TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 24th day of August, 1995 between THE
TOMORROW FUNDS (the "Fund"), organized under the laws of Massachusetts and
having its principal place of business at Xxx Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx, and THE SHAREHOLDER SERVICES GROUP, INC. (the "Transfer Agent"),
a Massachusetts corporation with principal offices at Xxx Xxxxxxxx Xxxxx,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Fund initially intends to offer shares in those Portfolios
identified in the attached Exhibit 1, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to
this Agreement in accordance with Article 15;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint the
Transfer Agent as its transfer agent, dividend disbursing agent and agent
in connection with certain other activities and the Transfer Agent desires
to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and the Transfer Agent agree as follows:
Article 1 Definitions
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not such
person is an officer or employee of the Fund, duly authorized to give
Oral Instructions or Written Instructions on behalf of the Fund as
indicated in writing to the Transfer Agent from time to time.
(c) "Board of Directors" shall mean the Board of Directors or Board
of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(g) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by the Transfer Agent from a
person reasonably believed by the Transfer Agent to be an Authorized
Person;
(i) "Portfolio" shall mean each separate series of shares offered
by the Fund representing interest in a separate portfolio of
securities and other assets;
(j) "Prospectus" shall mean the most recently dated Fund Prospectus
and Statement of Additional Information, including any supplements
thereto if any, which has become effective under the Securities Act
of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of capital stock
or beneficial interest, as the case may be, or class thereof, of each
respective Portfolio of the Fund as may be issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(m) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by the Transfer Agent to be an
Authorized Person and actually received by the Transfer Agent. Written
Instructions shall include manually executed originals and authorized
electronic transmissions, including telefacsimile of a manually
executed original or other process.
Article 2 Appointment of the Transfer Agent
2.1 The Fund, on behalf of the Portfolios, hereby appoints and
constitutes the Transfer Agent as transfer agent and dividend disbursing
agent for Shares of each respective Portfolio of the Fund and as shareholder
servicing agent for the Fund and the Transfer Agent hereby accepts such
appointments and agrees to perform the duties hereinafter set forth.
Article 3 Duties of the Transfer Agent
3.1 The Transfer Agent shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance, transfer
and redemption or repurchase (including coordination with the Custodian)
of Shares of each Portfolio, as more fully described in the written
schedule of Duties of the Transfer Agent annexed hereto as Schedule A
and incorporated herein, and in accordance with the terms of the
Prospectus of the Fund on behalf of the applicable Portfolio, applicable
law and the procedures established from time to time between the
Transfer Agent and the Fund.
(b) Recording the issuance of Shares and maintaining pursuant to
Rule 17Ad-10(e) of the 1934 Act a record of the total number of Shares
of each Portfolio which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. The Transfer Agent shall provide
the Fund on a regular basis with the total number of Shares of each
Portfolio which are authorized and issued and outstanding and shall have
no obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to the
issue or sale of such Shares, which functions shall be the sole
responsibility of the Fund.
(c) 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: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares, or
the propriety of the amount to be paid therefor; (iii) the legality of
the declaration of any dividend by the Board of Directors, or the
legality of the issuance of any Shares in payment of any dividend; or (iv)
the legality of any recapitalization or readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to the Transfer Agent
in writing those transactions and assets to be treated as exempt from blue
sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and thereafter
monitor the daily activity for each State. The responsibility of the Transfer
Agent for the Fund's blue sky State registration status is solely limited to
the initial establishment of transactions subject to blue sky compliance by
the Fund and the reporting of such transactions to the Fund as provided above.
3.3 In addition to the duties set forth herein, the Transfer Agent
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the
Fund and the Transfer Agent.
Article 4 Recordkeeping and Other Information
4.1 The Transfer Agent shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in Schedule A in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. All records shall be available
during regular business hours for inspection and use by the Fund. Where
applicable, such records shall be maintained by the Transfer Agent for the
periods and in the places required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, the Transfer
Agent agrees that all such records prepared or maintained by the Transfer
Agent relating to the services to be performed by the Transfer Agent hereunder
are the property of the Fund and will be preserved, maintained and made
available in accordance with such section, and will be surrendered promptly
to the Fund on and in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection of Shareholder
records of the Fund, the Transfer Agent will endeavor to notify the Fund of
such request and secure Written Instructions as to the handling of such
request. The Transfer Agent reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to comply with such request.
