TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 20th day of July, 2001,
by and between The Wall Street Fund, Inc., a corporation organized under the
laws of the State of Maryland (the "Corporation") and Firstar Mutual Fund
Services, LLC, a limited liability company organized under the laws of the State
of Wisconsin (the "FMFS").
WHEREAS, the Corporation is an open-end management investment company which
is registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Corporation is authorized to create separate series, each with
its own separate investment portfolio;
WHEREAS, FMFS is a limited liability company and, among other things, is in
the business of administering transfer and dividend disbursing agent functions
for the benefit of its customers; and
WHEREAS, the Corporation desires to retain FMFS to provide transfer and
dividend disbursing agent services to each series of the Corporation listed on
Exhibit A attached hereto, (each hereinafter referred to as a "Fund") as may be
amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Corporation and FMFS agree as follows:
1. Appointment of Transfer Agent
The Corporation hereby appoints FMFS as Transfer Agent of the Corporation
on the terms and conditions set forth in this Agreement, and FMFS hereby
accepts such appointment and agrees to perform the services and duties set
forth in this Agreement in consideration of the compensation provided for
herein
2. Duties and Responsibilities of FMFS
FMFS shall perform all of the customary services of a transfer agent and
dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation
any periodic investment plan or periodic withdrawal program), including but
not limited to:
A. Receive orders for the purchase of shares;
B. Process purchase orders with prompt delivery, where appropriate, of
payment and supporting documentation to the Corporation's custodian,
and issue the appropriate number of uncertificated shares with such
uncertificated shares being held in the appropriate shareholder
account;
C. Arrange for issuance of shares obtained through transfers of funds
from shareholders' accounts at financial institutions and arrange for
the exchange of shares for shares of other eligible investment
companies, when permitted by Prospectus.
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Corporation's
custodian;
E. Pay monies upon receipt from the Corporation's custodian, where
relevant, in accordance with the instructions of redeeming
shareholders;
F. Process transfers of shares in accordance with the shareholder's
instructions;
G. Process exchanges between funds and/or classes of shares of funds both
within the same family of funds and with a Firstar Money Market Fund,
if applicable;
H. Prepare and transmit payments for dividends and distributions declared
by the Corporation with respect to the Fund, after deducting any
amount required to be withheld by any applicable laws, rules and
regulations and in accordance with shareholder instructions;
I. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant to
Rule 17ad-10(e) promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), a record of the total number of
shares of the Fund which are authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail, receive
and tabulate proxies;
L. Mail shareholder reports and prospectuses to current shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders;
N. Provide shareholder account information upon request and prepare and
mail confirmations and statements of account to shareholders for all
purchases, redemptions and other confirmable transactions as agreed
upon with the Corporation;
O. Mail requests for shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate Federal
authorities any taxes to be withheld on dividends and distributions
paid by the Corporation, all as required by applicable Federal tax
laws and regulations;
P. Provide a Blue Sky System that will enable the Corporation to monitor
the total number of shares of the Fund sold in each state. In
addition, the Corporation or its agent, including FMFS, shall identify
to FMFS in writing those transactions and assets to be treated as
exempt from the Blue Sky reporting for each state. The responsibility
of FMFS for the Corporation's Blue Sky state registration status is
solely limited to the initial compliance by the Corporation and the
reporting of such transactions to the Corporation or its agent;
Q. Answer correspondence from shareholders, securities brokers and others
relating to FMFS's duties hereunder and such other correspondence as
may from time to time be mutually agreed upon between FMFS and the
Corporation.
R. Reimburse the Fund each month for all material losses resulting from
"as of" processing errors for which FMFS is responsible in
accordance with the "as of" processing
guidelines set forth in the attached Exhibit B.
3. Compensation
The Corporation agrees to pay FMFS for the performance of the duties listed
in this agreement as set forth on Exhibit A attached hereto; the fees and
out-of-pocket expenses include, but are not limited to the following:
printing, postage, forms, stationery, record retention (if requested by the
Corporation), mailing, insertion, programming (if requested by the
Corporation), labels, shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Corporation and FMFS.
