EXHIBIT (9)(a)
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 31st day of May,
1996 between Wilshire Target Funds, Inc. (the "Fund"), a
Maryland corporation having its principal place of business
at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx and FIRST DATA
INVESTOR SERVICES GROUP, INC. ("FDISG"), a Massachusetts
corporation with principal offices at Xxx Xxxxxxxx Xxxxx,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate
series, with each such series representing interests in a
separate portfolio of securities and other assets;
WHEREAS, the Fund intends to offer shares in those
Portfolios identified in the attached Exhibit 1, as the
same may be amended from time to time in accordance with
Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to
appoint FDISG as its transfer agent, dividend disbursing
agent and agent in connection with certain other activities
and FDISG desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants
and promises hereinafter set forth, the Fund and FDISG
agree as follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles
of Incorporation, Declaration of Trust, or other similar
organizational document as the case may be, of the Fund as
the same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include (i)
any authorized officer of the Fund; or (ii) any person,
whether or not such person is an officer or employee of the
Fund, duly authorized to give Oral Instructions or Written
Instructions on behalf of the Fund as indicated in writing
to FDISG from time to time.
(c) "Board of Directors" shall mean the Board of
Directors or Board of Trustees of the Fund, as the case may
be.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian
of securities and other property which the Fund may from
time to time deposit, or cause to be deposited or held
under the name or account of such a custodian pursuant to a
Custodian Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of
1934 and the rules and regulations promulgated
thereunder, all as amended from time to time.
(g) "1940 Act" shall mean the Investment Company Act of
1940 and the rules and regulations promulgated thereunder,
all as amended from time to time.
(h) "Oral Instructions" shall mean instructions, other
than Written Instructions, actually received by FDISG from
a person reasonably believed by FDISG to be an Authorized
Person;
(i) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interest in a separate
portfolio of securities and other assets;
(j) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information,
including any supplements thereto if any, which has become
effective under the Securities Act of 1933 and the 1940
Act.
(k) "Shares" refers collectively to such shares of
capital stock or beneficial interest, as the case may be,
or class thereof, of each respective Portfolio of the Fund
as may be issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of
each respective Portfolio of the Fund.
(m) "Written Instructions" shall mean a written
communication signed by a person reasonably believed by
FDISG to be an Authorized Person and actually received by
FDISG. Written Instructions shall include manually
executed originals and authorized electronic transmissions,
including telefacsimile of a manually executed original or
other process.
Article 2 Appointment of FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and
constitutes FDISG as transfer agent and dividend disbursing
agent for Shares of each respective Portfolio of the Fund
and as shareholder servicing agent for the Fund and FDISG
hereby accepts such appointments and agrees to perform the
duties hereinafter set forth.
Article 3 Duties of FDISG.
3.1 FDISG shall be responsible for:
(a) Administering and/or performing the customary
services of a transfer agent; acting as service agent in
connection with dividend and distribution functions; and
for performing shareholder account and administrative agent
functions in connection with the issuance, transfer and
redemption or repurchase (including coordination with the
Custodian) of Shares of each Portfolio, as more fully
described in the written schedule of Duties of FDISG
annexed hereto as Schedule A and incorporated herein, and
in accordance with the terms of the Prospectus of the Fund
on behalf of the applicable Portfolio, applicable law and
the procedures established from time to time between FDISG
and the Fund.
(b) Recording the issuance of Shares and maintaining
pursuant to Rule 17Ad-10(e) of the 1934 Act a record of the
total number of Shares of each Portfolio which are
authorized, based upon data provided to it by the Fund, and
issued and outstanding. FDISG shall provide the Fund on a
regular basis with the total number of Shares of each
Portfolio which are authorized and issued and outstanding
and shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale
of such Shares, which functions shall be the sole
responsibility of the Fund.
(c) Notwithstanding any of the foregoing provisions of
this Agreement, FDISG shall be under no duty or obligation
to inquire into, and shall not be liable for: (i) the
legality of the issuance or sale of any Shares or the
sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety
of the amount to be paid therefor; (iii) the legality of
the declaration of any dividend by the Board of Directors,
or the legality of the issuance of any Shares in payment of
any dividend; or (iv) the legality of any recapitalization
or readjustment of the Shares.
