1
EXHIBIT (h)(1)
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of the 23rd day of April,
2000, by and between e-xxxxxx Funds, a Delaware business trust (the "Trust"),
and Sunstone Financial Group, Inc., a Wisconsin corporation, its successors and
assigns ("Sunstone").
R E C I T A L S:
WHEREAS, the Trust is registered under the 1940 Act as an open-end
management investment company; and
WHEREAS, the Trust desires to retain Sunstone to render certain
transfer agency and dividend disbursement services, and Sunstone is willing to
render such services, all in accordance with the terms of this Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this Agreement, the
following capitalized terms shall have the meanings set forth hereinafter
whenever they appear in this Agreement:
1.01 1940 ACT shall mean the Investment Company Act of 1940, as amended
from time to time.
1.02 AUTHORIZED PERSON shall mean any individual who is authorized to
provide Sunstone with Instructions and requests on behalf of the Trust, whose
name shall be certified to Sunstone from time to time pursuant to Section 7.01
of this Agreement.
1.03 BOARD OF TRUSTEES shall mean the Board of Trustees of the Trust.
1.04 CUSTODIAN shall mean the financial institution appointed as
custodian under the terms and conditions of the custody agreement between the
financial institution and the Trust, or its successor.
1.05 DECLARATION OF TRUST shall mean the Declaration of Trust or other
similar operational document of the Trust, as the case may be, as the same may
be amended from time to time.
1.06 EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as
amended from time to time.
1
2
1.07 FUND shall mean each separate series of Shares offered by the
Trust representing interests in a separate portfolio of securities and other
assets for which the Trust has appointed Sunstone as transfer agent and dividend
disbursing agent under this Agreement.
1.08 FUND BUSINESS DAY shall mean each day on which the New York Stock
Exchange, Inc. is open for trading.
1.09 INSTRUCTIONS shall mean an oral communication from an Authorized
Person or a written communication signed by an Authorized Person and actually
received by Sunstone. Instructions shall include manually executed originals,
telefacsimile transmissions of manually executed originals or electronic
communications.
1.10 PROSPECTUS shall mean the current Prospectus and Statement of
Additional Information with respect to a Fund (including any applicable
supplement) actually received by Sunstone from the Trust with respect to which
the Trust has indicated a registration statement has become effective under the
Securities Act and the 1940 Act.
1.11 SECURITIES ACT shall mean the Securities Act of 1933, as amended
from time to time.
1.12 SHARES shall mean such shares of beneficial interest, or class
thereof, of each respective Fund of the Trust as may be issued from time to
time.
1.13 SHAREHOLDER shall mean a record owner of Shares of each respective
Fund of the Trust.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 APPOINTMENT. The Trust hereby appoints Sunstone as transfer agent
and dividend disbursing agent of all the Shares of the Trust during the term of
this Agreement with respect to each Fund listed on Schedule A hereto, and any
additional Fund the Trust and Sunstone may agree to include on any amended
Schedule A. Sunstone hereby accepts such appointment as transfer agent and
dividend disbursing agent and agrees to perform the duties thereof as
hereinafter set forth.
2
3
2.02 DUTIES.
A. Sunstone shall perform the transfer agent and dividend
disbursement services described on Schedule B hereto and such additional
services as may be agreed to by the parties from time to time and set forth in
an amendment to Schedule B (collectively, the "Services"). Sunstone shall have
no duties or responsibilities other than those specifically set forth in this
Agreement, and no covenant or obligation to carry out any other duties or
responsibilities shall be implied in this Agreement against Sunstone.
B. Sunstone may, in its discretion, appoint other parties to carry
out some or all of its responsibilities under this Agreement; provided, however,
that unless the Trust shall enter into a written agreement with any such party,
the party shall be the agent of Sunstone and not the agent of the Trust. In such
event, Sunstone shall be fully responsible for the acts or omissions of such
party and shall not be relieved of any of its responsibilities hereunder by the
appointment of such party.
2.03 DELIVERIES.
A. In connection with Sunstone's appointment as transfer agent and
dividend disbursing agent, the Trust shall deliver or cause the following
documents to be delivered to Sunstone:
(1) A copy of the Declaration of Trust and By-laws of the
Trust and all amendments thereto, certified by the Secretary of the Trust;
(2) A certificate signed by the President and Secretary of the
Trust specifying the number of authorized Shares and the number of such
authorized Shares issued and currently outstanding, if any;
(3) A certified copy of the resolutions of the Board of
Trustees of the Trust appointing Sunstone as transfer agent and dividend
disbursing agent and authorizing the execution of this Transfer Agency Agreement
on behalf of the Trust;
(4) Copies of the Trust's Registration Statement, as amended
to date, and the most recently filed Post-Effective Amendment thereto, filed by
the Trust with the Securities and Exchange Commission under the Securities Act
and the 1940 Act, together with any applications filed in connection therewith;
(5) An opinion of counsel for the Trust with respect to the
Trust's organization and existence under the laws of its state of organization,
the validity of the authorized and outstanding Shares, whether such Shares are
fully paid and non-assessable and the status of such Shares under the Securities
Act and any other applicable federal law or regulation (i.e., if subject to
registration, that they have been registered and that the Registration Statement
has become effective, or if exempt, the specific grounds therefor); and
(6) The certificate required by Section 7.01 of this
Agreement, signed by an officer of the Trust and designating the names of the
Trust's initial Authorized Persons.
