EXHIBIT 1.A.(1)
FIDELITY SYSTEMATIC INVESTMENT PLANS
AMENDMENT AND RESTATEMENT OF
CUSTODIAN AGREEMENT
MADE AS OF SEPTEMBER 16, 1994
This AGREEMENT ("Agreement") made as of September 16, 1994 between
FIDELITY DISTRIBUTORS CORPORATION, a Massachusetts corporation with an
office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (hereinafter called
the "Sponsor") and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
corporation with an office at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx
00000 (hereinafter called the "Custodian"), amending and restating the
original custodian agreement between Xxxxxx Plans Corporation (whose name
has been changed to Fidelity Distributors Corporation) and State Street
Bank and Trust Company dated July 15, 1969 and subsequently amended on
March 15, 1972, June 30, 1975, November 1, 1982, and by a 1985 memorandum
(the original custodian agreement, and the original custodian agreement as
amended from time to time prior to the date of this Agreement, each
hereinafter referred to as a "Predecessor Custodian Agreement" and
collectively as the "Predecessor Custodian Agreements"), all relating to
FIDELITY SYSTEMATIC INVESTMENT PLANS ("Fidelity Plans"), for the purposes
of: (1) updating administrative procedures applicable to all periodic
payment plans of Fidelity Plans issued pursuant to any of the Predecessor
Custodian Agreements, provided that such updating of procedures does not
affect adversely any such plan issued and outstanding prior to the date of
this Agreement; (2) setting forth the terms, conditions and procedures that
shall govern such plans issued hereafter; and (3) effecting, as of the date
hereof, a combination of the custodial pool maintained under this
Agreement, for shares held on behalf of Destiny Plans II (as defined
herein), with a custodial pool maintained under another custodian agreement
to which the Sponsor and the Custodian are each parties and, in connection
therewith, subjecting the plans issued under such other agreement
(hereinafter referred to as "Destiny Plans II-A") to the terms and
provisions of this Agreement.
WITNESSETH
WHEREAS, the Sponsor was formed to develop financial planning programs and
to sell shares of mutual funds and other securities, and desires to obtain
the services of the Custodian in connection with the administration of
certain plans providing for investment in shares of Fidelity Destiny
Portfolios, a Massachusetts business trust registered as an open-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), the shares of beneficial interest of which are
divided into series consisting of the Destiny I and Destiny II series
(collectively hereinafter called the "Fund") or shares of other open-end
management investment companies as herein provided. Such plans include
plans that are issued and outstanding prior to the date of this Agreement,
as well as plans that the Sponsor proposes to sell and distribute to the
public on or after the date of this Agreement; and
WHEREAS, Fidelity Plans is a unit investment trust consisting of two
series of periodic payment plans (defined more specifically below and
referred to collectively in this preamble as the "Plans"), providing for
the accumulation of shares of the Fund; and
WHEREAS, Plans of one series of Plans ("Destiny Plans I") accumulate
shares of the Destiny I series of the Fund, and Plans of a second series of
Plans ("Destiny Plans II") purchase shares of the Destiny II series of the
Fund; and
WHEREAS, in accordance with the terms of Destiny Plans I and Destiny Plans
II, administrative procedures applicable to such Plans under the terms of a
Predecessor Custodian Agreement may be updated, provided that such updating
of procedures does not affect adversely Plans issued and outstanding at the
time such updated procedures are implemented; and
WHEREAS, the Sponsor and the Custodian have determined that the updated
procedures contemplated by this Agreement would not affect adversely Plans
issued and outstanding at the time such updated procedures are proposed to
be implemented; and
WHEREAS, it is the intent of the Sponsor and the Custodian that the
updated procedures contemplated by this Agreement be applicable to all
Plans issued prior to, and on or after the effective date of this
Agreement; and
WHEREAS, the Sponsor and the Custodian, by virtue of an amendment dated as
of March 23, 1993 to a Plan Custodian and Administration Agreement dated as
of November 6, 1981, and as subsequently amended, among Security
Distributors, Inc., a Kansas corporation, Security Management Company,
Inc., a Kansas corporation, and The First National Bank of Topeka, Kansas
(the original custodian and administration agreement, and each amendment
thereof made from time to time prior to the date of this Agreement, are
each hereinafter referred to as a "Security Agreement" and collectively as
the "Security Agreements"), have assumed the responsibilities of
Underwriter and Custodian (as defined therein), respectively, under such
Security Agreements; and
WHEREAS, the Security Agreements provided for the issuance of systematic
investment plans contemplating investment in shares of Security Action
Fund, a mutual investment fund, or any other shares substituted therefor
under the terms of such plans; and
WHEREAS, pursuant to Section 16 of the Security Agreements and the terms
of systematic investment plans issued pursuant to the applicable Security
Agreement (Destiny Plans II-A), shares of the Destiny II series of the Fund
have been substituted for shares of Security Action Fund held by the
custodian under such Security Agreements, as a result of the transfer of
assets of Security Action Fund to the Destiny II series of the Fund; and
WHEREAS, the terms of the Destiny Plans II-A are substantially identical
to the terms of Destiny Plans II, and the terms of the Security Agreements
are substantially identical to the terms of the Predecessor Custodian
Agreements; and
WHEREAS, under each of the Security Agreements and the Predecessor
Custodian Agreements, the Sponsor and the Custodian have the right to make
changes in the administration of Destiny Plans II-A and Destiny Plans II,
respectively, issued and outstanding, provided that such changes will not
adversely affect the rights and privileges of the planholders thereof; and
WHEREAS, in accordance with the terms of Destiny Plans II-A,
administrative procedures applicable to such plans under the terms of the
applicable Security Agreement may be updated, provided that such updating
of procedures does not adversely affect the rights and privileges of any
Destiny Plans II-A issued and outstanding at the time such updated
procedures are implemented; and
WHEREAS, the Sponsor and the Custodian believe that it is in the best
interests of holders of Destiny Plans II-A to administer the Destiny Plans
II-A under this Agreement as plans of an existing series of Fidelity Plans
and to treat such Destiny Plans II-A as having been issued under and
governed by this Agreement; and
WHEREAS, the Sponsor and the Custodian believe that this action will not
adversely affect the rights and privileges of any holder of an outstanding
Security Plan; and
WHEREAS, the Sponsor and the Custodian intend to effect this action on
September 16, 1994; and
WHEREAS, the Custodian is willing to render the services specified in this
Agreement, but only on the terms and conditions set forth herein and in the
Plans:
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
the parties hereto agree as follows:
1. PLANS AND CUSTODIANSHIP.
(a) The Sponsor offers two types of periodic payment plans: "Fidelity
Systematic Investment Plans: Destiny Plans I, for the Accumulation of
Shares of Fidelity Destiny Portfolios: Destiny I" (referred to hereinafter
as "Destiny Plans I"); and "Fidelity Systematic Investment Plans: Destiny
Plans II, for the Accumulation of Shares of Fidelity Destiny Portfolios:
Destiny II" (referred to hereinafter as "Destiny Plans II"; together with
Destiny Plans I, the "Plans"). The Plans provide for the purchase of
shares of a specified series of the Fund, or of shares of any other
open-end management investment company substituted therefor under the terms
of the Plans (all such shares and any fractional interests therein are
hereinafter referred to as "Fund Shares"). All Destiny Plans II-A issued
and outstanding on the date of the commencement of the administration of
such plans under this Agreement shall, as of such date, be governed by and
administered in accordance with the provisions of this Agreement as Destiny
Plans II, and all references herein to the "Plans" or to "Destiny Plans II"
shall, as of such date, include such Destiny Plans II-A, unless the context
otherwise requires. Evidence that administration of the Destiny Plans II-A
under this Agreement as part of the Destiny II Series has commenced shall
consist of a receipt acknowledging the delivery of assets of Destiny Plans
II-A. Until such receipt is acknowledged, the Destiny Plans II-A shall be
administered in accordance with the applicable Security Agreement. In the
event of a conflict between an applicable Plan Document in effect at the
time of establishment of an account in connection with such Plan, the
Custodian shall administer the applicable Plan according to this Agreement
unless instructed otherwise by the Sponsor.
Plans may, but need not, be issued in certificate form. Plans that have
been issued in certificate form (a "Certificate") under a Predecessor
Custodian Agreement or a Security Agreement, respectively, are
substantially in one of the forms attached hereto at Exhibit A and Exhibit
B. If a Certificate has been issued in connection with a Plan, then such
Plan shall be governed by the terms and conditions set forth in the
Certificate. In addition, each Plan, including Plans issued in Certificate
form and Plans not issued in Certificate form, shall be governed by the
terms and conditions set forth in the prospectus for such Plan as in effect
at the time such Plan was issued ("Prospectus"). The terms and conditions
set forth in the respective Certificates and Prospectuses (together, the
"Plan Documents") are incorporated herein and made a part of this
Agreement. Each Plan shall be administered under this Agreement in
accordance with applicable Plan Documents in effect at the time of the
establishment of an account in connection with such Plan.
The Plan Documents are subject to such changes in form and content as the
Sponsor may effect from time to time and, with respect to changes in form
and content of any issued and outstanding Plans, in accordance with the
terms of applicable Plan Documents. In addition, the Sponsor may elect to
apply such changes to Plans already issued only if such changes do not
adversely affect the rights and privileges of the Planholders thereof. Any
such changes in Plan Documents affecting implementation of the provisions
of this Agreement shall be acknowledged by the Sponsor and the Custodian.
(b) The Custodian accepts the custodianship hereunder with respect to
Plans issued pursuant to the terms of each of the Predecessor Custodian
Agreements that are outstanding on the date of this Agreement, on the terms
and conditions set forth in the Plan Documents applicable to such Plans.
The Custodian accepts the custodianship hereunder with respect to Destiny
Plans II-A, on the same terms and conditions as those set forth in the Plan
Documents applicable to Destiny Plans II on the date hereof.
(c) The Custodian accepts the custodianship hereunder with respect to
Plans issued after the date of this Agreement on the terms and conditions
set forth in this Agreement and in the Plan Documents applicable to such
Plans; provided that the Custodian may, as a condition to accepting
custodianship with respect to a Plan, require the Sponsor to furnish to the
Custodian:
(i) Evidence satisfactory to the Custodian that the Sponsor has taken
all necessary action to satisfy the requirements of the Investment Company
Act of 1940, as amended (the "1940 Act"), in connection with the issuance
of the Plans; that a registration statement under the Securities Act of
1933, as amended (the "1933 Act"), covering Plans to be offered after the
date of this Agreement is effective; that the Fund shares are the subject
of a currently effective registration statement under the 1933 Act; that
the registration of the Sponsor as a broker-dealer under the Securities
Exchange Act of 1934, as amended (the "1934 Act") is effective; that the
Sponsor is a member in good standing of the National Association of
Securities Dealers, Inc.; and that all other necessary approvals of the
Plans and the issuance and sale thereof by governmental authorities having
jurisdiction with respect thereto has been duly obtained.
(ii) Such additional documents, certificates and opinions as the
Custodian may reasonably require.
2. CUSTODIAN'S FUNCTIONS.
(a) Issuance of New Plans. Upon receipt by the Custodian or its agent of
an application for a Plan, and of funds, check or other order for the
payment of money representing the initial payment for a Plan by the
purchaser thereof (hereinafter called the "Planholder"), and any
Designation of Beneficiary that may be required by the Sponsor or pursuant
to applicable Plan Documents, the Custodian will then:
(i) establish an account for such Planholder that reflects the face
amount of the new Plan;
(ii) forward for collection such check or other order for the payment of
money as hereinafter provided in section 2(b)(i) hereof; and
(iii) forward to the Planholder by first-class mail the Custodian's
letter of transmittal and a notice conforming to the requirements of
Section 27(f) of the 1940 Act, Rule 27f-1 thereunder (or any successor
rule) and as described in the Plan Documents for such Plan, and such other
explanatory information or communication to the Planholders as may be
furnished by the Sponsor, including, but only if so directed by the
Sponsor, a Plan Certificate. Such form of notice shall be approved by the
Sponsor.