3.2 In addition, FDISG shall have no responsibility under
this Agreement to (i) identify those transactions and
assets to be treated as exempt from blue sky reporting for
each State or (ii) verify the establishment of transactions
for each State on the system prior to activation and
thereafter monitor the daily activity for each State which
shall be the responsibility of the Fund's blue sky service
agent (which may be FDISG under separate agreement). The
responsibility of FDISG under this Agreement for the Fund's
blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky
compliance by the Fund and the reporting of such
transactions to the Fund as provided above.
3.3 In addition to the duties set forth herein, FDISG
shall perform such other duties and functions, and shall be
paid such amounts therefor, as may from time to time be
agreed upon in writing between the Fund and FDISG.
Article 4 Recordkeeping and Other Information.
4.1 FDISG shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in
Schedule A in accordance with all applicable laws, rules
and regulations, including records required by Section
31(a) of the 1940 Act. Where applicable, such records
shall be maintained by FDISG for the periods and in the
places required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act,
FDISG agrees that all such records prepared or maintained
by FDISG relating to the services to be performed by FDISG
hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with
such section, and will be surrendered promptly to the Fund
on and in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection
of Shareholder records of the Fund, FDISG will endeavor to
notify the Fund of such request and secure Written
Instructions as to the handling of such request. FDISG
reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel
that it may be held liable for the failure to comply with
such request.
Article 5 Fund Instructions.
5.1 FDISG will have no liability when acting upon Written
or Oral Instructions reasonably believed to have been
executed or orally communicated by an Authorized Person and
will not be held to have any notice of any change of
authority of any person until receipt of a Written
Instruction thereof from the Fund. FDISG will also have no
liability when processing Share certificates which it
reasonably believes to bear the proper manual or facsimile
signatures of the officers of the Fund and the proper
countersignature of FDISG.
5.2 At any time, FDISG may request Written Instructions
from the Fund and may seek advice from legal counsel for
the Fund, or its own legal counsel, with respect to any
matter arising in connection with this Agreement, and it
shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such
Written Instructions or in accordance with the opinion of
counsel for the Fund or for FDISG. Written Instructions
requested by FDISG will be provided by the Fund within a
reasonable period of time.
5.3 FDISG, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to
them by any person representing or acting on behalf of the
Fund only if said representative is an Authorized Person.
The Fund agrees that all Oral Instructions shall be
followed within one business day by confirming Written
Instructions, and that the Fund's failure to so confirm
shall not impair in any respect FDISG's right to rely on
Oral Instructions.
Article 6 Compensation.
6.1 The Fund on behalf of each of the Portfolios will
compensate FDISG for the performance of its obligations
hereunder in accordance with the fees set forth in the
written Fee Schedule annexed hereto as Schedule B and
incorporated herein.
6.2 In addition to those fees set forth in Section 6.1
above, the Fund on behalf of each of the Portfolios agrees
to pay, and will be billed separately for, out-of-pocket
expenses incurred by FDISG in the performance of its duties
hereunder. Out-of-pocket expenses shall include the items
specified in the written schedule of out-of-pocket charges
annexed hereto as Schedule C and incorporated herein.
Schedule C may be modified by written agreement between the
parties. Unspecified out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred
by FDISG in the performance of its obligations hereunder
and authorized in advance by an officer of the Fund who is
not an affiliate of FDISG.
6.3 The Fund on behalf of each of the Portfolios agrees
to pay all fees and out-of-pocket expenses within fifteen
(15) days following the receipt of the respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted
from time to time by attaching to Schedule B, a revised Fee
Schedule executed and dated by the parties hereto.
6.5 The Fund acknowledges that the fees that FDISG
charges the Fund under this Agreement reflect the
allocation of risk between the parties, including the
disclaimer of warranties in Section 9.3 and the limitations
on liability and exclusion of remedies in Section 11.2 and
Article 12. Modifying the allocation of risk from what is
stated here would affect the fees that FDISG charges, and
in consideration of those fees, the Fund agrees to the
stated allocation of risk.
Article 7 Documents.
In connection with the appointment of FDISG, the Fund
shall, on or before the date this Agreement goes into
effect, but in any case within a reasonable period of time
for FDISG to prepare to perform its duties hereunder,
deliver or caused to be delivered to FDISG the documents
set forth in the written schedule of Fund Documents annexed
hereto as Schedule D.