3
4
B. The Trust agrees to deliver or to cause to be delivered to
Sunstone in Milwaukee, Wisconsin, at the Trust's expense, all of its Shareholder
account records in a format acceptable to Sunstone, as well as all other
documents, records and information that Sunstone may reasonably request in order
for Sunstone to perform the Services hereunder.
ARTICLE III
COMPENSATION & EXPENSES
3.01 COMPENSATION. As compensation for the performance of the Services,
the Trust agrees to pay Sunstone the fees set forth on Schedule C attached
hereto. The parties may amend Schedule C to include fees for any additional
services requested by the Trust, or to add Funds for which Sunstone has been
retained. The Trust agrees to pay Sunstone's then current rate for any Services
added to Schedule C after the execution of this Agreement.
3.02 EXPENSES. The Trust also agrees to promptly reimburse Sunstone for
all out-of-pocket expenses or disbursements incurred by Sunstone in connection
with the performance of Services under this Agreement. Out-of-pocket expense
shall include, but not be limited to, those items specified on Schedule C
hereto. If requested by Sunstone, out-of-pocket expenses are payable in advance.
Payment of postage expenses, if prepayment is requested, is due at least seven
days prior to the anticipated mail date. In the event Sunstone requests advance
payment, Sunstone shall not be obligated to incur such expenses or perform the
related Service(s) until payment is received.
3.03 PAYMENT PROCEDURES.
A. The Trust agrees to pay all amounts due hereunder within
fifteen days of the date reflected on the statement for such Services (the "Due
Date"). Sunstone shall xxxx Service fees monthly, and out-of-pocket expenses as
incurred (unless prepayment is requested by Sunstone). Sunstone may, at its
option, arrange to have various service providers submit invoices directly to
the Trust for payment of reimbursable out-of-pocket expenses.
B. The Trust is aware that its failure to remit to Sunstone all
amounts due on or before the Due Date will cause Sunstone to incur costs not
contemplated by this Agreement, including, but not limited to carrying,
processing and accounting charges. Accordingly, in the event that Sunstone does
not receive any amounts due hereunder by the Due Date, the Trust agrees to pay a
late charge on the overdue amount equal to one and one-half percent (1.5%) per
month or the maximum amount permitted by law, whichever is less. In addition,
the Trust shall pay Sunstone's reasonable attorney's fees and court costs if any
amounts due Sunstone are collected by or through an attorney. The parties hereby
agree that such late charge represents a fair and reasonable computation of the
costs incurred by reason of the Trust's late payment. Acceptance of such late
charge shall in no event constitute a waiver by Sunstone of the Trust's default
or prevent Sunstone from exercising any other rights and remedies available to
it.
3.04 ALLOCATION OF RISK. The Trust acknowledges that the fees charged
by Sunstone under this Agreement reflect the allocation of risk between the
parties, including the exclusion of remedies and limitations on liability in
Article VIII. Modifying the allocation of risk from what is stated herein would
4
5
affect the fees that Sunstone charges. Accordingly, in consideration of those
fees, the Trust agrees to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
A. Sunstone agrees to accept purchase orders and redemption
requests with respect to the Shares of each Fund on each Fund Business Day in
accordance with such Fund's Prospectus; provided, however, that Sunstone shall
only accept purchase orders from states in which the Shares are registered, as
indicated from time to time by the Trust. Sunstone shall, as of the time at
which the net asset value of each Fund is computed on each Fund Business Day,
issue to and redeem from the accounts specified in a purchase order or
redemption request in proper form and accepted by the Fund the appropriate
number of full and fractional Shares based on the net asset value per Share of
the respective Fund specified in an advice received on such Fund Business Day
from or on behalf of the Fund. Sunstone shall not be responsible for the payment
of any original issue or other taxes required to be paid by the Trust in
connection with the issuance of any Shares in accordance with this Agreement.
Sunstone shall not be required to issue any Shares after it has received from an
Authorized Person or from an appropriate federal or state authority written
notification that the sale of Shares has been suspended or discontinued, and
Sunstone shall be entitled to rely upon such written notification.
B. Upon receipt of a redemption request and monies paid to it by
the Custodian in connection with a redemption of Shares, Sunstone shall cancel
the redeemed Shares and after making appropriate deduction for any withholding
of taxes required of it by applicable federal law, make payment in accordance
with the Fund's redemption and payment procedures described in the Prospectus.
