TRANSFER AGENT AND SHAREHOLDER SERVICES
AGREEMENT
THIS AGREEMENT is made and entered into on this 13th day of September,
1999, by and between Activa Mutual Fund Trust (the "Trust") on behalf of the
Activa Mutual Fund (the "Fund") and Activa Asset Management LLC, a limited
liability company, organized under the laws of the State of Michigan
(hereinafter referred to as the "Agent").
WHEREAS, the Agent is among other things, a transfer and dividend
disbursing agent; and
WHEREAS, the Trust desires to retain the Agent to be the Transfer Agent
and Shareholder Servicing Agent for the Fund's Class R series of units of
beneficial interest.
NOW, THEREFORE, the Trust and the Agent do mutually promise and agree
as follows:
1. Terms of Appointment; Duties of the Transfer Agent.
Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints the Agent to act as transfer agent and
dividend disbursing agent for the Fund's Class R series of units of beneficial
interest ("shares").
The Agent shall perform all of the customary services of a transfer
agent and dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to:
A. Receive orders for the purchase of units of shares;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated
shares being held in the appropriate shareholder account.
C. Process redemption requests received in good order;
D. Pay monies;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between funds within the same family of funds;
G. Issue and/or cancel certificates as instructed; replace lost,
stolen or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
H. Prepare and transmit payments for dividends and distributions
declared by the Fund;
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I. Make changes to shareholder records, including, but not limited
to, address changes in plans (i.e., systematic withdrawal,
automatic investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant
to Securities Exchange Act of 1934 Rule 17ad-10(e), a record of
the total number of shares of the Fund which are authorized,
issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Provide shareholder account information upon request and prepare
and mail confirmations and statements of account to shareholders
for all purchases, redemptions and other confirmable transactions
as agreed upon with the Fund.
2. Terms of Appointment; Duties of Shareholder Services Agent.
The Trust hereby employs the Agent to be the Shareholder Services Agent
for the Fund's Class R shares for the period and on the terms set forth in this
Agreement. The Agent shall perform such services to the record and/or beneficial
owners of Class R shares as may be agreed to between the Agent and the Fund,
including but not limited to:
A. Mailing Fund prospectuses and periodic Fund reports to Class R
shareholders;
B. Mailing proxy materials to Class R shareholders;
C. Responding to inquiries from Class R shareholders with respect to
the Fund or their particular accounts;
D. Providing information to Class R shareholders about the Fund and
about retirement investments in general; and
E. Conducting financial seminars designed to assist in the education
of Class R shareholders with respect to mutual funds generally
and the Fund in particular.
3. Expenses.
The Agent, at its own expense and without reimbursement from the Trust, shall
furnish office space, and all necessary office facilities, equipment and
executive personnel for performing the services required to be performed by it
under the Agreement. The Agent shall not be required to pay any expenses of the
Fund. The expenses to be borne by the Fund include (but are not limited to) the
following: (i) expenses of issue, sale, repurchase and redemption of shares;
(ii) expenses of registering and qualifying the Fund and its shares under
federal and state securities laws and of preparing and printing prospectuses for
such purposes and for distributing the same to stockholders and investors; (iii)
expenses of reports and notices to stockholders and of meetings of stockholders
and proxy solicitations therefore; and (iv) fees and expenses related to the
determination of the Fund's net asset value.
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4. Compensation.
For the services to be rendered by the Agent hereunder, the Fund shall
pay to the Agent a fee, paid monthly, based on the average net assets of the
Fund, as determined by valuations made as of the close of each business day of
the month. The Agent fee shall be 1/12 of 0.20% (0.20% annually) of such average
net assets, however that for any month in which this Agreement is not in effect
for the entire month, such fee shall be reduced proportionately on the basis of
the number of calendar days during which it is in effect and the fee computed
upon the daily net assets of the business days during which it is so in effect.
5. Representations of Agent.
The Agent represents and warrants to the Trust that:
A. It is a corporation duly organized, existing and in good standing
under the laws of Michigan;
B. It is a registered transfer agent under the Securities Exchange
Act of 1934 as amended;
C. It is duly qualified to carry on its business in the state of
Michigan;
D. It is empowered under applicable laws and by its charter and
operating agreement to enter into and perform this Agreement;
E. All requisite company proceedings have been taken to authorize it
to enter and perform this Agreement;
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
G. It will comply with all applicable requirements of the Securities
Act of 1933 and the Securities Exchange Act of 1934, as amended,
the Investment Company Act of 1940, as amended, and any laws,
rules, and regulations of governmental authorities having
jurisdiction.
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6. Representations of the Trust.
