TRANSFER AGENCY AGREEMENT
(Xxxxxxx Opportunities Fund)
This TRANSFER AGENCY AGREEMENT (the "Agreement") is made as of July 23,
1999, between XXXXXXX ASSET MANAGEMENT, INC., a Michigan corporation ("Xxxxxxx
Management"), having its principal office and place of business at 0000
Xxxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, and XXXXXXX INVESTMENTS, a
Massachusetts business trust (the "Trust"), having its office at 0000
Xxxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000.
The Trust is registered with the Securities and Exchange Commission
(the "Commission") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and intends to
offer a series of its shares to be known as "Xxxxxxx Opportunities Fund" (the
"Fund"). Xxxxxxx Management is registered with the Commission as a transfer
agent pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
The parties hereto pursuant to the terms hereof enter into the
following Agreement:
1. Appointment As Agent. Effective October 11, 999, the Trust
hereby appoints Xxxxxxx Management to serve as transfer agent and dividend
disbursing agent for the Fund and Xxxxxxx Management agrees to provide such
services as provided herein. As transfer agent, Xxxxxxx Management agrees to
furnish to each shareholder a statement which shows all activity in the
shareholder's account, including purchases, redemptions, and reinvestment of
dividends, since the last such statement, such statements to be mailed at such
intervals as may be requested by the Trust, and on behalf of the Trust, to
forward any inquiries or correspondence from or with shareholders to such
persons as the Trust may designate from time to time. In addition, Xxxxxxx
Management regularly will furnish the Trust with current shareholder lists and
information necessary to keep the shares of beneficial interest in the Fund in
balance with the Trust's records. Xxxxxxx Management shall provide such
computer services as may be required to maintain a record of the status of each
shareholder account, including dividends accrued to such account on a daily
basis, and shall provide terminal facilities for processing of shareholder
purchase and redemption requests as well as maintenance of customer data. The
mailing of all financial statements, statements, notices and prospectuses to
shareholders is to be performed by Xxxxxxx Management, subject to reimbursement
for out of pocket expenses, as provided in Section 2.
2. Fees for Services of the Agent. As compensation for all
services rendered and to be rendered by Xxxxxxx Management pursuant to this
Agreement, the Trust shall pay to Xxxxxxx Management from the assets of the
Fund an annual fee equal to $11.00 for each shareholder account, calculated
monthly based upon 1/12 of such annual amount multiplied by the number of
shareholder accounts on the date of each monthly mailing of shareholder
statements (plus 1/12 of $11.00 for each duplicate statement mailed), or if no
such monthly mailing is to be made, as of the last day of each calendar month.
The Trust will also reimburse Xxxxxxx Management for any direct out-of-pocket
expenses for forms and mailing costs used in performing its functions, except
that customary out-of-pocket expenses (including postage) incurred in
connection with the periodic mailing of shareholder account statements on a
basis no more frequently than once per month shall be borne by Xxxxxxx
Management and not reimbursed by the Trust.
3. Term; Termination. This Agreement shall become effective with
respect to the Fund on the date hereof and shall remain in full force until the
second anniversary of the effective date set forth in Section 1 above, unless
sooner terminated as hereinafter provided. This Agreement shall continue in
force from year to year thereafter with respect to the Fund, but only as long
as such continuance is specifically approved for the Fund at least annually in
the manner required by the 1940 Act and the rules and regulations thereunder;
provided, however, that if the continuation of this Agreement is not approved
for the Fund, Xxxxxxx Management may continue to serve in such capacity for the
Fund in the manner and to the extent permitted by the 1940 Act and the rules
and regulations thereunder.