C. Except as otherwise provided in this paragraph, Sunstone will
transfer or redeem Shares upon presentation to Sunstone of instructions endorsed
for exchange, transfer or redemption, accompanied by such documents as Sunstone
deems necessary to evidence the authority of the person making such transfer or
redemption. Sunstone reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement or instructions are valid and
genuine. For that purpose, it will require, unless otherwise instructed by an
Authorized Person or except as otherwise provided in this paragraph, a guarantee
of signature by an "Eligible Guarantor Institution" as that term is defined by
SEC Rule 17Ad-15. Sunstone also 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 Sunstone, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no reasonable
basis to any claims adverse to such transfer or redemption. Sunstone may, in
effecting transfers and redemptions of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers (or such
other statutes which protect it and the Trust in not requiring complete
fiduciary documentation) and shall not be responsible for any act done or
omitted by it in good faith in reliance upon such laws. Notwithstanding the
foregoing or any other provision contained in this Agreement to the contrary,
Sunstone shall be fully protected by each Fund in not requiring any instruments,
documents, assurances, endorsements or guarantees, including, without
limitation, any signature guarantees, in connection with a
5
6
redemption, exchange or transfer of Shares whenever Sunstone reasonably believes
that requiring the same would be inconsistent with the transfer and redemption
procedures described in the Prospectus.
D. Notwithstanding any provision contained in this Agreement to
the contrary, Sunstone shall not be required or expected to require, as a
condition to any transfer or redemption of any Shares pursuant to a computer
tape or electronic data transmission, any documents to evidence the authority of
the person requesting the transfer or redemption and/or the payment of any stock
transfer taxes, and shall be fully protected in acting in accordance with the
applicable provisions of this Article.
E. In connection with each purchase and each redemption of Shares,
Sunstone shall send such statements as are prescribed by the Federal securities
laws applicable to transfer agents or as described in the Prospectus. It is
understood that certificates for Shares have not been and will not be offered by
the Trust or available to investors.
F. Sunstone and the Trust shall establish procedures for effecting
purchase, redemption or transfer transactions accepted from investors by
telephone or other methods consistent with the terms of the Prospectus. Sunstone
may establish such additional procedures, rules and regulations governing the
purchase, redemption or transfer of Shares, as it may deem advisable and
consistent with the Prospectus and industry practice. Sunstone shall not be
liable, and shall be held harmless by the Trust, for its actions or omissions
which are consistent with the foregoing procedures.
G. The Trust agrees to provide Sunstone with prior notice of any
increase or decrease in the total number of Shares authorized to be issued, or
the issuance of any additional Shares of a Fund pursuant to stock dividends,
stock splits, recapitalizations, capital adjustments or similar transactions,
and to deliver to Sunstone such documents, certificates, reports and legal
opinions as Sunstone may reasonably request.
4.02 DIVIDENDS AND DISTRIBUTIONS.
A. The Trust shall give or cause to be given to Sunstone a copy of
a resolution of its Board of Trustees, that either:
(i) sets forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, thereof, the
record date as of which Shareholders entitled to payment or accrual, as the case
may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to Sunstone on
such payment date, or
(ii) authorizes the declaration of dividends and distributions
on a daily or other periodic basis and further authorizes Sunstone to rely on a
certificate of an Authorized Person setting forth the information described in
subsection (i) of this paragraph.
B. In connection with a reinvestment of a dividend or distribution
of Shares of a Fund, Sunstone shall as of each Fund Business Day, as specified
in a certificate or resolution described in paragraph A, issue Shares of the
Fund based on the net asset value per Share of such Fund specified in an advice
received from or on behalf of the Fund on such Fund Business Day.
6
7
C. Upon the mail date specified in such certificate or resolution,
as the case may be, the Trust shall, in the case of a cash dividend or
distribution, cause the Custodian to deposit in an account in the name of
Sunstone on behalf of a Fund, an amount of cash sufficient for Sunstone to make
the payment, as of the mail date specified in such certificate or resolution, as
the case may be, to the Shareholders who were of record on the record date.
Sunstone will, upon receipt of any such cash, make payment of such cash
dividends or distributions to the Shareholders as of the record date. Sunstone
shall not be liable for any improper payments made in accordance with a
certificate or resolution described in the preceding paragraph. If Sunstone
shall not receive from the Custodian sufficient cash to make payments of any
cash dividend or distribution to all Shareholders of a Fund as of the record
date, Sunstone shall, upon notifying the Trust, withhold payment to such
Shareholders until sufficient cash is provided to Sunstone.
D. It is understood that Sunstone in its capacity as transfer
agent and dividend disbursing agent shall in no way be responsible for the
determination of the rate or form of dividends or capital gain distributions due
to the Shareholders pursuant to the terms of this Agreement. It is further
understood that Sunstone shall file with the Internal Revenue Service and
Shareholders such appropriate federal tax forms concerning the payment of
dividend and capital gain distributions but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent, required by applicable
federal law.
