Exhibit (h)(10)
TRANSFER AGENCY AGREEMENT
AGREEMENT made as of the 6th day of April, 1990 by and between GS
CAPITAL GROWTH FUND, INC., (the "Fund"), a Maryland corporation, and XXXXXXX,
XXXXX & CO. ("Xxxxxxx Sachs"), a New York limited partnership.
W I T N E S S E T H:
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WHEREAS, the Fund is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Fund is empowered to issue shares of capital stock
("Shares") in separate series with each such series representing the interests
in a separate portfolio of securities and other assets;
WHEREAS, the Fund presently offers Shares in one portfolio, known as
the Capital Growth Portfolio (such portfolio together with all other portfolios
subsequently established by the Fund being collectively referred to as the
"Portfolios");
WHEREAS, the Fund desires to appoint Xxxxxxx Xxxxx as Transfer Agent
and Dividend Disbursing Agent and to perform the other services contemplated
hereby with respect to the Fund and each Portfolio; and
WHEREAS, Xxxxxxx Sachs is a registered transfer agent and is authorized
to enter into this agreement and desires to accept appointment as Transfer Agent
and Dividend Disbursing Agent; and
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. APPOINTMENT
1.01 Subject to the terms set forth in this Agreement, the Fund
hereby appoints Xxxxxxx Xxxxx as Transfer Agent and Dividend
Disbursing Agent and to perform the other services contemplated
hereby with respect to the Fund and each Portfolio thereof.
1.02 Xxxxxxx Sachs hereby accepts such appointment and agrees that
it will act as Transfer Agent and Dividend Disbursing Agent and
perform the other services described herein with respect to the
Fund and each Portfolio thereof.
1.03 Xxxxxxx Xxxxx agrees to provide the necessary facilities,
equipment and executive, administrative and clerical personnel
to perform its duties and obligations hereunder in accordance
with the terms hereof.
1.04 Xxxxxxx Sachs may engage third parties to act as agents for the
purpose of providing the Transfer Agency services described
below all as shall be set forth in a written contract between
Xxxxxxx Xxxxx and the Agent; provided, however, that the
appointment of any agent shall not relieve Xxxxxxx Sachs of its
responsibilities or liabilities hereunder.
2. TRANSFER AGENT
2.01 Xxxxxxx Xxxxx shall, subject to any Instructions (as defined in
Section 5 hereof), record the issuance, transfer and
redemptions of Shares in accordance with the following
provisions of this Section 2.
2.02 Upon receipt of orders to purchase shares in proper form,
Xxxxxxx Sachs shall compute in accordance with the Fund's
Prospectus (the term "Prospectus," as used herein, shall be
deemed to mean the Fund's then current Prospectus, all
supplements thereto, the Fund's then current Statement of
Additional Information and all supplements thereto unless the
context otherwise requires) the number of Shares to be
purchased at the net asset value of such Shares applicable to
such order and shall (i) credit the account of the purchaser
with the number of Shares so purchased as of the time
contemplated by the Fund's Prospectus and (ii) upon the
settlement date, mail to the purchaser a confirmation of such
purchase and notice of such credit.
2.03 Upon receipt of requests for transfer in proper form, Xxxxxxx
Sachs shall make appropriate entries to reflect the transfer of
Shares on the records of the Fund maintained by it.
2.04 Xxxxxxx Xxxxx shall make an adequate and accurate record of the
date and time of receipt of all requests for redemption of
Shares transmitted or delivered to it, and shall process such
requests in accordance with the following provisions. If such
redemption requests comply with the standards for redemption
approved by the Fund (as evidenced by the Fund's Prospectus or
by Instructions), Xxxxxxx Sachs shall compute in accordance
with the Fund's Prospectus the amount of redemption proceeds
payable to each Shareholder requesting redemption. If any such
request for redemption does not comply with the standards for
redemption approved by the Fund, Xxxxxxx Xxxxx shall take such
actions as it reasonably deems appropriate under the
circumstances and shall effect such redemption at the price
applicable to the date and time of receipt of a redemption
request (including any necessary documents) complying with such
standards. At such times as may be agreed upon by Xxxxxxx Sachs
and the Custodian so as to provide for the timely payment of
redemptions in accordance with the Fund's Prospectus, Xxxxxxx
Sachs shall advise the Custodian of aggregate redemption
requests for which the Custodian is authorized to effect
payment and shall advise the Custodian of the amount required
to pay any portion of such redemptions which is payable by wire
and the amount required to pay any portion of such redemptions
which is payable by check. In accordance with the provisions of
the resolutions of the Fund's Board of Directors and the Fund's
Prospectus and with the terms of this Agreement, Xxxxxxx Xxxxx
shall prepare and mail checks for redemptions to holders of
Shares ("Shareholders") who requested that redemption proceeds
be remitted by check. Xxxxxxx Sachs shall mail to the redeeming
Shareholder a confirmation of the redemption.