This Agreement shall automatically terminate in the event of its
assignment by Xxxxxxx Management, and may be terminated by the Board of
Trustees of the Trust, by vote of a majority of the outstanding voting
securities of the Trust, or by Xxxxxxx Management, at any time without cause
and without the payment of any penalty on sixty (60) days' written notice by
one party to the other party. This Agreement may also be terminated
immediately, upon delivery of notice of termination and without the payment of
any penalty, by the Trust in the event that the Board of Trustees determines
that Cause for termination exists. The term "Cause" shall include, without
limitation, (i) a material breach of this Agreement or other action or omission
by Xxxxxxx Management which has or is likely to have a material and imminent
adverse effect on the Fund or its shareholders, (ii) any other breach of this
Agreement by Xxxxxxx Management which is not cured within twenty (20) business
days after written notice of such breach from the Board, (iii) the insolvency
or the filing of bankruptcy or reorganization proceedings by or against Xxxxxxx
Management, or (iv) the conviction of Xxxxxxx Management or any director or
executive officer of Xxxxxxx Management of a felony. The terms "assignment"
and "majority of the outstanding voting securities" have the meanings set forth
in the 1940 Act and the rules and regulations thereunder. Termination of this
Agreement shall not affect the right of Xxxxxxx Management to receive payments
on any unpaid balance of the compensation described in Section 2 earned prior
to the effective date of such termination.
4. Specific Provisions Concerning Xxxxxxx Management Acting as
Transfer Agent.
(a) Recording of Shares. Xxxxxxx Management, as Transfer Agent,
is authorized, empowered and directed to record shares of beneficial interest
of the Fund, including shares of original issue, in such names and for such
number of shares as shall be directed by the Trust. The recording of ownership
of shares of the Fund may be integrated with Xxxxxxx Management's accounting
and record keeping systems in any manner deemed appropriate by Xxxxxxx
Management, provided that any such system shall be capable of accurate and
timely recording of ownership of Fund shares; and provided further that
notwithstanding such integration, each listing of ownership of Fund shares so
recorded pursuant to any integrated system shall constitute a register of
ownership of Fund shares. Upon receipt of a purchase order for the purchase
of shares and sufficient information to enable Xxxxxxx Management to establish
a shareholder account, and after confirmation of receipt or crediting of monies
for the order from the custodian of the Fund's assets, Xxxxxxx Management shall
issue and credit the account of the shareholder with shares in the manner
described in the Fund's then current Prospectus. Upon receipt of a redemption
order, Xxxxxxx Management shall redeem the number of shares indicated thereon
from the redeeming shareholders account and receive from the custodian and
disburse to the redeeming shareholder the redemption proceeds therefor, or
arrange for direct payment of redemption proceeds to such shareholder by the
custodian, in accordance with such procedures and controls as are mutually
agreed upon from time to time by and among the Trust, Xxxxxxx Management and
the custodian.
(b) Refusal or Delay of Transfers; Guaranties; Proof Of Ownership:
Particular Action or Instructions. Xxxxxxx Management as Transfer Agent may
refuse or delay to record an issuance or redemption of shares unless and until
it shall have been satisfied in its sole discretion that the requested issuance
or redemption is authorized, in which case it may require such evidence and/or
guaranty as shall be satisfactory to it until it shall have been satisfied in
its discretion as to the power, authority and capacity of any person whose act
may be relied upon to effect the issuance or redemption requested. Xxxxxxx
Management shall incur no liability for the refusal in good faith to record an
issuance or redemption which it, in its judgment, deems improper or
unauthorized.
Xxxxxxx Management as Transfer Agent is authorized to take or suffer
any action in accordance with instructions in writing signed by an officer of
the Trust in recording shares, notwithstanding any irregularity or lack of
power, authority or capacity of some party to the transaction, and without any
further inquiry concerning or examination into any facts, acts or instruments.
Xxxxxxx Management as Transfer Agent, upon receipt of instructions in writing
from an officer of the Trust, will address and mail to the shareholders such
notices, proxy material, financial statements, and other printed matter as the
Trust may desire to send. Xxxxxxx Management as Transfer Agent shall make
available to the Trust, and to such persons responsible for administration of
Trust affairs as the Trust may designate, computerized access to the current
list of the registered holders of shares as shown by the Transfer Agent's
records.