4.03 RECORDS.
A. Sunstone shall keep those records specified in Schedule D
hereto in the form and manner, and for such period, as it may deem advisable but
not inconsistent with the rules and regulations of appropriate government
authorities, in particular Rules 31a-2 and 31a-3 under the 1940 Act. Sunstone
may deliver to the Trust from time to time at Sunstone's discretion, for
safekeeping or disposition by the Trust in accordance with law, such records,
papers and documents accumulated in the execution of its duties as transfer
agent, as Sunstone may deem expedient, other than those which Sunstone is itself
required to maintain pursuant to applicable laws and regulations. The Trust
shall assume all responsibility for any failure thereafter to produce any
record, paper, or other document so returned, if and when required. To the
extent required by Section 31 of the 1940 Act and the rules and regulations
thereunder, the records specified in Schedule D hereto maintained by Sunstone,
which have not been previously delivered to the Trust pursuant to the foregoing
provisions of this paragraph, shall be considered to be the property of the
Trust, shall be made available upon request for inspection by the officers,
employees, and auditors of the Trust, and shall be delivered to the Trust
promptly upon request and in any event upon the date of termination of this
Agreement, in the form and manner kept by Sunstone on such date of termination
or such earlier date as may be requested by the Trust. Notwithstanding anything
contained herein to the contrary, Sunstone shall be permitted to maintain copies
of any such records, papers and documents to the extent necessary to comply with
the recordkeeping requirements of federal and state securities laws, tax laws
and other applicable laws.
B. Sunstone agrees to keep all records and other information
relative to the Trust's Shareholders confidential, except when requested to
divulge such information by duly-constituted authorities or court process, or
when requested by a Shareholder or Shareholder's agent with respect to
information concerning an account as to which such Shareholder has either a
legal or beneficial interest,
7
8
or when requested by the Trust, the Shareholder, the Shareholder's agent or the
dealer of record with respect to such account. In case of any requests or
demands for the inspection of the Shareholder records of the Trust, Sunstone
will endeavor to notify the Trust promptly and to secure instructions from an
Authorized Person as to such inspection. Sunstone reserves the right, however,
to exhibit the Shareholder records to any person whenever it believes there is a
reasonable likelihood that Sunstone will be held liable for the failure to
exhibit the Shareholder records to such person; provided, however, that in
connection with any such disclosure Sunstone shall promptly notify the Trust
that such disclosure has been made or is to be made. Records and information
which have become known to the public through no wrongful act of Sunstone or any
of its employees, agents or representatives, and information which was already
in the possession of Sunstone prior to receipt thereof, shall not be subject to
this paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
5.01 REPRESENTATIONS OF TRUST. The Trust represents and warrants to
Sunstone that:
A. It is a business trust duly organized and existing under the
laws of the State of Delaware; it is empowered under applicable laws and by its
Declaration of Trust and By-laws to enter into and perform this Agreement; and
all requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
B. Any officer of the Trust has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
previously designated Authorized Person, and to certify to Sunstone the names of
such Authorized Persons.
C. It is duly registered as an investment company under the 1940
Act.
D. A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate state securities laws
filings have been made and will continue to be made, with respect to Shares of
the Trust being offered for sale (the parties acknowledge that the Trust has
entered into an agreement with Sunstone pursuant to which Sunstone, in its
capacity as administrator, will make the appropriate state securities laws
filings).
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 Trust's Declaration of Trust and its Prospectus with respect to each
Fund, such Shares shall be validly issued, fully paid and non-assessable.
5.02 REPRESENTATIONS OF SUNSTONE. Sunstone represents and warrants to
the Trust that:
A. It is a corporation duly organized and existing under the laws
of the State of Wisconsin; it is empowered under applicable law and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
and all requisite proceedings have been taken to authorize it to enter into and
perform this Agreement.
8
9
B. It is duly registered as a transfer agent under Section 17A of
the 1934 Act to the extent required.
C. It has received a copy of each Fund's Prospectus which
describes how sales and redemptions of Shares shall be made.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 INFORMATION UPDATES. During the term of this Agreement the Trust
shall have the ongoing obligation to provide Sunstone with the following
documents as soon as they become effective: (i) certified copies of all
amendments to its Declaration of Trust and By-laws made after the date of this
Agreement; and (ii) a copy of each Fund's currently effective Prospectus. For
purposes of this Agreement, Sunstone shall not be deemed to have notice of any
information contained in any such Prospectus until three business days after it
is actually received by Sunstone.
6.02 SHARE REGISTRATION. The Trust agrees to take or cause to be taken
all requisite steps to register the Shares for sale in all states in which the
Shares shall at the time be offered for sale and require registration. If the
Trust receives notice of any stop order or other proceeding in any such state
affecting such registration or the sale of Shares, or of any stop order or other
proceeding under the federal securities laws affecting the sale of Shares, the
Trust will give prompt notice thereof to Sunstone.