Article 5 Fund Instructions
5.1 The Transfer Agent will have no liability when acting upon Written
or Oral Instructions believed to have been executed or orally communicated by
an Authorized Person and will not be held to have any notice of any change
of authority of any person until receipt of a Written Instruction thereof
from the Fund. The Transfer Agent will also have no liability when processing
Share certificates which it reasonably believes to bear the proper manual
or facsimile signatures of the officers of the Fund and the proper
countersignature of the Transfer Agent.
5.2 At any time, the Transfer Agent may request Written Instructions
from the Fund and may seek advice from legal counsel for the Fund, or its own
legal counsel, with respect to any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or
in accordance with the opinion of counsel for the Fund or for the Transfer
Agent. Written Instructions requested by the Transfer Agent will be provided
by the Fund within a reasonable period of time.
5.3 The Transfer Agent, its officers, agents or employees, shall accept
Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is
an Authorized Person. The Fund agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and that
the Fund's failure to so confirm shall not impair in any respect the Transfer
Agent's right to rely on Oral Instructions.
Article 6 Compensation
6.1 The Fund on behalf of each of the Portfolios will compensate the
Transfer Agent for the performance of its obligations hereunder in accordance
with the fees set forth in the written Fee Schedule annexed hereto as
Schedule B and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund
on behalf of each of the Portfolios agrees to pay, and will be billed
separately for, out-of-pocket expenses incurred by the Transfer Agent in the
performance of its duties hereunder. Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written schedule of out-
of-pocket charges annexed hereto as Schedule C and incorporated herein.
Schedule C may be modified by written agreement between the parties.
Unspecified out-of-pocket expenses shall be limited to those out-of-pocket
expenses reasonably incurred by the Transfer Agent in the performance of its
obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to pay all fees
and out-of-pocket expenses within fifteen (15) days following the receipt of
the respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule executed and dated
by the parties hereto.
Article 7 Documents
7.1 In connection with the appointment of the Transfer Agent, the Fund
shall, on or before the date this Agreement goes into effect, but in any
case within a reasonable period of time for the Transfer Agent to prepare to
perform its duties hereunder, deliver or caused to be delivered to the
Transfer Agent the documents set forth in the written schedule of Fund
Documents annexed hereto as Schedule D.
Article 8 Transfer Agent System
8.1 The Transfer Agent shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by the Transfer Agent
in connection with the services provided by the Transfer Agent to the Fund
herein (the "Transfer Agent System").
8.2 The Transfer Agent hereby grants to the Fund a limited license to
the Transfer Agent System for the sole and limited purpose of having the
Transfer Agent provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and
such license shall immediately terminate with the termination of this Agreement.
Article 9 Representations and Warranties of the Transfer Agent
9.1 The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized an existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) All requisite corporate proceedings have been taken to
authorized it to enter into this Agreement;
(d) It is duly registered with its appropriate regulatory agency
as a transfer agent and such registration will remain in effect for
the duration of this Agreement;
(e) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
Article 10 Representations and Warranties of the Fund
10.1 The Fund represents and warrants to the Transfer Agent that:
(a) It is duly organized and existing and in good standing under
the laws of the jurisdiction in which it is organized;
(b) It is empowered under applicable laws and by its Article of
Incorporation and By-Laws to enter into this Agreement;
(c) All corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to
authorized it to enter into this Agreement;
(d) A registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios is
currently effective and will remain effective, and all appropriate
state securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale;
(e) All outstanding Shares are validly issued, fully paid and
non-assessable. When Shares are hereafter issued in accordance with the
terms of the Fund's Articles of Incorporation and its Prospectus with
respect to each Portfolio, such Shares shall be validly issued, fully
paid and non-assessable.
Article 11 Indemnification
11.1 The Transfer Agent shall not be responsible for and the Fund on
behalf of each Portfolio shall indemnify and hold the Transfer Agent
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and
liabilities of any sort or kind which may be asserted against the Transfer
Agent or for which the Transfer Agent may be held to be liable (a "Claim")
arising out of or attributable to any of the following:
(a) Any actions of the Transfer Agent required to be taken pursuant
to this Agreement unless such Claim resulted from a negligent act or
omission to act or bad faith by the Transfer Agent in the performance of
its duties hereunder.
(b) The Transfer Agent's reasonable reliance on, or reasonable use
of information, data, records and documents (including but not limited
to magnetic tapes, computer printouts, hard copies and microfilm copies)
received by the Transfer Agent from the Fund, or any authorized third
party acting on behalf of the Fund, including but not limited the prior
transfer agent for the Fund, in the performance of the Transfer Agent's
duties and obligations hereunder.