In case of any demand upon Xxxxxxx Management for inspection of the
records of ownership of shares of the Trust, Xxxxxxx Management shall endeavor
to notify the Trust and to secure instructions from an officer of the Trust to
permit or to refuse to permit such inspection. In the absence of instructions
to the contrary, Xxxxxxx Management will be authorized to exhibit such records
to any duly accredited representative of any Federal or State governmental
authority upon request of such representative, or pursuant to order of a court.
Xxxxxxx Management reserves the right, however, to exhibit such records to any
person in case it is advised by its legal counsel that it may be held liable
for the failure to exhibit such records to such person.
5. Specific Provisions Concerning Xxxxxxx Management Acting as
Dividend Disbursing Agent. Xxxxxxx Management will act as Dividend Disbursing
Agent for the Fund. As Dividend Disbursing Agent it will, as agent for each
shareholder, reinvest all dividends and distributions for the shareholder in
additional full and fractional shares of the Fund, or, if a proper election has
been filed by the shareholder, shall distribute such distributions and
dividends, on the date upon which the dividend or distribution is to be paid,
and of the record date as of which the list is to be taken of persons entitled
to receive such dividend or distribution. The Trust shall cause to be
deposited with Xxxxxxx Management prior to 12:00 Noon, Central Time, on the day
on which the dividend or distribution is to be paid the amount of money
necessary for the payment of such dividend or distribution, without which
deposit Xxxxxxx Management will not be under any obligation to distribute such
dividend or distribution.
Dividend checks shall be of a form and size compatible for use on the
mechanical equipment of Xxxxxxx Management. A sufficient supply of such checks
must be in the possession of Xxxxxxx Management on the record date. Any
portion of monies deposited with Xxxxxxx Management for the payment of a
dividend or distribution, which shall remain unclaimed by the person or persons
entitled thereto at the end of three years from the payment date of such
dividend or distribution, shall be returned to the Trust, to be held by the
Trust for the same purpose as if held by Xxxxxxx Management, and thereafter any
person entitled to payment out of said Trust shall look only to the Trust for
payment thereof, although such person say have in his possession the dividend
check drawn by Xxxxxxx Management as Transfer Agent and Dividend Disbursing
Agent for the amount payable. If a shareholder shall report to Xxxxxxx
Management that any such check so mailed has been lost, stolen or destroyed and
that he has not received the proceeds thereof and if the check has not been
paid, then, upon execution of an indemnity agreement in form satisfactory to
Xxxxxxx Management and the Trust, Xxxxxxx Management may stop payment upon such
check and may issue and deliver to such shareholder a new check for like
amount. Such indemnity agreement may be in the form of an endorsement upon the
new check. Xxxxxxx Management may defer the issue of the new check for a
period of 30 days or more. Xxxxxxx Management shall prepare and file with the
Internal Revenue Service and other appropriate taxing authorities, and address
and mail to shareholders or their authorized representatives such returns and
information relating to dividends and distributions paid by the Trust as are
required to be so prepared, filed and mailed by applicable laws, rules and
regulations, or such substitute form of notice as may from time to time be
permitted or required by the Internal Revenue Service or other appropriate
taxing authorities. On behalf of the Trust, Xxxxxxx Management shall pay on
a timely basis to the appropriate Federal authorities any taxes required by
applicable Federal tax laws to be withheld by the Trust on dividends and
distributions paid by the Trust.
6. Limitation of Trust Liability. The Declaration of Trust
establishing Xxxxxxx Investments, dated July 19, 1993, a copy of which,
together with all amendments thereto (the "Declaration"), is on file in the
office of the Secretary of the Commonwealth of Massachusetts, provides that the
name "Xxxxxxx Investments" refers to the Trustees under the Declaration
collectively as Trustees, but not as individuals or personally; and no Trustee,
shareholder, officer, employee or agent of Xxxxxxx Investments, shall be held
to any personal liability, nor shall result be had to their private property
for the satisfaction of any obligation or claim or otherwise in connection with
the affairs of said Xxxxxxx Investments, but the Trust Estate only shall be
liable.
