Exhibit h(1)
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 24th day of September, 1999 between
Domini Institutional Trust (the "Fund"), a Massachusetts business trust having
its principal place of business at 00 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 and FIRST DATA INVESTOR SERVICES GROUP, INC. ("Investor Services
Group"), a Massachusetts corporation with principal offices at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
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WHEREAS, the Fund is authorized to issue Shares in separate series,
with each such series representing interests in a separate portfolio of
securities or other assets.
WHEREAS, the Fund initially intends to offer Shares in those
Portfolios identified in the attached Exhibit 1, each such Portfolio, together
with all other Portfolios subsequently established by the Fund shall be subject
to this Agreement in accordance with Article 18;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint
Investor Services Group as its transfer agent, dividend disbursing agent and
agent in connection with certain other activities and Investor Services Group
desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and Investor Services Group agree as follows:
Article 1 Definitions
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1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any officer of
the Fund; or (ii) any person, whether or not such person is an officer or
employee of the Fund, in each case, only if such officer or person has been
duly authorized to give Oral Instructions or Written Instructions on behalf
of the Fund as indicated in writing to Investor Services Group from time to
time.
(c) "Board Members" shall mean the Directors or Trustees of the
governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or Board of
Trustees of the Fund, as the case may be.
(e) "Commission" shall mean the Securities and Exchange Commission.
(f) "Custodian" refers to any custodian or subcustodian of securities
and other property which the Fund may from time to time deposit, or cause
to be deposited or held under the name or account of such a custodian
pursuant to a Custodian Agreement.
(g) "1934 Act" shall mean the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder, all as amended from time
to time.
(h) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
(i) "Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by Investor Services Group from an
Authorized Person;
(j) "Prospectus" shall mean the most recently dated Fund Prospectus
and Statement of Additional Information, including any supplements thereto
if any, which has become effective under the Securities Act of 1933 and the
1940 Act.
(k) "Shares" refers collectively to such shares of capital stock or
beneficial interest, as the case may be, or class thereof, of the Fund as
may be issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of the Fund.
(m) "Written Instructions" shall mean a written communication signed
by an Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a manually
executed original or other process.
Article 2 Appointment of Investor Services Group
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2.1 Subject to the terms of this Agreement, the Fund hereby appoints
and constitutes Investor Services Group as its sole and exclusive transfer agent
and dividend disbursing agent for Shares of the Fund and as shareholder
servicing agent for the Fund and Investor Services Group hereby accepts such
appointments and agrees to perform the duties hereinafter set forth.
Article 3 Duties of Investor Services Group
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3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance, transfer
and redemption or repurchase (including coordination with the
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Custodian) of Shares of the Fund, as more fully described in the written
schedule of Duties of Investor Services Group annexed hereto as Schedule A
and incorporated herein, and in accordance with the terms of the Prospectus
of the Fund, applicable law and the procedures established from time to
time between Investor Services Group and the Fund. Notwithstanding the
foregoing or anything in this Agreement to the contrary, in no event shall
the Fund make any modifications to the prospectus of the Fund or adopt any
policies which in either case affect materially the obligations or
responsibilities of Investor Services Group hereunder without the prior
written approval of Investor Services Group, which approval shall not be
unreasonably withheld or delayed.
(b) Recording the issuance of Shares and maintaining pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of Shares of the
Fund which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. Investor Services Group shall provide the Fund on
a regular basis with the total number of Shares which are authorized and
issued and outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund.
(c) In addition to performing the foregoing services, the Fund hereby
engages Investor Services Group as a service provider with respect to the
Print/Mail Services set forth in Schedule B for the fees also identified in
Schedule B. Investor Services Group agrees to perform the services and its
obligations subject to the terms and conditions of this Agreement.
