EXHIBIT 23(H)(3)
TRANSFER AGENT SERVICING AGREEMENT
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of December,
1999, by and between The Legacy Funds, Inc., a Delaware business trust
(hereinafter referred to as the "Company"), and Firstar Mutual Fund Services,
LLC, a Wisconsin limited liability company (hereinafter referred to as the
"Firstar").
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, Firstar is in the business of administering transfer and
dividend disbursing agent functions for investment companies; and
WHEREAS, the Company desires to retain Firstar to provide transfer and
dividend disbursing agent services to The Legacy Growth Fund and each
additional series of the Company listed on Exhibit A attached hereto (each, a
"Fund"), as may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and Firstar agree as follows:
1. Appointment of Transfer Agent
The Company hereby appoints Firstar as Transfer Agent of the Company on
the terms and conditions set forth in this Agreement, and Firstar hereby
accepts such appointment and agrees to perform the services and duties set
forth in this Agreement in consideration of the compensation provided for
herein. In performing its duties hereunder, Firstar will act in conformity
with the instructions and directions of the Board of Trustees of the Company
and such officers of the Company as may be designated for such purpose by the
Board of Trustees from time to time which are timely delivered to Firstar.
2. Duties and Responsibilities of Firstar
Firstar 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 certificated or
uncertificated shares with such 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;
D. Pay monies upon receipt from the Company's custodian, where
relevant, in accordance with the instructions of redeeming
shareholders and the Fund's prospectus and statement of
additional information;
E. Process transfers of shares in accordance with the shareholder's
instructions and the Fund's prospectus and statement of
additional information;
F. Process exchanges between funds and/or classes of shares of funds
both within the same family of funds and with the Firstar Money
Market Funds, if applicable;
G. Issue and/or cancel certificates as instructed; replace lost,
stolen or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
H. Prepare and transmit payments for dividends and distributions
declared by the Company with respect to the Fund;
I. Make changes to shareholder records, including, but not limited
to, address changes in plans (i.e., systematic withdrawal,
automatic investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant
to 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 and maintain such other records as are required to be
maintained by a transfer agent for open-end registered investment
companies by the rules under the 1934 Act;;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all shareholders;
N. 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;
O. 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 Firstar,
shall identify to Firstar in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting for
each state. The responsibility of Firstar for the Company's Blue
Sky state registration status under this Agreement is solely
limited to the initial compliance by the Company and the
reporting of such transactions to the Company or its agent.
P. Answer telephone calls and correspondence from shareholders
relating to their accounts during Firstar's normal business
hours. Firstar shall strive to promptly respond to all such
telephone or written inquiries from shareholders. Copies of all
correspondence from shareholders involving complaints about the
management of the Company, services provided by or for the
Company, Firstar or others, shall be promptly forwarded to the
Company. Firstar shall keep records of substantive shareholder
telephone calls and correspondence and replies thereto, and of
the lapse of time between receipt of such calls and
correspondence and replies.
Q. Prepare such reports as may be reasonably requested from time to
time by the Company or its Board of Trustees relating to fees
paid out under a Fund's Rule 12b-1 plan.
3. Compensation
The Company agrees to pay Firstar 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. Such fees shall become
effective and begin to accrue upon the first public offering and sale of
shares of the Fund.
These fees and reimbursable expenses may be changed from time to time
by mutual written agreement between the Company and Firstar.
THE COMPANY AGREES TO PAY ALL FEES AND REIMBURSABLE EXPENSES WITHIN TEN (10)
BUSINESS DAYS FOLLOWING THE RECEIPT OF THE BILLING NOTICE.
4. Representations of Firstar
Firstar represents and warrants to the Company that:
A. It is a limited liability 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 (the "Securities Act"), and the Exchange
Act, the 1940 Act, and any laws, rules, and regulations of
governmental authorities having jurisdiction.
5. Representations of the Company
The Company represents and warrants to Firstar that:
A. The Company is an open-end diversified investment company under
the 1940 Act;
B. The Company is a business trust organized, existing, and in good
standing under the laws of Delaware;
C. The Company is empowered under applicable laws and by its
Agreement and Declaration of Trust and Bylaws to enter into and
perform this Agreement;
D. All necessary proceedings required by the Agreement and
Declaration of Trust 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 with respect to all shares of
the Company being offered for sale.
6. Covenants of the Company and Firstar
The Company shall furnish Firstar a certified copy of the resolution of
the Board of Trustees of the Fund authorizing the appointment of Firstar and
the execution of this Agreement. The Company shall provide to Firstar a copy
of its Agreement and Declaration of Trust and Bylaws, and all amendments
thereto.
Firstar shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable and as required
under the Exchange Act or under the 1940 Act, and the rules thereunder,.
Firstar agrees that all such records prepared or maintained by Firstar
relating to the services to be performed by Firstar 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.
7. Performance of Service; Limitation of Liability
Firstar shall exercise reasonable care in the performance of its duties
under this Agreement. Firstar 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 Firstar's control, except a loss resulting from Firstar'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 Firstar 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 Firstar may sustain or incur or
which may be asserted against Firstar by any person arising out of any action
taken or omitted to be taken by it in performing the services hereunder (i)
except as provided in the first two sentences of this paragraph, or (ii) in
reliance upon any written or oral instruction for a proper corporate purpose
provided to Firstar by any duly authorized officer of the Company not
employed by Firstar or any of its affiliates, such duly authorized officer to
be included in a list of authorized officers furnished to Firstar and as
amended from time to time in writing by resolution of the Board of Trustees
of the Company.
