Exhibit 23(h)-3
AGENCY AGREEMENT
THIS AGREEMENT made as of the 24th day of March, 1992, by and between
XXXXXX ONE HUNDRED FUND, INC., a corporation existing under the laws of the
State of Maryland, having its principal place of business at 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 ("Fund"), and INVESTORS FIDUCIARY
TRUST COMPANY, a state chartered trust company organized and existing under the
laws of the State of Missouri, having its principal place of business at 000
Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC"):
WITNESSETH:
WHEREAS, Fund desires to appoint IFTC as Transfer Agent and Dividend
Disbursing Agent, and IFTC desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of IFTC as Transfer Agent and Dividend
Disbursing Agent for Fund, there will be filed with IFTC the following
documents:
A. A certified copy of the resolutions of the Board of Directors of Fund
appointing IFTC as Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating certain persons
to sign stock certificates, if any, and give written instructions and
requests on behalf of Fund;
B. A certified copy of the Articles of Incorporation of Fund and all
amendments thereto;
C. A certified copy of the Bylaws of Fund;
D. Copies of Registration Statements and amendments thereto, filed with
the Securities and Exchange Commission.
E. Specimens of all forms of outstanding stock certificates, in the forms
approved by the Board of Directors of Fund, with a certificate of the
Secretary of Fund, as to such approval;
F. Specimens of the signatures of the officers of the Fund authorized to
sign stock certificates and individuals authorized to sign written
instructions and requests;
G. An opinion of counsel for Fund with respect to:
(1) Fund's organization and existence under the laws of its state of
organization,
(2) The status of all shares of stock of Fund covered by the
appointment under the Securities Act of 1933, as amended, and any
other applicable federal or state statute and
(3) That all issued shares are, and all unissued shares will be, when
issued, validly issued, fully paid and nonassessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF IFTC. IFTC represents and
warrants to Fund that:
A. It is a trust company duly organized and existing and in good standing
under the laws of Missouri.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and bylaws to enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934.
E. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF FUND. Fund represents and
warrants to IFTC that:
A. It is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland.
B. It is an open-end diversified management investment company registered
under the Investment Company Act of 1940, as amended.
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C. A registration statement under the Securities Act of 1933 has been
filed and will be effective with respect to all shares of Fund being
offered for sale.
D. All requisite steps have been or will be taken to register Fund's
shares for sale in all applicable states.
E. Fund is empowered under applicable laws and by its charter and bylaws
to enter into and perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions set forth in this Agreement, Fund hereby
employs and appoints IFTC as Transfer Agent and Dividend Disbursing
Agent effective the day of , 19 .
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B. IFTC hereby accepts such employment and appointment and agrees that it
will act as Fund's Transfer Agent and Dividend Disbursing Agent. IFTC
agrees that it will also act as agent in connection with Fund's
periodic withdrawal payment accounts and other open accounts or
similar plans for shareholders, if any.
C. IFTC agrees to provide the necessary facilities, equipment and
personnel to perform its duties and obligations hereunder in
accordance with industry practice.
D. Fund agrees to use its best efforts to deliver to IFTC in Kansas City,
Missouri, as soon as they are available, all of its shareholder
account records.
