reasonable care 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 Fund
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 Fund 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 by any duly authorized officer of the
Fund, such duly authorized officer to be 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 Fund.
Further, the Fund 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 Fund or the
principal underwriter (unless contributed to by the Agent's breach of this
Agreement or other Agreements between the Fund 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 Fund shall be
entitled to inspect the Agent's premises and operating capabilities 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 Fund may be
asked to indemnify or hold the Agent harmless, the Fund 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 Fund promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the option to
defend the Agent against any claim which may be the subject of this
indemnification. In the event that the Fund so elects, it will so notify
the Agent and thereupon the Fund 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 Fund will be asked to indemnify the Agent except with
the Fund's prior written consent.
The Agent shall indemnify and hold the Fund harmless 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 may be asserted against the
Fund 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 Fund and
its shareholders and shall not be disclosed to any other party, except
after prior notification to and approval in writing by the Fund, 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. 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 Fund 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 Fund 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 Fund on and in accordance with its request.
9. 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.
10. 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 upon ninety (90) day's
written notice given by one party to the other.
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 at X.X. Xxx 0000, Xxxxxxxxx, XX
00000. If to the Fund, such notice should be sent to 0000 Xxxxxx Xxxxxx,
Xxxx Xxxx, Xxxxxxxxxx 00000.
E. In the event that the Fund gives 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 relevant books, records and other
data established or maintained by the Agent under this Agreement.
F. Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and
material will be paid by the Fund.
THE XXXXXXX FUNDS, INC. FIRSTAR TRUST COMPANY
By: ______________________________ By:
Attest: ___________________________ Attest:
Assistant Secretary