(b) Application of Payments Under Issued and Outstanding Plans. Upon
receipt by the Custodian or its agent of any payment identified by the
Custodian as being for the account of a Planholder and that is made in
accordance with applicable Plan Documents, including any payment being made
pursuant to an extended investment option, the Custodian will:
(i) Forward for collection any check or other order for the payment of
money representing such payment. In the event any check or other order for
the payment of money forwarded by the Custodian for collection is returned
unpaid for any reason, the Custodian may, in its discretion or as from time
to time instructed by the Sponsor, redeposit such check for collection. If
such item is returned a second time as unpaid, any Fund Shares acquired
with said check shall be redeemed and to the extent there is a deficiency
the Custodian shall charge any deficiency (including applicable custodian
fees) to the Sponsor. The Custodian shall promptly notify the Planholder
of any such returned item and send a copy of such notice to the Sponsor or
selling broker-dealer.
(ii) Deduct from the payment the amount of any applicable original
issue, stock transfer, sales or other taxes and apply such amounts to the
purchase of the necessary tax stamps or to payments to the proper taxing
authorities, as the case may be.
(iii) Deduct therefrom the applicable fees of the Sponsor and the
Custodian as set forth in Schedules 1 and 2 to this Agreement applicable to
such Plan. Such deductions shall be credited to the Sponsor or the
Custodian, as the case may be.
(iv) Apply, within two business days unless impracticable, the balance
of the payment to the purchase of Fund Shares, and credit the account of
the Planholder (computed to three decimal places) with the number of Fund
Shares so purchased.
(v) Prepare and mail to the Planholder a receipt in a form to be
approved by the Sponsor, which receipt shall be substantially in the form
attached hereto as Exhibit C and comply as to form and delivery with the
requirements of Rule 10b-10 of the 1934 Act (or any successor rule), and
which receipt shall show the Plan number, the amount of the payment
received, the price paid per Fund Share, the sales charges deducted, the
custodian charge deducted, the number of such Fund Shares purchased after
the deductions and the total Fund Shares then held by the Custodian for the
Planholder. Such receipts shall be mailed by the Custodian to Planholders,
and at the same time a copy of the receipt shall be sent to the selling
broker-dealer, both to be mailed within two business days (within seven
business days for receipts issued in connection with the purchase of Fund
Shares for the establishment of new accounts) from the date the Custodian
purchases Fund Shares with the payment for which a receipt is being
prepared and mailed (or as soon thereafter as possible).
(c) Additional Notices.
(i) Reminder Notices. The Custodian shall mail to each Planholder
prior to the Planholder's payment date a remittance form and, unless
otherwise agreed to, a return envelope to be used with the Planholder's
next payment. Such form of notice shall be approved by the Sponsor and
shall be substantially in the form attached hereto as Exhibit D.
(ii) Past Due Payment Notices. On a periodic basis as agreed upon from
time to time by the Sponsor and the Custodian, the Custodian shall prepare
and mail to the Planholder a notice of past due payment in accordance with
applicable Plan Documents and applicable law. Such form of notice shall be
approved by the Sponsor and shall be substantially in the form attached
hereto as Exhibit E. The Custodian shall provide the selling
broker-dealer, or in the absence of such, the Sponsor, with a duplicate of
each such notice sent to any Planholder.
(iii) Refund Notices. The Custodian also shall mail to each Planholder
any notice(s) required by Section 27(e) of the 1940 Act and Rule 27e-1
thereunder (or any successor rule). Such notice(s) shall comply with
Section 27(e) and Rule 27e-1 thereunder (or any successor rule) and shall
be in accordance with applicable Plan Documents. Such form of notice shall
be approved by the Sponsor and shall be substantially in the form attached
hereto as Exhibit F.
(iv) Termination Notices. In the event that a Plan is being terminated
by the Sponsor or the Custodian in accordance with the terms of applicable
Plan Documents and Section 7 of this Agreement, the Custodian shall also
mail or deliver to the affected Planholder a notice of termination as
described in applicable Plan Documents and in Section 7(c) of this
Agreement. The Custodian will provide the selling broker-dealer or, in the
absence of such, the Sponsor with a duplicate of each such notice sent to
any Planholder. Such form of notice shall be approved by the Sponsor and
shall be substantially in the form attached hereto as Exhibit G.
(v) Other Notices. The Custodian shall also mail or deliver to each
Planholder any other notices required by any applicable federal or state
law, rule, or regulation, in such form and by such means as are required by
such law, rule, or regulation. The form of any such notice shall be
approved by the Sponsor.
(d) Refund Procedures. In the event that the Custodian is required under
applicable provisions of Plan Documents to accept the return of the Plan
and to reimburse to the Planholder all or a portion of his payments made as
specified in the Plan Documents for such Plan, the Custodian shall charge
against the deposit account of the Sponsor in the banking department of the
Custodian the amount of any such reimbursed payment in excess of the net
asset value of Fund Shares purchased under such Plan; and, unless such
return is elected within 45 days of the mailing of the notice described in
Section 2(a)(iii) above, less the amount of any Custodian fees. In the
event that such refund procedures are initiated with respect to the account
of a Planholder, the Custodian shall inform the selling broker-dealer or in
the absence of such, the Sponsor.
(e) Prepayments. A Planholder will be permitted to complete a Plan ahead
of schedule, but only in accordance with the terms and conditions of
applicable Plan Documents. Any such prepayments received by the Custodian
shall be applied, to the extent of the balance thereof after authorized
deductions, to the next succeeding payments due and payable under the Plan
in the order in which they become due. In computing the commencement of
any period of default, the Planholder shall first be given full credit for
a period equal to that covered by any and all payments made ahead of
schedule by the Planholder.