(d) Notwithstanding any of the foregoing provisions of this Agreement,
Investor Services Group shall be under no duty or obligation to inquire
into, and shall not be liable for: (i) the legality of the issuance or
sale of any Shares or the sufficiency of the amount to be received
therefor; (ii) the legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor; (iii) the legality of the
declaration of any dividend by the Board of Directors, or the legality of
the issuance of any Shares in payment of any dividend; or (iv) the legality
of any recapitalization or readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to Investor Services
Group in writing those transactions and assets to be treated as exempt from blue
sky reporting for each State and (ii) verify the establishment of transactions
for each State on the system prior to activation and thereafter monitor the
daily activity for each State. The responsibility of Investor Services Group
for the Fund's blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky compliance by the Fund
and the reporting of such transactions to the Fund and its agents as provided
above.
3.3 In addition to the duties set forth herein, Investor Services
Group shall perform such other duties and functions, and shall be paid such
amounts therefor, as may from time to time be agreed upon in writing between the
Fund and Investor Services Group.
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3.4 Investor Services Group agrees to provide the services described
herein in accordance with the Performance Standards annexed hereto as Exhibit 1
of Schedule A and incorporated herein (the "Performance Standards"). Such
Performance Standards may be amended from time to time upon written agreement by
the parties.
Article 4 Recordkeeping and Other Information
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4.1 Investor Services Group shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule A
in accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Where applicable, such records
shall be maintained by Investor Services Group for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Fund and will be preserved, maintained
and made available in accordance with such section, and will, at the expense of
the Fund, be surrendered promptly to the Fund on and in accordance with the
Fund's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Fund, Investor Services Group will endeavor to notify
the Fund of such request and secure Written Instructions as to the handling of
such request. Investor Services Group reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to comply with such request.
Article 5 Fund Instructions
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5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund. Investor Services Group will also have no liability when
processing Share certificates which bear the proper signature of Investor
Services Group and which it reasonably believes to bear the proper manual or
facsimile signatures of the officers of the Fund.
5.2 At any time, Investor Services Group may request Written
Instructions from the Fund and may seek advice from legal counsel for the Fund
with respect to any matter arising in connection with this Agreement, and it
shall not be liable for any action taken or not taken or suffered by it in good
faith in accordance with such Written Instructions or in accordance with the
opinion of counsel for the Fund. Written Instructions requested by Investor
Services Group will be provided by the Fund within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is an
Authorized Person. The Fund agrees that all Oral
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Instructions shall be followed within one business day by confirming Written
Instructions, and that the Fund's failure to so confirm shall not impair in any
respect Investor Services Group's right to rely on Oral Instructions.
Article 6 Compensation
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6.1 The Fund will compensate Investor Services Group for the
performance of its obligations hereunder in accordance with the fees and charges
set forth in the written Fee Schedule annexed hereto as Schedule B and
incorporated herein.
6.2 In addition to those fees and charges referenced in Section 6.1
above, the Fund agrees to pay for such out-of-pocket expenses incurred by
Investor Services Group in the performance of its duties hereunder. Out-of-
pocket expenses shall include, but shall not be limited to, the items specified
in the written schedule of out-of-pocket expenses annexed hereto as Schedule D
and incorporated herein. Unspecified out-of-pocket expenses shall be limited to
those out-of-pocket expenses reasonably incurred by Investor Services Group at
the request, or with the consent, of the Fund in the performance of its
obligations hereunder.
6.3 The Fund agrees to pay all fees, charges and out-of-pocket
expenses within fifteen (15) business days following the receipt of the
respective invoice for services rendered prior to or on the date of such
invoice. In addition, with respect to all invoices issued pursuant to this
Agreement, Investor Services Group may charge a service fee equal to the lesser
of (i) one and one half percent (1 1/2%) per month or (ii) the highest interest
rate legally permitted on any past due invoiced amounts, provided however, the
foregoing service fee shall not apply if the Fund in good faith legitimately
disputes any invoice amount in which case the Fund shall do the following within
thirty (30) days of the postmark date: (a) pay Investor Services Group the
undisputed amount of the invoice; and (b) provide Investor Services Group a
detailed written description of the disputed amount and the basis for the Fund's
dispute with such amount. In addition, the Fund shall cooperate with Investor
Services Group in resolving disputed invoice amounts and then promptly paying
such amounts determined to be due.
