EXHIBIT (h)(1)
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 31st day of
December, 1999, by and between The Xxxxx Growth Fund, Inc. ("JGF"), Xxxxx Funds,
Inc. ("JFI") and American Eagle Funds, Inc. ("AEF"), each a corporation
organized under the laws of the State of Minnesota (each a "Company"), and
Firstar Mutual Fund Services, LLC, a limited liability company organized under
the laws of the State of Wisconsin (hereinafter referred to as "FMFS").
WHEREAS, each Company is an open-end investment management company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, FMFS is in the business of providing, among other things,
transfer agent and dividend disbursing agent services to investment companies;
and
WHEREAS, each Company desires to retain FMFS to provide transfer agent
services to each fund of the Company (each a "Fund") listed on Exhibit A
attached hereto, as it may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
each Company and FMFS agree as follows:
1. APPOINTMENT OF TRANSFER AGENT
Each Company hereby appoints FMFS as Transfer Agent of the Company on
the terms and conditions set forth in this Agreement and, FMFS hereby accepts
such appointment and agrees to perform the services and duties set forth in this
Agreement in consideration of the compensation provided for herein.
2. DUTIES AND RESPONSIBILITIES OF FMFS
FMFS shall perform all of the customary services of a transfer agent,
dividend disbursing agent and 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. Receiving orders for the purchase of shares for each Company;
B. Effecting purchase orders with prompt delivery of payment and
supporting documentation to each Company's custodian and issue
the appropriate number of certificated or uncertificated
shares with such certificated or uncertificated shares being
held in the appropriate shareholder account;
C. Issuing shares obtained through transfers of funds from
shareholder accounts at financial institutions and arrange for
the exchange of shares for shares of other eligible investment
companies, when permitted by a Fund's prospectus;
D. Effecting redemption requests received and delivering
appropriate documentation to each Company's custodian;
E. Paying monies upon receipt from each Company's custodian in
accordance with the instructions of redeeming shareholders;
F. Effecting transfers of shares by registered owners upon
receipt of appropriate instructions;
G. Effecting exchanges between Funds and/or classes of shares of
Funds;
H. Preparing and transmitting payments for dividends and
distributions declared by each Company with respect to the
Fund, after deducting any amount required to be withheld by
any applicable laws, rules and regulations and in accordance
with shareholder instructions;
I. Making changes to shareholder records, including, but not
limited to, address changes in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment,
etc.);
J. Recording the issuance of shares of each Fund and maintaining,
pursuant to Rule 17ad-10(e) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), a
record of the total number of shares of the Fund which are
authorized, issued and outstanding;
K. Preparing shareholder meeting lists and mailing, receiving and
tabulating proxies;
L. Mailing shareholder reports and prospectuses to current
shareholders;
M. Preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate information returns required by federal
authorities with respect to dividends and distributions for
all shareholders;
N. Maintaining records of account and advising each Company and
its shareholders as to the foregoing;
O. Providing shareholder account information upon request and
preparing and mailing confirmations and statements of account
to shareholders for all purchases, redemptions and other
confirmable transactions as may be requested by a Company;
P. Issuing replacement certificates of stock or uncertificated
shares in place of those certificates alleged to have been
lost, stolen or destroyed upon receipt by FMFS of
indemnification satisfactory to FMFS and protecting FMFS and
the Company;
Q. Mailing requests for shareholders' certifications under
penalties of perjury and paying on a timely basis to the
appropriate federal authorities any taxes to be withheld on
dividends and distributions paid by each Company, as required
by applicable Federal law;
R. Providing a Blue Sky System which will enable each Company to
monitor the total number of shares of each Fund sold in each
state. Each Company or its agents shall identify and provide
to FMFS in writing those transactions and assets to be treated
as exempt from the Blue Sky reporting in each state. The
responsibility of FMFS for each Company's Blue Sky state
registration or notice filing status is solely limited to the
initial compliance by the Company and the reporting of such
transactions to the Company or its agent;
S. Answering correspondence from shareholders, securities brokers
and others relating to FMFS's duties hereunder and such other
correspondence as may from time to time be mutually agreed
upon between FMFS and each Company;
T. Opening and maintaining one or more non-interest bearing
deposit accounts as agent for each Fund, with such financial
institution(s) as may be designated by the Company in writing
(such accounts, however, to be in the name of FMFS and subject
only to its draft or order), into which accounts the moneys
received for the account of the Fund and moneys for payment of
dividends, distributions, redemptions or other disbursements
provided for in this Agreement will be deposited and against
which checks, drafts and payment orders will be drawn; and
U. Reimbursing each Fund each month for all material losses
resulting from "as of" processing errors for which FMFS is
responsible in accordance with the "as of" processing
guidelines set forth in the following paragraph.
V. Reimbursing each Fund and its shareholders for any Net
Material Losses that may exist of the Fund's books due to
errors in calculating the Fund's net asset value ("NAV") and
for which FMFS is responsible. "Net Material Loss" shall mean
any remaining loss, after netting losses against any gains
which impacts a Fund's net asset value by more than 1/2 cent.