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2.05 In addition to mailing the confirmation and notice to
purchasers as provided in paragraph 2.02 and the confirmation
of redeeming Shareholders as provided in paragraph 2.04,
Xxxxxxx Xxxxx will also provide a quarterly statement to
Shareholders.
3. DIVIDENDS AND DISTRIBUTIONS
3.01 With respect to those Shareholders which have elected
reinvestment of dividends and distributions in additional
Shares, Xxxxxxx Sachs shall credit the account of such
Shareholders with the requisite number of additional Shares
relative to each such dividend or distribution. With respect to
those Shareholders which have elected to receive such dividends
and distributions in cash, at such times as may be agreed upon
by Xxxxxxx Xxxxx and the Custodian so as to provide for the
timely payment of dividends or distributions to Shareholders in
accordance with the provisions of the Fund's Prospectus,
Xxxxxxx Sachs shall advise the Custodian orally of and confirm
to it in writing, the aggregate amount of dividends or
distributions payable to Shareholders and shall advise the
Custodian orally of and confirm to it in writing, the amount
required to pay any portion of any such dividend or
distribution which is payable by wire and the amount required
to pay any portion of any such dividend or distribution which
is payable by check. In accordance with the provisions of the
resolutions of the Fund's Board of Directors and the Fund's
Prospectus and with the terms of this Agreement, Xxxxxxx Xxxxx
shall prepare and mail checks for dividends or distributions to
Shareholders who requested payment thereof by check.
4. ADDITIONAL DUTIES
4.01 Xxxxxxx Sachs shall establish and maintain a separate account
with respect to each Shareholder. Xxxxxxx Xxxxx shall perform
such "master" and "subaccounting" services, if any, as
described in the Fund's Prospectus, provided that the Fund
shall not change the description of such services in the
Prospectus without obtaining the advance consent of Xxxxxxx
Sachs. Xxxxxxx Xxxxx shall maintain records for each
Shareholder's account the following: (a) name, address, tax
identifying number and number of Shares held; (b) historical
information regarding the account including dividends and
distributions paid and date and price for all transactions; (c)
any stop or restraining order placed against the account; (d)
information with respect to withholdings; (e) any dividend or
distribution reinvestment order, dividend or distribution
address and correspondence relating to the current maintenance
of the account; and (f) any information required in order for
Xxxxxxx Sachs to perform the calculations and make the
determinations contemplated or required by Agreement. Xxxxxxx
Sachs shall maintain all records relating to its activities and
obligations under this Agreement in such manner as will enable
the Fund and Xxxxxxx Xxxxx to meet their respective obligations
under: (i) the Fund's Prospectus; (ii) the required
recordkeeping and reporting
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provisions of the 1934 Act, particularly Section 17A thereof,
and of the 1940 Act, particularly Sections 30 and 31 and state
securities or Blue Sky laws, and the rules and regulations
thereunder; and (iii) applicable Federal and State tax laws and
regulations thereunder. All records maintained by Xxxxxxx Sachs
in connection with the performance of its duties under this
Agreement will remain the property of the Fund, shall be
returned to the Fund promptly upon request and, in the event of
termination of this Agreement, will be promptly returned to or
delivered as directed by the Fund. Such records may be
inspected by the Fund at reasonable times. In the event such
records are returned to or delivered as directed by the Fund,
Xxxxxxx Xxxxx may at its option retain copies of such records.