(c) The reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund on behalf
of the applicable Portfolio.
(d) The offer or sales of shares in violation of any requirement
under the securities laws or regulations of any state that such shares
be registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of
such shares in such state.
(e) The Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's negligence or
misconduct or the breach of any representation or warranty of the Fund
made herein.
11.2 In any case in which the Fund may be asked to indemnify or hold the
Transfer Agent harmless, the Transfer Agent will notify the Fund promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Fund although the failure to
do so shall not prevent recovery by the Transfer Agent and shall keep the
Fund advised with respect to all developments concerning such situation.
The Fund shall have the option to defend the Transfer Agent against any Claim
which may be the subject of this indemnification, and, in the event that the
Fund so elects, such defense shall be conducted by counsel chosen by the Fund
and satisfactory to the Transfer Agent, and thereupon the Fund shall take over
complete defense of the Claim and the Transfer Agent shall sustain no further
legal or other expenses in respect of such Claim. The Transfer Agent will not
confess any Claim or make any compromise in any case in which the Fund will
be asked to provide indemnification, except with the Fund's prior written
consent. The obligations of the parties hereto under this Article 11 shall
survive the termination of this Agreement.
Article 12 Standard of Care
12.1 The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused
by the Transfer Agent's own negligence, bad faith or willful misconduct or
that of its employees.
12.2 Notwithstanding the foregoing Section 12.1 or anything else
contained in this Agreement to the contrary, the Transfer Agent's entire
liability to the Fund for any loss or damage, direct or indirect for any
cause whatsoever (including but not limited to those arising out of this
Agreement), and regardless of the form of action, shall be limited to the
Fund's actual direct out-of-pocket expenses which are reasonably incurred
by the Fund, but shall not under any circumstances exceed the lesser of
(i) an amount equivalent to the average of twelve month's fees paid to the
Transfer Agent under this Agreement; or (ii) five-hundred thousand dollars
($500,000).
Article 13 Consequential Damages
13.1 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential or indirect loss
of profits, reputation or business or any other special damages under any
provision of this Agreement or for any act or failure to act hereunder.
Article 14 Term and Termination
14.1 This Agreement shall be effective on the date first written above
and shall continue for a period of five (5) years (the "Initial Term"),
unless earlier terminated pursuant to the terms of this Agreement.
Thereafter, this Agreement shall automatically be renewed for successive
terms of three (3) years ("Renewal Terms") each.
14.2 Either party may terminate this Agreement at the end of the Initial
Term or any subsequent Renewal Term upon not less than ninety (90) days or
more than one-hundred eighty (180) days prior written notice to the
other party.
14.3 In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and conversion
thereof to a successor transfer agent will be borne by the Fund.
14.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party
(the "Non-Defaulting Party") may give written notice thereof to the Defaulting
Party, and if such material breach shall not have been remedied within thirty
(30) days after such written notice is given, then the Non-Defaulting Party
may terminate this Agreement by giving thirty (30) days written notice of
such termination to the Defaulting Party. If
the Transfer Agent is the Non-Defaulting Party, its termination of this
Agreement shall not constitute a waiver of any other rights or remedies of the
Transfer Agent with respect to services performed prior to such termination
or rights of the Transfer Agent to be reimbursed for out-of-pocket expenses.
In all cases, termination by the Non-Defaulting Party shall not constitute
a waiver by the Non-Defaulting Party of any other rights it might have under
this Agreement or otherwise against the Defaulting Party.
Article 15 Additional Portfolios
15.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1, with respect to which the Fund
desires to have the Transfer Agent render services as transfer agent under
the terms hereof, the Fund shall so notify the Transfer Agent in writing,
and if the Transfer Agent agrees in writing to provide such services,
Exhibit 1 shall be amended to include such additional Portfolios.
Article 16 Confidentiality
16.1 In connection with the services provided by the Transfer Agent
hereunder, certain confidential and proprietary information regarding the
Transfer Agent and the Fund may be disclosed to the other. In connection
therewith, the parties agree as follows:
(a) Confidential Information disclosed under this Agreement
shall mean:
(i) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles,
sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the
Transfer Agent or the Fund, their respective parent corporation,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of the foregoing;
(ii) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the
Transfer Agent or the Fund a competitive advantage over its
competitors; and
(iii) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, show-how
and trade secrets, whether or not patentable or copyrightable.
