Exhibit (h)(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
ARTISAN FUNDS, INC.
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
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Page
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1. Terms of Appointment and Duties.................................1
2. Third Party Administrators for Defined Contribution Plans.......4
3. Fees and Expenses...............................................5
4. Representations and Warranties of the Transfer Agent............6
5. Representations and Warranties of the Fund......................6
6. Wire Transfer Operating Guidelines..............................7
7. Data Access and Proprietary Information.........................8
8. Indemnification................................................10
9. Standard of Care...............................................11
10. Confidentiality................................................11
11. Covenants of the Fund and the Transfer Agent...................12
12. Termination of Agreement.......................................12
13. Assignment and Third Party Beneficiaries.......................14
14. Subcontractors.................................................14
15. Miscellaneous..................................................15
16. Additional Funds...............................................16
TRANSFER AGENCY AND SERVICE AGREEMENT
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AGREEMENT made as of the 1st day of May, 2001, by and between ARTISAN FUNDS,
INC., a Wisconsin corporation, having its principal office and place of business
at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000 (the "Fund"),
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company having
its principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
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 initially offer shares in seven (7) series, such
series shall be named in the attached Schedule A which may be amended by the
parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Section 16, being herein referred to as a "Portfolio", and
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collectively as the "Portfolios"); and
WHEREAS, the Fund, on behalf of the Portfolios, desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
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1.1 Transfer Agency Services. Subject to the terms and conditions set forth in
this Agreement, the Fund, on behalf of the Portfolios, hereby employs and
appoints the Transfer Agent to act as, and the Transfer Agent agrees to
act as its transfer agent for the Fund's authorized and issued shares of
its common stock ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any accumulation,
open-account or similar plan provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the
currently effective prospectus and statement of additional information
("prospectus") of the Fund on behalf of the applicable Portfolio,
including without limitation any periodic investment plan or periodic
withdrawal program. In accordance with procedures established from time to
time by agreement between the Fund on behalf of each of the Portfolios, as
applicable and the Transfer Agent, the Transfer Agent agrees that it will
perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Articles of Incorporation
of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
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(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above, the
Transfer Agent shall execute transactions directly with broker-dealers
authorized by the Fund;
(e) At the appropriate time as and when it receives monies paid to it by
the Custodian with respect to any redemption, pay over or cause to be paid
over in the appropriate manner such monies as instructed by the redeeming
Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Issue replacement certificates for those certificates alleged to have
been lost, stolen or destroyed upon receipt by the Transfer Agent of
indemnification satisfactory to the Transfer Agent and protecting the
Transfer Agent and the Fund, and the Transfer Agent at its option, may
issue replacement certificates in place of mutilated stock certificates
upon presentation thereof and without such indemnity;
(i) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Fund and maintain pursuant to SEC
Rule 17Ad-10(e) a record of the total number of Shares of the Fund which
are authorized, based upon data provided to it by the Fund, and issued and
outstanding. The Transfer Agent shall also provide the Fund on a regular
basis with the total number of Shares 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.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a transfer
agent, dividend disbursing agent, custodian of certain retirement plans
and, as relevant, agent in connection with accumulation, open-account or
similar plan (including without limitation any periodic investment plan or
periodic withdrawal program), including but not limited to: maintaining
all Shareholder accounts, preparing Shareholder meeting lists, mailing
Shareholder proxies, Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident alien
accounts, 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, preparing and
mailing confirmation forms and statements of account to Shareholders for
all purchases
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and redemptions of Shares and other confirmable transactions
in Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information;
(b) Control Book (also known as "Super Sheet"). Maintain a daily record
and produce a daily report for the Fund of all transactions and receipts
and disbursements of money and securities and deliver a copy of such
report for the Fund for each business day to the Fund no later than 9:00
AM Eastern Time, or such earlier time as the Fund may reasonably require,
on the next business day;
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the Transfer
Agent in writing those transactions and assets to be treated as
exempt from blue sky reporting for each State; and (ii) verify the
establishment of transactions for each State on the system prior to
activation and thereafter monitor the daily activity for each State.
The responsibility of the Transfer Agent, in its capacity as transfer
agent, 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 providing a system which will enable
the Fund to monitor the total number of Shares sold in each State and
providing the Fund with a report of such transactions.
