Exhibit h.7
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 21st day of May, 2002 by and between iShares,
Inc., a Maryland corporation (the "Fund"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WHEREAS, the Fund, an open-end management investment company on behalf
of the series listed on Appendix A hereto (as such Appendix A may be amended
from time to time) (each an "Index Series" and collectively, the "Index Series")
desires to appoint the Bank as its transfer agent, dividend disbursing agent and
agent in connection with certain other activities, and the Bank desires to
accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Fund will issue and redeem shares of each Index Series
only in aggregations of shares known as "Creation Units" principally in-kind for
portfolio securities of the respective Index Series, as more fully described in
the then current prospectus and statement of additional information of the Fund
(together, the "Prospectus") included in its registration statement on Form N-1A
(the "Registration Statement") Registration Nos. 33-97598 and 811-9102; and
WHEREAS, the shares of each of the Index Series have been approved for
listing on the American Stock Exchange LLC ("Amex"), subject to notice of
issuance; and
WHEREAS, the Depository Trust Company, a limited purpose trust company
organized under the laws of the State of New York ("DTC"), or its nominee, will
be the record or registered owner (the "Shareholder") of all shares of each
Index Series;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Fund and the Bank agree as follows:
1. Terms of Appointment; Duties of the Bank.
1.1 Subject to the terms and conditions set forth in this
Agreement, the Fund on behalf of the Index Series hereby employs and appoints
the Bank to act, and the Bank agrees to act, as transfer agent for each of the
Index Series' authorized and issued shares of beneficial interest ("Shares"),
and dividend disbursing agent of the Fund.
1.2 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to
time by agreement between the Fund and the Bank, the Bank shall:
(i) Receive from the Fund's distributor (the
"Distributor") purchase orders from the Authorized Participants (as defined in
the Prospectus) for Creation Units received and accepted by or on behalf of the
Fund by the Distributor, transmit appropriate trade instructions to the National
Securities Clearing Corporation, if applicable, and pursuant to such orders
issue the appropriate number of shares of the applicable Index Series in
Creation Units and hold such shares in the account of the Shareholder for each
of the respective Index Series. It is understood and agreed that the Bank will
not be responsible for determining whether any order, if accepted, will result
in the depositor of the Fund
Deposit (as defined in the Prospectus) owning or appearing to own eighty percent
(80%) of the outstanding shares of such Index Series;
(ii) Receive from the Distributor redemption
requests; deliver the appropriate documentation thereof to the duly appointed
custodian of the Fund (the "Custodian"); generate and transmit, or cause to be
generated and transmitted, confirmation of receipt of such redemption requests
to the Distributor; transmit appropriate trade instructions to the National
Securities Clearing Corporation, if applicable; and pursuant to such orders
redeem the appropriate number of shares of the applicable Index Series in
Creation Units from the account of the Shareholder for each of the respective
Index Series;
(iii) At the appropriate time, cause to be paid
over in the appropriate manner monies to the redeeming party;
(iv) Prepare and transmit payments for dividends
and distributions declared by the Fund on behalf of an Index Series;
(v) Create and maintain all necessary records
including those specified in Article 10 hereof, in accordance with all
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the Investment Company Act of 1940, as amended (the
"1940 Act"), and the rules promulgated thereunder and those records pertaining
to the various functions performed by it hereunder. All records shall be
available for inspection and use by the Fund. Where applicable, such records
shall be maintained by the Bank for the periods and in the places required by
Rule 31a-2 under the 1940 Act;
(vi) Make available during regular business hours
all records and other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Fund, or any person retained by the Fund.
Upon reasonable notice by the Fund, the Bank shall make available during regular
business hours its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the Fund, or any
person retained by the Fund; and
(vii) Record the issuance of Shares of each Index
Series and maintain, pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of
the total number of Shares of the Fund which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. The Bank shall also
provide the Fund on a regular basis with the total number of Shares which are
authorized and issued and outstanding but shall not be responsible for, when
recording the issuance of Shares, monitoring the issuance of such Shares or
compliance with any laws relating to the validity of the issuance or the
legality of the sale of such Shares.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a) or in any Schedule hereto, the Bank shall: perform
all of the customary services of a transfer agent and dividend disbursing agent
for exchange traded funds, including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, coordinating the
mailing and soliciting of proxies, receiving and tabulating proxies, withholding
taxes on all accounts, including nonresident alien accounts, preparing and
transmitting statements of account to the Shareholder for all purchases and
redemptions of Shares, preparing and mailing activity statements for
Shareholders (including dividend and distribution notices and tax information),
and providing Shareholder account information. The Fund hereby informs the Bank
that as of the date hereof the Shares are exempt from Blue Sky reporting for
each State.