E. Subject to the provisions of Sections 19. and 20. hereof, IFTC agrees
that it will perform all of the usual and ordinary services of
Transfer Agent and Dividend Disbursing Agent and as Agent for the
various shareholder accounts, including, without limitation, the
following: issuing, transferring and cancelling stock certificates, if
any, maintaining all shareholder accounts, preparing shareholder
meeting lists, mailing proxies, receiving and tabulating proxies,
mailing shareholder reports and prospectuses, withholding taxes on
nonresident alien and foreign corporation accounts, for pension and
deferred income, backup withholding or other instances agreed upon by
the parties, preparing and mailing checks for disbursement of
redemptions, income dividends and capital gains distributions,
preparing and filing U.S. Treasury Department Form 1099 for all
shareholders, preparing and mailing confirmation forms to shareholders
and
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dealers with respect to all purchases and redemptions of Fund shares
and other transactions in shareholder accounts for which confirmations
are required, recording reinvestments of dividends and distributions
in Fund shares, and cooperating with broker-dealers and financial
intermediaries who represent shareholders of the Fund.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Fund, the appointment of IFTC as Transfer Agent
will be construed to cover the full amount of authorized stock of the class
or classes for which IFTC is appointed as the same will, from time to time,
be constituted, and any subsequent increases in such authorized amount. In
case of such increase Fund will file with IFTC:
A. If the appointment of IFTC was theretofore expressly limited, a
certified copy of a resolution of the Board of Directors of Fund
increasing the authority of IFTC;
B. A certified copy of the amendment to the Articles of Incorporation of
Fund authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased stock, and an opinion of counsel that the order or consent
of no other governmental or regulatory authority is required;
D. Opinion of counsel for Fund stating:
(1) The status of the additional shares of stock of Fund under the
Securities Act of 1933, as amended, and any other applicable
federal or state statute; and
(2) That the additional shares are, or when issued will be, validly
issued, fully paid and nonassessable.
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, Fund will pay to IFTC from time to time a
reasonable compensation for all services rendered as Agent, and also,
all its reasonable out- of-pocket expenses, charges, counsel fees, and
other disbursements (Compensation and Expenses) incurred in connection
with the agency. Such compensation is set forth in a separate
schedule, a copy of which is attached hereto and incorporated herein
by reference. IFTC shall make reasonable efforts to xxxx the Fund as
soon as practicable after the end of each calendar month for the
Compensation and Expenses due for that month and said billing shall be
detailed in accordance with the such schedule. If the Fund has not
paid such Compensation and Expenses to IFTC within a reasonable time,
IFTC may charge against any monies held under this Agreement, the
amount of any Compensation and/or Expenses for which it shall be
entitled to reimbursement under this Agreement.
B. Fund agrees to promptly reimburse IFTC for all reasonable
out-of-pocket expenses or advances incurred by IFTC in connection with
the performance of services under this Agreement, for postage (and
first class mail insurance in connection with mailing share
certificates), envelopes, check forms, continuous forms, forms for
reports and statements, stationery, and other similar items, telephone
and telegraph charges incurred in answering inquiries from dealers or
shareholders, microfilm used each year to record the previous year's
transactions in shareholder accounts and computer tapes used for
permanent storage of records and cost of insertion of materials in
mailing envelopes by outside firms. IFTC will provide to Fund no less
often than monthly a detailed accounting of all such expenses on
behalf of the Fund.
7. OPERATION OF IFTC SYSTEM.
A. In connection with the performance of its services under this
Agreement, IFTC is responsible for such items as:
(1) The accuracy of entries in IFTC's records reflecting orders and
instructions received by IFTC from dealers, shareholders, Fund or
its principal underwriter;
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(2) The availability and the accuracy of shareholder lists,
shareholder account verifications, confirmations and other
shareholder account information to be produced from its records
or data;
(3) The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from Fund;
(4) The accuracy of redemption transactions and payments in
accordance with redemption instructions received from dealers,
shareholders or Fund;
(5) The deposit daily in Fund's appropriate special bank account of
all checks and payments received from dealers or shareholders for
investment in shares;
(6) The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
legality of transfers, redemptions and other shareholder account
transactions, all in conformance with IFTC's and the Fund's
present procedures with such changes as may be required or
approved by Fund; and
(7) The maintenance of a current duplicate set of Fund's essential
records at a secure distant location, in a form available and
usable forthwith in the event of any breakdown or disaster
disrupting its main operation.