(d) National Securities Clearing Corporation (the "NSCC"). (i) in a
timely manner and without receipt of supporting documentation from a
Shareholder accept and effectuate the registration and maintenance of
accounts through Networking and the purchase, redemption, transfer
and exchange of shares in such accounts through Fund/SERV (Networking
and Fund/SERV being programs operated by the NSCC on behalf of NSCC's
participants, including the Fund), in accordance with, instructions
transmitted to and received by the Transfer Agent by transmission
from NSCC on behalf of broker-dealers and banks which have been
established by, or in accordance with the instructions of authorized
persons, as hereinafter defined on the dealer file maintained by the
Transfer Agent; (ii) issue instructions to Fund's banks for the
settlement of transactions between the Fund and NSCC (acting on
behalf of its broker-dealer and bank participants); (iii) provide
account and transaction information from the affected Fund's records
on DST Systems, Inc. computer system TA2000 ("TA2000 System") in
accordance with NSCC's Networking and Fund/SERV rules for those
broker-dealers; (iv) maintain Shareholder accounts on TA2000 System
through Networking; (v) comply with NSCC rules and procedures
applicable to the Transfer Agent's use of Networking; (vi) with
respect to Networking, comply with the provisions of each Fund's
current prospectus and statement of additional information; (vii)
implement and maintain procedures reasonably designed to ensure the
accuracy of all transmissions through Networking and to limit the
access to, and the inputting of data into, Networking to persons
specifically authorized by the Transfer Agent; (viii) otherwise
perform any and all duties, functions, procedures and
responsibilities pursuant to each NSCC matrix level and as otherwise
established by NSCC from time to time; and (ix) conduct the
activities noted herein in a businesslike and competent manner.
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(e) New Procedures. New procedures as to who shall provide certain of these
services in Section 1 may be established in writing from time to time
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by agreement between the Fund and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the
Fund or its agent may perform these services on the Fund's behalf; and
(f) Additional Telephone Support Services. If the parties elect to have the
Transfer Agent provide additional telephone support services under this
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Agreement, the parties will agree to such services, fees and
sub-contracting as stated in Schedule 1.2(f) entitled "Telephone
Support Services" attached hereto.
(g) Laws and Regulations. Monitor proposed securities and tax laws and
regulations which may affect the Transfer Agent's products and/or
services provided hereunder and take reasonable steps to update its
products and/or services to comply with new securities and tax laws and
regulations applicable to the Transfer Agent in the time and manner as
required by such laws and regulations.
2. Third Party Administrators for Defined Contribution Plans
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2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation or profit
sharing ("Plan or Plans") for the benefit of the individual Plan
participant (the "Plan Participant"), such Plan(s) being qualified under
Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code")
and administered by third party administrators which may be plan
administrators as defined in the Employee Retirement Income Security Act
of 1974, as amended (the "TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule 2.1
entitled "Third Party Administrator Procedures", as may be amended by the
Transfer Agent and the Fund from time to time ("Schedule 2.1"), the
Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name
of the Trustees, Plans or TPA's as the case may be as omnibus
accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA
or its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the Funds
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and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be deemed
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exception services ("Exception Services") when such transactions:
(a) Require the Transfer Agent to use methods and procedures other than
those usually employed by the Transfer Agent to perform services under
Section 1 of this Agreement;
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(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000
System; or
(c) Require more manual intervention by the Transfer Agent, either in the
entry of data or in the modification or amendment of reports generated by
the TA2000 System than is usually required by non-retirement plan and
pre-nightly transactions.
3. Fees and Expenses
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3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to this
Agreement, the Fund agrees to pay the Transfer Agent an annual maintenance
fee for each Shareholder account as set forth in the attached fee schedule
("Schedule 3.1"). Such fees and out-of-pocket expenses and advances
identified under Section 3.2 below may be changed from time to time
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subject to mutual written agreement between the Fund and the Transfer
Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
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above, the Fund agrees to reimburse the Transfer Agent for out-of-pocket
expenses, including but not limited to confirmation production, postage,
forms, telephone, microfilm, microfiche, mailing and tabulating proxies,
records storage, or advances incurred by the Transfer Agent for the items
set out in Schedule 3.1 attached hereto. In addition, any other expenses
incurred by the Transfer Agent at the request or with the consent of the
Fund, will be reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to the Transfer
Agent by the Fund at least seven (7) days prior to the mailing date of
such materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses within
thirty (30) days following the receipt of the respective billing notice,
except for any fees or expenses which are subject to good faith dispute.