7. General. Xxxxxxx Management shall be protected in acting upon
any paper or document believed by it to be genuine and to have been signed by
the proper person or persons and shall not be held to have notice of any change
of authority of any person, until receipt of written notice thereof from the
Trust. Xxxxxxx Management represents that it has and is currently registered
as a transfer agent with the Commission and has complied with the regulations
of the appropriate federal agency for registered transfer agents. Xxxxxxx
Management agrees that it will continue to be registered as a transfer agent
with the appropriate federal agency for the duration of this Agreement.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent Trust action, the appointment of Xxxxxxx Management as Transfer
Agent and Dividend Disbursing Agent will be construed to cover an unlimited
amount of authorized shares of the Fund, provided that Xxxxxxx Management
shall not register or record any shares of the Fund in excess of the number of
shares which the Trust may hereafter designate in writing. Xxxxxxx Management
shall maintain records for the Fund showing for each shareholder's account such
historical information and shareholder data as may be requested by the Trust.
Xxxxxxx Management shall furnish the Trust state by state registration reports,
such periodic and special reports as the Trust may reasonably request, and such
other information, including shareholder lists and statistical information
concerning accounts, as may be agreed upon from time to time between the Trust
and Xxxxxxx Management. Any such records required to be maintained by Rule
3la-1 under the 1940 Act shall be preserved for the periods prescribed in Rule
3la-2. Records may be inspected by the Trust at reasonable times. Records and
documents shall be retained six years from the year of creation, during the
first two of which such documents will be in readily accessible form. At the
end of the six year period, such records and documents will either be turned
over to the Trust or destroyed, in accordance with the Trusts authorization.
In the event of equipment failures beyond Xxxxxxx Management's control,
Xxxxxxx Management shall, at no additional expense to the Trust, take
reasonable steps to minimize service interruptions but shall have no liability
with respect thereto. Xxxxxxx Management shall enter into and shall maintain
in effect with appropriate parties one or more agreements making reasonable
provision for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. Xxxxxxx Management warrants that
all software code owned by or under its control, used in the performance of its
obligations under this agreement, will be Year 2000 compliant. For purposes
of this paragraph, "Year 2000 Compliant" means that the software will continue
to operate beyond December 31, 1999, without creating any logical or
mathematical inconsistencies concerning any date after December 31, 1999, and
without decreasing the functionality of the system applicable to dates prior
to January 1, 2000, including, but not limited to, making changes to (a) date
and data century recognition; (b) calculations which accommodate same-century
and multi-century formulas and date values; and (c) input/output of date values
which reflect century dates. All changes described in this paragraph will be
made at no additional cost to the Fund.
At any time Xxxxxxx Management may apply to any officer of the Trust
for instructions, and may consult with legal counsel for the Trust or its own
legal counsel, at the expense of the Trust, in respect of any matter arising
in connection with the agency, and it shall not be liable for any action taken
or not taken or suffered by it in good faith in accordance with such
instructions or with the opinion of counsel. However, nothing in this
paragraph shall be construed as imposing upon Xxxxxxx Management any obligation
(i) to seek such directions or advice, or (ii) to act in accordance with such
directions or advice when received, unless, under the terms of another
provision of this Agreement, the same is a condition to Xxxxxxx Management's
properly taking or omitting to take such action. The Trust will hold Xxxxxxx
Management harmless against the claim or demand of any person as a result of
action taken or not taken upon instructions from the Trust.
This Agreement shall be governed by the laws of the State of Michigan,
without reference to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed.
XXXXXXX INVESTMENTS XXXXXXX ASSET MANAGEMENT, INC.
By: /S/ XXXX X. XXXXXXXX By: /S/ XXXX X. XXXXXX
Xxxx X. Xxxxxxxx, Chairman Xxxx X. Xxxxxx, President
