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Exhibit 9.2
TRANSFER AGENCY AGREEMENT
This Transfer Agency Agreement is made as of the 5th of
September, 1995 between Time Horizon Funds, a Delaware business trust (herein
called the "Company"), having its principal office and place of business at
0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 and BISYS Fund Services
Ohio, Inc., an Ohio corporation having its principal office and place of
business at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 (herein called
the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises herein
set forth, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, the following words and
phrases shall have the following meanings:
1. "APPROVED INSTITUTION" shall mean an entity
so named in a Certificate. From time to time the Company may amend a
Certificate by delivering to the Transfer Agent a Certificate naming an
additional entity or deleting any entity named in a previously delivered
Certificate.
2. "BOARD OF TRUSTEES" shall mean the Board of
Trustees of the Company.
3. "CERTIFICATE" shall mean any notice,
instruction, or other instrument in writing, authorized or required by this
Agreement to be given to the Transfer Agent by the Company which is signed by
any Officer, as hereinafter defined, and actually received by the Transfer
Agent.
4. "CLASS" shall mean a subclass of shares
within a particular series.
5. "CUSTODIAN" shall mean the financial
institution appointed as custodian under the terms and conditions of the
Custody Agreement between the financial institution and the Company, or its
successor(s).
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6. "COMPANY ACCOUNTANT" shall mean the entity
appointed as accountant under the terms and conditions of the Accounting
Services Agreement between the entity and the Company, or its successor(s).
7. "COMPANY BUSINESS DAY" shall be deemed to be
each day on which the New York Stock Exchange, Inc. and the Company are open
for trading.
8. "MANAGER" shall mean Bank of America, NT&SA,
acting under the terms and conditions of the Management Agreement and includes
any successor and assigns.
9. "OFFICER" shall be deemed to be the Company's
Chairman of the Board, the Company's President, any Vice President of the
Company, the Company's Secretary, the Company's Treasurer, the Company's
Controller, any Assistant Controller of the Company, any Assistant Treasurer of
the Company and any Assistant Secretary of the Company, and any other person
duly authorized by the Board of Trustees of the Company to execute any
Certificate, instruction, notice or other instrument on behalf of the Company
and named in the Certificate annexed hereto as Appendix A, as such Certificate
may be amended from time to time, and any person reasonably believed by the
Transfer Agent to be such a person.
10. "PROSPECTUS" shall mean with respect to a
Class or Series of Shares, the last Company prospectus actually received by the
Transfer Agent from the Company with respect to such Class or Series of Shares
and with respect to which the Company has indicated a Registration Statement
under the Securities Act of 1933, as amended, has become effective, including
the Statements of Additional Information, incorporated by reference therein.
11. "FUNDS" shall mean the various portfolios of
the Company as described from time to time in the current and effective
Prospectuses.
12. "SHARES" shall mean all or any part of each
class or series of shares of beneficial interest of the Company listed in the
Certificate, attached hereto as Appendix B, as may be amended from time to
time, which are from time to time authorized and/or issued by the Company.
13. "TRANSFER AGENT" shall mean BISYS Fund
Services Ohio, Inc., as transfer agent and dividend
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disbursing agent under the terms and conditions of this Agreement, its
successor(s) or assign(s).
14. "OUT-OF-POCKET EXPENSES" means amounts reasonably necessary
and actually paid to third parties by the Transfer Agent in the provision of the
Transfer Agent services or pursuant to this Agreement. Such amounts will not
include charges of legal counsel, but will otherwise include amounts paid for
the following purposes: (i) postage and all freight and other delivery and
bonding charges incurred by the Transfer Agent in delivering materials to and
from the Company and in delivering all materials to shareholders; (ii) all
direct telephone, telephone transmission, telecopy, or other electronic
transmission expenses incurred by the Transfer Agent in communication with the
Company's dealers, shareholders or others, as required for the Transfer Agent
to perform the services to be provided hereunder; (iii) all charges related to
the settlement of shareholder transactions, including but not limited to
NSCC/FUND SERV charges, bank wire charges, and checking account charges; (iv)
charges associated with satisfying Internal Revenue Service tax reporting
requirements; (v) expenses associated with Securities and Exchange Commission
examinations of Company books and records; (vi) paper stocks and printing costs
for statements, checks, envelopes, tax and other forms; and (vii) such other
expenses paid or incurred by Transfer Agent on behalf of the Company at the
request of the Manager.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
-----------------------------
The Company hereby appoints the Transfer Agent as transfer agent of all
the Shares of the Company and as dividend disbursing agent during the period
of this Agreement.
2. (a) The Transfer Agent hereby accepts
appointment as transfer agent and dividend disbursing agent and agrees to
perform the duties thereof as herein set forth, including those duties set
forth in Schedule I(a) hereto.
(b) The services and specific capabilities to be
provided under this Agreement by the Transfer Agent shall include those
specifically listed in this Agreement.
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3. Upon the request of the Transfer Agent, the
Company shall deliver the following documents to the Transfer Agent:
(a) A copy of the Certificate of Trust and
Declaration of Trust of the Company and all amendments thereto certified by the
Secretary of the Company;
(b) A copy of the By-Laws of the Company certified by
the Secretary of the Company;
(c) A copy of a resolution of the Board of
Trustees of the Company certified by the Secretary of the Company appointing
the Transfer Agent and authorizing the execution of this Transfer Agency
Agreement;
(d) A Certificate signed by the Secretary or any
Assistant Secretary of the Company specifying: with respect to each Class or
Fund, the number of authorized Shares, the number of such authorized Shares
issued, and the number of such authorized Shares issued and currently
outstanding; the names and specimen signatures of the Officers of the Company;
and the name and address of the legal counsel for the Company;
(e) Copies of the Company's Registration
Statement, as amended to date, and the most recently filed Post-Effective
Amendment thereto, filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and under the
Investment Company Act of 1940, as amended, together with any applications
filed in connection therewith; and
(f) Opinion of counsel for the Company with
respect to the validity of the authorized and outstanding Shares, whether such
Shares are fully paid and non-assessable and the status of such Shares under
the Securities Act of 1933, as amended, and any other applicable federal law or
regulation (I.E., if subject to registration, that they have been registered
and that the Registration Statement has become effective or, if exempt, the
specific grounds therefor).
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ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
------------------------------------
1. The Company shall deliver to the Transfer Agent the
following documents on or before the effective date of any increase or decrease
in the total number of Shares authorized to be issued:
(a) A certified copy of the amendment to
the Declaration of Trust giving effect to such increase or decrease;
(b) In the case of an increase, an
opinion of counsel for the Company with respect to the validity of the Shares
of the Company and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulation (i.e., if
subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor); and
(c) In the case of an increase, if the
appointment of the Transfer Agent is expressly limited to the previously
authorized number of Shares, a certified copy of a resolution of the Board of
Trustees of the Company increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional
Shares of the Company pursuant to actions such as share dividends or share
splits, and prior to any reduction in the number of Shares outstanding, the
Company shall deliver the following documents to the Transfer Agent:
(a) A certified copy of the
resolution(s) adopted by the Board of Trustees and/or the shareholders of the
Company authorizing such issuance of additional Shares of the Company or such
reduction, as the case may be; and
(b) An opinion of counsel for the Company
with respect to the validity of the Shares of the Company and the status of
such Shares under the Securities Act of 1933, as amended, and any other
applicable federal law or regulation (i.e., if subject to registration, that
they have been registered and that the Registration Statement has become
effective, or, if exempt, the specific grounds therefor).