8. INDEMNIFICATION.
A. IFTC will not be responsible for, and Fund will hold harmless and
indemnify IFTC from and against any loss by or liability to the Fund
or a third party, including reasonable attorney's fees, in connection
with any claim or suit asserting any such liability arising out of or
attributable to actions taken or omitted by IFTC pursuant to this
Agreement, unless IFTC has acted negligently or in bad faith. The
matters covered by this indemnification include but are not limited to
those of Section 14. hereof. Fund will be responsible for, and will
have the right to conduct or control the defense of any litigation
asserting liability, including reasonable attorney's fees, against
which IFTC is indemnified hereunder. IFTC will not be under any
obligation to prosecute or defend any action or suit in respect of the
agency relationship hereunder, which, in its
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opinion, may involve it in expense or liability, unless Fund will, as
often as requested, furnish IFTC with reasonable, satisfactory
security and indemnity against such expense or liability.
B. IFTC will hold harmless and indemnify Fund from and against any loss
or liability arising out of IFTC's negligence or bad faith in
performing its duties under this Agreement, including reasonable
attorney's fees.
9. CERTAIN COVENANTS OF IFTC AND FUND.
A. All requisite steps will be taken by Fund from time to time when and
as necessary to register the Fund's shares for sale in all states in
which Fund's shares shall at the time be offered for sale and require
registration. If at any time Fund will receive notice of any stop
order or other proceeding in any such state affecting such
registration or the sale of Fund's shares, or of any stop order or
other proceeding under the federal securities laws affecting the sale
of Fund's shares, Fund will give prompt notice thereof to IFTC.
B. IFTC hereby agrees to perform such transfer agency functions as are
set forth in Section 4.E. above and establish and maintain facilities
and procedures reasonably acceptable to Fund for safekeeping of stock
certificates, check forms, and facsimile signature imprinting devices,
if any; and for the preparation or use, and for keeping account of,
such certificates, forms and devices, and to carry such insurance as
it considers adequate and reasonably available and not to
substantially reduce such level of insurance without prior notice to
the Fund.
C. To the extent required by Section 31 of the Investment Company Act of
1940 as amended and Rules thereunder, IFTC agrees that all records
maintained by IFTC relating to the services to be performed by IFTC
under this Agreement are the property of Fund and will be preserved
and will be surrendered promptly to Fund on request.
D. IFTC agrees to furnish Fund semiannual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other financial information reasonably requested by Fund. The annual
financial statements will be certified by IFTC's certified public
accountants.
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E. IFTC represents and agrees that it will use its best efforts to keep
current on the trends of the investment company industry relating to
shareholder services and will use its best efforts to continue to
modernize and improve.
F. IFTC will permit Fund and its authorized representatives to make
periodic inspections of its operations as such would involve the Fund
at reasonable times during business hours.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of Fund requiring a change in the form of stock
certificates, IFTC will issue or register certificates in the new form in
exchange for, or in transfer of, the outstanding certificates in the old
form, upon receiving:
A. Written instructions from an officer of Fund;
B. Certified copy of the amendment to the Articles of Incorporation or
other document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock in
the new form, and an opinion of counsel that the order or consent of
no other government or regulatory authority is required;
D. Specimens of the new certificates in the form approved by the Board of
Directors of Fund, with a certificate of the Secretary of Fund as to
such approval;
E. Opinion of counsel for Fund stating:
(1) The status of the shares of stock of Fund in the new form under
the Securities Act of 1933, as amended and any other applicable
federal or state statute; and
(2) That the issued shares in the new form are, and all unissued
shares will be, when issued, validly issued, fully paid and
nonassessable.
11. STOCK CERTIFICATES.
Fund will furnish IFTC with a sufficient supply of blank stock certificates
and from time to time will renew such supply upon the request of IFTC. Such
certificates will be signed manually or by facsimile signatures of the
officers of Fund authorized by law and by
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bylaws to sign such certificates, and if required, will bear the corporate
seal or facsimile thereof.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
Fund will file promptly with IFTC written notice of any change in the
officers authorized to sign certificates, written instructions or requests,
together with two signature cards bearing the specimen signature of each
newly authorized officer. In case any officer of Fund who will have signed
manually or whose facsimile signature will have been affixed to blank stock
certificates will die, resign, or be removed prior to the issuance of such
certificates, IFTC may issue or register such stock certificates as the
stock certificates of Fund notwithstanding such death, resignation, or
removal, until specifically directed to the contrary by Fund in writing. In
the absence of such direction, Fund will file promptly with IFTC such
approval, adoption, or ratification as may be required by law.