4.02 Xxxxxxx Sachs shall furnish to the Fund: (a) information as to
the Shares distributed or to be distributed in each State for
"Blue Sky" purposes at such times and in such degree of detail
as is necessary for the Fund to verify the satisfaction of or
to satisfy its obligations to register such Shares under
applicable "Blue Sky" laws, and (b) copies of Shareholder lists
and such other information and statistical data as may
reasonably be requested in Instructions.
4.03 Xxxxxxx Xxxxx shall prepare and file with the Internal Revenue
Service and with the appropriate State agencies, and, if
required, mail to Shareholders such returns for reporting:
(i) dividends and distributions paid, credited or withheld as
are required by the Fund's Prospectus or applicable law
or regulation to be so filed and mailed and
(ii) expenses incurred by the Fund as are required by
applicable Federal law.
4.04 Xxxxxxx Sachs will provide each shareholder with a printed
confirmation for each transaction and an individual quarterly
statement. Upon request from a Shareholder, Xxxxxxx Xxxxx shall
prepare and mail a year-to-date statement showing all activity
in such Shareholder's account on a year-to-date basis.
4.05 Xxxxxxx Sachs shall mail such Shareholder reports and such
proxy material, proxy cards and other material supplied to it
by the Fund in connection with Shareholder meetings of the Fund
and shall receive, examine and tabulate returned proxies and
certify the vote to the Fund, all as and to the extent
requested by the Fund.
4.06 Xxxxxxx Xxxxx shall cooperate with the Fund and the Fund's
independent public accountants in connection with: (a) the
preparation of reports to Shareholders, to the Securities and
Exchange Commission (including all required periodic and other
reports), to State securities commissioners, and to others, (b)
annual and other audits of the books and records of the Fund,
and (c) other matters of a like nature.
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4.07 Xxxxxxx Sachs shall maintain adequate procedures and systems to
safeguard from loss or damage attributable to fire, theft,
misuse or any other cause the Fund's records and other data and
Xxxxxxx Xxxxx' records, data, equipment, facilities and other
property used in the performance of its obligations hereunder.
4.08 Xxxxxxx Sachs shall comply with the provisions of Investment
Company Act Release No. 6863 dated December 8, 1971 entitled
"Guidelines Relating to Checking Accounts Established Pursuant
to Section 17(f) of the Investment Company Act of 1940, as
Amended, by Investment Companies Having Bank Custodians" (the
"Release") with regard to the establishment and maintenance of
any checking account for the Fund. At the end of each calendar
month, Xxxxxxx Xxxxx shall represent in writing to the Board of
Directors of the Fund that it has complied with the terms of
the Release during the month. Xxxxxxx Sachs shall establish and
maintain procedures reasonably designed to assure the
safekeeping of checks delivered to Xxxxxxx Xxxxx for signature
by employees of Xxxxxxx Sachs and the security and integrity of
the signing of such checks. Xxxxxxx Xxxxx' employees are not
permitted to sign any such checks which are made payable to
"Cash" or to the order of the Fund or to any named xxxxx
cashier of the Fund or which are not made payable to the order
of a designated payee.
4.09 Xxxxxxx Xxxxx shall maintain expedited redemption and dividend
instructions from Shareholders in the form of such records as
are necessary to honor telephone, telegraph or other redemption
requests from Shareholders without signature guarantee and to
effect the payment of dividends and distributions in accordance
with the provisions of the Fund's Prospectus. Xxxxxxx Sachs
shall apply such instructions as necessary to effect dividends,
distributions, redemptions and other transactions in accordance
with the provisions of the Fund's Prospectus. Xxxxxxx Xxxxx
shall establish and maintain procedures reasonably designed to
assure the accuracy, safekeeping and proper application of
records of expedited redemption and dividend instructions.