Article 8 Transfer Agent System.
8.1 FDISG shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report
formats, interactive design techniques, derivative works,
inventions, discoveries, patentable or copyrightable
matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by FDISG
in connection with the services provided by FDISG to the
Fund herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to
the FDISG System for the sole and limited purpose of having
FDISG provide the services contemplated hereunder and
nothing contained in this Agreement shall be construed or
interpreted otherwise and such license shall immediately
terminate with the termination of this Agreement.
Article 9 Representations and Warranties.
9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organize and existing and in
good standing under the laws of the Commonwealth of
Massachusetts;
(b) it is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and
perform this Agreement;
(c) all requisite corporate proceedings have been taken
to authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will
remain in effect for the duration of this Agreement; and
(e) it has and will continue to have access to the
necessary facilities, equipment and personnel to perform
its duties and obligations under this Agreement.
9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized and existing and in good
standing under the laws of the jurisdiction in which it is
organized;
(b) it is empowered under applicable laws and by its
Article of Incorporation and By-Laws to enter into this
Agreement;
(c) all corporate proceedings required by said Articles
of Incorporation, By-Laws and applicable laws have been
taken to authorize it to enter into this Agreement;
(d) a registration statement under the Securities Act of
1933, as amended, and the 1940 Act relating to each of the
Portfolios is currently effective and will remain
effective, and all 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; and
(e) all outstanding Shares are validly issued, fully paid
and non-assessable and when Shares are hereafter issued in
accordance with the terms of the Fund's Articles of
Incorporation and its Prospectus with respect to each
Portfolio, such Shares shall be validly issued, fully paid
and non-assessable.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, FDISG DISCLAIMS ALL OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO
THE FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR
USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED
INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT.
FDISG DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
Article 10 Indemnification.
10.1 FDISG shall not be responsible for and the Fund on
behalf of each Portfolio shall indemnify and hold FDISG
harmless from and against any and all claims, costs,
expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or
kind which may be asserted against FDISG or for which FDISG
may be held to be liable (a "Claim") arising out of or
attributable to any of the following:
(a) any actions of FDISG required to be taken pursuant to
this Agreement unless such Claim resulted from a negligent
act or omission to act or bad faith by FDISG in the
performance of its duties hereunder;
(b) FDISG's reasonable reliance on, or reasonable use of
information, data, records and documents (including but not
limited to magnetic tapes, computer printouts, hard copies
and microfilm copies) received by FDISG from the Fund, or
any authorized third party acting on behalf of the Fund,
including but not limited the prior transfer agent for the
Fund, in the performance of FDISG's duties and obligations
hereunder;
(c) the reliance on, or the implementation of, any
Written or Oral Instructions;
(d) except to the extent that FDISG serves as the Fund's
Administrator under separate agreement, the offer or sales
of shares in violation of any requirement under the
securities laws or regulations of any state that such
shares be registered in such state or in violation of any
stop order or other determination or ruling by any state
with respect to the offer or sale of such shares in such
state; and
(e) the Fund's refusal or failure to comply with the
terms of this Agreement, or any Claim which arises out of
the Fund's negligence or misconduct or the breach of any
representation or warranty of the Fund made herein.
10.2 FDISG shall indemnify and hold harmless the Fund from
and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges,
payments and liabilities of any sort or kind which may be
asserted against the Fund or for which the Fund may be held
to be liable in connection with this Agreement or FDISG's
performance hereunder (also a "Claim"), if such Claim
arises by reason of FDISG's refusal to comply with the
terms of this Agreement, or any Claim which arises out of
FDISG's negligence or misconduct hereunder or the breach of
any representation or warranty of FDISG made herein.