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(c) Additionally, the Bank shall utilize a system to identify
all Share transactions which involve purchase and redemption orders that are
processed at a time other than the time of the computation of net asset value
per share next computed after receipt of such orders, and shall compute the net
effect upon the Index Series of such transactions so identified on a daily and
cumulative basis.
1.3 Instructions shall be deemed to be proper instructions hereunder if
such instructions are (i) instructions given by an Authorized Person (which
shall include the Fund's Distributor), such instructions to be given in such
form and manner as the Bank and the Fund shall agree upon from time to time.
Oral instructions will be considered proper instructions if the Bank reasonably
believes them to have been given by an Authorized Person. The Fund shall cause
all oral instructions to be promptly confirmed in writing. The Bank shall act
upon and comply with any subsequent proper instruction which modifies a prior
instruction and the sole obligation of the Bank with respect to any follow-up or
confirmatory instruction shall be to make reasonable efforts to detect any
discrepancy between the original instruction and such confirmation and to report
such discrepancy to the Fund. The Fund shall be responsible, at the Fund's
expense, for taking any action, including any reprocessing, necessary to correct
any such discrepancy or error, and to the extent such action requires the Bank
to act, the Fund shall give the Bank specific proper instructions as to the
action required. Instructions shall include communication effected directly
between electro-mechanical or electronic devices, including information
transmitted by the Fund's Distributor. The Fund hereby authorizes such use of
electro-mechanical or electronic communication and the Fund and the Bank will
agree as to procedures which shall afford adequate safeguards for the Fund's
assets.
1.4 Authorized Person will mean any of the persons duly authorized to
give proper instructions or otherwise act on behalf of the Fund by appropriate
resolution of its Board, and set forth in a certificate provided to the Bank.
2. Sale of Fund Shares.
2.1 Whenever the Fund shall sell or cause to be sold any Shares of an
Index Series, the Fund shall deliver or cause to be delivered to the Bank a
document duly specifying: (i) the name of the Index Series whose Shares were
sold; (ii) the number of Shares sold, trade date, and price; (iii) the amount of
money and/or securities to be delivered to the Custodian for the sale of such
Shares and specifically allocated to such Index Series; and (iv) in the case of
a new account, a new account application or sufficient information to establish
an account.
2.2 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Index Series and drawn
or endorsed to the Bank as agent for, or identified as being for the account of,
one of the Index Series, promptly deposit such check or other payment to the
appropriate account postings necessary to reflect the investment in the
appropriate Index Series. The Bank will notify the Fund (or its designated
agent) and the Custodian of all purchases and related account adjustments.
2.3 Under procedures as established by mutual agreement between the
Fund and the Bank, the Bank shall issue to the purchaser or its authorized agent
such Shares in Creation Units, as he is entitled to receive determined in
accordance with the prospectus and any applicable federal law or regulation. In
issuing Shares to a purchaser or its authorized agent, the Bank shall be
entitled to rely upon the latest proper instructions, if any, previously
received by the Bank from the Fund, the purchaser or their authorized agents
concerning the delivery of such Shares.
2.4 The Bank shall not issue any Shares of the Fund where it has
received a written instruction from the Fund or written notification from any
appropriate federal or state authority that the
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sale of the Shares of the Index Series in question has been suspended or
discontinued, and the Bank shall be entitled to rely upon such written
instructions or written notification.
2.5 Upon the issuance of any Shares of any Index Series in accordance
with foregoing provisions of this Section, the Bank shall not be responsible for
the payment of any original issue or other taxes, if any, required to be paid by
the Fund in connection with such issuance.
2.6 The Bank may establish such additional rules and regulations
governing the transfer or registration of Shares as it may deem advisable and
consistent with such rules and regulations generally adopted by transfer agents,
or with the written consent of the Fund, any other rules and regulations.
3. Returned Orders. In the event that any order for the transfer of money
is returned unpaid for any reason, the Bank will take such steps as the Bank
may, in its discretion, deem appropriate to protect the Fund from financial loss
or as the Fund or its designee may instruct.
4. Redemptions. Shares of any Index Series may be redeemed in accordance
with the procedures set forth in the Prospectus of the Fund and the Bank will
duly process all redemption requests.