In the event of such a dispute, the Fund may only withhold that portion of
the fee or expense subject to the good faith dispute. The Fund shall
notify the Transfer Agent in writing within thirty (30) calendar days
following the receipt of each billing notice if the Fund is disputing any
amounts in good faith. If the Fund does not provide such notice of dispute
within the required time, the billing notice will be deemed accepted by
the Fund. The Fund shall settle such disputed amounts within five (5) days
of the day on which the parties agree on the amount to be paid by payment
of the agreed amount. If no agreement is reached, then such disputed
amounts shall be settled as may be required by law or legal process.
3.5 Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the Fund
shall pay the Transfer Agent interest thereon (from the due date to the
date of payment) at a per annum rate equal to one percent (1.0%) plus the
Prime Rate (that is, the base rate on corporate loans posted by large
domestic banks) published by The Wall Street Journal (or, in the event
such rate is not so
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published, a reasonably equivalent published rate selected by the Fund) on
the first day of publication during the month when such amount was due.
Notwithstanding any other provision hereof, such interest rate shall be no
greater than permitted under applicable provisions of Massachusetts law.
4. Representations and Warranties of the Transfer Agent
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The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
5. Representations and Warranties of the Fund
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The Fund represents and warrants to the Transfer Agent that:
5.1 It is a corporation duly organized and existing and in good standing under
the laws of the State of Wisconsin.
5.2 It is empowered under applicable laws and by its Articles of Incorporation
and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Articles of Incorporation and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified management investment company registered
under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended is
currently effective and will remain effective, and 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.
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6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
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Commercial Code
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6.1 Obligation of Sender. The Transfer Agent is authorized to promptly debit
the appropriate Fund account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security Procedure")
chosen for funds transfer and in the amount of money that the Transfer
Agent has been instructed to transfer. The Transfer Agent shall execute
payment orders in compliance with the Security Procedure and with the Fund
instructions on the execution date provided that such payment order is
received by the customary deadline for processing such a request, unless
the payment order specifies a later time. All payment orders and
communications received after this the customary deadline will be deemed
to have been received the next business day.
6.2 Security Procedure. The Fund acknowledges that the Security Procedure it
has designated on the Fund Selection Form was selected by the Fund from
security procedures offered by the Transfer Agent. The Fund shall restrict
access to confidential information relating to the Security Procedure to
authorized persons as communicated to the Transfer Agent in writing. The
Fund must notify the Transfer Agent immediately if it has reason to
believe unauthorized persons may have obtained access to such information
or of any change in the Fund's authorized personnel. The Transfer Agent
shall verify the authenticity of all Fund instructions according to the
Security Procedure.
6.3 Account Numbers. The Transfer Agent shall process all payment orders in
compliance with the Security Procedure. If there is a discrepancy between
the Fund name, the account name and the account number on any redemption
payment order, this will be deemed as "not in good order" and returned to
the sender for clarification.
6.4 Rejection. The Transfer Agent reserves the right to decline to process or
delay the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the Transfer
Agent's receipt of such payment order; (b) if initiating such payment
order would cause the Transfer Agent, in the Transfer Agent's sole
judgement, to exceed any volume, aggregate dollar, network, time, credit
or similar limits which are applicable to the Transfer Agent; or (c) if
the Transfer Agent, in good faith, is unable to satisfy itself that the
transaction has been properly authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable efforts to
act on all authorized requests to cancel or amend payment orders received
in compliance with the Security Procedure provided that such requests are
received in a timely manner affording the Transfer Agent reasonable
opportunity to act. However, the Transfer Agent assumes no liability if
the request for amendment or cancellation cannot be satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the Transfer
Agent complies with the Security Procedure. The Security Procedure is
established for the purpose of authenticating payment orders only and not
for the detection of errors in payment orders.