10.3 In any case in which the one party hereto may be
asked to indemnify or hold the other harmless pursuant to
the provisions of Sections 10.1 or 10.2 hereof, the party
seeking indemnification will notify the other party
promptly after identifying any situation which it believes
presents or appears likely to present a claim for
indemnification hereunder, although the failure to do so
shall not prevent recovery by the party seeking
indemnification except to the extent that such failure
prejudices the other party in its defense of any such
claim, and shall keep the other party advised with respect
to all developments concerning such situation. The party
from whom indemnification is sought shall have the option
to defend the other party against any Claim which may be
the subject of this indemnification, and, in the event that
the party from whom the indemnification is sought so
elects, such defense shall be conducted by counsel chosen
by the party from whom the indemnification is sought and
satisfactory to the other party, and thereupon the party
from whom the indemnification is sought shall take over
complete defense of the Claim and the other party shall
sustain no further legal or other expenses in respect of
such Claim. The party seeking indemnification will not
confess any Claim or make any compromise in any case in
which the other party will be asked to provide
indemnification, except with the other party's prior
written consent. The obligations of the parties hereto
under this Article 10.3 shall survive the termination of
this Agreement.
10.4 Any claim for indemnification under this Agreement
must be made prior to the earlier of:
(a) one year after the party seeking indemnification
becomes aware of the event for which indemnification is
claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter
of law (and injunctive or provisional relief), the
provisions of this Article 10 shall be FDISGs sole and
exclusive remedy for claims or other actions or proceedings
to which the Funds indemnification obligations pursuant to
this Article 10 may apply.
Article 11 Standard of Care.
11.1 FDISG shall at all times act in good faith and agrees
to use its best efforts within commercially reasonable
limits to ensure the accuracy of all services performed
under this Agreement, but assumes no responsibility for
loss or damage to the Fund unless said errors are caused by
FDISG's own negligence, bad faith or willful misconduct or
that of its employees.
11.2 Notwithstanding any provision in this Agreement to
the contrary, FDISG's cumulative liability (to the Fund)
for all Claims arising out of or related to this Agreement
and regardless of the form of action or legal theory shall
not exceed one million ($1,000,000) dollars plus any and
all amounts available to FDISG or the Fund in respect of
such Claims under FDISG's liability insurance, which FDISG
agrees continuously to maintain in principal coverage
amounts of at least five million dollars ($5,000,000) at
all times during the term of this Agreement and for at
least one (1) year thereafter. FDISG agrees to furnish
initial certification of such insurance coverage upon the
execution of this Agreement and subsequent certification of
such coverage upon the request of the Fund. Fund
understands the limitation on FDISG's damages to be a
reasonable allocation of risk and Fund expressly consents
with respect to such allocation of risk. In allocating
risk under the Agreement, the parties agree that the damage
limitation set forth above shall apply to any alternative
remedy ordered by a court in the event such court
determines that sole and exclusive remedy provided for in
the Agreement fails of its essential purpose.
11.3 Each party shall have the duty to mitigate damages
for which the other party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES OR ANY OF
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY,
PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first
written above and shall continue for a period of three five
(3) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this
Agreement shall automatically renew for successive terms of
one (1) year ("Renewal Terms") each, unless the Fund or
FDISG provides written notice to the other of its intent
not to renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty (180)
days prior to the expiration of the Initial Term or the
then current Renewal Term.
13.3 Upon termination, for whatever reason, FDISG shall
cooperate fully with the Fund and with any successor
transfer and dividend disbursing or shareholder services
agent for the Fund in connection with the transfer of the
transfer, dividend disbursing or shareholder services
functions to such successor agent, and shall act promptly
and expeditiously in all matters relating thereto,
including the transfer of all records, data and information
reasonable necessary or appropriate to such transfer of
functions, with a view toward achieving an orderly,
efficient and cost-effective transition on any reasonable
schedule which may be established therefor by the Fund, in
good faith, taking into account the circumstances of FDISG,
including the time of year, other operational demands made
on FDISG at the time and any other factors which FDISG may
communicate to the Fund as being relevant to the
establishment of such schedule. The Fund agrees to
reimburse FDISG for all reasonable costs and expenses
incurred in connection with the aforementioned transfer to
a successor agent.
13.4 A party may terminate this Agreement by giving thirty
(30) days written notice of such termination to the other
party in the event that the other party has become
insolvent or made a general assignment for the benefit of
creditors, or a petition under the Bankruptcy Code is filed
by or against the other party and the other party has not
discharged said petition within thirty (30) days after such
filing.