6.4 The Fund acknowledges that the fees that Investor Services Group
charges the Fund under this Agreement reflect the allocation of risk between the
parties, including the disclaimer of warranties in Section 9.3 and the
limitations on liability and exclusion of remedies in Section 11.2 and Article
12. Modifying the allocation of risk from what is stated here would affect the
fees that Investor Services Group charges, and in consideration of those fees,
the Fund agrees to the stated allocation of risk.
Article 7 Documents
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7.1 In connection with the appointment of Investor Services Group,
the Fund shall, on or before the date this Agreement goes into effect, but in
any case within a reasonable period of time for Investor Services Group to
prepare to perform its duties hereunder, deliver or cause to be delivered to
Investor Services Group the documents set forth in the written schedule of Fund
Documents annexed hereto as Schedule D.
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Article 8 Transfer Agent System
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8.1 Investor Services Group shall retain title to and ownership of
any and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by Investor Services
Group in connection with the services provided by Investor Services Group to the
Fund herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to the Fund a limited
license to the Investor Services Group System for the sole and limited purpose
of having Investor Services Group provide the services contemplated hereunder
and nothing contained in this Agreement shall be construed or interpreted
otherwise and such license shall immediately terminate with the termination of
this Agreement.
8.3 In the event that the Fund, including any affiliate or agent of
the Fund or any third party acting on behalf of the Fund is provided with direct
access to the Investor Services Group System for either account inquiry or to
transmit transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access capability shall be
limited to direct entry to the Investor Services Group System by means of on-
line mainframe terminal entry or PC emulation of such mainframe terminal entry
and any other non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
Article 9 Representations, Warranties and Covenants
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9.1 Investor Services Group represents and warrants to the Fund and
covenants and agrees that:
(a) it is a corporation duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory agency as a
transfer agent and such registration will remain in effect for the duration
of this Agreement;
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement;
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(f) its systems and facilities, and those of its material vendors,
will be able to properly recognize and perform date-sensitive functions
involving any date after December 31, 1999;
(g) it shall maintain insurance which covers such risks and is in such
amounts, with such deductibles and exclusions, sufficient for compliance by
Investor Services Group with all requirements of law and sufficient for
Investor Services Group to perform its obligations under this Agreement;
and all such policies are in full force and effect; and are with
financially sound and reputable insurance companies, funds or underwriters;
(h) all shareholder accounts shall be maintained on the Surpas system
until converted to the FSR system (which shall not occur until the Fund is
satisfied that the FSR system can support the shareholders records and
data) and shall not be converted to any other system without the prior
written consent of the Fund, which consent shall not be unreasonably
withheld or delayed; and
(i) in the event of the termination of this Agreement, Investor
Services Group shall provide reasonable cooperation to the Fund in the
movement of all records (in all media) and materials of the Fund and the
conversion of the shareholder accounts to a successor transfer agent.
9.2 The Fund represents and warrants to Investor Services Group that:
(a) it is duly organized, existing and in good standing under the laws
of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Article of
Incorporation and By-Laws to enter into this Agreement;
(c) all proceedings required by said Articles of Incorporation, By-
Laws and applicable laws have been taken to authorize it to enter into this
Agreement;
(d) a registration statement under the Securities Act of 1933, as
amended, and the 1940 Act on behalf of the Fund is currently effective and
will remain effective, and all appropriate state securities law filings
have been made and will continue to be made, with respect to all Shares of
the Fund being offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and non-
assessable and when Shares are hereafter issued in accordance with the
terms of the Fund's Articles of Incorporation and its Prospectus, such
Shares shall be validly issued, fully paid and non-assessable.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, INVESTOR SERVICES GROUP DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES
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REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES PROVIDED
UNDER THIS AGREEMENT. INVESTOR SERVICES GROUP DISCLAIMS ANY WARRANTY OF TITLE OR
NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
Article 10 Indemnification
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10.1 Investor Services Group shall not be responsible for and the Fund
shall indemnify and hold Investor Services Group harmless from and against any
and all claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind (a "Claim") which
may be asserted against Investor Services Group or for which Investor Services
Group may be held to be liable arising out of or attributable to any of the
following:
(a) any actions of Investor Services Group required to be taken
pursuant to this Agreement unless such Claim resulted from a negligent act
or omission to act or bad faith by Investor Services Group in the
performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or reasonable
use of information, data, records and documents (including but not limited
to magnetic tapes, computer printouts, hard copies and microfilm copies)
received by Investor Services Group from the Fund, or any authorized third
party acting on behalf of the Fund, including but not limited to the prior
transfer agent for the Fund, in the performance of Investor Services
Group's duties and obligations hereunder;
(c) the reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund;
(d) the offer or sale of shares in violation of any requirement under
the securities laws or regulations of any state that such shares be
registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of
such shares in such state; and
(e) The Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's negligence or
misconduct or the breach of any representation or warranty of the Fund made
herein.