6.03 COMPLIANCE WITH LAWS. The Trust will comply with all applicable
requirements of the Securities Act, the Exchange Act, the 1940 Act, blue sky
laws, and any other applicable laws, rules and regulations.
6.04 ADDITIONAL DUTIES. The Trust agrees that it shall advise Sunstone
at least 30 days prior to effecting any change in the Prospectus which would
increase or alter the duties and obligations of Sunstone hereunder, and shall
proceed with such change only if it shall have received the written consent of
Sunstone thereto.
6.05 TRANSFER AGENT SYSTEM.
A. Sunstone 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, trade secrets, trademarks and other
related legal rights utilized by Sunstone in connection with the Services
provided by Sunstone to the Trust herein (the "Sunstone System").
B. Sunstone hereby grants the Trust a limited license to use the
Sunstone System for the sole and limited purpose of having Sunstone provide the
Services contemplated hereunder. Nothing contained in this Agreement should be
construed or interpreted otherwise, and such license shall immediately terminate
upon the termination of this Agreement.
9
10
6.06 INTERNET SERVICES.
A. In the event Schedule B reflects any Services in the Sunstone
4.netSM category, the Trust agrees to provide, at its cost, all computers,
telecommunications equipment and other equipment and software necessary to
develop and maintain its web site, to design and develop the web site
functionality necessary to facilitate and maintain hypertext links between its
web site and Sunstone's web site, and to provide Sunstone with such Instructions
as it may request from time to time in connection with the performance of
Sunstone's obligations hereunder.
B. Sunstone 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, trade secrets, trademarks and other
related legal rights utilized by Sunstone in connection with the Sunstone
4.netSM services provided by Sunstone to the Trust pursuant to this Agreement
(the "Sunstone 4.netSM System"). The Sunstone 4.netSM System is licensed, not
sold. Sunstone hereby grants the Trust a nonexclusive, limited license to use
the Sunstone 4.netSM System for the sole and limited purpose of having Sunstone
provide the services to the Trust. Such license shall immediately terminate upon
the termination of the Agreement. The Trust agrees that it will not mask, delete
or otherwise alter any disclaimers, trademark or service xxxx notifications
embedded in or describing the Sunstone 4.netSM System.
C. Sunstone is providing the Sunstone 4.netSM System to the TRUST
on an "AS IS" basis, and specifically disclaims all representations and
warranties, express or implied, regarding the Sunstone 4.netSM System and the
services to be provided hereunder RELATING THERETO, including any implied
warranty of merchantability or fitness for a particular purpose, or that the
operation of the Sunstone 4.netSM System will be error free or will not be
interrupted from time to time by reason of a defect therein. The parties
acknowledge that Sunstone's ability to provide the Sunstone 4.netSM services
described herein depends upon a number of factors beyond Sunstone's control,
including, but not limited to, the Internet and equipment, software, data and
services provided by telecommunications carriers and unrelated vendors and third
parties. Sunstone shall not be liable for its failure to perform any of the
services or for the delay or interruption of any such services, if the failure,
delay or interruption in caused by circumstances beyond Sunstone's reasonable
control. The terms and conditions of this Section shall supercede and control
any conflicting provisions in this Agreement.
ARTICLE VII
TRUST INSTRUCTIONS
7.01 AUTHORIZED PERSONS. Upon the execution of this Agreement, the
Trust shall provide Sunstone with a certificate containing the names of the
initial Authorized Persons in a form acceptable to Sunstone. Any officer of the
Trust has the authority to appoint additional Authorized Persons, to limit or
revoke the authority of any previously designated Authorized Person, and to
certify to Sunstone the names of the Authorized Persons from time to time. The
Trust shall provide Sunstone with an updated certificate evidencing the
appointment, removal or change of authority of any Authorized Person, it being
10
11
understood Sunstone shall not be held to have notice of any change in the
authority of any Authorized Person until receipt of written notice thereof from
the Trust.
7.02 ACCEPTANCE OF INSTRUCTIONS. Sunstone, its officers, agents or
employees shall accept Instructions given to them by any person representing or
acting on behalf of the Trust only if such representative is an Authorized
Person. The Trust agrees that when oral Instructions are given, it shall, upon
the request of Sunstone, confirm such Instructions in writing.
7.03 REQUEST FOR INSTRUCTIONS. At any time, Sunstone may request
Instructions from the Trust with respect to any matter arising in connection
with this Agreement. If such Instructions are not received within a reasonable
time, then Sunstone may seek advice from legal counsel for the Trust, or its own
legal counsel at the expense of the Trust, and it shall not be liable for any
action taken or not taken by it in good faith in accordance with such
Instructions or in accordance with advice of counsel.
