Exhibit A(1)
FIDELITY SYSTEMATIC INVESTMENT PLANS
AMENDED AND RESTATED
CUSTODIAN AGREEMENT
MADE AS OF APRIL 26, 1999
This AGREEMENT ("Agreement") made as of April 26, 1999 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"),
amends and restates 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, and as
subsequently amended and restated on September 16, 1994 (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, and (2) setting forth
the terms, conditions and procedures that shall govern such plans
issued hereafter, including Destiny Plans I: New and Destiny Plans II:
New.
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 and classes
consisting of Destiny I: Class O and Class N and Destiny II: Class O
and Class N (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 four
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: Original")
accumulate shares of Destiny I: Class O of the Fund, Plans of a second
series of Plans ("Destiny Plans I: New") accumulate shares of Destiny
I: Class N of the Fund, Plans of a third series of Plans ("Destiny
Plans II") accumulate shares of Destiny II: Class O of the Fund, and
Plans of a fourth series of Plans ("Destiny Plans II: New") accumulate
shares of Destiny II: Class N of the Fund; and
WHEREAS, in accordance with the terms of Destiny Plans I: Original and
Destiny Plans II: Original, 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, under each of the Predecessor Custodian Agreements, the
Sponsor and the Custodian have the right to make changes in the
administration of Destiny Plans I: Original and Destiny Plans II:
Original, respectively, issued and outstanding, provided that such
changes will not adversely affect the rights and privileges of the
planholders thereof; and
WHEREAS, the Sponsor and the Custodian believe that it is in the best
interests of holders of Destiny Plans I: Original and Destiny Plans
II: Original to administer the Destiny Plans I: Original and Destiny
Plans II: Original under this Agreement as plans of an existing series
of Fidelity Plans and to treat such Destiny Plans I: Original and
Destiny Plans II: Original as having been issued under and governed by
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 Sponsor and the Custodian believe that this action will
not adversely affect the rights and privileges of any holder of an
outstanding Plan; and
WHEREAS, the Sponsor and the Custodian intend to effect this action on
April 26, 1999; 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 four types of periodic payment plans:
"Fidelity Systematic Investment Plans: Destiny Plans I: Original, for
the Accumulation of Shares of Fidelity Destiny Portfolios: Destiny I:
Class O" (referred to hereinafter as "Destiny Plans I: Original"),
"Fidelity Systematic Investment Plans: Destiny Plans I: New, for the
Accumulation of Shares of Fidelity Destiny Portfolios: Destiny I:
Class N" (referred to hereinafter as "Destiny Plans I: New"),
"Fidelity Systematic Investment Plans: Destiny Plans II: Original, for
the Accumulation of Shares of Fidelity Destiny Portfolios: Destiny II:
Class O" (referred to hereinafter as "Destiny Plans II: Original"),
and "Fidelity Systematic Investment Plans: Destiny Plans II: New, for
the Accumulation of Shares of Fidelity Destiny Portfolios: Destiny
II: Class N" (referred to hereinafter as "Destiny Plans II: New")
(collectively, the "Plans"). The Plans provide for the purchase of
shares of a specified series and class 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"). 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.
(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 the
Planholder's 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 a 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) Partial Liquidations and Replacement. A Planholder may make a
partial liquidation from the Planholder's account, but only in
accordance with the terms and conditions of applicable Plan Documents.
Any such request for a partial liquidation 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 partial liquidation, a Planholder is permitted to
exercise a replacement privilege with respect to such partial
liquidation if and to the extent such 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 of a
partial liquidation 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 the Planholder's 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 a Plan may exercise a Plan
reinstatement 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 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) 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 commencing 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 to 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 Company ("FSC") (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 FSC (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 FSC (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) Court Orders and Levies. The Custodian is empowered to make a
distribution absent the Sponsor's direction if instructed to do so
pursuant to a court order of any kind, or a levy issued by the
Internal Revenue Service.