10.2 The Fund shall not be responsible for and Investor Services Group
shall indemnify and hold the Fund harmless from and against any and all Claims
which may be asserted against the Fund or for which the Fund may be held to be
liable which result from the negligence, bad faith or willful misconduct of
Investor Services Group in the performance of its duties hereunder.
10.3 In any case in which the either party (the "Indemnifying Party") may
be asked to indemnify or hold the other (the "Indemnified Party") harmless, the
Indemnified Party will notify
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the Indemnifying Party promptly after identifying any situation which it
believes presents or appears likely to present a claim for indemnification
against the Indemnifying Party although the failure to do so shall not prevent
recovery by the Indemnified Party and shall keep the Indemnifying Party advised
with respect to all developments concerning such situation. The Indemnifying
Party shall have the option to defend the Indemnified Party against any Claim
which may be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel chosen
by the Indemnifying Party and reasonably satisfactory to the Indemnified Party,
and thereupon the Indemnifying Party shall take over complete defense of the
Claim and the Indemnified Party shall sustain no further legal or other expenses
in respect of such Claim. The Indemnified Party will not confess any Claim or
make any compromise in any case in which the Indemnifying Party will be asked to
provide indemnification, except with the Indemnifying Party's prior written
consent. The obligations of the parties hereto under this Article 10 shall
survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement must be made prior
to the earlier of:
(a) one year after the Fund or Investor Services Group, as applicable,
becomes aware of the event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this Agreement or
the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which the Fund's indemnification obligations pursuant to this
Article 10 may apply.
Article 11 Standard of Care
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11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused by
Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees, subcontractors or agents.
11.2 Notwithstanding any provision in this Agreement to the contrary and
except with respect to the gross negligence of Investor Services Group, or the
breach by Investor Services Group of section 14 of the Agreement, Investor
Services Group's cumulative liability (to the Fund) for all losses, claims,
suits, controversies, breaches, or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement) and
regardless of the form of action or legal theory shall not exceed the lesser of
(i) $1,500,000 or (ii) the fees received by Investor Services Group for services
provided under this Agreement during the twelve months immediately prior to the
date of such loss or damage. Fund understands the limitation on Investor
Services Group's damages to be a reasonable allocation of risk and Fund
expressly consents with respect to such allocation of risk. In allocating risk
under the
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Agreement, the parties agree that the damage limitation set forth above shall
apply to any alternative remedy ordered by a court in the event such court
determines that sole and exclusive remedy provided for in the Agreement fails of
its essential purpose.
11.3 Neither party may assert any cause of action against the other party
under this Agreement that accrued more than two (2) years prior to the filing of
the suit (or commencement of arbitration proceedings) alleging such cause of
action.
11.4 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
Article 12 Consequential Damages
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NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL INVESTOR SERVICES GROUP, THE FUND, THEIR AFFILIATES OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY
PROVISION OF THIS AGREEMENT OR FOR ANY ACT OR FAILURE TO ACT HEREUNDER UNDER ANY
THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE
PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER
PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13 Term and Termination
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13.1 This Agreement shall be effective on the date first written above and
shall continue for a period of four (4) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term and each Renewal Term, this
Agreement shall automatically renew for successive terms of one (1) year
("Renewal Terms") each, unless the Fund or Investor Services Group provides
written notice to the other of its intent not to renew. Such notice must be
received not less than ninety (90) days and not more than one-hundred eighty
(180) days prior to the expiration of the Initial Term or the then current
Renewal Term.