7.04 RELIANCE ON INSTRUCTIONS. Sunstone shall not be liable for acting
upon any written Instructions reasonably believed by it to be genuine and to
have been signed or made by an Authorized Person or oral Instructions which the
individual receiving the instructions on behalf of Sunstone reasonably believes
to have been given by an Authorized Person.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
8.01 LIMITATION OF LIABILITY. Notwithstanding anything contained in
this Agreement to the contrary, Sunstone shall not be liable for any loss
suffered by the Trust or the Funds in connection with the matters to which this
Agreement relates, except for a loss resulting from Sunstone's willful
misfeasance, bad faith or gross negligence in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement. Furthermore, Sunstone shall not be liable for any action taken or
omitted to be taken in accordance with instructions received by it from an
officer or representative of the Trust.
8.02 INDEMNIFICATION. The Trust agrees to indemnify and hold harmless
Sunstone, its employees, agents, officers, directors and nominees from and
against any and all claims, demands, actions and suits, and from and against any
and all judgments, liabilities, losses, damages, costs, charges, reasonable
counsel fees and other expenses of every nature and character which may be
asserted against Sunstone or for which Sunstone may be held liable (a "Claim")
arising out of or in any way relating to any of the following:
(a) any action of Sunstone required to be taken, or omitted to
be taken, pursuant to the Agreement, unless a Claim resulted from Sunstone's
willful misfeasance, bad faith, gross negligence in the performance of its
duties or from reckless disregard by it of its obligations and duties hereunder;
(b) Sunstone's reliance on, or use of information, data,
records and documents received by Sunstone from the Trust, or any third party
acting on behalf of the Trust, in the performance of Sunstone's duties and
obligations hereunder;
11
12
(c) the reliance on, or the implementation of, any
Instructions or any other requests of the Trust on behalf of the applicable
Fund;
(d) Sunstone's acting upon telephone or electronic
instructions relating to the purchase, exchange or redemption of Shares received
by Sunstone in accordance with procedures established by Sunstone and the Trust;
(e) the offer or sale 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
determination or ruling by any state with respect to the offer or sale of such
Shares in such state; or
(f) the Trust's refusal or failure to comply with the terms of
the Agreement, or any Claim that arises out of the Trust's negligence or
misconduct or breach of any representation or warranty of the Trust made herein.
8.03 INDEMNIFICATION PROCEDURES. Sunstone will notify the Trust
promptly after identifying any situation which it believes presents or appears
likely to present a Claim for which the Trust may be required to indemnify or
hold Sunstone harmless hereunder. In such event, the Trust shall have the option
to defend Sunstone against any Claim, and, in the event that the Trust so
elects, such defense shall be conducted by counsel chosen by the Trust and
approved by Sunstone in its reasonable discretion. Sunstone shall not confess
any Claim or make any compromise in any case in which the Trust will be asked to
provide indemnification, except with the Trust's prior written consent. The
obligations of the parties under the Sections 8.02 and 8.03 shall survive the
termination of this Agreement.
8.04 FORCE XXXXXX. Sunstone assumes no responsibility hereunder, and
shall not be liable, for any damage, loss of data, errors, delay or any other
loss whatsoever caused by events beyond its reasonable control. Sunstone will,
however, take all reasonable steps to minimize service interruptions for any
period that such interruption continues beyond Sunstone's control.
8.05 CONSEQUENTIAL DAMAGES. In no event and under no circumstances
shall Sunstone, its affiliates or any of its or their officers, directors,
agents or employees be liable to anyone, including, without limitation, the
other party, under any theory of tort, contract, strict liability or other legal
or equitable theory for lost profits, exemplary, punitive, special, indirect or
consequential damages for any act or failure to act under any provision of this
Agreement regardless of whether such damages were foreseeable and even if
advised of the possibility thereof.
8.06 ADDITIONAL LIMITATIONS AND EXCLUSIONS. Notwithstanding any other
provision of this Agreement, Sunstone shall have no duty or obligation under
this Agreement to inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor, or the authority of the
Trust, as the case may be, to request such sale or issuance;
12
13
(b) The legality of a transfer of Shares or of a purchase or
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Trust, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the
Trust, or the legality of the issue of any Shares in payment of any stock
dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
ARTICLE IX
TERM AND TERMINATION
9.01 TERM. This Agreement shall remain in full force and effect until
April 23, 2002, (the "Initial Term") and thereafter shall automatically extend
for additional, successive twelve (12) month terms unless earlier terminated as
provided below.