The Corporation agrees to pay all fees and reimbursable expenses within ten
(10) business days following the receipt of the billing notice.
Notwithstanding anything to the contrary, amounts owed by the Corporation
to FMFS shall only be paid out of assets and property of the particular
Fund involved.
4. Representations of FMFS
FMFS represents and warrants to the Corporation that:
A. It is a limited liability corporation duly organized, existing and in
good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement; and
G. It will comply with all applicable requirements of the Securities Act
of 1933, as amended, the Exchange Act, the 1940 Act, and any laws,
rules, and regulations of governmental authorities having
jurisdiction.
5. Representations of the Corporation
The Corporation represents and warrants to FMFS that:
A. The Corporation is an open-ended diversified investment company under
the 1940 Act;
B. The Corporation is a corporation organized, existing, and in good
standing under the laws of Maryland;
C. The Corporation is empowered under applicable laws and by its Articles
of Incorporation and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Articles of Incorporation
have been taken to authorize it to enter into and perform this
Agreement;
E. The Corporation will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws, rules
and regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act will be made
effective and will remain effective, and appropriate state securities
law filings have been made and will continue to be made, with respect
to all shares of the Corporation being offered for sale.
6. Performance of Service; Limitation of Liability
A. FMFS shall exercise reasonable care in the performance of its duties
under this Agreement. FMFS shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Corporation in connection
with matters to which this Agreement relates, including losses resulting
from mechanical breakdowns or the failure of communication or power
supplies beyond FMFS's control, except a loss arising out of or relating to
the FMFS' refusal or failure to comply with the terms of this Agreement or
from bad faith, negligence, or willful misconduct on its part in the
performance of its duties under this Agreement. Notwithstanding any other
provision of this Agreement, if FMFS has exercised reasonable care in the
performance of its duties under this Agreement, the Corporation shall
indemnify and hold harmless FMFS from and against any and all claims,
demands, losses, expenses, and liabilities (whether with or without basis
in fact or law) of any and every nature (including reasonable attorneys'
fees) which FMFS may sustain or incur or which may be asserted against FMFS
by any person arising out of any action taken or omitted to be taken by it
in performing the services hereunder, except for any and all claims,
demands, losses expenses, and liabilities arising out of or relating to
FMFS's refusal or failure to comply with the terms of this Agreement or
from bad faith, negligence or from willful misconduct on its part in
performance of its duties under this Agreement, (i) in accordance with the
foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to FMFS by any duly authorized officer of the
Corporation, such duly authorized officer to be included in a list of
authorized officers furnished to FMFS and as amended from time to time in
writing by resolution of the Board of Directors of the Corporation.
FMFS shall indemnify and hold the Corporation harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which the Corporation may sustain or incur or which may be
asserted against the Corporation by any person arising out of any action
taken or omitted to be taken by FMFS as a result of FMFS's refusal or
failure to comply with the terms of this Agreement, its bad faith,
negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or power
supplies beyond its control, FMFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption
continues beyond FMFS's control. FMFS will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such
a breakdown at the expense of FMFS. FMFS agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing
equipment to the extent appropriate equipment is available. Representatives
of the Corporation shall be entitled to inspect FMFS's premises and
operating capabilities at any time during regular business hours of FMFS,
upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and correct
administrative errors at its own expense.
B. In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may be
asked to indemnify or hold the indemnitee harmless, the indemnitor shall be
fully and promptly advised of all pertinent facts concerning the situation
in question, and it is further understood that the indemnitee will use all
reasonable care to notify the indemnitor promptly concerning any situation
which presents or appears likely to present the probability of a claim for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim which may be the subject of this
indemnification. In the event that the indemnitor so elects, it will so
notify the indemnitee and thereupon the indemnitor shall take over complete
defense of the claim, and the indemnitee shall in such situation initiate
no further legal or other expenses for which it shall seek indemnification
under this section. The indemnitee shall in no case confess any claim or
make any compromise in any case in which the indemnitor will be asked to
indemnify the indemnitee except with the indemnitor's prior written
consent.
