TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this
1st day of October, 1997, by and between Xxxx Funds,
Inc., a Minnesota corporation (hereinafter referred to
as the "Company") and Firstar Trust Company, a
corporation organized under the laws of the State of
Wisconsin (hereinafter referred to as the "Agent").
WHEREAS, the Company is an open-end management
investment company which is registered under the
Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Company is authorized to create
separate series, each with its own separate investment
portfolio;
WHEREAS, the Agent is a trust company and, among
other things, is in the business of administering
transfer and dividend disbursing agent functions for
the benefit of its customers; and
WHEREAS, the Company desires to retain the Agent to
provide transfer and dividend disbursing agent services
to the Emerging Growth Fund (the "Fund") and each
additional series of the Company listed on Exhibit A
attached hereto, as may be amended from time to time.
NOW, THEREFORE, the Company and the Agent do
mutually promise and agree as follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in
this Agreement, the Company hereby employs and appoints
the Agent to act as transfer agent and dividend
disbursing agent for the Fund.
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 shares;
B.Process purchase orders with prompt delivery, where
appropriate, of payment and supporting
documentation to the Company's custodian, and
issue the appropriate number of uncertificated
shares with such uncertificated shares being
held in the appropriate shareholder account;
C.Process redemption requests received in good order
and, where relevant, deliver appropriate
documentation to the Company's custodian;
X.Xxx monies upon receipt from the Company's custodian,
where relevant, in accordance with the
instructions of redeeming shareholders;
E.Process transfers of shares in accordance with the
shareholder's instructions;
F.Process exchanges between funds and/or classes of
shares of funds both within the same family of
funds and with the Portico Money Market Fund,
if applicable;
G.Prepare and transmit payments for dividends and
distributions declared by the Company with
respect to the Fund;
H.Make changes to shareholder records, including, but
not limited to, address changes in plans
(i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
I.Record the issuance of shares of the Fund and
maintain, pursuant to Rule 17ad-10(e)
promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), a
record of the total number of shares of the
Fund which are authorized, issued and
outstanding;
J.Prepare shareholder meeting lists and, if applicable,
mail, receive and tabulate proxies;
K.Mail shareholder reports and prospectuses to current
shareholders;
L.Prepare and file U.S. Treasury Department Forms 1099
and other appropriate information returns
required with respect to dividends and
distributions for all shareholders;
M.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 Company;
N.Provide a Blue Sky System which will enable the
Company to monitor the total number of shares
of the Fund sold in each state. In addition,
the Company or its agent, including the Agent,
shall identify to the Agent in writing those
transactions and assets to be treated as
exempt from the Blue Sky reporting for each
state. The responsibility of the Agent for
the Company's Blue Sky state registration
status is solely limited to the initial
compliance by the Company and the reporting of
such transactions to the Company or its agent;
O.Answer telephone calls and correspondence from
shareholders relating to their accounts during
the Agent's normal business hours. Agent
shall strive to respond to all such telephonic
or written inquiries from shareholders within
three business days. Copies of all
correspondence from shareholders involving
complaints about the management of the
Company, services provided by or for the
Company, the Agent or others, shall be
forwarded to the Company. Agent shall keep
records of substantive shareholders telephone
calls and correspondence and replies thereto,
and of the lapse of time between receipt of
such calls and correspondence and replies.
Agent shall record and maintain for three
months recordings of all telephone calls from
shareholders;
P.Monitor the Company's policies with respect to the
charging of front-end sales loads, contingent
deferred sales loads and redemption fees, all
as set forth in the Fund's current prospectus,
to ensure that such charges are properly
applied or waived, as the case may be; and
Q.Prepare such reports as may be requested from time to
time by the Company relating to (1) fees paid
out under the Fund's Rule 12b-1 plan and (2)
charges applied or waived, as the case may be,
in connection with the purchase and redemption
of Fund shares. Customized reporting, if
necessary, will be assessed to the Company as
a programming out-of-pocket expense
reimbursement, subject to prior approval from
the Company.
2. Compensation
The Company agrees to pay the Agent for the
performance of the duties listed in this agreement as
set forth on Exhibit A attached hereto; the fees and
out-of-pocket expenses include, but are not limited to
the following: printing, postage, forms, stationery,
record retention (if requested by the Company),
mailing, insertion, programming (if requested by the
Company), labels, shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed
from time to time subject to mutual written agreement
between the Company and the Agent.
The Company agrees to pay all fees and reimbursable
expenses within ten (10) business days following the
receipt of the billing notice.
3. Representations of Agent
The Agent represents and warrants to the Company
that:
A. It is a trust company duly organized, existing and in
good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange
Act.
C. It is duly qualified to carry on its business in the
State of Wisconsin;
D. It is empowered under applicable laws and by its
charter and bylaws to enter into and perform
this Agreement;
E. All requisite corporate 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, as amended, and
the Exchange Act, the 1940 Act, and any laws,
rules, and regulations of governmental
authorities having jurisdiction.
4. Representations of the Company
The Company represents and warrants to the Agent
that:
A. The Company is an open-ended non diversified
investment company under the 1940 Act;
B. The Company is a corporation organized, existing, and
in good standing under the laws of Minnesota;
C. The Company is empowered under applicable laws and by
its Articles of Incorporation and Bylaws to
enter into and perform this Agreement;
D. All necessary proceedings required by the Articles of
Incorporation have been taken to authorize it
to enter into and perform this Agreement;
E. The Company will comply with all applicable
requirements of the Securities Act, the
Exchange Act, the 1940 Act, and any laws,
rules and regulations of governmental
authorities having jurisdiction; and
F. A registration statement under the Securities Act
will be made effective and will remain
effective, and appropriate state securities
law filings have been made and will continue
to be made, with respect to all shares of the
Company being offered for sale.