13.5 If a party hereto is guilty of a material failure to
perform its duties and obligations hereunder (a "Defaulting
Party") the other party (the "Non-Defaulting Party") may
give written notice thereof to the Defaulting Party, and if
such material breach shall not have been remedied within
thirty (30) days after such written notice is given, then
the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination
to the Defaulting Party. The termination of this Agreement
by a non-defaulting party shall not constitute a waiver of
any other rights or remedies of such party with respect to
services performed prior to such termination or rights of
such party to be reimbursed for out-of-pocket expenses
hereunder. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting
Party of any other rights it might have under this
Agreement or otherwise against the Defaulting Party.
Article 14 Additional Portfolios.
In the event that the Fund establishes one or more
Portfolios in addition to those identified in Exhibit 1,
with respect to which the Fund desires to have FDISG render
services as transfer agent under the terms hereof, the Fund
shall so notify FDISG in writing, and if FDISG agrees in
writing to provide such services, Exhibit 1 shall be
amended to include such additional Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information
(defined below) (collectively "Confidential Information")
are confidential information of the parties and their
respective licensers. The Fund and FDISG shall exercise at
least the same degree of care, but not less than reasonable
care, to safeguard the confidentiality of the Confidential
Information of the other as it would exercise to protect
it's own confidential information of a similar nature. The
Fund and FDISG may use the Confidential Information only to
exercise its rights under this Agreement. The Fund and
FDISG shall not duplicate, sell or disclose to others the
Confidential Information of the other, in whole or in part,
without the prior written permission of the other party.
The Fund and FDISG may, however, disclose Confidential
Information to its employees who have a need to know the
Confidential Information to perform work for the other,
provided that each shall use reasonable efforts to ensure
that the Confidential Information is not duplicated or
disclosed by its employees in breach of this Agreement.
The Fund and FDISG may also disclose the Confidential
Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing
to be bound by the confidentiality obligations
substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall
either the Fund or FDISG disclose the Confidential
Information to any competitor of the other without
specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively
sensitive material, and not generally known to the public,
including, but not limited to, information about product
plans, marketing strategies, finance, operations, customer
relationships, customer profiles, sales estimates, business
plans, and internal performance results relating to the
past, present or future business activities of the Fund or
FDISG, their respective subsidiaries and affiliated com-
panies and the customers, clients and suppliers of any of
them;
(b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commer-
cially valuable and secret in the sense that its confiden-
tiality affords the Fund or FDISG a competitive advantage
over its competitors; and
(c) all confidential or proprietary concepts, documen-
tation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inven-
tions, know-how, show-how and trade secrets, whether or not
patentable or copyrightable.
15.3 Confidential Information includes, without
limitation, all documents, inventions, substances,
engineering and laboratory notebooks, drawings, diagrams,
specifications, bills of material, equipment, prototypes
and models, and any other tangible manifestation of the
foregoing of either party which now exist or come into the
control or possession of the other.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and
to the extent such default or delay is caused, directly or
indirectly, by (i) fire, flood, elements of nature or other
acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country,
(iii) any act or omission of any governmental authority;
(iv) any labor disputes (whether or not the employees'
demands are reasonable or within the party's power to
satisfy); or (v) nonperformance by a third party or any
similar cause beyond the reasonable control of such party,
including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event,
the non-performing party shall be excused from any further
performance and observance of the obligations so affected
only for as long as such circumstances prevail and such
party continues to use commercially reasonable efforts to
recommence performance or observance as soon as
practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be
binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent
of the other party, which consent shall not be unreasonably
withheld; provided, however, that FDISG may, in its sole
discretion, assign all its right, title and interest in
this Agreement to an affiliate, parent or subsidiary,
provided that (i) the financial capacity of such assignee
is not materially less than FDISG's; (ii) the nature and
quality of the services to be provided hereunder are not
materially adversely affected by such assignment ; and
(iii) the quality and capabilities of the personnel and
facilities of the assignee are not materially less than
FDISG's. FDISG may, in its sole discretion, engage
subcontractors to perform any of the obligations contained
in this Agreement to be performed by FDISG, provided,
however, that FDISG shall at all times remain fully
responsible for the acts or omissions of such sub-
contractors as if it were providing such services directly.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating
to this Agreement, or breach hereof, shall be settled by
arbitration administered by the American Arbitration
Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence
and the Federal Rules of Civil Procedure with respect to
the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court
having jurisdiction.