(f) Changes in Plan Face Amount. A Planholder may change the face amount
of his Plan, but only in accordance with the terms and conditions of
applicable Plan Documents. If such change in face amount is approved by
the Sponsor, the Custodian shall make appropriate changes in the
Planholder's account, and if so requested by the Sponsor, prepare and
countersign a Certificate for a Plan in the changed denomination and
forward it by first class mail to the Planholder with such communications
as may be furnished to the Custodian by the Sponsor. Changes in the face
amount of a Plan shall be implemented by the Custodian only upon receipt
of:
(i) written instructions from the Planholder, Sponsor or selling
broker-dealer, as applicable, as to the increase or decrease in Plan face
amount, which instructions shall set forth the Plan account number, the
face amount of the new Plan, the amount of each monthly payment on the new
Plan, the number of Plan payments which are to be credited to the new Plan,
and the amount, if any, of the adjustment in sales charges and custodian
fees resulting from the change in face amount and such other information as
may be reasonably requested from time to time by the Custodian. Such
adjustment shall be in accordance with the terms of applicable Plan
Documents and shall be effective concurrently with the change in face
amount; i.e., at the time a new Plan is established that reflects the new
face amount;
(ii) in the case of a face amount increase, payment by check in the
amount of the first payment to be made under the Plan as increased in face
amount, as specified in applicable Plan Documents, unless such payment is
reduced or waived by the Sponsor;
(iii) if the total payments made on the Plan surrendered are not an
integral multiple of the monthly payments required on the new Plan, a check
in the sum that is required by the Sponsor to enable the remaining monthly
payments (after giving credit for payments already made) to equal the face
amount of the new Plan; and
(iv) the Plan Certificate for the Plan being surrendered, if applicable.
(g) Cash Withdrawals and Restoration or Replacement. A Planholder may
make a partial cash withdrawal from his account, but only in accordance
with the terms and conditions of applicable Plan Documents. Any such
request for a withdrawal received by the Custodian or its agent shall be
processed by the Custodian, and proceeds shall be payable by the Custodian
to such Planholder, in accordance with the terms and conditions of
applicable Plan Documents and with the 1940 Act. Following a cash
withdrawal, a Planholder is permitted to exercise a restoration or
replacement privilege with respect to such withdrawal if and to the extent
such restoration or replacement is provided for in applicable Plan
Documents. Upon receipt by the Custodian or its agent of any payment
identified by the Custodian as being a replacement or restoration of a
partial withdrawal for the account of a Planholder and that is made in
accordance with applicable Plan Documents, the Custodian will process and
credit such payment for the account of the Planholder in accordance with
the provisions of section 2(b) of this Agreement, applicable Plan
Documents, and the 1940 Act.
(h) Transfers or Assignments of Plans. A Planholder may make a transfer
or assignment of his right, title, and interest in the entire plan, but
only in accordance with the terms and conditions of applicable Plan
Documents. Any such request for a transfer or assignment received by the
Custodian or its agent shall be recorded by the Custodian in accordance
with the terms and conditions of applicable Plan Documents until the
assignee shall have notified the Custodian that the transfer or assignment
has terminated. The terms of any such transfer or assignment shall be
subject to applicable Plan Documents. During the term of the transfer or
assignment, such Planholder shall retain those rights specified in
applicable Plan Documents.
(i) Termination on Default. If the Planholder defaults in making Plan
payments for the period of time specified in applicable Plan Documents as
the default period, or if Fund Shares are not obtainable and a substitution
is not made, the Plan shall be considered in a state of default, and the
Plan may be terminated in accordance with applicable Plan Documents in the
manner and with the effect set forth therein. Such termination may only be
effected after mailing by the Custodian of written notice of the
termination to the Planholder in accordance with the terms of applicable
Plan Documents; a copy of such written notice of termination shall also be
mailed to the selling broker-dealer or in the absence of such, the Sponsor.
(j) Plan Reinstatement or Replacement Following Termination. A Planholder
that has terminated his Plan may exercise a Plan reinstatement or
replacement provision, which provides for reinvestment of a specified
amount in a Plan, but only in accordance with and pursuant to the terms and
conditions of applicable Plan Documents. Any such reinstatement or
replacement order and investment received by the Custodian or its agent
shall be processed by the Custodian and credited for the account of such
Planholder in accordance with the terms and conditions of applicable Plan
Documents, section 2(b) of this Agreement, and the 1940 Act.
(k) Records.
(i) The Custodian will prepare and maintain complete up-to-date
records of the performance of its duties hereunder, on magnetic tape or
otherwise, including records showing a separate account for each
Planholder, and the name and address of the Planholder; the number, date
and amount of each payment made by the Planholder; the date and amount of
all dividends and distributions received by the Custodian on Fund Shares
held for the account of the Planholder; any amounts withheld from
withdrawals under a Plan in accordance with the Internal Revenue Code of
1986, as amended, and any regulations thereunder (or successor
regulations); and all deductions made and the number of Fund Shares
acquired and held by the Custodian for the account of the Planholder.
These records shall be maintained and preserved in accordance with
applicable requirements of Section 31 of the 1940 Act and rules thereunder
(or any successor rule), and in accordance with state securities laws
("Blue Sky laws") applicable to records kept with regard to the Plans.
Such records shall be made available to the Sponsor for inspection or audit
via magnetic tape or at the office of the Custodian at all reasonable
times.
(ii) The Custodian shall maintain a separate account for each
Planholder showing the number of Fund Shares (to three decimal places) and
the amount of cash, if any, to the credit of each account. The records of
such accounts shall be maintained separate and apart from the Custodian's
corporate records.
(l) Statements Furnished to Sponsor and Selling Broker-Dealer. The
Custodian will render statements to the Sponsor at such time and in such
form as may be agreed upon by the parties hereto, showing for each account
in which transactions were recorded during the specified period the number
of the account, the amount of the payment(s) received, the number of such
payment(s), the deductions made, the balance applied to the purchase of
Fund Shares, and the number of Shares purchased.
(m) Application of Dividends and Distributions. The Custodian will
receive all dividends and distributions on the Fund Shares held by it as
Custodian for each Planholder and, after deduction therefrom of (i) any
applicable charges and deductions set forth in Schedules 1 or 2 or
otherwise specified in the Plan Documents, and (ii) applicable taxes
required by law or elected by a Planholder to be withheld therefrom, will
with respect to each account for a Planholder, either apply the balance to
the purchase of Fund Shares, or distribute the balance to the Planholder as
he shall have elected in accordance with applicable Plan Documents. Any
dividend or distribution payable optionally in cash or in Fund Shares, may,
at the discretion of the Custodian, be accepted by the Custodian in cash or
in Fund Shares in such proportion as may be determined by the Custodian and
the Fund.