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ARTICLE IV
ISSUANCE,
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REDEMPTION AND TRANSFER OF SHARES
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1. The Transfer Agent acknowledges that it has
received a copy of the Company's Prospectus with respect to its currently
authorized Funds and Classes of Shares, which Prospectus describes how sales
and redemption of shares of the Company shall be made, and the Transfer Agent
agrees to accept purchase orders and redemption requests with respect to
Company shares on each Company Business Day in accordance with such Prospectus.
The Company agrees to notify the Transfer Agent as soon as possible under the
circumstances of any changes in the procedures set forth in the Prospectus
regarding such purchase and redemption procedures.
2. On each Company Business Day, a duly
authorized officer or employee of the Transfer Agent shall furnish the
following information by telephone call to an Officer of the Company or by such
other form to such other person as shall be agreed upon from time to time by
the Company and the Transfer Agent:
(a) The total dollar amount to be
applied to the purchase of Shares of each Class or Fund on such day, computed
by aggregating the amount so specified in such of the purchase orders described
in paragraph 1 of this Article IV with respect to which payment has been, or
will be, credited by the Custodian to the Company's custody account with the
Custodian on such day. The Transfer Agent shall also accept with respect to
each Company Business Day, at such times as are agreed upon from time to time
by the Transfer Agent and the Company, a computer tape consistent in all
respects with the Transfer Agent's tape layout package, as amended from time to
time, upon prior written notice to the Company or its Distributor, which is
believed by the Transfer Agent to be furnished by or on behalf of any Approved
Institution. The Transfer Agent shall not be liable for any loss or damage to
the Company or its shareholders in the event that a computer tape or electronic
data transmission from an Approved Institution is unable to be processed for
any reason beyond the control of the Transfer Agent, or if any of the
information on such tape or transmission is found to be incorrect.
(b) The total dollar amount of Shares of
each Class or Fund to be redeemed on such day, computed by aggregating the
amount so specified in (i) such of the redemption requests described in
paragraph 1 of this Article
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IV with respect to which the amount payable as redemption proceeds has been, or
will be, charged by the Custodian on such day, and (ii) all computer tapes
described in paragraph 2(a) of this Article IV with respect to which the amount
payable as redemption proceeds has been, or will be, charged by the Custodian
on such day.
3. On each Company Business Day, the Transfer
Agent shall, as of the time at which the Company computes the net asset value
of each Class or Fund of the Company, issue to and redeem from the shareholder
accounts specified in a purchase order, redemption request or computer tape,
which in accordance with the Prospectuses is effective on such Company Business
Day, the appropriate number of full and fractional Shares based on the net
asset value per Share of such Class or Fund specified in an advice received on
such Company Business Day from the Company or the Company Accountant.
Notwithstanding the foregoing, if a redemption specified in a computer tape is
for a dollar value of Shares in excess of the dollar value of uncertificated
Shares in the specified account, the Transfer Agent shall not effect such
redemption in whole or in part and shall within twenty-four (24) hours orally
advise both the Company and the Approved Institution which supplied such tape
of the discrepancy.
4. In connection with a reinvestment of a
dividend or distribution on Shares of any Class or Fund of the Company, the
Transfer Agent shall, as of each Company Business Day, as specified in a
Certificate or resolution described in paragraph 1 of Article V, issue Shares
of a Class or Fund to the appropriate shareholder account, based on the net
asset value per Share of such Class or Fund specified in an advice received
from the Company or its Company Accountant on such Company Business Day.
5. On each Company Business Day, the Transfer
Agent shall supply the Company Accountant with a statement specifying with
respect to the immediately preceding Company Business Day: the total number of
Shares of each Class or Fund (including fractional Shares) issued and
outstanding at the opening of business on such day; the total number of Shares
of each Class or Fund sold on such day, pursuant to paragraph 3 of this Article
IV; the total number of Shares of each Class or Fund redeemed by the Transfer
Agent on such day; the total number of Shares of each Class or Fund, if any,
sold on such day pursuant to paragraph 4 of this Article IV; and the total
number of Shares of each Class or Fund issued and outstanding. On the same day
such statement
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is received by the Company, the Company shall confirm the information contained
therein, after making any necessary corrections, by delivering to the Transfer
Agent a Certificate with respect to the same.
6. In connection with each purchase and each
redemption of Shares, and each reinvestment of a dividend or distribution of
Shares, the Transfer Agent shall send to the affected shareholder such
statements as are prescribed by the federal securities laws applicable to
transfer agents and as are described in the applicable Prospectus. If the
Prospectus indicates that certificates for Shares are available and if
specifically requested in writing by any shareholder, or if otherwise required
hereunder, the Transfer Agent shall countersign, issue and mail by first-class
mail to such shareholder at the address set forth in the records of the
Transfer Agent, a Share certificate for any full Shares requested.
7. As of each Company Business Day, the Transfer
Agent shall furnish the Custodian with a written statement (which may be by
facsimile transfer) setting forth the number and dollar amount of each Class or
Fund of Shares to be redeemed on such Company Business Day in accordance with
paragraph 3 of this Article IV.
8. Upon receipt of a proper redemption request
and moneys paid to it by the Custodian in connection with a redemption of
Shares, the Transfer Agent shall cancel the redeemed Shares and, after making
appropriate deduction for any withholding of taxes required of it by applicable
law, (a) in the case of a redemption of Shares pursuant to a redemption
described in paragraph 1 of this Article IV, make payment in accordance with
the Company's redemption and payment procedures described in the Prospectuses,
and (b) in the case of a redemption of Shares pursuant to a computer tape
described in paragraph 2(a) of this Article IV, make payment by directing a
federal funds wire order to the account previously designated by the Approved
Institution specified in the computer tape.
9. The Transfer Agent shall not be required to
issue any Shares after it has received from an Officer of the Company or from
an appropriate federal or state authority written notification that the sale of
Shares has been suspended or discontinued, and the Transfer Agent shall be
entitled to rely upon such written notification.
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10. Upon the issuance of any Shares in accordance
with this Agreement, the Transfer Agent shall not be responsible for the
payment of any original issue or other taxes required to be paid by the Company
in connection with such issuance of any Shares.
11. The Transfer Agent shall accept a
computer tape consistent with the Transfer Agent's tape layout package, as
amended from time to time upon prior notice to the Company or the Distributor,
which is reasonably believed by the Transfer Agent to be furnished by or on
behalf of an Approved Institution and is represented to be instructions with
respect to the transfer of Shares from one account of such Approved Institution
to another such account, and shall effect the transfers specified in said
computer tape. The Transfer Agent shall not be liable for any losses to the
Company or its shareholders in the event that a computer tape or electronic
data transmission from an Approved Institution is unable to be processed for
any reason beyond the control of the Transfer Agent, or if any of the
information on such tape or transmission is found to be incorrect.