(u) 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") or any other affiliate of the
Custodian, provided that (i) each such delegatee shall be a transfer
agent registered under Section 17A(c)(2) of the 1934 Act, (ii) such
delegation is not inconsistent with Sections 26 or 27 of the 1940 Act,
(iii) the Custodian shall provide the Sponsor with 30 days' notice of
the Custodian's intention to delegate its duties to such other
affiliate and (iv) the Sponsor shall not have objected to such
delegation within such 30-day time period. In the event that the
Custodian delegates one or more of its duties hereunder to BFDS or
another affiliate, 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 promptly refer the inquiry to the 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 the Planholder's 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
the Planholder's address noted upon its records, its check for all
cash standing to the Planholder's credit and such Fund Shares, if any,
which have been transferred to the Planholder's 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 that person's 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 Trust Company
00 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000 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
the Planholder's 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
SCHEDULE 1
FEES TO BE PAID TO FIDELITY DISTRIBUTORS CORPORATION BY THE CUSTODIAN
FROM PLANHOLDER FEE PROCEEDS
A. With respect to each Destiny Plans I and each Destiny Plans II for
which an account was established prior to the effective date of this
Agreement, fees paid to Fidelity Distributors Corporation by the
Custodian shall be such fees as specified in the Predecessor Custodian
Agreement in effect at the time that the account for such Destiny
Plans I or Destiny Plans II, as applicable, was established.
B. With respect to each Destiny Plans I: Original and each Destiny
Plans II: Original for which an account is established on or after the
effective date of this Agreement, fees paid to Fidelity Distributors
Corporation by the Custodian shall be the fees specified below:
Monthly Plan Fee for each of the First Fee for each Succeeding Fee for each Succeeding Payment
Payment 12 Plan Payments Payment under 10-Year Plan under 15-Year Plan and
Extended Investment Period
$ 50.00 $ 25.00 $ 1.80 $ 2.86
75.00 37.50 2.70 4.06
93.75 46.88 3.38 5.07
100.00 50.00 3.60 5.41
125.00 62.50 4.50 6.76
150.00 75.00 5.40 5.70
166.66 83.33 5.00 6.33
200.00 100.00 4.02 7.43
250.00 125.00 5.00 9.29
300.00 150.00 5.00 5.04
350.00 175.00 4.50 5.31
400.00 200.00 4.00 3.80
500.00 225.00 2.78 5.36
750.00 300.00 2.50 8.70
1,000.00 300.00 5.00 15.54
1,500.00 315.00 6.00 17.52
2,000.00 325.00 7.00 18.57
2,500.00 350.00 8.00 20.26
5,000.00 400.00 11.00 25.00
10,000.00 500.00 15.56 29.64
C. With respect to each Destiny Plans I: New and each Destiny Plans
II: New for which an account is established on or after the effective
date of this Agreement, fees paid to Fidelity Distributors Corporation
by the Custodian shall be the fees specified below:
Monthly Plan Fee for each of the First 12 Fee for each Succeeding
Payment Plan Payments Payment under
10-Year Plan, 15-Year
Plan and
Extended Investment
Period
$ 50.00 $ 25.00 Not Applicable
75.00 37.50
100.00 50.00
125.00 62.50
150.00 75.00
166.66 83.33
200.00 100.00
250.00 125.00
300.00 150.00
350.00 175.00
400.00 200.00
450.00 225.00
500.00 250.00
600.00 300.00
700.00 350.00
750.00 375.00
800.00 400.00
900.00 450.00
1,000.00 500.00
1,200.00 600.00
1,500.00 675.00
1,750.00 700.00
2,000.00 750.00
2,500.00 812.50
5,000.00 1,250.00
10,000.00 1,500.00
D. With respect to each Destiny Plans II-A for which an account was
established prior to the effective date of this Agreement, fees paid
to Fidelity Distributors Corporation by the Custodian shall be such
fees to be paid by the custodian to the plan sponsor as are specified
in the custodian agreement in effect for such plan at the time that
the account for such plan was established.