9.02 TERMINATION. Either party may terminate this Agreement at any time
after the Initial Term by giving the other party a written notice specifying the
date of such termination (the "Termination Date"), which shall be not less than
sixty (60) days after the date notice is deemed given in accordance with Section
10.01. In the event such notice is given by the Trust, it shall be accompanied
by a copy of a resolution of the Board of Trustees of the Trust, certified by
the Secretary or any Assistant Secretary, electing to terminate this Agreement
and designating the successor transfer agent or transfer agents. In the event
such notice is given by Sunstone, the Trust shall on or before the Termination
Date, deliver to Sunstone a copy of a resolution of its Board of Trustees
certified by the Secretary or any Assistant Secretary designating a successor
transfer agent or transfer agents. In the absence of such designation by the
Trust, the Trust shall be deemed to be its own transfer agent as of the
Termination Date and Sunstone shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement. Fees and out-of-pocket expenses
incurred by Sunstone, but unpaid by the Trust upon such termination, shall be
immediately due and payable upon and notwithstanding such termination.
9.03 EFFECT OF TERMINATION. Upon the termination of the Agreement as
provided herein, Sunstone, upon the written request of the Trust, shall deliver
the records of the Trust to the Trust or its successor transfer agent in the
form maintained by Sunstone at the expense of the Trust. The Trust shall be
responsible to Sunstone for all out-of-pocket expenses and for the costs and
expenses associated with the preparation and delivery of such media, including,
but not limited to: (a) any custom programming requested by Trust in connection
with the preparation of such media and agreed upon by Sunstone; (b)
transportation of forms and other materials used in connection with the
processing of Trust transactions by Sunstone; and (c) transportation of records
and files in the possession of Sunstone. In addition, Sunstone shall be entitled
to such compensation as the parties may mutually agree for any services
requested by the Trust in connection with the termination of this Agreement or
the liquidation or merger of the Trust. Sunstone shall not reduce the level of
service provided to the Trust prior to termination following notice of
termination by the Trust.
13
14
ARTICLE X
MISCELLANEOUS
10.01 NOTICES. Any notice required or permitted to be given by either
party to the other under this Agreement shall be in writing and shall be deemed
to have been given when sent by either an overnight delivery service or by
registered or certified mail, postage prepaid, return receipt requested, to the
addresses listed below, or to such other location as either party may from time
to time designate in writing:
If to Sunstone: Sunstone Financial Group, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
If to the Trust: e-xxxxxx Funds
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxx Xxx Xxxxxxxx
10.02 AMENDMENTS/ASSIGNMENTS.
A. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the formality of
this Agreement.
B. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the other
party, except that Sunstone may assign this Agreement to an affiliate with
advance written notice to the Trust.
10.03 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin, without regard to its
conflict of law provisions.
10.04 SEVERABILITY. If any part, term or provision of this Agreement is
determined by the courts or any regulatory authority having jurisdiction over
the issue to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid.
10.05 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.
10.06 NON-EXCLUSIVITY; OTHER AGREEMENTS. The services of Sunstone
hereunder are not deemed exclusive and Sunstone shall be free to render similar
and other services to others. Except as specifically provided herein, this
Agreement does not in any way affect any other agreements entered into
14
15
among the parties hereto and any actions taken or omitted by any party hereunder
shall not affect any rights or obligations of any other party hereunder.
10.07 CAPTIONS. The captions in the 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.
10.08 TRUST LIMITATIONS. This Agreement is executed by the Trust with
respect to each of the Funds and the obligations hereunder are not binding upon
any of the trustees, officers or shareholders of the Trust individually but are
binding only upon the Fund to which such obligations pertain and the assets and
property of such Fund. All obligations of the Trust under this Agreement shall
apply only on a Fund-by-Fund basis, and the assets of one Fund shall not be
liable for the obligations of another Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
SUNSTONE FINANCIAL GROUP, INC. E-XXXXXX FUNDS
By: By:
------------------------------ --------------------------------
(Signature) (Signature)
------------------------------ --------------------------------
(Name) (Name)
------------------------------ --------------------------------
(Title) (Title)
------------------------------ --------------------------------
(Date Signed) (Date Signed)
15
16
SCHEDULE A
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
E-XXXXXX FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
NAME OF FUNDS
e-xxxxxx Internet Fund
e-xxxxxx Net30 Index Fund
17
SCHEDULE B
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
E-XXXXXX FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
SERVICE SCHEDULE
SERVICES
o Set up and maintain shareholder accounts and records, including IRAs and
other retirement accounts
o Store account documents electronically
o Receive and respond to investor account inquiries by telephone, mail, or
e-mail, if desired
o Process purchase and redemption orders, transfers, and exchanges, including
automatic purchases and redemptions
o Process dividend payments by check, wire or ACH, or reinvest dividends
o Issue daily transaction confirmations and monthly or quarterly statements
o Mail prospectus, annual and semiannual reports, and other shareholder
communications to existing shareholders
o File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders and/or
the IRS
o Handle load and multi-class processing, including rights of accumulation
and purchases by letters of intent
o Calculate 12b-1 plan fees
o Provide standards to structure forms and applications for efficient
processing
18
OPTIONAL SERVICES
The Funds may contract with Sunstone to provide one or more of the following
optional services. Additional fees apply.