12 (a) Except as otherwise provided in
sub-paragraph (b) of this paragraph and in paragraph 14 of this Article IV,
Shares shall be transferred or redeemed upon presentation to the Transfer Agent
of Share certificates or instructions properly endorsed for transfer or
redemption, accompanied by such documents as the Transfer Agent deems necessary
to evidence the authority of the person making such transfer or redemption, and
bearing satisfactory evidence of the payment of any transfer taxes. In the
case of small estates where no administration is contemplated, the Transfer
Agent may, when furnished with an appropriate surety bond, and without further
approval of the Company, transfer or redeem Shares registered in the name of a
decedent where the current market value of the Shares being transferred does
not exceed such amount as may from time to time be prescribed by various
states. The Transfer Agent reserves the right to refuse to transfer or redeem
Shares until it is satisfied that the endorsement on the share certificate or
instructions is valid and genuine, and for that purpose it will require, unless
otherwise instructed by an authorized officer of the Company, a guarantee of
signature, acceptable to the Transfer Agent and in compliance with applicable
law. The Transfer Agent also reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the requested transfer or redemption
is legally authorized, and it shall incur no
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liability for the refusal, in good faith, to make transfers or redemptions
which the Transfer Agent, in its judgment, deems improper or unauthorized, or
until it is satisfied that there is no basis to any claims adverse to such
transfer or redemption. The Transfer Agent may, in effecting transfers and
redemptions of Shares, rely upon those provisions of the Uniform Act for the
Simplification of Fiduciary Security Transfers or the Uniform Commercial Code,
as the same may be amended from time to time and as is applicable to the
transfer in question, and the Company shall indemnify the Transfer Agent for
any act performed or omitted by it in good faith in reliance upon such laws.
(b) Notwithstanding the foregoing or any other
provision contained in this Agreement to the contrary, the Transfer Agent shall
be fully protected by the Company in the event the Transfer Agent does not
require any instruments, documents, assurances, endorsements or guarantees,
including, without limitation, any signature guarantees, in connection with a
redemption or transfer of Shares whenever the Transfer Agent reasonably
believes that requiring the same would be inconsistent with the transfer and
redemption procedures as described in the applicable Prospectus.
13. Notwithstanding any provision contained in
this Agreement to the contrary, the Transfer Agent shall not be required or
expected to require, as a condition to any transfer of any Shares pursuant to
paragraph 12 of this Article IV or any redemption of any Shares pursuant to a
computer tape described in this Agreement, any documents, including, without
limitation, any documents of the kind described in sub-paragraph (a) of
paragraph 13 of this Article IV, to evidence the authority of the person
requesting the transfer or redemption and/or the payment of any share transfer
taxes, and shall be fully protected in acting in accordance with the applicable
provisions of this Article IV.
14. (a) As used in this Agreement, the terms
"computer tape" and "computer tape believed by the Transfer Agent to be
furnished by an Approved Institution" shall include any tape or electronic
transmission generated by the Transfer Agent to reflect information believed by
the Transfer Agent to have been input by an Approved Institution, via a remote
terminal or other similar link, into a data processing, storage, or collection
system, or similar system (the "System"), located on the Transfer Agent's
premises or utilized by the Transfer Agent. For
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purposes of paragraph 2 of this Article IV, such computer tape shall be deemed
to have been furnished at such times as are agreed upon from time to time by
the Transfer Agent and Company only if the information reflected thereon was
input into the System at such times as are agreed upon from time to time by the
Transfer Agent and the Company.
(a) Nothing contained in this Agreement
shall constitute any agreement or representation by the Transfer Agent to
permit, or to agree to permit, any Approved Institution to input information
into a System.
(b) The Transfer Agent reserves the
right to approve in advance any Approved Institution, such approval not to be
unreasonably withheld. The Transfer Agent also reserves the right to terminate
any and all automated data communications, at its discretion, upon a reasonable
attempt to notify the Company when in the opinion of the Transfer Agent
continuation of such communications would jeopardize the accuracy and/or
integrity of the Company's records on the System.
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
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1. The Company shall furnish to the Transfer
Agent a copy of a resolution of its Board of Trustees, certified by the
Secretary or any Assistant Secretary, either (i) setting forth with respect to
a Class or Fund of Shares the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, thereof, the
record date as of which Shareholders entitled to payment or accrual shall be
determined, the amount per Share of such dividend or distribution, the payment
date on which all previously accrued and unpaid dividends are to be paid, and
the total amount, if any, payable to the Transfer Agent on such payment date,
or (ii) authorizing the declaration of dividends and distributions on a daily
or other periodic basis and authorizing the Transfer Agent to rely on a
Certificate setting forth the information described in subsection (i) of this
paragraph.
2. Upon the payment date specified in such
Certificate or resolution, the Company shall, in the case of a cash dividend or
distribution, cause the Custodian to pay to the Transfer Agent an amount of
cash, if any, sufficient for the Transfer Agent to make the payment, if any, as
of the payment date, specified in such Certificate or resolution, to the
shareholders who were of record on the
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record date who are entitled to receive the cash dividend or distribution. The
Transfer Agent shall, upon receipt of any such cash, make payment of such cash
dividends or distributions to the shareholders of record as of the record date
by: (i) mailing a check, payable to the registered shareholder, to the address
of record or dividend mailing address, or transmitting payment through the
Automated Clearing House System, or (ii) wiring such amounts, or transmitting
such amounts through the Automated Clearing House System, to the accounts
previously designated by an Approved Institution. The Transfer Agent shall not
be liable for any improper payments made in good faith and without negligence,
in accordance with a Certificate or resolution described in the preceding
paragraph. If the Transfer Agent shall not receive from the Custodian
sufficient cash to make payment of any cash dividend or distribution to all
shareholders of a Class or Fund of Shares of the Company as of the record date
who are entitled to receive the cash dividend or distribution, the Transfer
Agent shall, upon notifying the Company, withhold payment to all shareholders
of record as of the record date until sufficient cash is provided to the
Transfer Agent.
3. It is understood that the Transfer Agent
shall in no way be responsible for the determination of the rate or form of
dividends or capital gain distributions due to the shareholders. It is
expressly agreed and understood that the Transfer Agent is not liable for any
loss as a result of processing a distribution based on information provided in
the Certificate that is incorrect. The Company agrees to pay the Transfer
Agent for any and all costs, both direct and Out-of-Pocket Expenses, incurred
in such corrective work as necessary to remedy such error.
4. It is understood that the Transfer Agent
shall file such appropriate information returns concerning the payment of
dividend and capital gain distributions with the proper federal, state and
local authorities as are required by law to be filed by the Company but shall
in no way be responsible for the collection or withholding of taxes due on such
dividends or distributions due to shareholders, except and only to the extent
required by applicable law. To the extent such collection or withholding of
taxes is required of the Transfer Agent, it shall pay on a timely basis to the
appropriate authority any amounts required to be remitted to the authority.
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ARTICLE VI
CONCERNING THE COMPANY
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1. The Company represents to the Transfer Agent that:
(a) It is a business trust duly
organized and existing under the laws of the State of Delaware.
(b) It is empowered under applicable
laws and by its Declaration of Trust and By-Laws to enter into and perform this
Agreement.
(c) All requisite corporate proceedings
have been held to authorize it to enter into and perform this Agreement.
(d) It is an investment company
registered under the Investment Company Act of 1940 (the "1940 Act"), as
amended.
(e) A registration statement under the
Securities Act of 1933, as amended, with respect to the Shares is effective.