(b) Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment,
prototypes and models, and any other tangible manifestation of the
foregoing which now exist or come into the control or possession of the
party.
16.2 Except as expressly authorized by prior written consent of the
disclosing party ("Discloser"), the party receiving Confidential Information
("Recipient") shall:
(a) limit access to Discloser's Confidential Information to
Recipient's employees who have a need-to-know in connection with the
subject matter thereof;
(b) advise those employees who have access to the Confidential
Information of the proprietary nature thereof and of the obligations
set forth in this Confidentiality Agreement;
(c) take appropriate action by instruction or agreement with the
employees having access to Discloser's Confidential Information to
fulfill Recipient's obligations under this Confidentiality Agreement;
(d) safeguard all of Discloser's Confidential Information by using
a reasonable degree of care, but not less than that degree of care used
by Recipient in safeguarding its own similar information or material;
(e) use all of Discloser's Confidential Information solely for
purposes that it was intended;
(f) not disclose any of Discloser's Confidential Information to
third parties; and
(g) not disclose the existence of the discussions to any third party.
16.3 Upon Discloser's request, Recipient shall surrender to Discloser
all memoranda, notes, records, drawings, manuals, records, and other documents
or materials (and all copies of same) relating to or containing Discloser's
Confidential Information. When Recipient returns the materials, Recipient
shall certify in writing that it has returned all materials containing or
relating to the Confidential Information.
16.4 The obligations of confidentiality and restriction on use in this
Article 16 shall not apply to any Confidential Information that
Recipient proves:
(a) was in the public domain prior to the date of this Agreement
or subsequently came into the public domain through no fault of
Recipient; or
(b) was lawfully received by Recipient from a third party free of
any obligation of confidence to the third party; or
(c) was already in Recipient's possession prior to receipt from
Discloser; or
(d) is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not limited
to, giving Discloser as much advance notice as practical of the
possibility of disclosure to allow Discloser to stop such disclosure or
obtain a protective order concerning such disclosure; or
(e) is subsequently and independently developed by Recipient's
employees, consultants or agents without reference to Confidential
Information.
16.5 The Fund and the Transfer Agent agree that money damages would not
be a sufficient remedy for breach of this Article 16. Accordingly, in
addition to all other remedies that either party may have, a party shall be
entitled to specific performance and injunctive or other equitable relief as
a remedy for any breach of this Agreement. The parties agree to waive any
requirement for a bond in connection with any such injunctive or other
equitable relief.
Article 17 Force Majeure
17.1 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, labor
difficulties, mechanical breakdowns, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond its
control, such party shall not be liable for damages to the other for any
damages resulting from such failure to perform or otherwise from such causes.
Article 18 Amendments
18.1 This Agreement may only be amended or modified by a written
instrument executed by both parties.
Article 19 Subcontracting
19.1 The Fund agrees that the Transfer Agent may, in its discretion,
subcontract for certain of the services described under this Agreement or
the Schedules hereto; provided that the appointment of any such Transfer
Agent shall not relieve the Transfer Agent of its responsibilities hereunder.
Article 20 Arbitration
20.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered
by the American Arbitration Association in Boston, Massachusetts in
accordance with its applicable rules, except that the Federal Rules of
Evidence and the Federal Rules of Civil Procedure with respect to the
discovery process shall apply.
20.2 The parties hereby agree that judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction.
20.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities
of interstate commerce and, notwithstanding other general choice of law
provisions in this Agreement, the parties agree that the Federal Arbitration
Act shall govern and control with respect to the provisions of this Article 20.
Article 21 Notice
21.1 Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or the Transfer Agent, shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to
time designate in writing.
To the Fund:
The Tomorrow Funds
c/x Xxxxx, Xxxx & Xxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: __________________
To the Transfer Agent:
The Shareholder Services Group, Inc.
Xxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to the Transfer Agent's General Counsel
Article 22 Successors
22.1 This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns, provided, however,
that this Agreement shall not be assigned to any person other than a person
controlling, controlled by or under common control with the assignor without
the written consent of the other party, which consent shall not be
unreasonably withheld.
Article 23 Governing Law
23.1 This Agreement shall be governed exclusively by the laws of the
Commonwealth of Massachusetts without reference to the choice of law
provisions thereof. Each party hereto hereby (i) consents to the personal
jurisdiction of the Commonwealth of Massachusetts courts over the parties
hereto, hereby waiving any defense of lack of personal jurisdiction; and
(iii) appoints the person to whom notices hereunder are to be sent as
agent for service of process.