o Personal follow-up calls to prospects who return incomplete applications
o Comprehensive clerical confirmation statements for maintenance transactions
o 0.XXX SERVICES, Sunstone's array of Internet services, including Adviser
Services, RIA/Broker Services, Shareholder Services, NAV Services and email
services.
o 4.PROMPT SERVICES, Sunstone's telephone and voice response unit delivering
several tiers of optional services.
o Average cost calculations and cost basis statements
o Shareholder "welcome" packages with initial confirmation
o Access to Sunstone's Tax and Retirement Group to answer questions and
coordinate retirement plan options
o Follow up on IRAs, soliciting beneficiary and other information and sending
required minimum distribution reminder letters
o Money market funds for short-term investment or exchanges
o Dedicated service representatives
o Weekend shareholder services
o Customized reorder form tracking
o Give dealers access through NSCC's Fund/SERV and Networking
o Customized forms and applications
19
SCHEDULE C
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
E-XXXXXX FUNDS
AND
SUNSTONE FINANCIAL GROUP, INC.
FEE SCHEDULE
SERVICES
The following fees are charged for standard shareholder services:
BASE FEES
o Open account fee (per year)
o No load equity and non-daily accrual fixed income funds $ 8.50
o Additional for 12b-1 fee $ 0.75
Additional for front-end load $ 1.50
Additional for CDSC or back-end load $ 2.00
o Closed account fee (per year) $ 3.00
o Monthly base (per fund)
o One to three funds in fund family $ 1,500
o 4 or more funds in fund family $ 1,000
o Add for multiclass (per class) 25%
ACCOUNT MAINTENANCE FEES (PER OCCURRENCE)
o New account set up $ 3.00
o Financial transactions $ 1.50
o Maintenance transactions $ 1.00
o Research/correspondence $ 2.50
o Transfer on death (XXX) set-up $ 7.50
o Fund/SERV
o Initial set-up per fund family $ 3,500
o Set-up fee per subsequent CUSIP $ 1,000
o New account set-up $ 1.00
o Per transaction - no load fund $ 0.25
o Per transaction - load fund $ 0.35
o Adjustments and rebills $ 2.50
o Fund/SERV direct charges at cost
o Commission/SERV (per check) $ 0.25
20
o ACH/AIP/SWP/automatic exchanges
o Set-up $ 1.00
o Per transaction $ 0.25
o Withholding per eligible account per year $ 0.25
o Account transcripts older than 2 years
(may be charged to shareholders) $ 5.00
o Locating lost shareholders $ 8.00
o Tax ID number solicitation $ 2.50
o Postal clean per account $ 3.00
SHAREHOLDER SERVICING FEES
o Telephone calls (per call) $ 2.50
o Annual maintenance per omnibus account $ 150
TAX AND RETIREMENT FEES
o Retirement accounts (XXX/Xxxx/others)
o Annual maintenance per account (may be
o charged to shareholders) $ 12.50
o Account distribution (may be charged to shareholders) $ 12.50
o XXX transfer/rollover $ 7.50
DOCUMENT SERVICES
o Per statement, confirmation and check processing $ 0.25
o Per tax form processing $ 0.25
o Per label printing for proxy or marketing purposes $ 0.10
o Bulk mailings/insert handling charge
o 1 insert $ 0.06
o 2 - 3 inserts $ 0.08
o 4 or more inserts as quoted
o Production of ad hoc reports starting at $100
FORMS AND APPLICATIONS
o Standard applications and forms in electronic format no charge
o Customized forms as quoted
REPROCESSINGS DUE TO NAV ERRORS
This charge applies when shareholder transactions are required to be reprocessed
as a result of NAV errors caused by other than the willful misconduct or gross
negligence of Sunstone.
o Base fee (per occurrence, per day, per fund) $ 750
o Transaction fee $ 1.00
21
FUND/SERV ACCESS
o Use of Sunstone Fund/SERV membership (per fund/per year)
o First three funds in fund family $ 2,000
o 4 or more funds $ 1,000
CUSTOM PROGRAMMING
Additional fees at $150 per hour or quoted by project may apply for special
programming to meet your servicing requirements or to create custom reports.
OUT-OF-POCKET EXPENSES
DOCUMENT CHARGES
o Copying charges (per page) $ 0.15
o Facsimile charges (per fax) $ 1.25
o Inventory and records storage $ 20.00/pallet
SUPPLIES AND SERVICES
o Statement paper, check stock, envelopes, tax forms at cost
o Postage and express delivery charges at cost
o Tape/disk storage at cost
o Telephone and long distance at cost
o P.O. box rental at cost
o Toll-free number at cost
BANK CHARGES
o Bank account service fees and any other bank charges at cost
o Outgoing wire fee varies by bank
o Non-sufficient funds varies by bank
o Stopped check on money market funds $ 25.00
OPTIONAL SERVICES
Certain premium services described on Exhibit B may be purchased on an as-needed
basis. Fees for premium services will be based on Sunstone's current rate at the
time services are purchased.