The Company shall notify the Transfer Agent if such registration statement or
any state securities registrations have been terminated or a stop order has
been entered with respect to the Shares.
2. Each copy of the Declaration of Trust of the Company
and any amendment thereto provided by the Company to the Transfer Agent shall
be certified by the Secretary of State (or other appropriate official) of the
state of organization, and if such Declaration of Trust and/or amendments are
required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Transfer Agent. Each copy of the Declaration of Trust and
By-Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Trustees of the Company, shall be certified by the Secretary or
Assistant Secretary of the Company.
3. It shall be the sole responsibility of the Company
to deliver to the Transfer Agent the Company's currently effective Prospectuses
and, for purposes of this Agreement, the Transfer Agent shall not be deemed to
have notice of any information contained in such Prospectuses until they are
actually received by the Transfer Agent.
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ARTICLE VII
CONCERNING THE TRANSFER AGENT
-----------------------------
1. The Transfer Agent represents and warrants to
the Company that:
(a) It is a corporation duly organized and
existing under the laws of the State of Ohio.
(b) It is empowered under applicable law
and by its Charter and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings
have been held to authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer
agent under Section 17A of the Securities Exchange Act of 1934, as amended.
The Transfer Agent shall promptly give written notice to the Company and the
Manager in the event that its registration is revoked or a proceeding is
commenced that could result in such revocation.
2. The Transfer Agent shall not be liable and
shall be indemnified in acting upon any computer tape, writing or document
reasonably believed by it to be genuine and to have been signed or made by the
proper person or persons and shall not be held to have any notice of any change
of authority of any person until receipt of written notice thereof from the
Company or such person. It shall also be protected in processing Share
certificates which bear the proper countersignature of the Transfer Agent and
which it reasonably believes to bear the proper manual or facsimile signature
of the Officers of the Company.
3. The Transfer Agent upon notice to and consent
of the Company, which consent will not be unreasonably withheld, may establish
such additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as
are specified in Schedules I and II hereto in the form and manner and for such
period as it may deem advisable and is agreeable to the Company but not
inconsistent with the rules and regulations of appropriate government
authorities, in
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particular Rules 31a-2 and 31a-3 under the 1940 Act, as amended. The Transfer
Agent may deliver to the Company from time to time at its discretion, for
safekeeping or disposition by the Company in accordance with law, such records,
papers, Share certificates which have been cancelled in transfer, exchange or
redemption, or other documents accumulated in the execution of its duties as
such Transfer Agent, as the Transfer Agent may deem expedient, other than those
which the Transfer Agent is required to maintain pursuant to applicable laws
and regulations. The Company shall assume all responsibility for any failure
thereafter to produce any record, paper, cancelled Share certificate, or other
document so returned, if and when required. The records maintained by the
Transfer Agent pursuant to this paragraph 4, which have not been previously
delivered to the Company pursuant to the foregoing provisions of this paragraph
4, shall be considered to be the property of the Company, shall be made
available upon request for inspection by the officers, employees, and auditors
of the Company or other persons authorized by the Company and shall be
delivered to the Company upon request and in any event upon the date of
termination of this Agreement, as specified in Article VIII of this Agreement,
in the form and manner kept by the Transfer Agent on such date of termination
or such earlier date as may be requested by the Company. Upon reasonable
request by the Company, the Transfer Agent shall provide in hard copy or on
microfilm, whichever the Transfer Agent shall elect, any records included in
any such delivery which are maintained by the Transfer Agent on a computer disk
or are similarly maintained.
5. The Transfer Agent shall not be liable for
any loss or damage, including counsel fees, resulting from its actions or
omissions to act or otherwise, except for any loss or damage arising out of its
bad faith, negligence, willful misfeasance, negligence or reckless disregard of
its duties under this Agreement.
6. In performing its services hereunder, the
Transfer Agent shall seek to attain the Performance Objectives set forth in
Schedule IV hereto. The Transfer Agent's failure to meet any Transfer Agent
Performance Objective shall not in and of itself constitute wilful misconduct
or negligence under this Agreement.
7. (a) The Company shall indemnify and hold
harmless the Transfer Agent from and against all claims (whether with or
without basis in fact or law), demands,
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expenses (including attorneys' fees) and liabilities of any and every nature
which the Transfer Agent may sustain or incur or which may be asserted against
the Transfer Agent by any person as a result of any action taken or omitted to
be taken by the Transfer Agent in good faith and without negligence or willful
misconduct or in reliance upon (i) any provision of this Agreement; (ii) the
Prospectuses; (iii) any instruction or order including, without limitation, any
computer tape reasonably believed by the Transfer Agent to have been received
from an Approved Institution; (iv) any instrument or order reasonably believed
by it to be genuine and to be signed, countersigned or executed by any duly
authorized Officer of the Company; (v) any Certificate or other instruction of
an Officer; or (vi) any opinion of legal counsel for the Company or the
Transfer Agent. The Company shall indemnify and hold harmless the Transfer
Agent from and against all claims (whether with or without basis in fact or
law), demands, expenses (including attorneys' fees) and liabilities of any
nature which the Transfer Agent may sustain or incur or which may be asserted
against the Transfer Agent by any person by reason of or as a result of any
action taken or omitted to be taken by the Transfer Agent in good faith in
connection with its appointment or in reasonable reliance upon any law, act,
regulation or any interpretation of the same even though such law, act or
regulation may have been altered, changed, amended or repealed thereafter.
(b) The Transfer Agent shall indemnify
and hold harmless the Company, its officers, trustees, employees and agents
from and against all claims (whether with or without basis in fact or law),
demands, expenses (including attorneys' fees) and liabilities of any and every
nature which the Company may sustain or incur or which may be asserted against
the Company by any person as a result of any action taken or omitted to be
taken by the Transfer Agent which constitutes negligence or willful misconduct
or arising out of a failure of the Transfer Agent to comply with this Agreement
or a breach by the Transfer Agent of any representation or warranty contained
in this Agreement or the attached Exhibits or Schedules.
(c) Neither party ("Indemnified Party")
shall settle nor make any compromise of any claim, demand, expense or liability
to which it may seek indemnity pursuant to paragraph 6(a) of this Article VII
(each, an "Indemnifiable Claim") without the express written consent of the
other party ("Indemnifying Party"). The Indemnified Party shall notify the
Indemnifying Party within 15 days of
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receipt of notification of an Indemnifiable Claim, provided that the failure by
the Indemnified Party to furnish such notification shall not impair its right
to seek indemnification from the Indemnifying Party unless the Indemnifying
Party's ability to adequately defend the Indemnifiable Claim is impaired as a
result of such failure, and further provided, that if as a result of the
Indemnified Party failure to provide the Indemnifying Party with timely notice
of the initiation of litigation, a judgment by default is entered, prior to
seeking indemnification from the Indemnifying Party, the Indemnified Party, at
its own cost and expense, shall oppose such judgment. The Indemnifying Party
shall have the right to defend any Indemnifiable Claim at its own expense,
provided that such defense shall be conducted by counsel selected by the
Indemnifying Party and reasonably acceptable to the Indemnified Party. The
Indemnified Party may join in such defense at its own expense, but to the
extent that it shall so desire, the Indemnifying Party shall direct such
defense. The Indemnifying Party shall not settle any Indemnifiable Claim
without the express written consent of the Indemnified Party if the Indemnified
Party determines that such settlement would have an adverse effect on the
Indemnified Party beyond the scope of this Agreement. In such event, each of
the Indemnifying Party and the Indemnified Party shall be responsible for their
own defense at their own cost and expense, and such claim shall not be deemed
an Indemnifiable Claim hereunder. If the Indemnifying Party fails or refuses
to defend an Indemnifiable Claim, the Indemnified Party may provide its own
defense at the cost and expense of the Indemnifying Party.