18.3 The parties acknowledge and agree that the
performance of the obligations under this Agreement
necessitates the use of instrumentalities of interstate
commerce and, notwithstanding other general choice of law
provisions in this Agreement, the parties agree that the
Federal Arbitration Act shall govern and control with
respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Fund or FDISG,
shall be sufficiently given if addressed to that party and
received by it at its office set forth below or at such
other place as it may from time to time designate in
writing.
To the Fund:
Wilshire Target Funds, Inc.
c/o Wilshire Associates Incorporated
0000 Xxxxx Xxxxxx - Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Vice President and General Counsel
To FDISG:
First Data Investor Services Group, Inc.
Xxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding
the laws on conflicts of laws, shall govern the
interpretation, validity, and enforcement of this
agreement. All actions arising from or related to this
Agreement shall be brought in the state and federal courts
sitting in the City of Boston, and FDISG and Client hereby
submit themselves to the exclusive jurisdiction of those
courts.
Article 21 Counterparts.
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.
Article 22 Captions.
The captions of this Agreement are included for convenience
of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
Article 23 Publicity.
Neither FDISG nor the Fund shall release or publish news
releases, public announcements, advertising or other
publicity relating to this Agreement or to the transactions
contemplated by it without the prior review and written
approval of the other party; provided, however, that either
party may make such disclosures as are required by legal,
accounting or regulatory requirements after making
reasonable efforts in the circumstances to consult in
advance with the other party.
Article 24 Relationship of Parties.
The parties agree that they are independent contractors and
not partners or co-venturers and nothing contained herein
shall be interpreted or construed otherwise.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and
Exhibits hereto, constitutes the entire Agreement between
the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings,
whether written or oral, between the parties with respect
to the subject matter hereof. No change, termination,
modification, or waiver of any term or condition of the
Agreement shall be valid unless in writing signed by each
party. No such writing shall be effective as against FDISG
unless said writing is executed by an Executive Vice
President, or President of FDISG. A partys waiver of a
breach of any term or condition in the Agreement shall not
be deemed a waiver of any subsequent breach of the same or
another term or condition.
25.2 The parties intend every provision of this Agreement
to be severable. If a court of competent jurisdiction
determines that any term or provision is illegal or invalid
for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In
such case, the parties shall in good faith modify or
substitute such provision consistent with the original
intent of the parties. Without limiting the generality of
this paragraph, if a court determines that any remedy
stated in this Agreement has failed of its essential
purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of
warranties, shall remain fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers,
as of the day and year first above written.
WILSHIRE TARGET FUNDS, INC.
By: /s/ Xxxxxx Xxxxxxx
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/Xxxxx Xxxxx
Title: Executive VP
Exhibit 1
List of Portfolios
Large Company Growth Portfolio
Large Company Value Portfolio
Small Company Growth Portfolio
Small Company Value Portfolio
Schedule A
DUTIES OF FDISG
1. Shareholder Information. FDISG shall maintain a
record of the number of Shares held by each Shareholder of
record which shall include name, address, taxpayer
identification and which shall indicate whether such Shares
are held in certificates or uncertificated form.
2. Shareholder Services. FDISG shall respond as
appropriate to all inquiries and communications from
Shareholders relating to Shareholder accounts with respect
to its duties hereunder and as may be from time to time
mutually agreed upon between FDISG and the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply
FDISG with an adequate supply of blank share certificates
to meet FDISG requirements therefor. Such Share
certificates shall be properly signed by facsimile. The
Fund agrees that, notwithstanding the death, resignation,
or removal of any officer of the Fund whose signature
appears on such certificates, FDISG or its agent may
continue to countersign certificates which bear such
signatures until otherwise directed by Written
Instructions.
(b) FDISG shall issue replacement Share certificates in
lieu of certificates which have been lost, stolen or
destroyed, upon receipt by FDISG of properly executed
affidavits and lost certificate bonds, in form satisfactory
to FDISG, with the Fund and FDISG as obligees under the
bond.