5. Covenants of the Company and Agent
The Company shall furnish the Agent a certified
copy of the resolution of the Board of Directors of
the Fund authorizing the appointment of the Agent and
the execution of this Agreement. The Company shall
provide to the Agent a copy of its Articles of
Incorporation and Bylaws, and all amendments thereto.
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 1940 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 Company and will be preserved,
maintained and made available in accordance with such
section and rules and will be surrendered to the
Company on and in accordance with its request.
6. Performance of Service; Limitation of Liability
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 Company
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 Company 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 Company, such duly authorized
officer to be included in a list of authorized officers
furnished to the Agent and as amended from time to time
in writing by resolution of the Board of Directors of
the Company.
The Agent shall indemnify and hold the Company
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 the
Company may sustain or incur or which may be asserted
against the Company 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.
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 Company 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 indemnitor may be asked to
indemnify or hold the the indemnitee harmless, the
indemnitor shall be fully and promptly advised of all
pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will
use all reasonable care to notify the indemnitor
promptly concerning any situation which presents or
appears likely to present the probability of a claim
for indemnification. The indemnitor shall have the
option to defend the indemnitee against any claim which
may be the subject of this indemnification. In the
event that the indemnitor so elects, it will so notify
the indemnitee and thereupon the indemnitor shall take
over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification
under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in
which the indemnitor will be asked to indemnify the
indemnitee except with the indemnitor's prior written
consent.
7. Confidentiality
The Agent agrees on behalf of itself and its
directors, officers, and employees to treat
confidentially and as proprietary information of the
Company all records and other information relative to
the Company and prior, present, or potential
shareholders (and clients of said shareholders) and not
to use such records and information for any purpose
other than the performance of its responsibilities and
duties hereunder, except after prior notification to
and approval in writing by the Company, 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, or when so requested by
the Company.
8. Wisconsin Law to Apply
This Agreement shall be construed and the
provisions thereof interpreted under and in accordance
with the laws of the State of Wisconsin. However,
nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or
regulation promulgated by the Securities and Exchange
Commission thereunder.
9. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written
consent of the parties.
B. This Agreement may be terminated upon ninety (90)
days' 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. If to the Agent, such
notice should to be sent to:
Firstar Trust Company
Attn.: Mutual Fund Services
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Company, such notice should be sent to:
Xxxx Investment Advisors
Attn.: Xxxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
E. In the event that the Company 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 Company exercise its right to terminate,
all reasonable out-of-pocket expenses
associated with the movement of records and
material will be paid by the Company.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by a duly authorized
officer or one or more counterparts as of the day and
year first written above.
Xxxx funds, Inc. FIRSTAR TRUST COMPANY
By: /s/ XxXxx X. Xxxx By: /s/ Xxx Xxxxxxxxx
------------------------- --------------------------
XxXxx X. Xxxx Xxx Xxxxxxxxx
Attest: /s/ Xxxxx X. Xxxx Attest: /s/ Xxxxx X. Xxxx
-------------------------- ----------------------------
Transfer Agent and Shareholder Servicing
Annual Fee Schedule
Exhibit A
Separate Series of Xxxx Funds, Inc.
Name of Series Date Added
Emerging Growth Fund October 1, 1997
Class A
Class I
Annual Fee
$16.00 per shareholder account -- load fund
$14.00 per shareholder account -- no-load fund
Minimum annual fees of $35,500 for both
classes
Minimum annual fees of $10,000 for each
additional fund or class
Plus Out-of-Pocket Expenses, including but not limited
to:
Telephone - toll-free lines
Proxies
Postage
Retention of records (with prior approval)
Programming (with prior approval)
Microfilm/fiche of records
Stationery/envelopes
Special reports
Mailing
ACH fees
Insurance
NSCC charges
ACH Shareholder Services
$125.00 per month per fund group
$ .50 per account setup and/or change
$ .50 per item for AIP purchases
$ .35 per item for EFT payments and purchases
$ 3.50 per correction, reversal, return item
Qualified Plan Fees (Billed to Investors)
Annual maintenance fee per account $12.50/acct.(Cap at $25.00 per SSN)
Transfer to successor trustee $15.00/trans.
Distribution to participant $15.00/trans.(Exclusive of SWP)
Refund of excess contribution $15.00/trans.
Additional Shareholder Fees (Billed to Investors)
Any outgoing wire transfer $12.00/wire
Return check fee $20.00/item
Stop payment $20.00/stop
(Liquidation, dividend, draft check)
Research fee $ 5.00/item
(For requested items of the second calendar
year [or previous] to the request)(Cap at $25.00)
NSCC and DAZL
Out-of-Pocket Charges
NSCC Interfaces
Setup
Fund/SERV, Networking ACATS, Exchanges $5,000 setup (one time)
Commissions $5,000 setup (one time)
Processing
Fund/SERV $ 50/month
Networking $ 250/month
CPU Access $ 40/month
Fund/SERV Transactions $.35/trade
Networking - per item $.025/monthly dividend fund
Networking - per item $.015/non-mo. dividend fund
First Data $.10/next-day Fund/SERV trade
First Data $.15/same-day Fund/SERV trade
NSCC Implementation
8 to 10 weeks lead time (target availability10/1/97)
DAZL (Direct Access Zip Link - Electronic mail
interface to financial advisor network)
Setup $5,000/fund group-Waived for FIRSTAR
Monthly Usage $1,000/month
Transmission $ .015/price record
$ .025/other record
Enhancement $ 125/hour
Fees and out-of-pocket expenses are billed to the fund monthly