6.7 Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized payment
order, unless the Transfer Agent is
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notified of the unauthorized payment order within thirty (30) days of
notification by the Transfer Agent of the acceptance of such payment
order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant to
these guidelines and the rules of the National Automated Clearing House
Association and the New England Clearing House Association, the Transfer
Agent will act as an Originating Depository Financial Institution and/or
Receiving Depository Financial Institution, as the case may be, with
respect to such entries. Credits given by the Transfer Agent with respect
to an ACH credit entry are provisional until the Transfer Agent receives
final settlement for such entry from the Federal Reserve Bank. If the
Transfer Agent does not receive such final settlement, the Fund agrees
that the Transfer Agent shall receive a refund of the amount credited to
the Fund in connection with such entry, and the party making payment to
the Fund via such entry shall not be deemed to have paid the amount of the
entry.
6.9 Confirmation. Confirmation of Transfer Agent's execution of payment orders
shall ordinarily be provided within twenty four (24) hours notice of which
may be delivered through the Transfer Agent's proprietary information
systems, or by facsimile or call-back. Fund must report any objections to
the execution of an order within thirty (30) days.
7. Data Access and Proprietary Information
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7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain Fund-related data ("Customer Data") maintained
by the Transfer Agent on databases under the control and ownership of the
Transfer Agent or other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to the Transfer Agent or
other third party. In no event shall Proprietary Information be deemed
Customer Data. The Fund agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it shall not
divulge any Proprietary Information to any person or organization except
as may be provided hereunder. Without limiting the foregoing, the Fund
agrees for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's computers, or
(ii) solely from equipment at the location agreed to between the Fund and
the Transfer Agent and (iii) solely in accordance with the Transfer
Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
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(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained, to
inform in a timely manner of such fact and dispose of such information in
accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted to
any other computer terminal or other device except as expressly permitted
by the Transfer Agent (such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized transactions
as agreed to between the Fund and the Transfer Agent; and
(f) Honor all reasonable written requests made by the Transfer Agent to
protect at the Transfer Agent's expense the rights of the Transfer Agent
in Proprietary Information at common law, under federal copyright law and
under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any of the
foregoing items that: (i) are or become publicly available without breach
of this Agreement; (ii) are released for general disclosure by a written
release by the Transfer Agent; or (iii) are already in the possession of
the receiving party at the time of receipt without obligation of
confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer Agent's
Proprietary Information is essential to the business interest of the
Transfer Agent and that the disclosure of such Proprietary Information in
breach of this Agreement would cause the Transfer Agent immediate,
substantial and irreparable harm, the value of which would be extremely
difficult to determine. Accordingly, the parties agree that, in addition
to any other remedies that may be available in law, equity, or otherwise
for the disclosure or use of the Proprietary Information in breach of this
Agreement, the Transfer Agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data and
the Fund agrees to make no claim against the Transfer Agent arising out of
the contents of such third-party data, including, but not limited to, the
accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
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7.5 If the transactions available to the Fund include the ability to originate
electronic instructions to the Transfer Agent in order to: (i) effect the
transfer or movement of cash or Shares; or (ii) transmit Shareholder
information or other information, then in such event the Transfer Agent
shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such
instruction is undertaken in conformity with security procedures
established by the Transfer Agent from time to time.
7.6 Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 7. The obligations of this Section
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shall survive any earlier termination of this Agreement.
8. Indemnification
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8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement (including the defense of
any law suit in which the Transfer Agent or affiliate is a named party),
provided that such actions are taken in good faith and without negligence
or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on: (i)
any information, records, documents, data, stock certificates or services,
which are received by the Transfer Agent or its agents or subcontractors
by machine readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund, and which have
been prepared, maintained or performed by the Fund or any other person or
firm on behalf of the Fund including but not limited to any broker-dealer,
TPA or previous transfer agent; (ii) any instructions or requests of the
Fund or any of its officers; (iii) any instructions or opinions of legal
counsel with respect to any matter arising in connection with the services
to be performed by the Transfer Agent under this Agreement which are
provided to the Transfer Agent after consultation with such legal counsel;
or (iv) any paper or document, reasonably believed to be genuine,
authentic, or signed, if necessary, by the proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered or
in violation of any stop order or other determination or ruling by any
federal or any state agency with respect to the offer or sale of such
Shares;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account maintained
by the Transfer Agent; provided the Transfer Agent was not negligent in
accepting any such check for negotiation and processing; or
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(f) Upon the Fund's request entering into any agreements required by the
NSCC for the transmission of Fund or Shareholder data through the NSCC
clearing systems.