The Trust represents and warrants to the Agent that:
A. The Trust is an open-ended diversified investment company under
the Investment Company Act of 1940;
B. The Trust is a Trust organized, existing, and in good standing
under the laws of Delaware;
C. The Fund has been duly authorized as a Series of the Trust and
Class R has been duly authorized as a Class of the Fund;
D. The Trust is empowered under applicable laws and by its
Declaration of Trust and bylaws to enter into and perform this
Agreement;
E. All necessary proceedings required by the Declaration of Trust
have been taken to authorize the Trust to enter into and perform
this Agreement; and
F. The Trust and the Fund will comply with all applicable
requirements of the Securities and Exchange Acts of 1933 and
1934, as amended, the Investment Company Act of 1940, as amended,
and any laws, rules and regulations of governmental authorities
having jurisdiction.
7. Covenants of Fund and Agent.
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the rules thereunder, the Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed by the Agent
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such section and rules and will be surrendered
to the Fund on and in accordance with its request.
8. Indemnification; Remedies Upon Breach.
The Agent shall exercise reasonable care in the performance of its
duties under this Agreement. The Agent shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund in connection
with matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies beyond
the Agent's control, except a loss resulting from the Agent's refusal or failure
to comply with the terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its duties under this
Agreement. Notwithstanding any other provision of this Agreement, the Fund shall
indemnify and hold harmless the Agent from and against any and all claims,
demands, losses, expenses, and liabilities (whether with or without basis in
fact or law) of any and every nature (including reasonable attorneys' fees)
which the Agent may sustain or incur or which may be asserted against the Agent
by any person arising out of any action taken or omitted to be taken by it in
performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction provided to
the Agent by any duly authorized officer of the Fund, such duly authorized
officer to be included in a list of authorized officers furnished to the Agent
and as amended form time to time in writing by resolution of the Board of
Directors of the Fund.
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Further, the Fund will indemnify and hold the Agent harmless against
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand, action,
or suit as a result of the negligence of the Fund or principal underwriter
(unless contributed to by the Agent's breach of this Agreement or other
Agreements between the fund and the Agent, or the Agent's own negligence or bad
faith); or as a result of the Agent acting upon telephone instructions relating
to the exchange or redemption of shares received by the Agent and reasonably
believed by the Agent under a standard of care customarily used in the industry
to have originated from the record owner of the subject shares; or as a result
of acting in reliance upon any genuine instrument or stock certificates signed,
countersigned, or executed by any person or person authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of the Fund
shall be entitled to inspect the Agent's premises and operating capabilities at
any time during regular business hours of the Agent, upon reasonable notice to
the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Fund may be asked to
indemnify or hold the Agent harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in questions, and it is
further understood that the Agent will use all reasonable care to notify the
Fund promptly concerning any situation which presents or appears likely to
present the probability of such a claims for indemnification against the Fund.
The Fund shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the event that the Fund so elects, it
will so notify the Agent and thereupon the Fund shall take over Complete defense
of the claim, and the Agent shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification under this section. The
Agent shall in no case confess any claim or make any compromise in any case in
which the Fund will be asked to indemnify the Agent except with the Fund's prior
written consent.
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The Agent shall indemnify and hold the Fund harmless from and against
any and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which may be asserted against the Fund by any person arising
out of any action taken or omitted to be taken by the Agent as a result of the
Agent's refusal or failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
9. Confidentiality.
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Fund and its
shareholders and shall not be disclosed to any other party, except after prior
notification to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Agent may be exposed to
civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities.
10. Exclusivity.
The services of the Agent to the Fund hereunder are not to be deemed
exclusive and the Agent shall be free to furnish similar services to others as
long as the services hereunder are not impaired thereby. During the period that
this Agreement is in effect, the Agent shall be the Fund's sole administrator.
11. Records.
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Fund but not inconsistent with the rules and regulations
of appropriate government authorities, in particular, Section 31 of The
Investment Company Act of 1940 as amended (the "Investment Company Act"), and
the rules thereunder. The Agent agrees that all such records prepared or
maintained by The Agent relating to the services to be performed by The Agent
hereunder are the property of the Fund and will be preserved, maintained, and
made available with such section and rules of the Investment Company Act and
will be promptly surrendered to the Fund on and in accordance with its request.
12. Michigan Law to Apply.
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of Michigan.
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13. Amendment, Assignment, Termination and Notice.
A. This Agreement may be amended by the mutual consent of the
parties; provided, however, that in no event may it be amended
without the approval of the board of directors of the Fund in the
manner required by the Act.
B. This Agreement may be terminated upon sixty (60) day's written
notice given by one party to the other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of
the other party.
D. Any notice required to be given by the parties to each other
under the terms of this Agreement shall be in writing, addressed
and delivered, or mailed to the principal place of business of
the other party.
E. In the event that the Trust gives to the Agent its written
intention to terminate and appoint a successor transfer agent,
the Agent agrees to cooperate in the transfer of its duties and
responsibilities to the successor, including any and all relevant
books, records and other data established or maintained by the
Agent under this Agreement.
F. Should the Trust exercise its rights to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be paid by the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
ACTIVA MUTUAL FUND TRUST ACTIVA ASSET MANAGEMENT, LLC
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxx
President President
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