(n) Custodian Fees and Charges. The Custodian will perform the functions
required of it by the terms of this Agreement and will be entitled to
deduct the charges set forth in Schedule 2 applicable to the Plans and as
specified in the applicable Plan Documents which charges shall be deducted
from payments or the Planholders' accounts, as specified in applicable Plan
Documents, unless the Custodian is otherwise reimbursed by the Sponsor. In
connection with the foregoing:
(i) With respect only to Plan accounts established after October 31,
1982, for the calendar year commending January 1, 1982 and each calendar
year thereafter, the Custodian shall reimburse the Sponsor for any amounts
paid to it by the Sponsor in prior fiscal years pursuant to Schedule 2 of
this Agreement the extent that the actual expenses of the Custodian covered
by the Service Charge (as specified in Schedule 2) for that fiscal year are
less than $10.00 per Plan account, and will charge each Plan account the
amount of such reimbursement in an amount not to exceed the difference
between $10.00 and the actual expenses to be charged to a Plan account for
that fiscal year.
(ii) If the amount of deductions from the accounts of Planholders as
provided in Schedule 2 are not sufficient to reimburse the Custodian for
the charges, fees, and expenses specified in Schedule 2, the Sponsor shall
pay to the Custodian the difference between the total amount of all such
charges, fees, and expenses, and the amounts which the Custodian deducted.
(iii) In case of default by the Sponsor in the performance of any
administrative service relating to the custodianship described in this
Agreement required of it under the provisions of Section 3(c) below, or at
the election of the Custodian, the Custodian will perform such service for
a consideration payable by or from the account of the Planholders. Such
consideration shall not be in excess of the amount provided for in this
Agreement, including schedules hereto.
(iv) Any deductions under the terms of this provision shall be made in
accordance with the terms of Section 26(a)(2) of the 1940 Act and any rules
thereunder (or any successor rules).
(o) Purchases of Fund Shares. All purchases of Fund Shares by the
Custodian pursuant to the provisions of this Agreement shall be made from
the Fund, or its issuing agent (or any underwriter of Fund Shares with
which the Sponsor may contract for such purpose) at the net asset value of
the Fund at the time of purchase as calculated by Fidelity Service Co. (or
any successor thereto) in accordance with the terms of the Fund's then
current prospectus. The Custodian shall be entitled to presume
conclusively that the price set by Fidelity Service Co. (or any successor
thereto) with respect to any Fund Shares purchased by the Custodian is said
net asset value. Funds received by the Custodian to be applied to the
purchase of Fund Shares shall, unless impracticable, be applied to such
purchase within two business days after the receipt by the Custodian of
said payments, dividends or distributions.
(p) Sales of Fund Shares. All sales of Fund Shares by the Custodian, as
agent, pursuant to the provisions of this Agreement, shall be made by
deposit of the shares with the Fund or its duly authorized agent together
with a request that the shares be repurchased at the net asset value of the
Fund at the time of sale as calculated by Fidelity Service Co. (or any
successor thereto) in accordance with the terms of the Fund's then current
prospectus, so long as the privilege of redemption at net asset value is
available to holders of Fund Shares as set forth in the Fund's then current
prospectus. Whenever pursuant to the provisions of this Agreement Fund
Shares are to be sold or redeemed, the Custodian shall first withdraw the
Fund Shares from the custodianship hereunder and, as agent for the
Planholder, shall sell or redeem said shares by depositing them for
repurchase as set forth above. Anything herein to the contrary
notwithstanding, (i) the Custodian, as agent for the Planholders, is
authorized to offset sales and purchases for all of the Planholders on a
business day and, accordingly, to place with the Fund or its agent a net
purchase order for the excess of purchases over sales, or a net sale order
for the excess of sales over purchases; and (ii) any such sales of Fund
Shares in connection with a Plan termination, a withdrawal of shares by a
Planholder, or an exercise of an exchange privilege by a Planholder, shall
be effected by the Custodian in accordance with the terms and conditions of
applicable Plan Documents.
(q) Holding Fund Shares. The Custodian shall have possession of, and
shall segregate and hold all of the securities and other properties in
which the funds of the Planholders of each Series are invested, all funds
held for such investment, any redemption or other special funds to the
Planholders, and all income upon and accretion to and proceeds of such
properties and funds subject only to the deductions specified in this
Agreement or in the Plan Documents, unless and until distributed to the
Planholders in accordance with the terms of applicable Plan Documents. The
Custodian is authorized to commingle all cash or other property and all
Fund Shares held by it hereunder for a Series, but only with other cash,
property or Fund Shares held by it hereunder for such Series, and to cause
any certificates for Fund shares to be registered in its name as Custodian
or in the name of its nominees. Except as provided below with respect to
bank accounts, nothing herein shall be construed as permitting the
Custodian to commingle the Fund Shares, securities or other properties of
Plans of one Series with plans other than the Plans of the same Series.
All monies deposited with or received by the Custodian hereunder shall be
held by it without interest as part of the custodianship until required to
be disbursed in accordance with the provisions of this Agreement or of the
Plans. The Custodian shall open and maintain separate bank accounts in the
banking department of the Custodian in the name and for the benefit of each
Series of the Plans, subject only to the draft order of the Custodian or
order of the Custodian acting pursuant to the terms of this Agreement, and
shall hold in such bank accounts all monies received by the Custodian from
and for the account of each Series of the Plans. The Custodian may
aggregate or commingle the bank accounts of each Series as instructed by
the Sponsor.
(r) Reports and Other Mailings to Planholders. The Custodian will:
(i) Upon the instructions of the Sponsor or the Fund, mail to all
Planholders such prospectuses, annual reports, semi-annual reports,
quarterly reports and/or other periodic financial reports, dividend or
other account statements, tax notices, notices of meetings and proxy
soliciting material as are available and the mailing of which is required
by applicable law or regulation. The cost of the above, including postage,
shall be reimbursed to the Custodian by the Sponsor. It is understood and
agreed that the services performed by the Custodian hereunder are separate
and apart from the services performed under Section 2(n) above and Section
2(s) below.
(ii) Prepare and file such reports and returns as are required by law
or regulation to be prepared and filed by the Custodian to permit its
custodianship under the Agreement to continue in operation.
(s) IRS Reporting. The Custodian shall furnish to the Internal Revenue
Service and to each Planholder all required returns relating to dividends
or other distributions to such Planholder's account(s) for federal income
tax reporting purposes.