8.2 In order that the indemnification provisions contained in this Section 8
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shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Transfer Agent, the Transfer Agent shall
promptly notify the Fund of such assertion, and shall keep the Fund
advised with respect to all developments concerning such claim. The Fund
shall have the option to participate with the Transfer Agent in the
defense of such claim or to defend against said claim in its own name or
in the name of the Transfer Agent. The Transfer Agent shall in no case
confess any claim or make any compromise in any case in which the Fund may
be required to indemnify the Transfer Agent except with the Fund's prior
written consent.
9. Standard of Care
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The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors, including encoding
and payment processing errors, unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees,
agents or subcontractors. The parties agree that any encoding or payment
processing errors shall be governed by this standard of care and Section
4-209 of the Uniform Commercial Code is superseded by Section 9 of this
---------
Agreement. This standard of care also shall apply to Exception Services,
as defined in Section 2.3 herein, but such application shall take into
-----------
consideration the manual processing involved in, and time sensitive nature
of, Exception Services.
10. Confidentiality
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10.1 The Transfer Agent and the Fund agree that they will not, at any time
during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other business
organization, any customers' lists, trade secrets, cost figures and
projections, profit figures and projections, or any other secret or
confidential information whatsoever, whether of the Transfer Agent or of
the Fund, used or gained by the Transfer Agent or the Fund during the
negotiation or performance under this Agreement. The Fund and the Transfer
Agent further covenant and agree to retain all such knowledge and
information acquired during and after the term of this Agreement
respecting such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of the Transfer Agent
or the Fund and their successors and assigns. In the event of breach of
the foregoing by either party, the remedies provided by Section 7.3 shall
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be available to the party whose confidential information is disclosed. The
above prohibition of disclosure shall not apply to the extent that the
Transfer Agent must disclose such data to its sub-contractor or Fund agent
for purposes of providing services under this Agreement. The Transfer
Agent and the Fund agree that they shall not disclose nonpublic, personal
information as defined under Regulation S-P, other than as permitted by
Regulation S-P.
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10.2 In the event that any requests or demands are made for the inspection of
the Shareholder records of the Fund, other than request for records of
Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the Transfer
Agent will endeavor to notify the Fund and to secure instructions from an
authorized officer of the Fund as to such inspection. The Transfer Agent
expressly reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by counsel that it may be held liable
for the failure to exhibit the Shareholder records to such person or if
required by law or court order.
11. Covenants of the Fund and the Transfer Agent
--------------------------------------------
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Directors of the
Fund authorizing the appointment of the Transfer Agent and the execution
and delivery of this Agreement; and
(b) A copy of the Articles of Incorporation and By-Laws of the Fund
and all amendments thereto.
11.2 The Transfer Agent hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
11.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To
the extent required by Section 31 of the Investment Company Act of 1940,
as amended, and the Rules thereunder, the Transfer Agent agrees that all
such records prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the property
of the Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly
to the Fund on and in accordance with its request.
12. Termination of Agreement
------------------------
12.1 Term. The initial term of this Agreement (the "Initial Term") shall
be from May 1, 2001 through October 31, 2002 unless terminated pursuant to
the provisions of this Section 12. Unless a terminating party gives
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written notice to the other party one hundred and twenty (120) days before
the expiration of the Initial Term or any Renewal Term, this Agreement
will renew automatically from year to year (each such year-to-year renewal
term a "Renewal Term"). Before the expiration of the Initial Term or a
Renewal Term, the parties to this Agreement will agree upon a Fee Schedule
for the upcoming Renewal Term. However, if the parties are unable to agree
upon a Fee Schedule before the expiration of the Initial Term or Renewal
Term, then the current fee schedule will remain in force and either party
may give the other party one hundred and twenty (120) days written notice
of termination.