(c) FDISG shall also maintain a record of each certificate
issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open
accounts or uncertificated form (i.e., no certificate being
issued with respect thereto) FDISG shall maintain
comparable records of the Shareholders thereof, including
their names, addresses and taxpayer identification. FDISG
shall further maintain a stop transfer record on lost
and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy
Materials. FDISG will address and mail to Shareholders of
the Fund, all reports to Shareholders, dividend and
distribution notices and proxy material for the Fund's
meetings of Shareholders. In connection with meetings of
Shareholders, FDISG will prepare Shareholder lists, mail
and certify as to the mailing of proxy materials, process
and tabulate returned proxy cards, report on proxies voted
prior to meetings, act as inspector of election at meetings
and certify Shares voted at meetings.
5. Sales of Shares
(a) FDISG shall not be required to issue any Shares of the
Fund where it has received a Written Instruction from the
Fund or official notice from any appropriate authority that
the sale of the Shares of the Fund has been suspended or
discontinued. The existence of such Written Instructions
or such official notice shall be conclusive evidence of the
right of FDISG to rely on such Written Instructions or
official notice.
(b) In the event that any check or other order for the
payment of money is returned unpaid for any reason, FDISG
will endeavor to: (i) give prompt notice of such return to
the Fund or its designee; (ii) place a stop transfer order
against all Shares issued as a result of such check or
order; and (iii) take such actions as FDISG may from time
to time deem appropriate.
6. Transfer and Repurchase
(a) FDISG shall process all requests to transfer or redeem
Shares in accordance with the transfer or repurchase
procedures set forth in the Fund's Prospectus.
(b) FDISG will transfer or repurchase Shares upon receipt
of Oral or Written Instructions or otherwise pursuant to
the Prospectus and Share certificates, if any, properly
endorsed for transfer or redemption, accompanied by such
documents as FDISG reasonably may deem necessary.
(c) FDISG reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the
endorsement on the instructions is valid and genuine.
FDISG also reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the requested
transfer or repurchase is legally authorized, and it shall
incur no liability for the refusal, in good faith, to make
transfers or repurchases which FDISG, in its good judgment,
deems improper or unauthorized, or until it is reasonably
satisfied that there is no basis to any claims adverse to
such transfer or repurchase.
(d) When Shares are redeemed, FDISG shall, upon receipt of
the instructions and documents in proper form, deliver to
the Custodian and the Fund or its designee a notification
setting forth the number of Shares to be repurchased. Such
repurchased shares shall be reflected on appropriate
accounts maintained by FDISG reflecting outstanding Shares
of the Fund and Shares attributed to individual accounts.
(e) FDISG, upon receipt of the monies paid to it by the
Custodian for the repurchase of Shares, pay such monies as
are received from the Custodian, all in accordance with the
procedures described in the written instruction received by
FDISG from the Fund.
(f) FDISG shall not process or effect any repurchase with
respect to Shares of the Fund after receipt by FDISG or its
agent of notification of the suspension of the
determination of the net asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each capital
gains distribution by the Board of Directors of the Fund
with respect to Shares of the Fund, the Fund shall furnish
or cause to be furnished to FDISG Written Instructions
setting forth the date of the declaration of such dividend
or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled
to payment shall be determined, the amount payable per
Share to the Shareholders of record as of that date, the
total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net
asset value.
(b) On or before the payment date specified in such
resolution of the Board of Directors, the Fund will pay to
FDISG sufficient cash to make payment to the Shareholders
of record as of such payment date.
(c) If FDISG does not receive sufficient cash from the
Fund to make total dividend and/or distribution payments to
all Shareholders of the Fund as of the record date, FDISG
will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until
sufficient cash is provided to FDISG.
8. In addition to and neither in lieu nor in
contravention of the services set forth above, FDISG shall:
(i) perform all the customary services of a transfer agent,
registrar, dividend disbursing agent and agent of the
dividend reinvestment and cash purchase plan as described
herein consistent with those requirements in effect as at
the date of this Agreement. The detailed definition,
frequency, limitations and associated costs (if any) set
out in the attached fee schedule, include but are not
limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, tabulating
proxies, mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts where applicable, preparing and
filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders.