SCHEDULE 2
CUSTODIAN FEE AND ADDITIONAL FEES AND CHARGES
I. CUSTODIAN FEE
A. With respect to each Destiny Plans I and each Destiny Plans II for
which an account was established prior to the effective date of this
Agreement, the Custodian Fee under each such Plan shall be such fees
as specified in the Predecessor Custodian Agreement in effect at the
time that the account for such Destiny Plans I or Destiny Plans II, as
applicable, was established.
B. With respect to each Destiny Plans I: Original, each Destiny Plans
I: New, each Destiny Plans II: Original and each Destiny Plans II: New
for which an account is established on or after the effective date of
this Agreement, the Custodian Fee shall be as specified below:
Monthly Fee for
Plan Each Plan
Payment Payment
$ 50.00 $ 1.10
75.00 1.25
100.00 1.50
125.00 1.50
150.00 1.50
166.66 1.50
200.00 1.50
250.00 1.50
300.00 1.50
350.00 1.50
400.00 1.50
450.00 1.50
500.00 1.50
600.00 1.50
700.00 1.50
750.00 1.50
800.00 1.50
900.00 1.50
1,000.00 1.50
1,250.00 1.50
1,500.00 1.50
1,750.00 1.50
2,000.00 1.50
2,500.00 1.50
5,000.00 1.50
10,000.00 1.50
For new accounts established on or after August 29, 1993 that use an
"automated" method of payment (I.E., PAC, ACH, or allotment), a "flat
fee" of $0.75 per payment will be paid to the Custodian. This flat
fee is available only with respect to new accounts established on or
after August 29, 1993 and will not be applied to any
previously-established accounts, unless otherwise directed by the
Sponsor and agreed upon by the Custodian.
1. In the event that a Planholder elects the Extended Investment
Option, the amount of the Custodian Fee to be charged for each Plan
payment during the extended period will be the same as the Fee
indicated in the above schedule for such Plan, provided that the
Custodian may increase its fee to the rate charged for new Plans of
the same denomination at the time of the first payment under the
Extended Investment Option, but not more than 75% in excess of the fee
set forth in the above schedule for each such Plan.
2. The Custodian Fee assessed on multiple payments will be computed
on the basis of one Custodian Fee for each payment unit included in
such multiple payment except that the Custodian Fee may not exceed
$5.00 for each multiple payment.
C. 1. After the completion of all the Plan payments, or if payments
have been made in advance, after the end of 10 years from the date of
issuance of a 10-Year Plan and 15 years from the date of a 15-Year
Plan (and the Extended Investment Option is not exercised), or if
during any such period the Planholder shall have failed to make any
payment for a period of six months after the same has become due, the
Custodian shall receive in payment for its services an annual charge
at the rate of 2/10 of 1% of the face amount of the Plan, but not more
than $12.00 annually.
2. In the event that a Planholder has elected the Extended Investment
Option and has completed payments under said Option by either written
notice to the Custodian that he intends to stop all future payments or
by failure to make regularly scheduled investments for a period of six
consecutive months his Plan will be deemed a completed Plan. On such
Plans the Custodian shall receive an annual charge at the rate of 2/10
of 1% of the face amount of the Plan but not more than $12.00
annually.
3. On such Plans the Custodian reserves the right to increase its fee
applicable during the remaining period of the Plan to the rate then
charged for new Plans of the same denomination, but not more than 75%
in excess of the annual rate of 2/10 of 1% of the face amount of the
Plan, limited to $12.00 annually.
D. With respect to each Destiny Plans II-A for which an account was
established prior to the effective date of this Agreement, the
Custodian Fee shall be such custodian fee as is specified in the
custodian agreement in effect for such plan at the time that the
account for such plan was established.
II. ADDITIONAL FEES AND CHARGES
A. With respect to each Destiny Plans I and each Destiny Plans II for
which an account was established prior to the effective date of this
Agreement, the Additional Fees and Charges under each such Plan shall
be such additional fees and charges as are specified in the
Predecessor Custodian Agreement in effect at the time that the account
for such Destiny Plans I or Destiny Plans II, as applicable, was
established.