C. FMFS is hereby expressly put on notice of the limitation of shareholder
liability as set forth in the Corporation's Articles of Incorporation and
agrees that obligations assumed by the Corporation pursuant to this
Agreement shall be limited in all cases to the Corporation and its assets,
and if the liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of such series. FMFS
further agrees that it shall not seek satisfaction of any such obligation
from the shareholder or any individual shareholder of a series of the
Corporation, nor from the Directors or any individual Director of the
Corporation.
7. Proprietary and Confidential Information
FMFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Corporation
all records and other information relative to the Corporation and prior,
present, or potential shareholders (and clients of said shareholders) and
not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Corporation, which
approval shall not be unreasonably withheld and may not be withheld where
FMFS may be exposed to civil or criminal contempt proceedings for failure
to comply after being requested to divulge such information by duly
constituted authorities, or when so requested by the Corporation.
Further, FMFS will adhere to the privacy policies adopted by the
Corporation pursuant to Title V of the Xxxxxx-Xxxxx-Xxxxxx Act (the "Act")
as may be modified from time to time. Notwithstanding the foregoing, FMFS
will not share any nonpublic personal information concerning any of the
Corporation's shareholders to any third party unless specifically directed
by the Corporation or allowed under one of the exceptions noted under the
Act.
8. Term of Agreement
This Agreement shall become effective as of the date hereof and will
continue in effect for a period of two years. Subsequent to the initial
two-year term, this Agreement may be terminated by either party upon giving
ninety (90) days prior written notice to the other party or such shorter
period as is mutually agreed upon by the parties. However, this Agreement
may be amended by mutual written consent of the parties. The attached fee
schedule (exhibit A) will stay as is for a two year period. The fee
schedule reflects that FMFS will generate additional fees through
additional shareholder accounts and various shareholder activities and
out-of-pocket expenses.
9. Records
FMFS shall keep records relating to the services to be performed hereunder,
in the form and manner, and for such period as it may deem advisable and is
agreeable to the Corporation but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section
31 of the 1940 Act, and the rules thereunder. FMFS agrees that all such
records prepared or maintained by FMFS relating to the services to be
performed by FMFS hereunder are the property of the Corporation and will be
preserved, maintained, and made available with such section and rules of
the Investment Company Act and will be promptly surrendered to the
Corporation on and in accordance with its request.
10. Governing Law
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of Wisconsin. However,
nothing herein shall be construed in a manner inconsistent with the 1940
Act or any rule or regulation promulgated by the Securities and Exchange
Commission thereunder.
11. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
FMFS's duties or responsibilities hereunder is designated by the
Corporation by written notice to FMFS, FMFS will promptly, upon such
termination and at the expense of the Corporation, transfer to such
successor all relevant books, records, correspondence, and other data
established or maintained by FMFS under this Agreement in a form reasonably
acceptable to the Corporation (if such form differs from the form in which
FMFS has maintained, the Corporation shall pay any expenses associated with
transferring the data to such form), and will cooperate in the transfer of
such duties and responsibilities, including provision for assistance from
FMFS's personnel in the establishment of books, records, and other data by
such successor.
12. Notices
Notices of any kind to be given by either party to the other party shall be
in writing and shall be duly given if mailed or delivered as follows:
Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Corporation shall be sent to:
Xxxxxx X. Xxxxx
President
Xxxxx, Xxxxxxxx & Company, Inc.
x/x Xxx Xxxx Xxxxxx Fund, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the
day and year first written above.
THE WALL STREET FUND, INC. FIRSTAR MUTUAL FUND SERVICES, LLC
By: Xxxxxx X. Xxxxx By: Xxxx Rock
Print: Xxxxxx X. Xxxxx Print: Xxxx Rock
Title: President Title: Senior Vice President
Date: August 6,2001 Date: July 20, 2001
Attest: ___________________ Attest: __________________
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