Gains and losses shall be accrued on a daily basis, will be
reflected on each Fund's daily share sheet, and will be
settled at the end of each calendar month. FMFS will notify
the Fund advisor on a daily share sheet of any losses for
which the Fund's advisor may be held accountable.
3. COMPENSATION
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the Fee Schedule attached hereto as Exhibit A and
as may be mutually agreed upon and amended from time to time. Each Company
agrees to promptly pay all fees and reimbursable expenses following the receipt
of the billing notice.
4. REPRESENTATIONS OF FMFS
FMFS represents and warrants to each Company that:
A. It is a corporation duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act;
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;
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; and
G. It will comply with all applicable requirements of the
Securities Act of 1933, as amended, and the Exchange Act, the
1940 Act, and any laws, rules and regulations of governmental
authorities having jurisdiction.
5. REPRESENTATIONS OF EACH COMPANY
Each Company represents and warrants to FMFS that:
A. It is an open-end investment company under the 1940 Act;
B. It is organized, existing and in good standing under the laws
of Minnesota;
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform this
Agreement;
D. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
E. It will comply with all applicable requirements of the
Securities Act of 1933, the Securities Exchange Act of 1934,
the 1940 Act and any laws, rules and regulations of
governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act of 1933 has
been made effective (and will remain effective) with respect
to all shares of each Company being offered for sale.
6. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
FMFS shall exercise reasonable care in the performance of its duties
under this Agreement and shall not be liable for any loss except a loss
resulting from the refusal or failure to comply with the terms of this Agreement
or from bad faith, negligence, or willful misconduct.
Each Company will indemnify and hold FMFS 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 Company (unless contributed to by FMFS breach of this
Agreement or other Agreements between the Company and FMFS, or FMFS' own
negligence or bad faith); or as a result of FMFS acting upon telephone
instructions relating to the exchange or redemption of shares received by FMFS
and reasonably believed by FMFS to be genuine and 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.
FMFS shall indemnify and hold each Company harmless against any and all
losses, claims, demands, expenses (including reasonable counsel fees and
expense), or 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 arising out of any action taken or omitted to
be taken
by FMFS as a result of FMFS's refusal or failure to comply with the terms of
this Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies FMFS shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues. FMFS 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 FMFS. FMFS agrees that
it shall, at all times, have reasonable contingency plans with appropriate
parties and shall make reasonable provision for emergency use of electrical data
processing equipment to the extent appropriate equipment is available.
Representatives of each Company shall be entitled to inspect FMFS's premises and
operating capabilities at any time during regular business hours of FMFS, upon
reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and
correct administrative errors at its own expense.
Upon the assumption of a claim for indemnification, the indemnitor shall
be fully and promptly advised of all pertinent facts concerning the claim. The
indemnitor shall have the option to defend participate in the defense of any
claim, or to defend against said claim in its own name and in the name of the
indemnitee through counsel acceptable to the indemnitee. The indemnitee shall in
no case confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
7. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers and
employees to treat confidentially and as proprietary information of each
Company, all records and other information related to the Company and such
Company's prior, present or potential shareholders (and clients of such
shareholders), and not to use such records and other information for any purpose
other than the performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing from the Company or as may
be required by law.
8. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof with
respect to AEF and on or about May 8, 2000 (with the parties to agree upon the
exact effective date) with respect to JGF and JFI and, unless sooner terminated
as provided herein, shall continue, subject to board of directors approval, in
effect for successive annual periods. This Agreement may be terminated by any
party to the Agreement upon giving ninety (90) days prior written notice to the
other parties, or such shorter period as may be mutually agreed upon by the
parties.
9. RECORDS
FMFS 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 each Company and in accordance with Section 31 of the 1940
Act and other rules and regulations of governmental or regulatory authorities.
FMFS agrees that all records prepared or maintained by FMFS relating to the
services to be performed hereunder are the property of the Company and will be
preserved, maintained, and made available in accordance with such section and
rules of the 1940 Act and will be promptly surrendered to each Company on and in
accordance with its request.
10. GOVERNING LAW
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of Wisconsin without
reference to the choice laws principles thereof. However, nothing herein shall
be construed in a manner inconsistent with the 1940 Act or any rule or
regulation promulgated by the Securities and Exchange Commission thereunder.
11. DUTIES IN THE EVENT OF TERMINATION
In the event of termination of this Agreement, a successor to any of
FMFS's duties or responsibilities hereunder may be designated by each Company by
written notice to FMFS. FMFS will promptly upon such notice, transfer to such
successor all relevant books, records, correspondence and other data kept or
maintained by FMFS under this Agreement in a form reasonably acceptable to the
Company, and will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from FMFS's personnel in the establishment of
books, records and other data by such successor. Should the Agreement be
terminated by the action of a Company, such Company shall bear all reasonable
costs incurred by FMFS and associated with the transfer of records and other
materials to its successors.
12. NOTICES
Notices of any kind to be given to the other party shall be in writing
and shall be duly given if mailed or delivered as follows:
Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
Attn: Xxxxx Xxxxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Notice to a Company shall be sent to:
Xxxxx Associates, Inc.