4.10 Xxxxxxx Sachs, in the performance of its duties hereunder:
(a) shall use the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like
character and with like aims; and
(b) shall act in conformity with the Fund's Articles of
Incorporation dated as of September 26, 1989 (such
Articles of Incorporation, as presently in effect and as
amended from time to time, are herein called the
"Articles"), the Fund's By-Laws (such By-laws, as
presently in effect and as amended from time to time, are
herein called the "By-laws"), the Fund's Prospectus and
any Instruction,
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and will, subject to the standard set forth in paragraph
4.10(a) above, comply with and conform to the
requirements of the 1940 Act, the 1934 Act, particularly
Section 17A thereof, and all other applicable federal and
state laws, regulations and rulings; and
(c) shall not be liable for any damages, including those
resulting from its failure to perform its obligations
under the terms of this Agreement, provided such damages
or failure are due to an act of God, equipment or
transmission failure, strike or other cause reasonably
beyond its control.
5. INSTRUCTIONS
5.01 Xxxxxxx Xxxxx shall be deemed to have received Instructions (as
that term is used herein) upon receipt of written instructions
(including receipt by telecopier, telegram, cable or Telex),
which may be continuing instructions, signed by a majority of
the Board of Directors of the Fund or by a person that the
Directors shall have from time to time authorized to give the
particular class of Instructions in question. Different persons
may be authorized to give Instructions for different purposes,
and Instructions may be general or specific in terms. A
certified copy of a By-law, resolution or action of the Board
of Directors of the Fund may be received and accepted by
Xxxxxxx Sachs as conclusive evidence of the authority of any
such persons to act and may be considered to be in full force
and effect until receipt by Xxxxxxx Xxxxx of written notice to
the contrary.
5.02 The Fund may also authorize one or more designated persons to
issue oral (such term as used herein including, without
limitation, telephoned) instructions, specifying the type or
types of instructions that may be so issued, in which case the
Fund shall deliver to Xxxxxxx Sachs resolutions of the Board of
Directors to such effect. One or more of the persons designated
by the Board of Directors to give oral instructions shall
promptly confirm such oral instructions in writing to Xxxxxxx
Sachs. Such instructions when given in accordance with the
provisions hereof and with such resolutions shall be deemed
Instructions hereunder. In case of conflict between oral
Instructions given by a person designated in the resolution of
the Board of Directors referred to in the referred to in the
first sentence of this paragraph 5.02 and any written
Instructions given by a person designated in the resolution of
the Board of Directors referred to in the first sentence of
this paragraph 5.01 and any written Instructions, the
Instructions most recently received by Xxxxxxx Xxxxx shall
prevail, and in case of conflict between oral Instructions
given by a person designated In such resolution and any written
confirmation or purported confirmation of oral Instructions,
such written confirmation shall prevail; provided that any
transaction initiated by Xxxxxxx Sachs pursuant to such oral
Instructions may, but need not, be completed by Xxxxxxx Xxxxx
notwithstanding Xxxxxxx Sachs' receipt of conflicting written
Instructions
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hereunder or written confirmation or purported confirmation of
oral Instructions hereunder subsequent to Xxxxxxx Xxxxx'
initiation of such transaction.
5.03 At any time Xxxxxxx Sachs may apply to any Director or officer
of the Fund or any person authorized to give instructions, and
may consult with legal counsel to the Fund with respect to any
matter arising in connection with the services to be performed
by Xxxxxxx Xxxxx under this Agreement, and Xxxxxxx Sachs and
its agents or subcontractors shall not be liable and shall be
indemnified by the Fund for any action taken or omitted by it
in reliance upon such instructions or upon the opinion of such
counsel.
6. COMPENSATION
6.01 For the services provided and the expenses assumed by Xxxxxxx
Sachs pursuant to this Agreement, the Fund will pay to Xxxxxxx
Sachs as full compensation therefor the compensation set forth
in the schedule of even date herewith delivered by Xxxxxxx
Sachs to the Fund until a different compensation schedule shall
be agreed upon in writing between the parties which schedule
shall be preceded by approval of a majority of the Directors,
including the Directors who are not interested persons of the
Fund or Xxxxxxx Xxxxx.