(d) Notwithstanding any provision in
this Agreement to the contrary, the Indemnifying Party shall not indemnify the
Indemnified Party against any liability or expense arising out of the
Indemnifying Party's negligence, willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement. The Indemnified Party shall indemnify and hold harmless the
Indemnifying Party from and against any and all claims (whether with or without
basis in fact or law), losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by the Indemnified Party as a result of the Indemnified
Party's bad faith, negligence, willful misfeasance, gross negligence or
reckless disregard of its duties under this Agreement.
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8. Excluded from the consideration of whether
the Transfer Agent has been negligent or has breached this Agreement shall be
any period of time, and only such period of time, during which the Transfer
Agent's performance is materially affected by reason of circumstances beyond
its control (collectively, "Causes"), including without limitation mechanical
breakdowns of equipment (including any alternative power supply and operating
systems software), flood or catastrophe, acts of God, failures of
transportation, communication or power supply, strikes, lockouts, work
stoppages or other similar circumstances.
9. At any time, the Transfer Agent may apply to
an Officer of the Company for written instructions with respect to any matter
arising in connection with the Transfer Agent's duties and obligations under
this Agreement, and the Transfer Agent shall not be liable for any action taken
or omitted by it in good faith in accordance with such written instructions.
Such application by the Transfer Agent for written instructions from an Officer
of the Company may set forth in writing any action proposed to be taken or
omitted by the Transfer Agent with respect to its duties or obligations under
this Agreement and the date on and/or after which such action shall be taken.
The Transfer Agent shall not be liable for any action taken or omitted in
accordance with a proposal included in any such application on or after the
date specified therein unless, prior to taking or omitting any such action, the
Transfer Agent has received written instructions in response to such
application specifying the action to be taken or omitted. The Transfer Agent
may consult with counsel of the Company, or upon notice to and consent of the
Company and Manager, its own counsel, at the expense of the Company and shall
be fully protected with respect to anything done or omitted by it in good faith
in accordance with the advice or opinion of counsel to the Company or its own
counsel.
10. The Transfer Agent shall issue and mail
subscription warrants for Shares, Shares representing share dividends,
exchanges or splits, or act as conversion agent upon receiving written
instructions from an Officer and such other documents as the Transfer Agent may
deem necessary.
11. The Transfer Agent shall supply shareholder
lists to the Company upon receiving a request therefor from an Officer of the
Company.
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12. (a) The Transfer Agent shall treat confidentially
and as proprietary information of the Company records and other information
relative to the Company and to persons who are at any time shareholders of the
Company, and shall not use such records and information for any purpose other
than the performance of its responsibilities and duties hereunder. In case of
any request or demand for the inspection of the shareholder records of the
Company, the Transfer Agent shall endeavor to notify the Company promptly and
to secure instructions from an Officer as to such inspection. The Transfer
Agent reserves the right, however, to exhibit the shareholder records to any
person whenever it receives an opinion from its counsel that there is a
reasonable likelihood that the Transfer Agent will be held liable for the
failure to exhibit the shareholder records to such person; provided, however,
that in connection with any such disclosure the Transfer Agent shall promptly
notify the Company and the Manger that such disclosure has been made or is to
be made.
(b) The obligations of confidentiality in this
Section shall survive termination or cancellation of this Agreement and shall
not apply to any information which a party has in its possession when disclosed
to it by the other party, information which a party develops, information which
is or becomes known to the public other than by breach of this Agreement, or
information rightfully received by either party from a third-party without the
obligation of confidentiality.
13. At the request of an Officer of the Company, the
Transfer Agent shall address and mail such appropriate notices to shareholders
as the Company may direct.
14. Notwithstanding any of the foregoing provisions of
this Agreement, the Transfer Agent shall be under no duty or obligation to
inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares,
the sufficiency of the amount to be received therefor, or the authority of the
Approved Institution or of the Company to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Approved Institution or of the Company to request such
transfer or redemption;
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(c) The legality of the declaration of any dividend
by the Company, or the legality of the issue of any Shares in payment of any
share dividend; or
(d) The legality of any recapitalization or
readjustment of Shares.
15. The Transfer Agent shall be entitled to receive and
the Company hereby agrees to pay to the Transfer Agent for its
performance hereunder, including its performance of the duties and functions
set forth in Schedule I hereto, (i) its reasonable Out-of-Pocket Expenses
(including legal expenses and attorneys' fees) incurred in connection with its
performance hereunder and (ii) such compensation as may be agreed upon in
writing from time to time by the Transfer Agent and the Company.
16. The Transfer Agent shall have no duties or
responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation shall
be implied in this Agreement against the Transfer Agent.
17. Purchase and Price of Services.
(a) The Company shall compensate the Transfer Agent
for, and the Transfer Agent will provide, beginning on the execution date of
this Agreement and continuing until the termination of this Agreement as
provided herein, the Services set forth in Schedules I(a) and I(b).
(b) The current unit prices for the Services shall
be as set forth in Schedule III (the "Schedule III Fee Schedule"). At least 90
days prior to the end of each calendar year, the Transfer Agent may negotiate
with the Company to adjust the Schedule III Fee Schedule for the following
calendar year upon the approval of the Board of Trustees of the Company.
Notwithstanding the above, at any time the Transfer Agent shall be entitled to
increased fees or one-time charges due to changes in legal or regulatory
requirements; provided that such increased fees or one-time charges shall be
subject to the approval of the Board of Trustees of the Company, which approval
shall not be unreasonably withheld.
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18. Billing and Payment.
(a) The Transfer Agent shall xxxx the Company as
follows: (i) monthly in arrears for Accounts maintained and in arrears for any
Out-of-Pocket Expenses incurred by the Transfer Agent; provided, however, that
with respect to Out-of-Pocket Expenses, the Transfer Agent shall provide the
Company monthly with an amount to be advanced to the Transfer Agent for
estimated postage expenses for the following month. Documentation to support
reconciliation of actual postal charges shall be provided to the Company
monthly. The Transfer Agent may from time to time request the Company to make
additional advances when appropriate.
(b) The Company shall pay the Transfer Agent in
immediately available funds at Columbus, Ohio within thirty (30) days of the
date of the xxxx, provided the xxxx is received in proper order and on a
timely basis.
19. The name "Time Horizon Funds" refers to the trust
created by, and the trustees, as trustees but not individually or personally,
acting from time to time under, a Declaration of Trust dated April 12, 1995,
as amended, which is hereby referred to and a copy of which is on file at the
principal office of the Company. The trustee, officers, employees and agents
of the Company shall not personally be bound by or liable under any written
obligation, contract, instrument, certificate or other interest or undertaking
of the Company made by the trustees or by any officer, employee or agent of the
Company, in his or her capacity as such, nor shall resort be had to their
private property for the satisfaction of any obligation or claim thereunder.