(t) Delegation of Duties. The Custodian assumes primary responsibility
for the preparation and filing of all such reports or documents as are
required of it as Custodian by law or regulation, but may delegate the
performance of such duties to the Sponsor. Upon the written request of the
Sponsor, the
Custodian will delegate any of its functions described in this Section 2 or
in Section 3 of this Agreement, provided that such delegation is not
inconsistent with Sections 26 or 27 of the 1940 Act. In addition, the
Custodian may delegate its duties under this Agreement to its affiliate,
Boston Financial Data Services, Inc. ("BFDS"), a transfer agent registered
under Section 17A(c)(2) of the 1934 Act, provided that such delegation is
not inconsistent with Sections 26 or 27 of the 1940 Act. In the event that
the Custodian delegates one or more of its duties hereunder to BFDS, the
Custodian shall remain responsible for the acts and omissions of BFDS as it
is for its own acts and omissions hereunder.
3. SPONSOR'S FUNCTIONS.
(a) General Functions. The Sponsor agrees to perform the functions
required of it by the terms hereof and of the Plan Documents. The Sponsor
will use its best efforts to distribute Plans, maintain adequate office
facilities and management staff, and keep current records. The Sponsor
assumes full responsibility for the preparation, contents, and distribution
of the current Plan prospectus and the current Fund prospectus, for
complying with all applicable requirements of the 1933 Act, the 1940 Act,
and any other applicable laws, rules and regulations of governmental
authorities having jurisdiction. With respect to any duties for which the
Custodian assumes primary responsibility but which it delegates to the
Sponsor, the Sponsor covenants and agrees to take all action, and not to
omit any action, necessary to carry out such duties, and agrees to furnish
to the Custodian, upon request, evidence thereof satisfactory to the
Custodian and its counsel. The Sponsor will use its best efforts to make
shares of the Fund available for purchase by the Custodian at net asset
value.
(b) Issuance of New Plans. The Sponsor will require each selling
broker-dealer to agree to forward to the Custodian upon the sale of each
Plan the application for such Plan, the check, funds (by wire or Automatic
Clearinghouse (ACH) transfer) or order for the payment of money
representing the initial payment under such Plan, and any required
Designation of Beneficiary.
(c) Statements Furnished to Custodian. The Sponsor will furnish to the
Custodian and file to the extent required by law on behalf of the
Custodian:
(i) As soon as available, a copy of each audit report and other
financial statements relating to the custodianship of the Plans and
sufficient reports and other documents required to be mailed to Planholders
under Section 2(r)(i) and (ii) above.
(ii) Not less than 20 calendar days prior to the due date thereof, all
Federal and State income tax returns, and all other tax returns, if any,
required by law to be filed by the Custodian with respect to its
custodianships hereunder, prepared in form for execution and filing,
together with advice concerning the proper allocation of expenses and other
items among the Planholders. Such tax returns shall be filed by the
Sponsor on behalf of the Custodian.
(iii) Any instructions received by the Sponsor from Planholders as a
result of the distribution of proxy soliciting material or otherwise in
connection with the voting of Fund Shares held by the Custodian. The
Custodian will vote those Fund Shares for which instructions have been
received from Planholders only in accordance with such instructions. The
Custodian will vote Fund Shares for which instructions have not been
received such that the total votes cast by the Custodian in favor,
abstaining, or opposed on any matter submitted to Fund shareholders,
including the election of Directors, will be in the same proportion as the
votes in favor, abstaining, or opposed cast by the Custodian with respect
to the Fund Shares for which instructions have been received.
(iv) Draft copies of all literature, plans, prospectuses, printed
matter and other material which contain any reference to the Custodian,
except material which is merely circulated among or sent to employees,
stockholders, or representatives of the Sponsor and except for
correspondence in the ordinary course of business which refers in accurate
terms to the Custodian's functions under the Plans. The Sponsor agrees
that none of the documents specified in this clause shall be reproduced in
final form or distributed without the Custodian's approval (which in each
instance must be given or denied within fifteen business days and which
will not in any instance be unreasonably withheld) of the Custodian.
(v) As soon as possible after January first of each year, printed
forms for reporting distributions to Planholders for income tax purposes,
unless the Custodian furnishes its own form.
(vi) As promptly as possible after receiving notice of the declaration
of dividends and distributions or the fixing of any record date, notice
thereof.
(d) Plans in Default. Upon receipt from the Custodian of a monthly
statement of Planholders specifying those Plans in current default on
payments, the Sponsor will require the selling broker-dealer to promptly
endeavor to have said Planholders remedy their defaults.
(e) Planholder Inquiries. The Sponsor and the Custodian will respond
promptly to each Planholder inquiry received by the Sponsor and Custodian,
respectively, to the extent that the Sponsor or Custodian, as applicable,
can respond to such inquiry. In the event that any such inquiry cannot be
responded to, the party receiving such inquiry will refer the inquiry to
other party to this Agreement.
(f) Plan Cancellations. In the event that the Sponsor receives from the
Custodian a notice of Plan cancellation by a Planholder, and such
cancellation is subject under applicable law and Plan Documents to a refund
of a portion of the Creation and Sales Charge previously imposed under the
Plan, the Sponsor shall transmit funds to the order of the Custodian in an
amount equal to the refundable amount calculated in accordance with
applicable law and Plan Documents.
4. SUBSTITUTION.
(a) Procedures and Expenses. In the event that the Sponsor substitutes
shares of another investment medium for shares of the Fund in accordance
with the procedures set forth in applicable Plan Documents, all required
notices shall be prepared and mailed by the Sponsor. In connection with
such substitution, the Custodian is authorized to charge against the
account of a Planholder such Planholder's pro rata share of the expenses
(including tax liability) incurred by the Custodian, BFDS as the agent of
the Custodian, or the Sponsor, and to pay over to BFDS or to the Sponsor,
as applicable, the amount of such charge attributable to expenses incurred
by BFDS or the Sponsor, respectively, in connection with the substitution.
The Sponsor and the Custodian shall furnish to one another, and make
available to Planholders upon request, a detailed statement itemizing their
respective expenses.