Article 24 Counterparts
24.1 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.
Article 25 Captions
25.1 The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof
or otherwise affect their construction or effect.
Article 26 Use of Transfer Agent/Fund Name
26.1 The Fund shall not use the name of the Transfer Agent in any
Prospectus, Statement of Additional Information, Shareholders' report,
sales literature or other material relating to the Fund in a manner not
approved prior thereto in writing; provided, that the Transfer Agent need
only receive notice of all reasonable uses of its name which merely refer
in accurate terms to its appointment hereunder or which are required by
any government agency or applicable law or rule.
26.2 The Transfer Agent shall not use the name of the Fund or material
relating to the Fund on any documents or forms for other than internal use
in a manner not approved prior thereto in writing; provided, that the Fund
need only receive notice of all reasonable uses of its name which merely
refer in accurate terms to the appointment of the Transfer Agent or which
are required by any government agency or applicable law or rule.
Article 27 Relationship of Parties
27.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted
or construed otherwise.
Article 28 Entire Agreement; Severability
28.1 This Agreement and the Exhibits and Schedules attached hereto
constitute the entire agreement of the parties hereto relating to the
matters covered hereby and supersede any previous agreements. If any
provision is held to be illegal, unenforceable or invalid for any reason, the
remaining provisions shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first
above written.
THE TOMORROW FUNDS:
By: _______________________________________
Title: ____________________________________
THE SHAREHOLDER SERVICES GROUP, INC.
By: _______________________________________
Title: ____________________________________
Exhibit 1
Schedule A
DUTIES OF THE TRANSFER AGENT
1. Shareholder Information. The Transfer Agent shall maintain a record
of the number of Shares held by each Shareholder of record which shall include
name, address, taxpayer identification and which shall indicate whether such
Shares are held in certificates or uncertificated form.
2. Shareholder Services. The Transfer Agent shall respond as
appropriate to all inquiries and communications from Shareholders relating
to Shareholder accounts with respect to its duties hereunder and as may be
from time to time mutually agreed upon between the Transfer Agent and the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply the Transfer
Agent with an adequate supply of blank share certificates to meet the Transfer
Agent requirements therefor. Such Share certificates shall be properly
signed by facsimile. The Fund agrees that, notwithstanding the death,
resignation, or removal of any officer of the Fund whose signature appears
on such certificates, the Transfer Agent or its agent may continue to
countersign certificates which bear such signatures until otherwise
directed by Written Instructions.
(b) The Transfer Agent shall issue replacement Share certificates
in lieu of certificates which have been lost, stolen or destroyed, upon
receipt by the Transfer Agent of properly executed affidavits and lost
certificate bonds, in form satisfactory to the Transfer Agent, with the Fund
and the Transfer Agent as obligees under the bond.
(c) The Transfer Agent shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with respect thereto)
the Transfer Agent shall maintain comparable records of the Shareholders
thereof, including their names, addresses and taxpayer identification.
The Transfer Agent shall further maintain a stop transfer record on lost
and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials.
The Transfer Agent will address and mail to Shareholders of the Fund,
all reports to Shareholders, dividend and distribution notices and proxy
material for the Fund's meetings of Shareholders. In connection with
meetings of Shareholders, the Transfer Agent will prepare Shareholder lists,
mail and certify as to the mailing of proxy materials, process and tabulate
returned proxy cards, report on proxies voted prior to meetings, act as
inspector of election at meetings and certify Shares voted at meetings.
5. Sales of Shares
(a) The Transfer Agent shall not be required to issue any Shares
of the Fund where it has received a Written Instruction from the Fund or
official notice from any appropriate authority that the sale of the Shares
of the Fund has been suspended or discontinued. The existence of such Written
Instructions or such official notice shall be conclusive evidence of the right
of the Transfer Agent to rely on such Written Instructions or official notice.
(b) In the event that any check or other order for the payment of
money is returned unpaid for any reason, the Transfer Agent will endeavor to:
(i) give prompt notice of such return to the Fund or its designee; (ii) place
a stop transfer order against all Shares issued as a result of such check
or order; and (iii) take such actions as the Transfer Agent may from time to
time deem appropriate.
6. Transfer and Repurchase
(a) The Transfer Agent shall process all requests to transfer or
redeem Shares in accordance with the transfer or repurchase procedures set
forth in the Fund's Prospectus.