5. [RESERVED]
6. Right to Seek Assurances. The Bank reserves the right to refuse to
transfer or redeem Shares until it is satisfied that the requested transfer or
redemption is legally authorized, and it shall incur no liability for the
refusal, in good faith, to make transfers or redemptions which the Bank, in its
judgment, deems improper or unauthorized, or until it is satisfied that there is
no basis for any claims adverse to such transfer or redemption. The Bank may, in
effecting transfers, rely upon the provisions of the Uniform Act for the
Simplification of Fiduciary Security Transfers or the Uniform Commercial Code,
as the same may be amended from time to time, which in the opinion of legal
counsel for the Fund or the Bank's own legal counsel, do not require certain
documents in connection with the transfer or redemption of Shares of any Index
Series.
7. Distributions.
7.1 The Fund will promptly notify the Bank of the declaration of any
dividend or distribution. The Fund shall furnish to the Bank a resolution of the
Board of Trustees of the Fund certified by the Secretary (a "Certificate"): (i)
authorizing the declaration of dividends on a specified periodic basis and
authorizing the Bank to rely on oral instructions or a Certificate specifying
the date of the declaration of such dividend or distribution, the date of
payment thereof, the record date as of which Shareholders entitled to payment
shall be determined and the amount payable per share to Shareholders of record
as of such record date and the total amount payable to the Bank on the payment
date; or (ii) setting forth the date of the declaration of any dividend or
distribution by a Index Series, the date of payment thereof, the record date as
of which Shareholders entitled to payment shall be determined, and the amount
payable per share to the Shareholders of record as of that date and the total
amount payable to the Bank on the payment date.
7.2 The Bank, on behalf of the Fund, shall instruct the Custodian to
place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. The Bank will calculate, prepare and
mail checks to (at the address as it appears on the records of the Bank), or
(where appropriate) credit such dividend or distribution to the account of,
Index Series Shareholders, and maintain and safeguard all underlying records.
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7.3 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.4 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Trustees of the Fund.
7.5 If the Bank does not receive from the Custodian sufficient cash
to make payment to all Shareholders of the Fund as of the record date, the Bank
shall, upon notifying the Fund, withhold payment to all Shareholders of record
as of the record date until such sufficient cash is provided to the Bank and
shall not be liable for any claim arising out of such withholding.
8. Other Duties. In addition to the duties expressly provided for herein,
the Bank shall perform such other duties and functions and shall be paid such
amounts therefor as may from time to time be agreed to in writing.
9. Taxes. It is understood that the Bank shall file such appropriate
information returns concerning the payment of dividends and capital gain
distributions and tax withholding with the proper Federal, State and local
authorities as are required by law to be filed by the Fund and shall withhold
such sums as are required to be withheld by applicable law.
10. Books and Records.
10.1 The Bank shall maintain confidential records showing for each
Shareholder account in each Index Series, the following: (i) name, address and
tax identification number; (ii) number and class, if any, of Shares held; (iii)
historical information regarding shareholder accounts, including dividends and
distributions and the date and price for each transaction in a shareholder's
account; (iv) any stop or restraining order placed against Shareholder's
account; (v) information with respect to withholdings; (vi) any dividend address
and correspondence relating to the current maintenance of a Shareholder's
account; (vii) any information required in order for the Bank to perform the
calculations contemplated or required by this Agreement; and (viii) such other
information and data as may be required by applicable law.
10.2 Any records required to be maintained by Rule 31a-1 under the
1940 Act will be preserved for the periods prescribed in Rule 31a-2 under the
1940 Act. Such records may be inspected by the Fund during regular business
hours upon reasonable notice. The Bank may, at its option at any time, and shall
forthwith upon the Fund's demand, turn over to the Fund and cease to retain in
the Bank's files, records and documents created and maintained by the Bank in
performance of its service or for its protection. At the end of the retention
period required by the 1940 Act, such documents will either be turned over to
the Fund, or destroyed in accordance with the Fund's authorization.
10.3 Procedures applicable to the services to be performed hereunder
may be established from time to time by agreement between the Fund and the Bank.
The Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its opinion, qualifies to perform any services
to be performed hereunder. The Bank shall keep records relating to the services
performed hereunder, in the form and manner as it may deem advisable.