All persons dealing with any Fund or Class of Shares of the Company may enforce
claims against the Company only against the assets belonging to such Fund or
Class.
20. Transfer Agent shall provide the Company and the
Manager with annual financial statements not later than 90 days after the end
of each of Transfer Agent's fiscal years. These financial statements shall be
prepared in accordance with generally accepted accounting principles and shall
be audited by an independent firm of certified public accountants. Upon the
Company's request, Transfer Agent shall provide the Company and the Manager
with its quarterly financial statements no later than 45 days after the end of
each fiscal quarter.
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ARTICLE VIII
TERMINATION
-----------
1. Either of the parties hereto may terminate
this Agreement by giving to the other party notice in writing specifying the
date of such termination, which shall be not less than 90 days after the date
of receipt of such notice. Notwithstanding the foregoing, the Company may at
any time terminate this Agreement in accordance with the provisions of Schedule
IV hereto.
2. If either party fails to observe, keep or
perform any material term or condition of this Agreement, or if a voluntary or
involuntary petition is commenced by or against either party under Title 11 of
the United States Code or a party becomes insolvent, or should any substantial
part of either party's property be subject to any levy, seizure, assignment,
application or sale for or by any creditor or government agency, the other
party may terminate this Agreement in whole or in part. The party seeking to
terminate this Agreement shall give the other party written notice of any of
the foregoing claimed to be a basis for termination, and the Agreement shall
terminate 30 days after the receipt of the notice if the party receiving the
notice has then failed to correct or remedy the situation. The party charged
with alleged material breach may initiate the procedures in Article IX Section
5 and, in that case, termination shall not be effective during the pendency of
such procedures. In the event such notice is given by the Company, it shall be
accompanied by a copy of a resolution of the Board of Trustees of the Company,
certified by the Secretary or any Assistant Secretary, electing to terminate
this Agreement.
3. In the event such notice is given by the
Transfer Agent, the Company shall, on or before the termination date, deliver
to the Transfer Agent a copy of a resolution of its Board of Trustees certified
by the Secretary or an Assistant Secretary designating a successor transfer
agent or transfer agents. In the absence of such designation by the Company,
the Company shall, upon the date specified in the notice of termination of this
Agreement and delivery of the records maintained hereunder, be deemed to be its
own transfer agent and the Transfer Agent shall thereby be relieved of all
duties and responsibilities pursuant to this Agreement.
4. In the event this Agreement is terminated as
provided herein, upon the written request of the Company,
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the Transfer Agent shall deliver the records of the Company on electromagnetic
media to the Company or its successor transfer agent. The Company shall be
responsible to the Transfer Agent for the reasonable costs and expenses
associated with the preparation and delivery of such media, including copies of
computer ready formats, to the extent such costs were approved by the Company
prior to such costs being incurred. Upon termination as described in this
Section, for so long as the Transfer Agent continues to perform any one or more
of the services contemplated by this Agreement or any Schedule hereto, the
provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect. Fees
and out-of-pocket expenses incurred by the Transfer Agent but unpaid by the
Company upon such termination shall be immediately due and payable upon and
notwithstanding such termination. The Transfer Agent shall be entitled to
collect from the Company, in addition to the compensation described in this
Agreement the amount of all of the Transfer Agent's cash disbursements for
services approved in advance by the Company in connection with the Transfer
Agent's activities in effecting such termination, including without limitation
the delivery to the Company and/or its designees of the Company's property,
records, instruments and documents, or any copies thereof. Subsequent to such
termination, for a reasonable fee the Transfer Agent shall provide the Company
with reasonable access to any Company documents or records remaining in its
possession and previously provided to the Company.
ARTICLE IX
MISCELLANEOUS
-------------
1. Representatives of the Company's independent outside
auditors ("Auditors") shall have the right from time to time to perform on-site
audits at the facility of the Transfer Agent which do not result in an
unreasonable disruption of the business of the Transfer Agent. Such audits
shall be conducted in accordance with an audit program, the scope and frequency
of which shall be agreed upon from time to time in good faith by the parties.
The Auditors may obtain a reasonable number of copies of records and accounts
directly related to the services to be supplied hereunder by the Transfer
Agent. Except as provided in clause (c) below, nothing in this paragraph shall
be deemed to permit the Auditors to have access to any records or information
concerning (a) any other customer of the Transfer Agent, (b) the manner or
method used by the Transfer Agent in establishing the fees it charges any
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customer, including the Company or (c) the Transfer Agent's internal operating
procedures, provided that the Transfer Agent shall permit officers or employees
of the Auditors to have access to such internal operating procedures to the
extent necessary for the proper completion of such audit and the expression of
their unqualified opinion in the Company's semi-annual report on Form N-SAR,
provided such Auditors have agreed to keep such internal operating procedures
confidential and treat such information as proprietary information of the
Transfer Agent.
2. During the term of this Agreement, at no
additional cost to the Company, the Transfer Agent shall provide a facility
capable of safeguarding the transfer agency and dividend disbursing records of
the Company in case of damage to the primary facility providing those services
(the "Back-Up Facility"). Transfer of the transfer agency and dividend records
of the Company to the Back-Up Facility shall be at the Transfer Agent's
expense, shall commence immediately after damage to the primary facility
results in an inability to provide the transfer agency and dividend disbursing
services, and shall be completed within 72 hours of commencement. After the
primary facility has recovered, the Transfer Agent shall again utilize it to
provide the transfer agency and dividend disbursing services to the Company at
no additional cost to the Company. The Transfer Agent shall use reasonable
efforts to provide the services described in this Agreement from the Back-Up
Facility.
3. The Transfer Agent represents that it has and
is currently registered as a transfer agent with the Securities and Exchange
Commission ("SEC") and has complied with the SEC's regulations for registered
transfer agents. The Transfer Agent agrees that it will continue to be
registered with the SEC as a transfer agent for the duration of this Agreement.
Should the Transfer Agent fail to be registered with the SEC as a transfer
agent at any time during this Agreement, the Company may, upon written notice
to the Transfer Agent, immediately terminate this Agreement.
4. The following procedures will be adhered to
in all disputes arising under this Agreement which the parties cannot resolve
informally. The aggrieved party shall notify the other party in writing of the
nature of the dispute with as much detail as possible about the deficient
performance of the other party. Representatives of the parties shall meet (in
person or by telephone) within seven days of the date of the written
notification to reach an
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agreement about the nature of the deficiency and the corrective action to be
taken by the respective parties. The representatives of the parties shall
produce a report about the nature of the dispute in detail to their respective
management. If the representatives of the parties are unable to agree on
corrective action, the managers to whom the representatives of the parties
report or their successors ("Management") shall meet or otherwise act to
facilitate an agreement within 14 days of the date of the written notification.
If Management cannot resolve the dispute, or agree upon a written plan of
corrective action to do so, within seven days after their initial meeting or
other action, or if the agreed upon completion dates in the written plan of
corrective action are exceeded, either party may request arbitration as
provided for in this Agreement. Except as otherwise specifically provided,
neither party shall terminate this Agreement for breach or initiate arbitration
or other dispute resolution procedures unless and until this dispute resolution
procedure has been employed or waived in writing by both parties.