(b) The Transfer Agent will transfer or repurchase Shares upon
receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for transfer
or redemption, accompanied by such documents as the Transfer Agent reasonably
may deem necessary.
(c) The Transfer Agent reserves the right to refuse to transfer
or repurchase Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. The Transfer Agent also reserves the
right to refuse to transfer or repurchase Shares until it is satisfied that
the requested transfer or repurchase is legally authorized, and it shall
incur no liability for the refusal, in good faith, to make transfers or
repurchases which the Transfer Agent, in its good judgement, deems improper
or unauthorized, or until it is reasonably satisfied that there is no basis
to any claims adverse to such transfer or repurchase.
(d) When Shares are redeemed, the Transfer Agent shall, upon
receipt of the instructions and documents in proper form, deliver to the
Custodian and the Fund or its designee a notification setting forth the number
of Shares to be repurchased. Such repurchased shares shall be reflected
on appropriate accounts maintained by the Transfer Agent reflecting
outstanding Shares of the Fund and Shares attributed to individual accounts.
(e) The Transfer Agent, upon receipt of the monies paid to it by
the Custodian for the repurchase of Shares, pay such monies as are received
from the Custodian, all in accordance with the procedures described in the
written instruction received by the Transfer Agent from the Fund.
(f) The Transfer Agent shall not process or effect any
repurchase with respect to Shares of the Fund after receipt by the Transfer
Agent or its agent of notification of the suspension of the determination
of the net asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to Shares
of the Fund, the Fund shall furnish or cause to be furnished to the
Transfer Agent Written Instructions setting forth the date of the declaration
of such dividend or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall
be determined, the amount payable per Share to the Shareholders of record as
of that date, the total amount payable to the Transfer Agent on the payment
date and whether such dividend or distribution is to be paid in Shares at
net asset value.
(b) On or before the payment date specified in such resolution of
the Board of Directors, the Fund will pay to the Transfer Agent sufficient
cash to make payment to the Shareholders of record as of such payment date.
(c) If the Transfer Agent does not receive sufficient cash from
the Fund to make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, the Transfer Agent will, upon
notifying the Fund, withhold payment to all Shareholders of record as of
the record date until sufficient cash is provided to the Transfer Agent.
8. In addition to and neither in lieu nor in contravention of the
services set forth above, the Transfer Agent shall: (i) perform all the
customary services of a transfer agent, registrar, dividend disbursing agent
and agent of the dividend reinvestment and cash purchase plan as described
herein consistent with those requirements in effect as at the date of this
Agreement. The detailed definition, frequency, limitations and associated
costs (if any) set out in the attached fee schedule, include but are not
limited to: maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, tabulating proxies, mailing Shareholder
reports to current Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts where applicable, preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms required with
respect to dividends and distributions by federal authorities for
all Shareholders.
Schedule B
Fee Schedule
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes, checks and
stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all lease,
maintenance and line costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve charges for check clearance and other fund related
banking charges
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record
keeping vendors
- Third party audit reviews
- All conversion costs: including System start up costs
- All Systems enhancements after the conversion at the rate of
$100.00 per hour
- Insurance
- Such other miscellaneous expenses reasonably incurred by the Transfer
Agent in performing its duties and responsibilities under this
Agreement.
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with the Transfer Agent. In addition, the
Fund will promptly reimburse the Transfer Agent for any other unscheduled
expenses incurred by the Transfer Agent whenever the Fund and the Transfer
Agent mutually agree that such expenses are not otherwise properly borne by
the Transfer Agent as part of its duties and obligations under the Agreement.
Schedule D
Fund Documents
- Certified copy of the Articles of Incorporation of the Fund,
as amended
- Certified copy of the By-laws of the Fund, as amended,
- Copy of the resolution of the Board of Directors authorizing the
execution and delivery of this Agreement
- Specimens of the certificates for Shares of the Fund, if applicable,
in the form approved by the Board of Directors of the Fund, with a
certificate of the Secretary of the Fund as to such approval
- All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered
by the Fund
- Certified list of Shareholders of the Fund with the name, address
and taxpayer identification number of each Shareholder, and the
number of Shares of the Fund held by each, certificate numbers and
denominations (if any certificates have been issued), lists of any
accounts against which stop transfer orders have been placed,
together with the reasons therefore, and the number of Shares
redeemed by the Fund
- All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Fund or as required by law and shall perform such
other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required
thereby.