11. Fees and Expenses.
11.1 For the services rendered by the Bank hereunder, the Fund will
pay to the Bank such fees at such rate as shall be agreed upon in writing by the
parties from time to time. The Fund will also pay or reimburse the Bank from
time to time for any transfer taxes payable upon any transfers made hereunder,
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and for all necessary proper disbursements, expenses and charges made or
incurred by the Bank in the performance of this Agreement (including any duties
listed on any Schedule hereto, if any) including any indemnities for any loss,
liabilities or expense to the Bank as provided herein. The Bank will also be
entitled to reimbursement by the Fund for all reasonable expenses incurred in
conjunction with termination of this Agreement and any conversion or transfer
work done in connection therewith.
Fees and expenses will be calculated monthly. Fees and expenses owed to
the Bank for any month may be charged against any cash balance held by the Fund
beginning on the first (1st) business day after the end of such month based on
information then available. Fees charged to an account may result in an
overdraft that will be subject to normal interest charges. The Fund will have
thirty (30) days after the receipt of an invoice to dispute any charge that
appears on such invoice.
11.2 In addition to the fee paid under Section 11.1 above, the Fund
agrees to reimburse the Bank for any expenses incurred by the Bank at the
request or with the consent of the Fund including, without limitation, any
equipment or supplies which the Bank orders or purchases specifically for the
Fund, with the approval of the Fund, or which the Fund specifically orders or
requires the Bank to purchase.
11.3 Postage for mailing of dividends, proxies, reports and other
mailings to all shareholder accounts shall be advanced to the Bank by the Fund
at least three (3) days prior to the mailing date of such materials. Any waiver
or extension by the Bank of time periods shall not constitute a dismissal of any
monies due under this Agreement nor shall such waiver or extension apply to any
future monies due to the Bank hereunder.
12. Representations and Warranties of the Bank.
The Bank represents and warrants to the Fund that:
12.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
12.2 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
12.3 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
12.4 It has and will continue to have access to the necessary f
acilities, equipment and personnel to perform its duties and obligations under
this Agreement.
12.5 It is in full compliance with all applicable federal state and
local laws with respect to its duties under this Agreement.
13. Representations and Warranties of the Fund.
The Fund represents and warrants to the Bank that:
13.1 It is a corporation duly organized and existing and in good
standing under the laws of the State of its incorporation as set forth in the
preamble hereto.
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13.2 It is empowered under applicable laws and by its charter
documents and by-laws to enter into and perform this Agreement.
13.3 All proceedings required by said charter documents and by-laws
have been taken to authorize it to enter into and perform this Agreement.
13.4 It is a open-end investment company registered under the
1940 Act.
13.5 A registration statement on Form N-1A (including a prospectus and
statement of additional information) under the Securities Act of 1933 and the
1940 Act will be effective as of the date the Bank begins to provide services
hereunder and will remain effective, and any appropriate state securities law
filings have been made and will continue to be made, with respect to all Shares
of the Fund being offered for sale.
13.6 When Shares are hereafter issued in accordance with the terms of
the Prospectus, such Shares shall be validly issued, fully paid and
nonassessable by the Fund.
14. Indemnification.
14.1 Notwithstanding anything in this Agreement to the contrary, in
no event shall the Bank or any of its officers, directors, employees or agents
(collectively, the "Indemnified Parties") be liable to the Fund or any third
party, and the Fund shall indemnify and hold the Bank and the Indemnified
Parties harmless from and against any and all loss, damage, liability, actions,
suits, claims, costs and expenses, including reasonable legal fees, (a "Claim")
arising as a result of any act or omission of the Bank or any Indemnified Party
under this Agreement, except for any Claim to the extent such Claim results from
the material breach of this Agreement by, or negligence, willful misfeasance or
bad faith of, the Bank or any Indemnified Party.
14.2 The Bank shall indemnify and hold the Fund, its Board of
Trustees, officers and employees and its agents harmless from and against any
and all Claims to the extent any such Claim arises out of the negligent acts or
omissions, bad faith, willful misconduct or material breach of this Agreement by
the Bank, its officers, directors or employees or any of its agents or
subcustodians in connection with the activities undertaken pursuant to this
Agreement, provided that the Bank's indemnification obligation with respect to
the acts or omissions of its subcustodians shall not exceed the indemnification
provided by the applicable subcustodian to the Bank.
14.3 Notwithstanding anything to the contrary in this Agreement, in no
event shall a party to this Agreement be liable to the other party or any third
party for lost profits or lost revenues or any special, consequential, punitive
or incidental damages of any kind whatsoever in connection with this Agreement
or any activities hereunder.