13.3 In the event of termination by the Fund under Section 13.2 or 13.6,
all reasonable expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent will be borne by the Fund. In
the event of termination of this Agreement by the Fund under Section 13.4 (if
Investor Services Group is guilty of material breach) or 13.5, all reasonable
expenses associated with the movement of records and materials and conversion
thereof to a successor transfer agent will be borne by Investor Services Group.
In the event of termination of this Agreement by Investor Services Group under
Section 13.4 (if the Fund is guilty of material breach), all reasonable expenses
associated with the movement of records and materials and conversion thereof to
a successor transfer agent will be borne by the Fund. In the
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event of termination of this Agreement by Investor Services Group under Section
13.2, all reasonable expenses associated with the movement of records and
materials and conversion thereof to a successor transfer agent will be borne by
Investor Services Group.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the Defaulting
Party.
13.5 Pursuant to Section 3.4 of this Agreement, Investor Services Group
has agreed to perform the services described in this Agreement in accordance
with the Performance Standards set forth in Exhibit 1 to Schedule A. The
parties agree that the measurement of the Performance Standards will not begin
until sixty (60) days after Investor Services Group has begun providing services
under this Agreement. The parties agree that each quarterly period, as
described below, will be measured on a rolling three calendar month period. The
parties agree that such Performance Standards, which are described below, may be
revised from time to time upon the mutual agreement of the parties.
(a) In the event that Investor Services Group fails to meet a
particular Performance Standard (except any failure due to circumstances
beyond its control) in any given quarter, the Fund will provide Investor
Services Group with written notice of such failure, and Investor Services
Group agrees to take appropriate corrective action as soon as reasonably
possible.
(b) In the event that Investor Services Group fails to meet a
particular Performance Standard (except for any failure due to
circumstances beyond its control) in two (2) consecutive quarters, the fee
payable to Investor Services Group hereunder for that particular service
shall be reduced by ten percent (10%) for the second of those two quarters.
(c) In the event that Investor Services Group fails to meet a
particular Performance Standard (except for any failure due to
circumstances beyond its control) for any three (3) consecutive quarters,
the Fund shall have the right to terminate this Agreement upon sixty (60)
days' written notice to Investor Services Group.
(d) Compliance with the Performance Standards shall be reported
monthly and measured quarterly based on the average performance during that
quarter and in the aggregate with respect to all Domini affiliated funds
serviced by Investor Services Group.
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13.6 Notwithstanding anything contained in this Agreement to the contrary,
during the Initial Term and any subsequent Renewal Term, the Fund shall have the
right to terminate this Agreement without cause at any time on 90 days prior
written notice to Investor Services Group, provided that prior to the conversion
or termination of services pursuant to such notice, the Fund shall pay to
Investor Services Group the termination fee set forth in Schedule B. The
parties acknowledge that such fee shall not apply if the Fund terminates this
Agreement pursuant to Section 13.2, 13.4 or 13.5 above, but shall apply if the
Fund is liquidated or its assets merged or purchased or the like with another
entity which does not utilize the services of Investor Services Group.
Article 14 Confidentiality
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14.1 The parties agree that the Proprietary Information (defined below) and
the contents of Schedule B of this Agreement (collectively "Confidential
Information") are confidential information of the parties, including Domini
Social Investments LLC, and their respective licensors. The Fund and Investor
Services Group shall exercise at least the same degree of care, but not less
than reasonable care, to safeguard the confidentiality of the Confidential
Information of the other as it would exercise to protect its own confidential
information of a similar nature. The Fund and Investor Services Group shall not
duplicate, sell or disclose to others the Confidential Information of the other,
in whole or in part, without the prior written permission of the other party.