(b) Purchases of Fund Shares. In the event of a substitution of shares as
described in Section 4(a) above, any purchases of fund shares associated
with such substitution shall be made at the net asset value or at the
liquidation value of such fund shares (whichever term the issuer of such
fund shares uses) as determined by the issuer or the issuer's agent thereof
as of the date such substitution is effected.
(c) Effect of Substitution. In the event of any substitution of shares as
described in Section 4(a) above, the term "Fund" as used throughout this
Agreement shall be deemed to include the open-end management investment
company the shares of which have been thereby substituted for Fund Shares;
and the term "Fund Shares" as used throughout this Agreement shall be
deemed to include the shares (or comparable interests) in the open-end
management company the shares of which have been substituted for Fund
Shares.
5. INDEMNIFICATION.
The Sponsor, its successors and assigns, shall at all times fully
indemnify and hold harmless the Custodian, its successors and assigns, from
any and all liability, claims, demands, actions, suits, cost or expense of
any nature as the same may arise or be made against or be incurred by the
Custodian from the failure of the Sponsor to comply with any law, rule,
regulation or order of the United States, any State or any other
jurisdiction, governmental authority, body or board having jurisdiction,
relating to the sale, registration or qualification of the Plans or any of
them, or the securities sold in connection therewith. The Sponsor also
agrees to indemnify the Custodian for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of the Custodian, arising out of or in connection with the acceptance
hereof or the performance of its duties hereunder, as well as the costs and
expenses of defending against any claim or liability in the premises,
provided that no claim against the Custodian which might be subject to the
foregoing indemnification provisions shall be confessed, settled or
compromised by the Custodian without the Custodian first having given
fifteen days notice in writing to the Sponsor of the material facts, and
provided further that the Sponsor shall have the right upon written demand
delivered to the Custodian within fifteen days following the date of such
notice to contest or defend such claim in the name of the Custodian.
6. QUALIFICATIONS AND RESIGNATION OF CUSTODIAN.
(a) Capital. The Custodian and any successor Custodian shall be a bank or
trust company having at all times an aggregate capital, surplus and
undivided profits in excess of $2,000,000. The Custodian certifies that it
is now, and agrees that so long as it acts as Custodian under any Plan will
continue to be, so qualified.
(b) Holding of Monies. All monies received by the Custodian under or
pursuant to any provision of this Agreement or any Plan or other instrument
referred to herein shall be held by the Custodian as a deposit for the
purposes for which they were paid or are held, and the Custodian shall not
be under any liability for interest on any such monies, except such as it
may agree to pay thereon.
(c) Duties of the Custodian. The Custodian shall be obligated to perform
such duties and only such duties as are specifically set forth in this
Agreement and Plan Documents, and no implied obligations shall be read into
this Agreement or Plan Documents against the Custodian, and in the absence
of bad faith on its part the Custodian may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any instruments, certificates, opinions or other writings
furnished to the Custodian and conforming to the requirements hereof. The
Custodian shall not be responsible in any manner whatsoever for the
correctness of the recitals (as distinguished from particular covenants) of
the Custodian herein, or recitals in Plan Documents made solely by the
Sponsor. The Custodian makes no representations as to Plan Documents or
the securities issued in connection therewith, or the validity thereof, and
the Custodian shall incur no liability or responsibility with respect to
any such matters. The Custodian shall not be responsible for any actions
or inactions of, and may rely on information, records, documents or
services (including functions performed by the Sponsor under Section 2(t)
of this Agreement) that have been taken or have failed to be taken,
prepared, maintained or performed by, the Sponsor or any other person
authorized by the Sponsor on behalf of the Custodian, the Sponsor or the
Plans, including but not limited to any previous Sponsor or Custodian of
the Plans.
(d) Additional Capacities. The Custodian may, at the same time it acts
hereunder, act in any one or more of the following capacities: as
registrar, transfer agent and custodian for the issuer of Fund Shares, as
agent for the parties or for the Planholders or the Sponsor, or the issuer
of Fund Shares, and in other capacities customary for banks on behalf of
these persons and of others dealing with them.
(e) Advice of Counsel; Liabilities. The Custodian may consult with legal
counsel to be selected with reasonable care by the Custodian (who may be
counsel to the Sponsor) and the Custodian shall not be liable for any
action taken, omitted or suffered by it in good faith in accordance with
the advice of such counsel. Whenever in the performance of its duties
hereunder the Custodian shall deem it necessary or desirable, a matter may
be proved or established by a certificate signed by any two officers of the
Sponsor and delivered to the Custodian, and such certificate shall be full
warrant what is this to the Custodian for any action taken, suffered or
omitted by or in reliance thereon. The Custodian may, in the absence of
bad faith on its part, rely and shall be protected in acting upon any
request, letter or transmittal, certificate, opinion of counsel, statement,
instrument, report, notice, consent, order, Plan or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties. The Custodian shall be liable only for its
wilful misconduct or gross negligence.
(f) Resignation. The Custodian may resign at any time if, but only if,
either (I) the securities and other property in which the funds of the
Planholders are invested have been completely liquidated and the proceeds
of such liquidation distributed to the Planholders, or (II) a successor
Custodian meeting with the reasonable approval of the Sponsor and having
the qualifications specified in Section 6(a) above has been designated by
the resigning Custodian or the Sponsor and has accepted such custodianship.
7. TERMINATIONS.
(a) Termination of Plan by Planholder. A Plan may be terminated by the
Planholder in accordance with the provisions of applicable Plan Documents.
(b) Termination of Plan by Sponsor or Custodian. Neither the Sponsor nor
the Custodian may terminate a Plan until such time as is specified in
applicable Plan Documents, unless and to the extent that conditions
specified in Plan Documents applicable to such Plan and permitting such
termination have been satisfied. If a Plan is in a state of default or
delinquency, as defined in applicable Plan Documents, either the Sponsor or
the Custodian may terminate such Plan in the manner provided in such Plan
Documents.
(c) Plan Termination Procedures. In connection with the termination of
any Plan in accordance with the provisions of applicable Plan Documents and
this Section 7, the Custodian will furnish the Planholder and the Sponsor
with a notice of termination showing all changes in such Planholder's
account since the date of the last previous statement issued by the
Custodian, and the Planholder shall thereafter have no further claim
against the Custodian, except as may be set forth in such statement, and
shall not be entitled to any further accounting. In the event of
termination of a Plan, liquidation of the Planholder's account and final
payment to said Planholder shall be effected by the Custodian in accordance
with applicable Plan Documents.