13. FUTURE AMENDMENTS OF CHARTER AND BYLAWS.
Fund will promptly file with IFTC copies of all material amendments to its
Articles of Incorporation or bylaws made after the date of this Agreement.
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES.
At any time IFTC may apply to any person authorized by the Fund to give
instructions to IFTC, and may with the approval of a Fund officer consult
with legal counsel for Fund or its own legal counsel at the expense of
Fund, with respect to any matter arising in connection with the agency and
it will not be liable for any action taken or omitted by it in good faith
in reliance upon such instructions or upon the opinion of such counsel.
IFTC will be protected in acting upon any paper or document reasonably
believed by it to be genuine and to have been signed by the proper person
or persons and will not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from Fund. It will
also be protected in recognizing stock certificates which it reasonably
believes to bear the proper manual or facsimile signatures of the officers
of Fund, and the proper countersignature of any former Transfer Agent or
Registrar, or of a co-Transfer Agent or co-Registrar.
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15. PAPERS SUBJECT TO APPROVAL OF COUNSEL.
The acceptance by IFTC, of its appointment as Transfer Agent and Dividend
Disbursing Agent and all documents filed in connection with such
appointment and thereafter in connection with the agencies, will be subject
to the approval of legal counsel for IFTC (which approval will be not
unreasonably withheld).
16. CERTIFICATION OF DOCUMENTS.
The required copy of the Articles of Incorporation of Fund and copies of
all amendments thereto will be certified by the Secretary of State (or
other appropriate official) of the State of Incorporation, and if such
Articles of Incorporation and amendments is required by law to be also
filed with a county, city or other officer of official body, a certificate
of such filing will appear on the certified copy submitted to IFTC. A copy
of the order or consent of each governmental or regulatory authority
required by law to the issuance of the stock certificate will be certified
by the Secretary or Clerk of such governmental or regulatory authority,
under proper seal of such authority. The copy of the Bylaws and copies of
all amendments thereto, and copies of resolutions of the Board of Directors
of Fund, will be certified by the Secretary or an Assistant Secretary of
Fund under the Fund's seal.
17. RECORDS.
IFTC will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained pursuant
to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 for the period and
in the manner prescribed by Rule 31a-2 under the Investment Company Act of
1940, if any.
18. DISPOSITION OF BOOKS, RECORDS AND CANCELLED CERTIFICATES.
IFTC will send periodically to Fund, or to where designated by the
Secretary or an Assistant Secretary of Fund, all books, documents, and all
records no longer deemed needed for current purposes and stock certificates
which have been cancelled in transfer or in exchange, upon the
understanding that such books, documents, records, and stock certificates
will not be destroyed by Fund without the consent of IFTC (which consent
will not be unreasonably withheld), but will be safely stored for possible
future reference.
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19. PROVISIONS RELATING TO IFTC AS TRANSFER AGENT.
A. IFTC will make original issues of stock certificates upon written
request of an officer of Fund and upon being furnished with a
certified copy of a resolution of the Board of Directors authorizing
such original issue, an opinion of counsel as outlined in paragraphs
1.D. and G. of this Agreement, any documents required by paragraphs 5.
or 10. of this Agreement, and necessary funds for the payment of any
original issue tax.
B. Before making any original issue of certificates Fund will furnish
IFTC with sufficient funds to pay all required taxes on the original
issue of the stock, if any. Fund will furnish IFTC such evidence as
may be required by IFTC to show the actual value of such stock. If no
taxes are payable IFTC will be furnished with an opinion of outside
counsel to that effect.