6.02 The Fund shall reimburse Xxxxxxx Sachs for the cost of any and
all forms (excluding the cost of developing the format of such
forms) prepared for use in connection with its actions
hereunder, as well as the cost of postage, telephone and
telegraph used in communicating with Shareholders of the Fund
to the extent such communications are required under the terms
of this Agreement. The Fund shall reimburse Xxxxxxx Xxxxx for
the cost of any terminals and communications facilities
required to conduct business. Xxxxxxx Sachs shall be entitled
to all property rights to the format of all forms it has
prepared for use in connection with its actions hereunder. The
Fund shall also reimburse Xxxxxxx Xxxxx for all microfiche,
microfilm and other mediums for the permanent storage of the
Fund's records consumed by Xxxxxxx Sachs in the performance of
its obligations hereunder. Except as provided in this paragraph
6.02, Xxxxxxx Xxxxx will pay all expenses incurred by it in
connection with the performance of its duties under this
Agreement.
7. INDEMNIFICATION
7.01 The Fund hereby agrees to indemnity and hold harmless Xxxxxxx
Sachs, its officers, partners and employees and each person, if
any, who controls Xxxxxxx Xxxxx (collectively, the "Indemnified
Parties") against any and all losses, claims, damages or
liabilities, joint or several, to which any such Indemnified
Party may become subject under the 1934 Act, the 1940 Act or
other Federal or State statutory law or regulation, at common
law or
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otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon Xxxxxxx Sachs' actions hereunder. The Fund will
reimburse each Indemnified Party for any legal or other
expenses incurred by such Indemnified Party in connection with
investigating or defending any such loss, claim, damages,
liability or action.
7.02 It is understood, however, that nothing in this Section 7 shall
protect any Indemnified Party, or entitle any Indemnified Party
to indemnification against any liability to the Fund or its
shareholders to which such party would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence,
in the performance of his duties, or by reason of his reckless
disregard of his obligations and duties under this Agreement.
8. TERM OF AGREEMENT
8.01 This Agreement shall continue in full force and effect until
terminated as hereinafter provided, may be amended at any time
by mutual agreement of the parties hereto, which agreement
shall be preceded by approval of the Directors, including the
Directors who are not interested persons of the Fund or Xxxxxxx
Sachs, and may be terminated (except as to the second and third
sentences of paragraph 6.02 and as to paragraphs 7.01 and 7.02)
by either party by an instrument in writing delivered or
mailed, postage prepaid, to the other party, such termination
to take effect no sooner than 120 days after the date of such
delivery or mailing.
8.02 Xxxxxxx Xxxxx and the Fund may agree from time to time, by
written instrument signed by both parties, on such provisions
interpretative of or in addition to the provisions of this
Agreement as may in their joint opinion be consistent with the
general tenor of this Agreement. No interpretative or
additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
9. MISCELLANEOUS
9.01 Without limiting the other provisions hereof, notice and other
writings delivered or mailed postage prepaid to the Fund in
care of Xxxxxxx, Sachs & Co., 0000 Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Shareholder Services, or to such
other address as the Fund or Xxxxxxx Xxxxx may hereafter
specify by written notice to the most recent address specified
by the party to whom such notice is addressed, shall be deemed
to have been property delivered or given hereunder to the
respective addressee.
9.02 This Agreement shall be binding on and shall inure to the
benefit of the Fund and Xxxxxxx Sachs and their respective
successors, shall be construed according to the laws of
Illinois and may be executed in two or more counterparts, each
of which shall be deemed an original. This Agreement may
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not be assigned by Xxxxxxx Xxxxx nor may Xxxxxxx Sachs' duties
hereunder be performed by any other person without the prior
written consent of the Fund authorized and approved by a
resolution of the Board of Directors. The term "assigned" shall
be construed consistently with the term "assignment" as defined
in Section 2(a)(4) of the 1940 Act and Rule 2a-6 thereunder as
if such Rule applied to transfer and dividend disbursing
agents. The headings in this Agreement have been inserted for
convenience of reference only and shall not affect the meaning
or interpretation of this Agreement. If any provision of this
Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. Any provision in this Agreement
requiring compliance with any statute or regulation shall mean
such statute or regulation as amended and in effect from time
to time. The Fund's Articles, as amended, are on file with the
Secretary of the State of Maryland.
GS CAPITAL GROWTH FUND, INC.
Attest:
/s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxx Xxxxx
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Xxxxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
Secretary to the Fund President of the Fund
XXXXXXX, SACHS & CO.
Attest:
/s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx
Counsel to the Fund Group Partner
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