(d) Return of Certificate Upon Termination of Plan. If a Certificate was
issued in connection with such terminated Plan and the Planholder fails to
surrender his Certificate within a period of sixty days after the mailing
of the notice of termination referred to above, the Custodian may in its
discretion mail to such Planholder at his address noted upon its records,
its check for all cash standing to his credit and such Fund Shares, if any,
which have been transferred to his name; and such Planholder shall have no
further rights hereunder and such Certificate shall be null and void and
shall convey no rights whatsoever except that if such check or Fund Shares
are returned to the Custodian undelivered, the Custodian shall continue to
hold the assets for the benefit of the Planholder subject only to escheat
laws.
(e) Termination by Custodian of Custodian's Obligation.
(i) The obligation of the Custodian to accept any new Plan for
custodianship hereunder shall terminate if the Sponsor (I) fails to
maintain an effective registration statement under the Securities Act of
1933, as amended, in connection with the issuance of the Plans; (II) fails
to cause the requirements of the 1940 Act to remain satisfied in connection
with the issuance of the Plans; (III) has either its membership in the
National Association of Securities Dealers, Inc., or its registration as a
broker-dealer under the Securities Exchange Act of 1934, as amended,
cancelled or revoked, or suspended for more than 120 days for any cause
involving failure on the part of an executive officer or director to follow
ethical standards or serious neglect of his duty to require representatives
to follow such standards; (IV) defaults in the performance of any other
duty, covenant or agreement contained in this Agreement, and such default
shall remain unremedied for 30 days after written notice thereof shall have
been given to the Sponsor by the Custodian (except with respect to item
III, for which such remedy period shall be 120 days), or (V) shall without
the approval of the Custodian change the form or content of the Plans in
any way materially affecting the rights or duties of the Custodian.
(ii) Notwithstanding the provisions of Section 7(e)(i) above, the
Custodian may terminate its obligation to accept any new Plans for
custodianship hereunder by giving written notice to the Sponsor at least 90
days prior to the expiration of the third year from the date of this
Agreement, or at least 30 days prior to the expiration of any further
two-year period. In the event that the Custodian does not so terminate its
obligation to accept any new Plans for custodianship hereunder as of the
expiration of three years from the date of this Agreement, then this
Agreement shall be automatically renewed for further periods of two years
each with the right on the part of the Custodian to terminate its
obligations under the Agreement by giving written notice at least 30 days
prior to the expiration of any further two-year period.
(f) Replacement of Custodian by Sponsor; Assumption of Administrative
Functions by Sponsor. The Sponsor shall have the right, by giving written
notice to the Custodian at least 90 days prior to the expiration of this
three-year Agreement, or at least 90 days prior to the expiration of any
two year extension period described in Section 7(e)(ii) above, to replace
the Custodian with any other bank or trust company having the requisite
qualifications as the Custodian, both with respect to any Plans issued and
outstanding at the time of such replacement, and under any Plans issued
after such time, whether such Plans are otherwise identical with those
issued under this Agreement or not. The Sponsor shall further have the
right, by giving written notice to the Custodian 90 days prior to the
event, to assume such administrative functions with respect to Plans as may
be mutually agreed upon by it and the Custodian.
(g) Upon such termination the Sponsor shall bear the cost of all
reasonable out-of-pocket expenses associated with the movement of materials
and records. Additionally, the Custodian reserves the right to charge for
any other reasonable expenses associated with such termination, provided
that the Custodian advises the Sponsor of such additional charges in
advance.
8. MISCELLANEOUS.
(a) This Agreement shall not be assigned by either of the parties hereto
without the prior consent in writing of the other party. Notwithstanding
the foregoing, (I) the Custodian shall delegate responsibilities under this
Agreement to the extent so directed by the Sponsor in accordance with
Section 2(t) of this Agreement; and (II) each party to this Agreement may
enter into such agreements with third parties as are deemed necessary by
such party to perform such party's obligations under this Agreement or
under the Plans, provided that written acknowledgement of such third party
agreements is obtained from the other party to this Agreement.
(b) All communications provided hereunder shall be in writing sent by
first-class mail or delivered to the respective parties as follows:
Fidelity Distributors Corporation State Street Bank and
00 Xxxxxxxxxx Xxxxxx Trust Company
Xxxxxx, XX 00000 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
provided that either party may by notice given in accordance herewith
specify a different address for the purpose hereof.
(c) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which shall be deemed one and
the same instrument.
(d) An executed copy of this Agreement and all amendments thereto shall be
kept on file by the Custodian and shall be open to inspection by any
Planholder at any time during the business hours of the Custodian.
(e) This Agreement, including but not limited to Schedules 1 and 2 hereto,
may be amended from time to time as mutually agreed by the parties hereto
in writing. Notwithstanding the foregoing, this Agreement shall not be
amended in such a manner as to affect adversely the rights and privileges
of any Planholder without first obtaining his written consent.
(f) All references herein to Schedules 1 and 2 hereto shall be deemed to
refer to Schedules 1 and 2 attached to this Agreement which are hereby
expressly made a part thereof; provided, however, that in the case of Plans
issued prior to the effective date of this Agreement of which the Custodian
has notice, references to Schedules 1 and 2 shall be deemed to refer to
such schedules as in effect at the time of such issuance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year above written.
FIDELITY DISTRIBUTORS CORPORATION
By_________________________________
ATTEST: Date: ____________________________
___________________________
Date: ____________________ STATE STREET BANK AND TRUST COMPANY
By_________________________________
ATTEST: Date: ____________________________
___________________________
Date: ____________________
EXHIBIT A
PLAN CERTIFICATE
EXHIBIT B
PLAN CERTIFICATE
EXHIBIT C
FORM OF CONFIRMATION
EXHIBIT D
FORM OF REMINDER NOTICE
EXHIBIT E
FORM OF PAST DUE PAYMENT NOTICE
EXHIBIT F
FORM OF REFUND NOTICE
EXHIBIT G
FORM OF TERMINATION NOTICE