C. Shares of stock will be transferred and new certificates issued in
transfer, or shares of stock accepted for redemption and funds
remitted therefor, upon surrender of the old certificates in form
deemed by IFTC properly endorsed for transfer or redemption
accompanied by such documents as IFTC may deem necessary to evidence
that authority of the person making the transfer or redemption, and
bearing satisfactory evidence of the payment of any applicable stock
transfer taxes. IFTC reserves the right to refuse to transfer or
redeem shares until it is satisfied that the endorsement or signature
on the certificate or any other document is valid and genuine, and for
that purpose it may require a guaranty of signature by a financial
institution as permitted by the Fund's prospectus or as otherwise
required by applicable law. IFTC 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 will incur no
liability for the refusal in good faith to make transfers or
redemptions which, in its judgment, are improper or unauthorized. IFTC
may, in effecting transfers or redemptions, rely upon Simplification
Acts or other statutes which protect it and Fund in not requiring
complete fiduciary documentation. In cases in which IFTC is not
directed or otherwise required to maintain the consolidated records of
shareholder's accounts,
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IFTC will not be liable for any loss which may arise by reason of not
having such records, provided that such loss could not have been
prevented by the exercise of ordinary diligence.
D. When mail is used for delivery of stock certificates IFTC will forward
stock certificates in "nonnegotiable" form by first class or
registered mail and stock certificates in "negotiable" form by
registered mail, all such mail deliveries to be covered while in
transit to the addressee by insurance arranged for by IFTC.
E. IFTC will issue and mail subscription warrants, certificates
representing stock dividends, exchanges or split ups, or act as
Conversion Agent upon receiving written instructions from any officer
of Fund and such other documents as IFTC deems necessary.
F. IFTC will issue, transfer, and split up certificates and will issue
certificates of stock representing full shares upon surrender of scrip
certificates aggregating one full share or more when presented to IFTC
for that purpose upon receiving written instructions from an officer
of Fund and such other documents as IFTC may deem necessary.
G. IFTC may issue new certificates in place of certificates represented
to have been lost, destroyed, stolen or otherwise wrongfully taken
upon receiving instructions from Fund and indemnity satisfactory to
IFTC and Fund, and may issue new certificates in exchange for, and
upon surrender of, mutilated certificates. Such instructions from Fund
will be in such form as will be approved by the Board of Directors of
Fund and will be in accordance with the provisions of law and the
bylaws of Fund governing such matter.
H. IFTC will supply a shareholder's list to Fund for its annual meeting
upon receiving a request from an officer of Fund. It will also supply
lists at such other times as may be requested by an officer of Fund.
I. Upon receipt of written instructions of an officer of Fund, IFTC will
address and mail notices to shareholders.
J. In case of any request or demand for the inspection of the stock books
of Fund or any other books in the possession of IFTC, IFTC will
endeavor to notify Fund and
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to secure instructions as to permitting or refusing such inspection.
IFTC reserves the right, however, to exhibit the stock books or other
books to any person in case it is advised by its counsel that it may
be held responsible for the failure to exhibit the stock books or
other books to such person.
K. In the event that any check or other order for the payment of money is
returned unpaid for any reason, IFTC will: (i) within three days give
written notice of such return to the Fund or its designee; (ii) place
a stop transfer order against all Fund shares issued in certificate
form as a result of such check or order or cancel the purchase of Fund
shares issued in book-entry form as a result of such check or order,
(iii) take such other steps as IFTC may, in its discretion, deem
appropriate or as the Fund or its designee may instruct.
L. Upon receipt of all necessary information and documentation relating
to a redemption, IFTC will issue to the Fund's custodian an advice
setting forth the number of shares of the Fund received by IFTC for
redemption. IFTC shall, upon notification that the custodian has
transferred funds for the redemption of shares to a redemption account
at IFTC or at another bank, pay such moneys to the shareholder, his
authorized agent or legal representative.