Attn: Xxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
THE XXXXX GROWTH FUND, INC. FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: ______________________________
Attest: __________________________ Attest: __________________________
XXXXX FUNDS, INC.
By: ______________________________
Attest: __________________________
AMERICAN EAGLE FUNDS, INC.
By: ______________________________
Attest: __________________________
TRANSFER AGENT AND SHAREHOLDER SERVICING
ANNUAL FEE SCHEDULE
EXHIBIT A
NAME OF SERIES APPROXIMATE DATE ADDED
-------------- ----------------------
Xxxxx Growth Fund, Inc. 5/8/00
Xxxxx Growth Fund (Class A, B, C, I)
Xxxxx Funds, Inc. 5/8/00
Xxxxx Opportunity Fund (Class A, B, C, I)
Xxxxx Twenty-Five Fund (Class A, B, C, I)
Xxxxx U. S. Emerging Growth Fund (Class A, B, C, I)
Xxxxx Mid-Cap Growth Fund (Class A, B, C, I) 7/1/00
Xxxxx Science &
Technology Fund (Class A, B, C, I) 7/1/00
American Eagle Funds, Inc. 12/31/99
American Eagle Capital Appreciation Fund
American Eagle Twenty Fund
American Eagle Large-Cap Growth Fund 12/29/00
Annual Fee
$16.00 per shareholder account
Minimum annual fees of $12,000 per class - Xxxxx Funds, Inc. and Xxxxx Growth Fund, Inc.
Minimum annual fees of $10,000 per class - American Eagle Funds, Inc.
Xxxxx Mid-Cap Growth Fund and Xxxxx Science & Technology Fund -
Discount to above annual fee for first two years or until each Fund's
net assets reach $10 million:
Year 1 - 15% of annual fee
Year 2 - 10% of annual fee
Extraordinary services quoted separately.
Conversion estimate (Xxxxx Growth Fund, Inc
and Xxxxx Funds, Inc.) $55,000 - $85,000
Activity Charges
Telephone Call $1.00 per call
Draft Check Processing $1.00 per draft
Daily Valuation Trades $6.75 per trade
ACH Shareholder Service $125.00 per month per Fund group (Company)
$ .50 per ACH item, setup and/or change
$ 5.00 per correction, reversal, return item
Plus Reasonable out-of-pocket expenses, including but not limited to:
Telephone - toll free lines Proxies
Postage Retention of records
Programming Microfilm/fiche of records
Programming for select data requests Special reports
Stationery/envelopes ACH fees
Mailing NSCC charges
File transfers - $160.00 per month and $.01 per record
Qualified Plan Fees (Billed to Shareholders) $12.50 / account (Cap at $25.00 per SSN)
Annual maintenance fee per account $ 5.00 / account (Cap at $25.00 / per SSN)
Education XXX $15.00 / transaction
Transfer to successor trustee $15.00 / transaction (Exclusive of SWP)
Distribution to participant $15.00 / transaction
Refund of excess contribution
Additional Shareholder Fees (Billed to Shareholders)
Any outgoing wire transfer $12.00 / wire
Telephone Exchange $ 5.00 / exchange transaction
Return check fee $25.00 / item
Stop payment $20.00 / stop
(Liquidation, dividend, draft check)
Research fee $ 5.00 / item
(For requested items of the second calendar year [or previous] to the request)(Cap at $25.00)
MISCELLANEOUS
OUT-OF-POCKET CHARGES
NSCC Interfaces
Setup
Fund/SERV, Networking ACATS, Exchanges $5,000 setup (one time)
Commissions $5,000 setup (one time)
Processing
Fund/SERV $ 50.00 / month
Networking $ 250.00 / month
CPU Access $ 40.00 / month
Fund/SERV Transactions $ .35 / trade
Networking $ .015 / per item
First Data $ .10 / next-day Fund/SERV trade
First Data $ .15 / same-day Fund/SERV trade
NSCC Implementation
8 to 10 weeks lead time
DAZL (Direct Access Zip Link - Electronic mail interface to financial advisor network)
Setup $5,000 / fund group
Monthly Usage $1,000 / month
Transmission $ .015 / price record
$ .025 / other record
Enhancement $ 125 / hour
Forms Costs
Statement Paper $ .038 / item
#9, #10 Envelopes $ .043 / item
Check/Statement Paper $ .25 / item
Certificate 1.00 / item
Wire Order Confirm (non-NSCC) $ .22 / item
Presort Postage (one ounce) $ .34 / item
Shareholder System Select Request $ 200.00 / request
Systems Development/Programming $ 150.00 / hour
Fund Group Additions $2,000.00 / fund group
Lost Shareholder Search (Xxxxx Tracers) $ 3.00 / search
Custom Programming $ 150.00 / hour
Fees and reasonable out-of-pocket expenses are billed to each Fund monthly.
EXHIBIT A AMENDED AS OF 7/1/00
------------------------------
THE XXXXX GROWTH FUND, INC. FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: ______________________________
Attest: __________________________ Attest: __________________________
XXXXX FUNDS, INC.
By: ______________________________
Attest: __________________________
AMERICAN EAGLE FUNDS, INC.
By: ______________________________
Attest: __________________________