14.4 Notwithstanding anything to the contrary in this Agreement, in no
event shall a party to this Agreement be liable to the other party or any third
party for losses resulting from (i) any acts of God, fires, floods, or other
disturbances of nature, epidemics, strikes, riots, nationalization,
expropriation, currency restrictions, or insurrection, and (iii) other
happenings or events beyond the reasonable control or anticipation of the party
effected, provided that (A) the effected party has in place appropriate business
resumption procedures, systems and facilities and (B) the effected party uses
its best efforts to avoid or remove the cause of such losses.
14.5 In performing its duties hereunder, the Bank will be entitled to
receive and act upon the advice of independent counsel of its own selection,
which may be counsel for the Fund.
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14.6 The Bank may rely upon any Proper Instruction which it reasonably
believes to be genuine and to be signed or presented by any Authorized Person.
The Bank shall not be held to have notice of any change of authority of any
Authorized Person until receipt of appropriate written notice thereof has been
received by the Bank from the Fund.
14.7 in order that the indemnification provisions contained in this
Article 14 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking the indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
seeking indemnification shall give the indemnifying party full and complete
authority, information and assistance to defend such claim or proceeding, and
the indemnifying party shall have, at its option, sole control of the defense of
such claim or proceeding and all negotiations for its compromise or settlement.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent, which consent shall not be
unreasonably withheld.
15. Covenants of the Fund and the Bank.
15.1 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of the
Fund authorizing the appointment of the Bank hereunder and the execution and
delivery of this Agreement.
(b) A copy of the charter documents and by-laws of the Fund and
all amendments thereto.
(c) Copies of each vote of the Trustees designating authorized
persons to give instructions to the Bank, and a Certificate providing specimen
signatures for such authorized persons.
(d) Certificates as to any change in any officer or Trustee of
the Fund.
(e) All account application forms and other documents relating
to shareholder accounts or relating to any plan, program or service offered by
the Fund.
(f) A list of all Shareholders of each Index Series with the
name, address and tax identification number of each Shareholder, and the number
of Shares of the Index Series held by each, certificate numbers and
denominations ( if any certificates have been issued), lists of any account
against which stops have been placed, together with the reasons for said stops,
and the number of Shares redeemed by the Index Series.
(g) An opinion of counsel for the Fund with respect to the
validity of the Shares and the status of such Shares under the Securities Act of
1933.
(h) Copies of the Fund registration statement on Form N-1A (if
applicable)as amended and declared effective by the Securities and Exchange
Commission and all post-effective amendments thereto.
(i) Such other certificates, documents or opinions as the Bank
may reasonably deem necessary or appropriate for the Bank in the proper
performance of its duties hereunder.
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15.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
15.3 The Bank 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 Bank
agrees that all such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the confidential 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.
15.4 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such request
or demand. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be
subject to enforcement or other action by any court or regulatory body for the
failure to exhibit the Shareholder records to such person.
15.5 The Bank shall, during the period that this Agreement remains in
effect, maintain an Errors & Omissions policy of at least $50 million, which
policy will insure against all claims sustained by any party (including the
Fund) as a result of any actual or alleged wrongful act, error or omission in
the Bank's rendering of or failure to render services in accordance with the
terms set forth in the Bank's agreements with its clients.
16. Term of Agreement.
16.1 The term of this Agreement shall continue through April 1, 2006
(the "Initial Term"), unless earlier terminated as provided herein. After the
expiration of the Initial Term, the term of this Agreement shall automatically
renew for successive three-year terms (each a "Renewal Term") unless notice of
non-renewal is delivered by the non-renewing party to the other party no later
than ninety days prior to the expiration of the Initial Term or any Renewal
Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to
the expiration of the Initial Term or any Renewal Term in the event the other
party breaches any material provision of this Agreement, provided that the
non-breaching party gives written notice of such breach to the breaching party
and the breaching party does not cure such violation within 90 days of receipt
of such notice.
(b) The Fund may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term upon ninety days' prior
written notice in the event that:
i) the Bank's parent, Investors Financial Services Corp.
("IFSC"), fails to maintain a minimum capital level as
follows:(i) total stockholders' equity, as set forth in IFSC's
most recent annual or quarterly financial statements, shall be
equal to no less than $100 million, and (ii) the sum of (x)
total stockholders' equity and (y) the outstanding amount of
company-obligated, manditorily redeemable, preferred
securities, each as set forth in IFSC's most recent annual or
quarterly financial statements, shall be equal to no less than
$125 million; or
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ii) the Board of the Fund votes to liquidate the Fund and
terminate its registration with the Securities and Exchange
Commission other than in connection with a merger or
acquisition of the Fund or the Fund's investment adviser.