M. IFTC is authorized to review and process transfers of shares of the
Fund and exchanges between the Fund and other mutual funds for which
IFTC acts as transfer agent as permitted in the prospectus for the
Fund, on the records of the Fund maintained by IFTC. If shares to be
transferred are represented by outstanding certificates, IFTC shall,
upon surrender to it of the certificates in proper form for transfer,
and upon cancellation thereof, countersign and issue new certificates
for a like number of shares (if so requested by the registered holder
thereof) and deliver the same. If the shares to be transferred are not
represented by outstanding certificates, IFTC shall upon an order
thereof by or on behalf of the registered holder thereof in proper
form, credit the same to the transferee on its books. If shares are to
be exchanged for shares of another mutual fund, IFTC will process such
shares exchanged in the same manner as a redemption and sale
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of shares, except that it may in its discretion waive requirements for
information and documentation.
N. Unless otherwise instructed by the Fund, IFTC shall maintain records
showing for each investor's account the following: (i) names,
addresses, tax identifying numbers and assigned account numbers; (ii)
numbers of shares held; (iii) historical information regarding the
account of each shareholder, including dividends paid and date and
price of all transactions on a shareholder's account; (iv) any stop or
restraining order placed against a shareholder's account or on lost
and/or replaced certificates; (v) information with respect to
withholdings in the case of a foreign account; (vi) any capital gain
or dividend reinvestment order, account application, dividend address
and correspondence relating to the current maintenance of a
shareholder's account; (vii) certificate numbers and denominations for
any shareholders holding certificates; and (viii) any information
required in order to permit the Fund to confirm that IFTC has properly
performed the calculations contemplated or required by this Agreement.
O. IFTC will maintain records necessary to reflect the crediting of
dividends which are reinvested in shares of the Fund.
P. IFTC will investigate all shareholder inquiries related to shareholder
accounts and respond promptly to correspondence from shareholders.
Q. If requested and as directed by the Fund, IFTC will address and mail
all communications to shareholders or their nominees, including proxy
material and periodic reports to shareholders.
R. In connection with special and annual meetings of shareholders, IFTC
will prepare shareholder lists, mail and certify as to the mailing of
proxy materials, process and tabulate returned proxy cards, report on
proxies voted and received by IFTC prior to meetings as stated in the
proxy statement, and certify to the Secretary of the Fund shares to be
voted at meetings.
S. In addition to the duties expressly provided for herein, IFTC shall
perform such other duties and functions as are set forth in the
Compensation and Expenses schedule hereto from time to time.
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20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. IFTC will maintain one or more deposit accounts as Agent for the Fund,
into which the funds for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder will be
deposited, and against which checks for the foregoing purposes will be
drawn (Accounts).
B. Upon the receipt of proper instructions, as described below, which may
be continuing instructions when deemed appropriate by the parties,
IFTC shall pay out monies of the Fund in such Accounts in the
following cases only:
1. For the redemption of Fund shares according to the Fund's then
current prospectus;
2. For the payment of any dividends declared by the Fund or other
distributions to shareholders of the Fund; and
3. For any other proper purpose, but only upon receipt of proper
instructions specifying the amount of such payment, setting forth
the purpose for which such payment is to be made, declaring such
purpose to be a proper purpose, and naming the person or persons
to whom such payment is to be made.
IFTC shall disburse funds from such Accounts as directed upon receipt
of instructions from the Fund. All instructions shall be given only by
persons designated in writing to IFTC by the Fund to be authorized to
give instructions to IFTC under this Agreement. Instructions may be in
writing executed by an authorized representative of the Fund or, if
IFTC reasonably believes such instructions to be by an authorized
representative of the Fund, via telecommunications.
C. The Fund will promptly notify IFTC of the declaration of any dividend
or distribution. The Fund shall furnish to IFTC a written document
specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount
payable per share to shareholders of record as of that date, and the
total amount payable to IFTC on the payment date.