B. With respect to each Destiny Plans I: Original, each Destiny Plans
I: New, each Destiny Plans II: Original and each Destiny Plans II: New
for which an account is established on or after the effective date of
this Agreement, Additional Fees and Charges shall be paid as specified
below:
1. From the Planholder's account or from the proceeds of the sale by
the Custodian, as agent for the Planholder, of Fund Shares,
a. A charge of $2.50, in addition to any transfer or other taxes, if
such amounts shall not have been paid directly to the Custodian by the
Planholder at the time of the transaction, in the case of (1) each
transfer of title, (2) each partial or complete withdrawal of Fund
Shares, (3) each change of Plan denomination, (4) each recording of an
assignment, (5) each redeposit of cash or Fund Shares withdrawn, (6)
each payment check returned unpaid, and (7) each distribution option
change.
b. A charge of $3.00 per year in connection with the preparation of a
transcript of the Planholder's account.
c. A charge of $2.50 in connection with the issuance of any type of
Plan in exchange for a different type of Plan.
d. A charge of $1.00 per check for each monthly or quarterly payment
to a Planholder in connection with his participation in the Automatic
Withdrawal Program, as more fully described in the applicable Plan
Documents. With respect to any payment made after 120 investments
into the establishment of such Planholder's account, such charge may
be increased to the amount then charged for making such payments on
newly issued Plans, but in no event may such charge be increased more
than 75%.
2. A Service Charge deducted annually against the accounts of the
Planholders of Destiny Plans I: Original and Destiny Plans II:
Original and, for the Planholders of Destiny Plans I: New and Destiny
Plans II: New, against the Class N shares of Fidelity Destiny
Portfolios: Destiny I and Destiny II, respectively, first out of
dividends and distributions payable in respect thereof, and then, if
necessary, from principal. The annual Service Charge will be
determined by dividing the total administrative costs for a calendar
year by the total number of Plans. The annual Service Charge is
intended to compensate the Custodian for (i) charges and expenses
incurred in the performance of the functions referred to in Sections
2(k) and 2(l) of the Agreement, (ii) printing, mailing and postage
costs related to account receipts, dividend reinvestment notices,
record forms and other forms used in connection with the Plans, (iii)
reasonable counsel fees incurred by the Custodian arising out of or in
connection with the administration of the custodianship hereunder
(other than counsel fees and expenses incurred by the Custodian in the
defense of any claim occasioned by its own negligence, bad faith or
wilful misconduct) and (iv) the auditing, not less often than
annually, of the books of the Custodian relating to the custodianship
described in the Agreement by independent certified public accountants
selected by the Sponsor.
Notwithstanding the above, the annual Service Charge amount charged
to the account of a Planholder shall not in any fiscal year exceed any
maximum annual Service Charge amount specified in the Plan Documents
applicable to such Planholder's Plan.
3. With respect to each Destiny Plans II-A for which an account was
established prior to the effective date of this Agreement, Custodian
Fees shall be such custodian fees as are specified in the custodian
agreement in effect for such plan at the time that the account for
such plan was established.
III. FEES PAID BY THE SPONSOR
A. The Sponsor will pay to the Custodian the following communications
costs and out-of-pocket expenses for services related to the
performance of the functions specified in the Agreement:
1. A charge of $3.00 for each New Account Kit,
2. A charge of $3.00 for each Telephone Call received or placed by
the Custodian,
3. A charge of $3.00 for each piece of correspondence sent to
Planholders,
4. Such out-of-pocket expenses as may be incurred by the Custodian,
including but not limited to, confirmation production, postage, forms,
telephone, microfilm, microfiche, and expenses incurred at the
specific direction of the Sponsor. Postage for mass mailings is due
seven days in advance of the mailing date.
B. The Sponsor may, in its sole discretion, waive any or all
additional fees and charges listed in Sections I or II of this
Schedule 2. In the event of such waiver, the Sponsor shall pay the
Custodian such fees and charges on behalf of the Planholders and the
Sponsor may, in its sole discretion and at any time, reimpose such
additional fees and charges on Planholder accounts.