5. (a) Any controversy or claim between or among
the parties, including, but not limited to, those arising out of or relating to
this Agreement or any agreements or instruments relating hereto or delivered in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The
arbitration shall be conducted in accordance with the United States Arbitration
Act (Title 9, U.S. Code), notwithstanding any choice of law provision in this
Agreement, and under the auspices and rules of the American Arbitration
Association then in effect. The parties submit to personal jurisdiction in San
Francisco, California. Each party may serve a single request for production of
documents. If disputes arise concerning these requests, the arbitrator(s)
shall have sole and complete discretion to determine the disputes. The
arbitrator(s) shall give effect to statutes of limitation in determining any
claim, and any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). The arbitrator(s) shall deliver a written
opinion setting forth findings of fact and the rationale for the decision. The
arbitrator(s) shall reconsider the decision once upon the motion and at the
expense of a party.
(b) The confidentiality provisions of Article VII
Section 12 of this Agreement shall apply to the arbitration proceeding, all
evidence taken and the opinion. Judgment upon the decision rendered by the
arbitrator(s) may
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be entered in any court having jurisdiction. The institution and maintenance
of an action for judicial relief or pursuit of a provisional or ancillary
remedy shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
(c) No provision of this section shall limit the
right of a party to this Agreement to obtain provisional or ancillary remedies
from a court of competent jurisdiction before, after, or during the pendency of
any arbitration. The exercise of a remedy does not waive the right of either
party to resort to arbitration.
(d) If a legal action or arbitration is commenced
in connection with the enforcement of this Agreement or any instrument or
agreement required under this Agreement, the prevailing party shall be entitled
to attorneys' fees actually incurred (including allocated costs for in-house
legal services), costs and necessary disbursements incurred in connection with
such action or proceeding, as determined by the court or arbitrator(s).
6. The Company agrees that prior to effecting
any change in any Prospectus which would increase or alter the duties and
obligations of the Transfer Agent hereunder, it shall advise the Transfer Agent
of such proposed change prior to the intended date of the same, and shall
proceed with such change only if it shall have received the consent of the
Transfer Agent thereto, which shall not be unreasonably withheld.
7. (a) Notices of any kind to be given to
the Manager hereunder shall be in writing and shall be duly given if mailed or
delivered to the Manager at the following address:
Bank of America NT&SA With a copy to:
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx X. Xxxxx, Esq.
0xx Xxxxx Xxxx xx Xxxxxxx XX&XX
Xxx Xxxxxxx, XX 00000 000 Xxxxx Xxxxxx Xxxxxx
Attn: Xxxxx XxXxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
or at such other address or to such individual as shall be so specified by the
Manager.
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(b) Notices of any kind to be given to the Transfer
Agent hereunder shall be in writing and shall be duly given if mailed or
delivered to the Transfer Agent at the following address:
Until September 18, 1995: After September 18, 1995:
BISYS Fund Services Ohio, Inc. BISYS Fund Services Ohio, Inc.
0000 X. Xxxxxx-Xxxxxxxxx Xx. 0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx Attention: Xxxxxxx X. Xxxxxx
or at such other address or to such individual as shall be so specified by the
Transfer Agent.
(c) Notices of any kind to be given to the Company
shall be in writing and shall be duly given if mailed or delivered to the
Company at the following address:
Until September 18, 1995: with a copy to
Time Horizon Funds Xxxxx X. X'Xxxxx, Esq.
0000 X. Xxxxxx-Xxxxxxxxx Xx. Vedder, Price, Xxxxxxx & Kammholz
Xxxxxxxx, Xxxx 00000 000 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
After September 18, 1995:
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: President
8. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties to this
Agreement.
9. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the
other party. This Agreement will automatically terminate in the event of its
assignment, as described hereunder, or as such term is defined in the 1940 Act.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without reference to
principles of conflicts of law).
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11. This Agreement may be executed in any number
of counterparts each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
12. The provisions of this Agreement are intended
to benefit only the Transfer Agent and the Company, and no rights shall be
granted to any other person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers, thereunto duly
authorized, as of the day and year first above written.
BISYS FUND SERVICES OHIO, INC. TIME HORIZON FUNDS
By: /s/Xxxxxxx X. Xxxxxx By: /s/J. Xxxxx Xxxxx
------------------------ ------------------------
(Signature) (Signature)
Xxxxxxx X. Xxxxxx J. Xxxxx Xxxxx
------------------------ ------------------------
(Name) (Name)
------------------------ ------------------------
(Title) (Title)
------------------------ ------------------------
(Date Signed) (Date Signed)
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TRANSFER AGENCY AGREEMENT
APPENDIX A
I, J. Xxxxx Xxxxx, President, and I, W. Xxxxxx Xxxxxxxx,
Secretary, of TIME HORIZON FUNDS, a Delaware business trust (the "Company"), do
hereby certify that:
The following individuals have been duly authorized by the
Board of Trustees of the Company in conformity with the Company's Declaration
of Trust and By-Laws to execute any Certificate, instruction, notice or other
instrument, including an amendment to Appendix B or Schedule I hereto, or to
give oral instructions on behalf of the Company, and the signatures set forth
opposite their respective names are their true and correct signatures.
NAME SIGNATURE
---- ---------
------------------------------------------- ----------------------------------------------------------
------------------------------------------- ----------------------------------------------------------
------------------------------------------- ----------------------------------------------------------
------------------------------------------- ----------------------------------------------------------
------------------------------------------- ----------------------------------------------------------
TIME HORIZON FUNDS
By: ______________________________
J. Xxxxx Xxxxx
President
Dated: __________________ By: ______________________________
W. Xxxxxx Xxxxxxxx
Secretary
30
TRANSFER AGENCY AGREEMENT
APPENDIX B
I, J. Xxxxx Xxxxx, President, and I, W. Xxxxxx Xxxxxxxx,
Secretary, of TIME HORIZON FUNDS, a Delaware business trust (the "Company"), do
hereby certify that:
The following is a list of the Classes and Funds of the
Company issued and/or authorized on or before the date of this Transfer Agency
Agreement:
Fund CLASS
---- -----
Time Horizon Portfolio 1 Class A
Class B
Time Horizon Portfolio 2 Class A
Class B
Time Horizon Portfolio 3 Class A
Class B
TIME HORIZON FUNDS
By: __________________________
J. Xxxxx Xxxxx
President
Dated:______________________ By: __________________________
W. Xxxxxx Xxxxxxxx
Secretary
31
SCHEDULE I(A)
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at
such times as the Company and the Transfer Agent may agree, the Transfer Agent
shall provide the services set forth below:
Examine and process new accounts, subsequent payments,
liquidations, exchanges, telephone transactions, check redemptions, automatic
withdrawals, certificate issuances, wire order trades, direct trades,
dividends, dividend statements, dealer statements.