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D. IFTC will, on or before the payable date of any dividend or
distribution, notify the Fund's custodian of the estimated amount of
cash required to pay said dividend or distribution, and the Fund areas
that, on or before the mailing date of such dividend or distribution,
it shall instruct the custodian to place in a dividend disbursing
account at IFTC or another bank, funds equal to the cash amount to be
paid out. IFTC will calculate, prepare and mail checks to, or (where
appropriate) credit such dividend or distribution to the account of,
Fund shareholders, and maintain and safeguard all required underlying
records.
E. As directed by the Fund, IFTC shall prepare and mail to each Fund
shareholder such information with respect to each dividend or
distribution as is required by applicable federal income tax laws and
regulations and by the Investment Company Act of 1940.
F. As directed by the Fund, IFTC shall file such appropriate information
returns concerning the payment of dividends and capital gain
distributions with the proper federal authorities as are required by
federal law to be filed by the Fund and shall withhold such sums as
are required to be withheld by federal law.
G. IFTC will, at the expense of the Fund, provide a special form of check
containing the imprint of any device or other matter desired by Fund.
Such form of checks must, however, be compatible with the equipment
employed by IFTC and its agents.
H. If the Fund desires to include additional printed matter, financial
statements, etc. with the dividend checks, the same will be furnished
to IFTC within a reasonable time prior to the date of mailing of the
dividend checks, at the expense of the Fund.
I. If the Fund desires that its distributions be mailed in any special
form of envelopes, a sufficient supply of the same will be furnished
to IFTC, but the size and form of said envelopes will be subject to
the approval of IFTC. If stamped envelopes are used, they must be
furnished by Fund or, if postage stamps are to be affixed to the
envelopes, the stamps or the cash necessary for such stamps must be
furnished by the Fund prior to mailing.
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J. IFTC is authorized and directed to stop payment of checks theretofore
issued hereunder, but not presented for payment, when the payees
thereof allege either that they have not received the checks or that
such checks have been mislaid, lost, stolen, destroyed or through no
fault of theirs, are otherwise beyond their control, and cannot be
produced by them for presentation and collections, and, to issue and
deliver duplicate checks in replacement thereof upon receipt of
properly executed affidavits.
21. ASSUMPTION OF DUTIES BY THE FUND.
The Fund may assume certain duties and responsibilities of IFTC or those
usual and ordinary services of Transfer Agent and Dividend Disbursement
Agent as those terms are referred to in Section 4.E. of this Agreement
including but not limited to accepting shareholder instructions and
transmitting orders based on such instructions to IFTC, preparing and
mailing confirmations, obtaining certified TIN numbers, and disbursing
monies of the Fund. To the extent the Fund or its agent or affiliate
assumes such duties and responsibilities, IFTC shall be relieved from all
responsibility and liability therefor.
22. TERMINATION OF AGREEMENT.
A. This Agreement may be terminated by either party upon receipt of sixty
(60) days written notice from the other party.
B. Fund, in addition to any other rights and remedies, shall have the
right to terminate this Agreement forthwith upon the occurrence at any
time of any of the following events:
(1) Any interruption or cessation of operations by IFTC or its
assigns which materially interferes with the business operation
of Fund;
(2) The bankruptcy of IFTC or its assigns or the appointment of a
receiver for IFTC or its assigns;
(3) Any merger, consolidation or sale of substantially all the assets
of IFTC or its assigns;
(4) The acquisition of a controlling interest in IFTC or its assigns,
by any broker, dealer, investment adviser or investment company
except as may presently exist; or
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(5) Failure by IFTC or its assigns to perform its duties in
accordance with the Agreement, which failure materially adversely
affects the business operations of Fund and which failure
continues for thirty (30) days after receipt of written notice
from Fund.
C. In the event of termination, Fund will promptly pay IFTC all amounts
due to IFTC hereunder.
D. In the event of termination, IFTC will use its best efforts to
transfer the books and records of the Fund to the designated successor
transfer agent and to provide other information relating to its
service provided hereunder for reasonable compensation therefor.