Firstar shall indemnify and hold the Company, each controlling person
of the Company and their respective directors, trustees and officers (each a
"Firstar Indemnitee") 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
such Firstar Indemnitee may sustain or incur or which may be asserted against
such Firstar Indemnitee by any person arising out of any action taken or
omitted to be taken by Firstar as a result of Firstar'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, Firstar shall take all reasonable steps to
minimize service interruptions for any period that such interruption
continues beyond Firstar's control. Firstar 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 Firstar. Firstar agrees that it
shall, at all times, have reasonable and tested 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
Firstar's premises and operating capabilities at any time during regular
business hours of Firstar, upon reasonable notice to Firstar.
Regardless of the above, Firstar 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 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
if it acknowledges its responsibility for such claim. 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 (i) initiate no further legal or other expenses for
which it shall seek indemnification under this section and (ii) not 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.
The trustees and shareholders of the Company shall not be personally
liable for any of the obligations of the Fund or the Company under this
Agreement or in connection with any matter arising under or in connection
with this Agreement.
8. Proprietary and Confidential Information
Firstar 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 Firstar 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.
9. Data Necessary to Perform Services
Firstar shall provide to the Company's fund accountant, administrator,
custodian, investment adviser and distributor such information and data
produced or maintained by it under this Agreement as may be necessary for
such other persons to perform their duties and obligations under their
respective agreements with the Company and in such form as may be required by
such persons.
10. Term of Agreement
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue automatically in effect
for successive two year periods. This Agreement may be terminated by the
Company upon giving ninety (90) days prior written notice to the other party.
11. Notices
Notices of any kind to be given by either party to the other party
shall be in writing and shall be duly given if mailed or delivered as
follows:
Notice to Firstar shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Company shall be sent to:
The Legacy Funds, Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: President
or such other address of a party as may be specified by such party by written
notice hereunder.
12. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of Firstar's duties or responsibilities hereunder is designated by the
Company by written notice to Firstar, Firstar will promptly, upon such
termination and at the expense of the Company, transfer to such successor all
relevant books, records, correspondence, and other data established or
maintained by Firstar under this Agreement in a form reasonably acceptable
to the Company (if such form differs from the form in which Firstar has
maintained such data, the Company shall pay any expenses associated with
transferring the data to such form), and will cooperate in the transfer of
such duties and responsibilities, including provision for assistance from
Firstar's personnel in the establishment of books, records, and other data by
such successor.
13. Governing Law
This Agreement shall be construed 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.
14. Assignment
This Agreement may not be assigned by Firstar, nor may Firstar delegate
its duties hereunder, without the prior written consent of the Company, and
any assignment not in compliance with this Section shall be void. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
15. Amendment; Waiver
This Agreement may not be amended or changed except by a written
instrument signed by the parties hereto. No omission or delay on the part of
either party in requiring the due and punctual fulfillment by the other party
of any of its obligations hereunder shall constitute a waiver by the omitting
or delaying party of any of its rights to require such due and punctual
fulfillment of any obligation hereunder, whether similar or otherwise, or a
waiver of any remedy it may have hereunder or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer in one or more counterparts as of
the day and year first written above.
THE LEGACY FUNDS, INC. FIRSTAR MUTUAL FUND
SERVICES, LLC
By:_________________________________ By:_________________________________
Print:______________________________ Print:______________________________
Title:______________________________ Title:______________________________
Date:_______________________________ Date:_______________________________
Attest:_____________________________ Attest:_____________________________
TRANSFER AGENT AND SHAREHOLDER SERVICING
ANNUAL FEE SCHEDULE
EXHIBIT A
Separate Series of The Legacy Funds, Inc.
Name of Series Date Added
Legacy Growth Fund December [__], 1999
* The fee structure will an annual minimum of the greater of $15,000 or 1/2
of one basis point on assets of the fund, for an omnibus type fund, plus
an additional charge of $15.00 per no-load shareholder account outside of
the omnibus account. Additional funds or classes which are not an omnibus
arrangement will be charged at the greater of an annual minimum of $15,000
or a per account charge of $15.00 for a no-load shareholder account.
* Plus out-of-pocket expenses, including, but not limited to:
o Telephone - toll free lines
o Postage, Stationery, Envelopes
o Programming, Special Reports
o Insurance, Record Retention
o Microfilm/fiche of Records
o Proxies, ACH fees, NSCC charges
o Mailings
o All other out-of-pocket expenses
* Activity Charges
o Draft Check Processing - $1.00 per draft
o Daily Valuation Trades - $6.75 per trade
o Telephone Calls - $1.00 per call
o ACH Shareholder Service
o $125.00 per month per fund group
o $.50 per ACH item, setup and/or change
o $5.00 per correction, reversal, return item
* Other Charges (Interfaces)
Separate fee schedules will be provided upon request for such functions as
NSCC and Internet interfaces.