Schedule B
Fee Schedule
Effective as of May 31, 1997
1. ANNUAL FEES
A. Open Account Fees: $17.50 per open account
B. Closed Account Fees: $3.60 per closed
account
C. Fund Minimums: $24,000 per
Portfolio per year
for first 4 Portfolios
$18,000 per Portfolio
per year for each
additional Portfolio
D. Additioanl Classes of Shares: The Fund minimums
in Section C apply with
respect to the first class of shares for
each Portfolio.
There will be a fee of $18,000 per
class for each additional class per
portfolio.
E. Conversion Costs: Free Set-Up Fee
2. VALUE ADDED SERVICES
Cost Basis Accounting: Free Set-up Fee
$.35 Per Eligible Account Per Month
AVR Solution: $7,500 Set-Up Fee
$300.00 Monthly Minimum Or
$.2125 Per Minute Charge
$.0775 Per Minute Telecom Charge
$.10 per Call
FundServ: $5,000 Set-Up Fee
$.15 Per Trade Plus $.10 Same Day Trades
Asset Allocation/Reallocation: Free Set-Up Fee
$.25 Per Trade Via NSCC
Direct Access Zip Link: $5,000 Set-Up Fee
$1,000 Per Month
$.03/Record Plus $.015/Price Record
GENERAL
1.1 First Data may charge a service fee equal to the
lesser of (1) one and one-half percent (1 1/2%) per month
of (ii) the highest interest rate legally permitted on any
unpaid amounts, unless such amounts are ultimately
determined not due in accordance with the Payment Dispute
Procedure. Client shall also reimburse First Data for all
reasonable expenses to collect delinquent amounts,
including reasonable attorneys' fees and court costs.
1.2 First Data may adjust any annual or monthly fees once
per calendar year, upon thirty (30) days prior written
notice in an amount not to exceed the cumulative percentage
increase in the Consumer Price Index for All Urban
Consumers (CPI-U) U.S. City Average, All items
(unadjusted) - (1982-84=100), published by the U.S
Department of Labor since the last such adjustment in
the Client's monthly fees (or the Effective Date
absent a prior such adjustment).
WILSHIRE TARGET FUNDS, INC. FIRST DATA INVESTOR SERVICES
GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/Xxxxx Xxxxx
Title: Chairman & President Title: Executive
VP
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable
out-of-pocket expenses, including, but not limited to the
following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes,
checks and stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first
class) direct pass through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including
lease, maintenance and line costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other
equipment and any expenses incurred in connection with such
terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve charges for check clearance
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention, retrieval and destruction costs,
including, but not limited to exit fees charged by third
party record keeping vendors
- Third party audit reviews
- All Systems enhancements after the conversion at the
rate of $100.00 per hour
- Insurance
- Such other miscellaneous expenses similar in nature
to those set forth above and reasonably incurred by FDISG
in performing its duties and responsibilities under this
Agreement.
The Fund agrees that postage and mailing expenses will be
paid on the day of or prior to mailing as agreed with
FDISG. In addition, the Fund will promptly reimburse FDISG
for any other unscheduled expenses incurred by FDISG
whenever the Fund and FDISG mutually agree that such
expenses are not otherwise properly borne by FDISG as part
of its duties and obligations under the Agreement.
Schedule D
Fund Documents
- Certified copy of the Articles of Incorporation
of the Fund, as amended
- Certified copy of the By-laws of the Fund, as
amended,
- Copy of the resolution of the Board of
Directors authorizing the execution and delivery of
this Agreement
- Specimens of the certificates for Shares of the
Fund, if applicable, in the form approved by the
Board of Directors of the Fund, with a certificate of
the Secretary of the Fund as to such approval
- All account application forms and other
documents relating to Shareholder accounts or to any
plan, program or service offered by the Fund
- Certified list of Shareholders of the Fund with
the name, address and taxpayer identification number
of each Shareholder, and the number of Shares of the
Fund held by each, certificate numbers and
denominations (if any certificates have been issued),
lists of any accounts against which stop transfer
orders have been placed, together with the reasons
therefore, and the number of Shares redeemed by the
Fund
- All notices issued by the Fund with respect to
the Shares in accordance with and pursuant to the
Articles of Incorporation or By-laws of the Fund or
as required by law and shall perform such other
specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any
special or annual meetings of shareholders and any
other notices required thereby.
58
contract\ta\openend\wilshire\agr4
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