23. ASSIGNMENT.
A. Neither this Agreement nor any rights or obligations hereunder may be
assigned by IFTC without the written consent of Fund; provided,
however, no assignment will relieve IFTC of any of its obligations
hereunder. IFTC may, however, employ agents to assist it in performing
its duties hereunder.
B. This Agreement will inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
24. CONFIDENTIALITY.
A. IFTC agrees that, except as provided in the last sentence of Section
19.J hereof, or as otherwise required by law, IFTC will keep
confidential all records of and information in its possession relating
to Fund or its shareholders or shareholder accounts and will not
disclose the same to any person except at the request or with the
consent of Fund.
B. Fund agrees to keep confidential all financial statements and other
financial records (other than statements and records relating solely
to Fund's business dealings with IFTC) and all manuals, systems and
other technical information and data, not publicly disclosed, relating
to IFTC's operations and programs furnished to it by IFTC pursuant to
this Agreement and will not disclose the same to any person except at
the request or with the consent of IFTC.
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C. The Fund acknowledges that IFTC and DST Systems, Inc. (DST) have
proprietary rights in and to the computerized data processing
recordkeeping system used by IFTC to perform services hereunder
including, but not limited to the maintenance of shareholder accounts
and records, processing of related information and generation of
output (the MFS System), including, without limitation any changes or
modifications of the MFS System and any other IFTC or DST programs,
data bases, supporting documentation, or procedures ("collectively
IFTC Protected Information") which the Fund's access to the MFS System
or computer hardware or software may permit the Fund or its employees
or agents to become aware of or to access and that the IFTC Protected
Information constitutes confidential material and trade secrets of
IFTC. The Fund agrees to maintain the confidentiality of the IFTC
Protected Information. The Fund acknowledges that any unauthorized
use, misuse, disclosure or taking of IFTC Protected Information which
is confidential as provided by law, or which is a trade secret,
residing or existing internal or external to a computer, computer
system, or computer network, or the knowing and unauthorized accessing
or causing to be accessed of any computer, computer system, or
computer network, may be subject to civil liabilities and criminal
penalties under applicable state law. The Fund will advise all of its
employees and agents who have access to any IFTC Protected Information
or to any computer equipment capable of accessing IFTC or DST hardware
or software of the foregoing. IFTC and DST are intended to be, and
shall be, third party beneficiaries of the Fund's obligations and
undertakings contained in this Section.
25. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
A. All representations and warranties by either party herein contained
will survive the execution and delivery of this Agreement.
26. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of Missouri and
shall be governed by the laws of said state.
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B. All the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the respective
successors and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any
manner except by a written agreement properly authorized and executed
by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
F. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:
------------------------------------
Title:
---------------------------------
XXXXXX ONE HUNDRED FUND, INC.
By:
------------------------------------
Title:
---------------------------------
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EXHIBIT B
INSURANCE COVERAGE
Insurance coverages maintained by IFTC effective March 10, 1991
DESCRIPTION OF POLICY:
BROKERS BLANKET BOND, STANDARD FORM 14
Covering losses caused by dishonesty of employees, physical loss of
securities on or outside of premises while in possession of authorized
person, loss caused by forgery or alteration of checks or similar
instruments.
Coverage: $75,000,000
ERRORS AND OMISSIONS INSURANCE
Indemnifies against loss in providing shareholder accounting services
by reason of neglect, error or omission.
Coverage: $10,000,000
SPECIAL FORGERY BOND
Covering losses through forgery or alteration of checks or drafts of
customers processed by insured but drawn on or against them.
Coverage: $1,000,000
MAIL INSURANCE (APPLIES TO ALL FULL SERVICE OPERATIONS)
Provides indemnity for security lost in the mails.
Coverage:
$10,000,000 nonnegotiable securities mailed to domestic locations
via registered mail.
$1,000,000 nonnegotiable securities mailed to domestic locations
via first-class or certified mail.
$1,000,000 nonnegotiable securities mailed to foreign locations
via registered mail.
$1,000,000 negotiable securities mailed to all locations via
registered mail.
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