16.2 Should the Fund exercise its right to terminate under 16.1(b)(ii),
all out-of-pocket expenses associated with the movement of records and material
will be borne by the Fund. Additionally, the Bank reserves the right to recover
from the Fund any other reasonable expenses associated with such termination.
17. Additional Index Series. In the event that the Fund establishes one or
more series of Shares in addition to the series listed on Appendix A hereto with
respect to which it desires to have the Bank render services as transfer agent
under the terms hereof, it shall so notify the Bank in writing, and if the Bank
agrees in writing to provide such services, such series of Shares shall become
an Index Series hereunder and Appendix A shall be appropriately amended.
18. Assignment.
18.1 Except as provided in Section 18.3 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
18.2 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
18.3 The Bank, may without further consent on the part of the Fund,
subcontract for the performance of any of the services to be provided hereunder
to third parties, including any affiliate of the Bank.
19. Amendment. This Agreement may be amended or modified only by a written
agreement executed by both parties.
20. Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York, without regard to its conflict of laws provisions.
21. Merger of Agreement and Severability.
21.1 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
21.2 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.3 This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original; but such counterparts shall
together, constitute only one instrument.
22. Notices. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below:
For the Fund:
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iShares Trust
c/o Fund Administration
Barclays Global Fund Advisers
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
With a copy to: Legal Department
For the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
23. Fund Liability. The Bank agrees that the obligations assumed by the
Fund hereunder shall be limited in all cases to the assets of the Fund and that
the Bank shall not seek satisfaction of any such obligation from the officers,
agents, employees, trustees, or shareholders of the Fund.
24. Several Obligations of the Index Series. This Agreement is an agreement
entered into between the Bank and the Fund with respect to each Index Series.
With respect to any obligation of the Fund on behalf of any Index Series arising
out of this Agreement, the Bank shall look for payment or satisfaction of such
obligation solely to the assets of the Index Series to which such obligation
relates as though the Bank had separately contracted with the Fund by separate
written instrument with respect to each Index Series.
25. Use of Name. A party shall not use the name of the other party or any
of its affiliates in any prospectus, sales literature or other material relating
to the Fund in a manner not approved by the other party prior thereto in
writing; provided however, that such approval shall not be required for any use
of its name which merely refers in accurate and factual terms to the Bank's
appointment hereunder or which is required by the Securities and Exchange
Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority; provided further, that in no
event shall such approval be unreasonably withheld or delayed.
26. Confidentiality. Both parties hereto agree than any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed without the consent of the other party, except as may be
required by applicable law or at the request of a governmental agency or
self-regulatory organization. The parties further agree that a breach of this
provision would irreparably damage the other party and accordingly agree that
each of them is entitled, in addition to all other remedies at law or in equity
to an injunction or injunctions without bond or other security to prevent
breaches of this provision. In addition, the parties further agree that any
Nonpublic Personal Information, as defined under Section 248.3(t) of Regulation
S-P ("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the
"Act"), disclosed by a party hereunder is for the specific purpose of permitting
the other party to perform the services set forth in this Agreement. Each party
agrees that, with respect to such information, it will comply with Regulation
S-P and the Act and that it will not disclose any Nonpublic Personal Information
received in connection with this Agreement, to any other party, except as
necessary to carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and the year first above written.
iSHARES, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Secretary and Treasurer
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
12
Appendices
Appendix A............................. Series or Portfolios
13
APPENDIX A
iShares, Inc.
iShares MSCI Australia Index Fund
iShares MSCI Austria Index Fund
iShares MSCI Belgium Index Fund
iShares MSCI Brazil Index Fund
iShares MSCI Canada Index Fund
iShares MSCI Emerging Markets Index Fund
iShares MSCI EMU Index Fund
iShares MSCI France Index Fund
iShares MSCI Germany Index Fund
iShares MSCI Hong Kong Index Fund
iShares MSCI Italy Index Fund
iShares MSCI Japan Index Fund
iShares MSCI Malaysia Index Fund
iShares MSCI Mexico Index Fund
iShares MSCI Netherlands Index Fund
iShares MSCI Pacific ex-Japan Index Fund
iShares MSCI Singapore Index Fund
iShares MSCI South Africa Index Fund
iShares MSCI South Korea Index Fund
iShares MSCI Spain Index Fund
iShares MSCI Sweden Index Fund
iShares MSCI Switzerland Index Fund
iShares MSCI Taiwan Index Fund
iShares MSCI United Kingdom Index Fund
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