The Fund and Investor Services Group may, however, disclose Confidential
Information (i) to their respective parent corporation, their respective
affiliates, their subsidiaries and affiliated companies and employees, provided
that each shall use reasonable efforts to ensure that the Confidential
Information is not duplicated or disclosed in breach of this Agreement or (ii)
to any regulatory authority having jurisdiction over the disclosing party or
(iii) as required by law. The Fund and Investor Services Group may also
disclose the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 14.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent. Investor Services Group
hereby acknowledges that Domini Social Investments LLC is a third party
beneficiary of this Agreement solely for the purposes of this Section 14.
14.2 Proprietary Information means:
(a) any data or information that is competitively sensitive material,
and not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance, operations,
customer relationships, customer profiles, customer prospect lists, any
other information regarding customers, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund, Domini Social Investments LLC or Investor
Services Group, their respective subsidiaries and affiliated companies and
the customers, clients and suppliers of any of them;
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(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality affords the Fund, Domini Social
Investments LLC or Investor Services Group a competitive advantage over its
competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
14.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party, Domini
Social Investments LLC which now exist or come into the control or possession of
the other.
14.4 The obligations of confidentiality and restriction on use herein shall
not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not limited
to, giving the other party as much advance notice of the possibility of
such disclosure as practical so the other party may attempt to stop such
disclosure or obtain a protective order concerning such disclosure; or
(f) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Confidential
Information disclosed under this Agreement.
Article 15 Force Majeure
-------------
15.1 No party shall be liable for any default or delay in the performance
of its obligations under this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire, flood, elements of nature
or other acts of God; (ii) any outbreak or escalation of hostilities, war, riots
or civil disorders in any country, (iii) any act or omission of the other party
or any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance
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by a third party or any similar cause beyond the reasonable control of such
party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-performing
party shall be excused from any further performance and observance of the
obligations so affected only for as long as such circumstances prevail and such
party continues to use commercially reasonable efforts to recommence performance
or observance as soon as practicable.
Article 16 Assignment and Subcontracting
-----------------------------
16.1 This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary, provided
that in the event of any such assignment, Investor Services Group will remain
liable for the acts and omissions of any assignee. Investor Services Group may,
in its sole discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by Investor Services Group provided
--------
that Investor Services Group shall remain liable for the acts and omissions of
----
any subcontractor as if performed by Investor Services Group.
Article 17 Arbitration
-----------
17.1 Any claim or controversy arising out of or relating to this Agreement,
or breach hereof, shall be settled by arbitration administered by the American
Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
17.2 The parties hereby agree that judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
17.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 17.
Article 18 Additional Portfolios.
---------------------
18.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1, with respect to which the Fund
desires to have Investor Services Group render services as transfer agent under
the terms hereof, the Fund shall so notify Investor Services Group in writing,
and if Investor Services Group agrees in writing to provide such services,
Exhibit 1 shall be amended to include such additional Portfolios.
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Article 19 Notice
------
19.1 Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or Investor Services Group, shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Fund:
Domini Institutional Trust
c/o Domini Social Investments LLC
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel at the same
address.
Article 20 Governing Law/Venue
-------------------
20.1 The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this agreement. All actions arising from or related to this Agreement shall be
brought in the state and federal courts sitting in the City of Boston, and
Investor Services Group and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
Article 21 Counterparts
------------
21.1 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22 Captions
--------
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22.1 The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23 Publicity
---------
23.1 Neither Investor Services Group nor the Fund shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without the prior
review and written approval of the other party; provided, however, that either
party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24 Relationship of Parties/Non-Solicitation
----------------------------------------
24.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
24.2 During the term of this Agreement and for one (1) year afterward, (a)
the Fund shall not recruit, solicit, employ or engage, for the Fund or others,
Investor Services Group's employees and (b) Investor Services Group shall not
recruit, solicit, employ or engage, for Investor Services Group or others,
employees of the Fund or Domini Social Investments LLC.
Article 25 Entire Agreement; Severability
------------------------------
25.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
25.2 The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties
shall in good faith modify or substitute such provision consistent with the
original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
DOMINI INSTITUTIONAL TRUST
By: Xxxxx X. Xxxxxx
------------------
Title: Vice President
-----------------
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: X. Xxxxxxxx
--------------
Title: SVP
------
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EXHIBIT 1
List of Funds
Domini Institutional Social Equity Fund
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