DAILY ACTIVITY
--------------
Maintain the following shareholder information on computer
recordkeeping systems or in such other manner as the Transfer Agent
shall determine:
Name and Address, including Zip Code;
Balance of uncertificated Shares;
Balance of certificated Shares;
Certificate number, number of Shares, issuance date of each
certificate outstanding and cancellation date for each certificate no
longer outstanding, if issued;
Balance of Shares having paid a commission;
Balance of dollars available for redemption;
Dividend code (daily accrual, monthly reinvest, monthly cash or
quarterly cash);
Type of account code (regular account, Automatic Withdrawal Plan);
Dealer, Branch and Salesperson information;
Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available;
Original establishment date for accounts opened by exchange;
32
W-9 withholding status and periodic reporting;
State of residence code;
Social Security or taxpayer identification number, and indication of
certification (SSN also usable as a reference for on-line account
lookup);
Historical transactions on the account for the most recent 18 months,
or other period as mutually agreed to from time-to-time;
Indication as to whether phone transactions can be accepted for this
account;
Beneficial owner code, i.e. male, female, joint tenant, etc.;
An alternate or "secondary" account number issued by a dealer (or
bank, etc.) to a customer for use in inquiry and transaction input by
"remote accessors" (Company client institutions with remote terminal
access or transmission capability).
FUNCTIONS
---------
Answer all investor and dealer telephone and/or written inquiries,
except those concerning Company policy or requests for investment
advice which will be referred to the Company or those which the
Company chooses to answer, and provide a staff until 8:00 pm Eastern
time on each business day in connection therewith.
Deposit Company Share certificates into accounts upon receipt of
instructions from the investor or other authorized person, if issued.
Examine and process transfers of Shares insuring that all transfer
requirements and legal documents have been supplied.
Process and confirm address changes.
Process standard account record changes as required, i.e. dividend
codes, dealer and salesperson codes, etc.
Microfilm source documents for transactions, such as account
applications and correspondence.
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33
Use of master account application to establish individual participant
accounts.
Perform backup withholding for those accounts which federal government
regulations indicate is necessary.
Perform withholdings on liquidations, if applicable, for employee
benefit plans.
Prepare and mail shareholder reporting forms relative to processing
performed, including 5498s, W2Ps, and 1099s.
Solicit missing taxpayer identification numbers.
Provide remote access inquiry to Company records via Company supplied
hardware.
REPORTS PROVIDED
----------------
Daily Journals Reflecting all Shares and dollar activity for the previous day
Blue Sky Report Supply information monthly for Company's preparation of Blue Sky
Reporting
N-SAR Report Supply monthly correspondence, redemption and liquidation information
for use in Company's N-SAR Report
12b-1 Report/ Supply monthly dealer reallowance, commission and other fee
Average Asset Reporting reporting
Additionally, the following will be provided at the Company's request
to the Company at no charge:
1. Shareholder listings:
- by beneficial owner code
- by tax status code
- by state code
- by establishment date
- by dividend code
- by account plan type
- top ten shareholders.
2. Dealer Transaction Totals.
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34
3. Monthly average daily balance reports.
Prepare and mail copies of summary statements to dealers and
investment advisers;
Generate and mail confirmation statements for all financial
transactions. Send copies of financial transaction confirmations to
the dealer specified, as well as investment advisor and possibly other
indicated interested parties;
Monthly management report as Company and Transfer Agent agree that
will provide summary information of Company activity and quality of
services delivered.
DIVIDEND ACTIVITY
-----------------
Reinvest or pay in cash including reinvesting in other funds within
the fund group serviced by the Transfer Agent as described in each
Company prospectus.
Distribute capital gains simultaneously with income dividend.
DEALER SERVICES
---------------
Prepare and mail confirmation statements to dealers daily.
Prepare and mail copies of statements to dealers, same frequency as
investor statements.
Allow on-line access to institutions designated by the Company from
time to time.
SHAREHOLDER MEETINGS
---------------------
One Proxy mailing per year per Fund.
Prepare certified list of Shareholders, hard copy or microfiche as
requested by the Company.
PERIODIC ACTIVITIES
-------------------
Mail transaction confirmation statements daily to investors.
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35
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably
specified by the Transfer Agent).
Mail periodic statement to investors.
Compute, prepare and furnish all necessary reports to Governmental
authorities: Forms 1096, 1099DIV, 1099B, 1042 and 1042S.
Enclose various marketing material as designated by the Company in
statement mailings, i.e. monthly and quarterly statements (material
must be adaptable to mechanical equipment as reasonably specified by
the Transfer Agent).
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36
SCHEDULE I(B)
BISYS PROPOSAL TO BANK OF AMERICA
FOR TRANSFER AGENT SERVICES
MAY 18, 1995
(See Attached)
37
SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
- Account applications
- Cancelled certificates plus share powers and supporting
documents
- Checks including check registers, reconciliation records, any
adjustment records and tax withholding documentation
- Indemnity bonds for replacement of lost or missing checks
- Liquidation, redemption, withdrawal and transfer requests
including share powers, signature guarantees and any
supporting documentation
- Proxy records for shareholder meetings held within the
previous twelve (12) months (held with the Transfer Agent's
Compliance Department)
- State and federal tax records
- Journals (or other records of original entry) containing
itemized daily record of all sales and redemptions
- Separate ledger accounts (or other records) showing number of
shares held by each shareholder of record (including details
with respect to periodic investment plans, dividend
reinvestment plans, etc.)
38
SCHEDULE III
FEE SCHEDULE - TIME HORIZON FUNDS
SHARES OF TIME HORIZON PORTFOLIO 1
SHARES OF TIME HORIZON PORTFOLIO 2
SHARES OF TIME HORIZON PORTFOLIO 3
Annual Base Fee Per Portfolio $10,000
Annual Open Account Fee
(Non-Daily Dividend) $15.00 per account
Annual Open Account Fee
(Daily Dividend) $17.75 per account
Annual Close Account Fee $3.00 per account
Annual XXX Fee $20.00 per TIN
Asset Allocation:
Annual Rebalancing $3,000 per portfolio
Monthly Rebalancing $4,000 per portfolio
Transaction Charge $0.50 per transaction
Payroll Deduction:
Initial Set-Up Fee $500 per portfolio
Transaction Charge $0.50 per transaction
[ ] Out-of-pocket charges will be billed on a pass-through basis.
[ ] BISYS agrees to annual percentage increases not to exceed the Consumer
Price Index.
[ ] The above schedule is based upon a three year contract. Additional
fee concessions are possible for an extended service contract.
[ ] All conversion costs will be absorbed by BISYS.
39
SCHEDULE IV
TRANSFER AGENT PERFORMANCE OBJECTIVES
TIME HORIZON FUNDS
The performance objectives set forth below represent what the Company believes
should be reasonably obtainable by the Transfer Agent, given the typical daily
variables associated with any transfer agent operation (i.e., transaction
volume fluctuations).
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"ACCEPTABLE" FOR ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT MONTH TEN
PERCENT (10%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY FOR
THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"MARGINAL" FOR ANY ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT TWENTY
PERCENT (20%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY FOR
THE MONTH PRIOR TO THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
This Agreement may be immediately terminated upon written notice by the Company
to the Transfer Agent in the event that the TRANSFER AGENT FAILS TO MEET THE
PERFORMANCE LEVELS DESCRIBED BELOW AS "UNACCEPTABLE" FOR ANY ONE OR MORE OF THE
LISTED FUNCTIONS BASED ON A TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A
CALENDAR MONTH PERIOD and not cured by the Transfer Agent within a subsequent
period of 30 days. Notice of such failure to meet performance objectives shall
be provided in writing by the Company to the Transfer Agent.
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