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12.2 Early Termination. During the Initial Term or any Renewal Term, either
party may terminate this Agreement by giving the other party one hundred
twenty (120) days written notice of termination. Notwithstanding anything
contained in this Agreement, should the Fund desire to move any of its
services provided by the Transfer Agent hereunder to a successor service
provider prior to the expiration of the then current Initial or Renewal
Term, or without the required notice, the Transfer Agent shall make a good
faith effort to facilitate the conversion on such prior date; however,
there can be no guarantee or assurance that the Transfer Agent will be
able to facilitate a conversion of services on such prior date. In
connection with the foregoing, should services be converted to a successor
service provider, the fees payable to the Transfer Agent shall be
calculated as if the services had been performed by the Transfer Agent
until the earlier of (1) one hundred and twenty (120) days written notice
of termination or (2) the time that services cease. If the Fund's assets
are merged or purchased or the like with or by another entity which
utilizes the services of the Transfer Agent, the fees payable to the
Transfer Agent shall be calculated through the date on which the Transfer
Agent ceases performing the services for the Fund.
12.3 Expiration of Term. During the Initial Term or Renewal Term, whichever
currently is in effect, should either party exercise its right to
terminate, all out-of-pocket expenses or costs associated with the
movement of records and material will be borne by the Fund. Additionally,
the Transfer Agent reserves the right to charge for any other reasonable
expenses associated with such termination. In the event of the termination
of this Agreement due to a Material Breach by the Transfer Agent as set
out in Section 12.6 below, Transfer Agent shall pay the reasonable
out-of-pocket expenses or costs associated with the movement of records
and material and any other reasonable expenses of the Fund, but not
including any start up costs with a successor service provider.
12.4 Confidential Information. Upon termination of this Agreement, each party
shall return to the other party all copies of confidential or proprietary
materials or information received from such other party hereunder, other
than materials or information required to be retained by such party under
applicable laws or regulations.
12.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the Transfer
Agent being outstanding for more than ninety (90) days, except with
respect to any amount subject to a good faith dispute within the meaning
of Section 3.4 of this Agreement.
-----------
12.6 Material Breach. If either of the parties hereto becomes in material
default in the performance of its duties or obligations hereunder, then
the non-defaulting party may give notice to the defaulting party
specifying the nature of the default in sufficient detail to permit the
defaulting party to identify and cure such default. If the defaulting
party fails to cure such default within thirty (30) days of receipt of
such notice, or within such longer period of time as the parties may agree
is necessary for such cure, then the non-defaulting party may terminate
this Agreement upon notice of not less than thirty (30) days to the
defaulting party.
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12.7 Bankruptcy. Either party hereto may terminate this Agreement by notice to
the other party, effective at any time specified therein, in the event
that (a) the other party ceases to carry on its business or (b) an action
is commenced by or against the other party under Title 11 of the United
States Code or a receiver, conservator or similar officer is appointed for
the other party and such suit, conservatorship or receivership is not
discharged within thirty (30) days.
13. Assignment and Third Party Beneficiaries
----------------------------------------
13.1 Except as provided in Section 14.1 below, neither this Agreement nor any
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rights or obligations hereunder may be assigned by either party without
the written consent of the other party. Any attempt to do so in violation
of this Section shall be void. Unless specifically stated to the contrary
in any written consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under this
Agreement.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Transfer Agent and the Fund, and the
duties and responsibilities undertaken pursuant to this Agreement shall be
for the sole and exclusive benefit of the Transfer Agent and the Fund.
This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
13.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in Section 15.1 and Schedule 1.2(f), neither party shall make any
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commitments with third parties that are binding on the other party without
the other party's prior written consent.
14. Subcontractors
--------------
14.1 The Transfer Agent may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("Boston Financial") which is
duly registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended, (ii) a Boston Financial
subsidiary duly registered as a transfer agent or (iii) a Boston Financial
affiliate duly registered as a transfer agent; provided, however, that the
Transfer Agent shall be fully responsible to the Fund for the acts and
omissions of Boston Financial or its subsidiary or affiliate as it is for
its own acts and omissions.
14.2 While the Transfer Agent shall be fully responsible to the Fund for the
acts or omissions of its subcontractors as it is for its own acts and
omissions, nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties in the performance of
services ancillary to the services to be performed under this agreement
and not acting as agent of the Transfer Agent in the performance of the
Transfer Agent's services hereunder such as by way of example and not
limitation, Airborne Services, Federal Express, United Parcel Service, the
U.S. Mails, the NSCC and telecommunication companies, provided, if the
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Transfer Agent selected such company, the Transfer Agent shall have
exercised due care in selecting the same.
15. Miscellaneous
-------------
15.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Directors of the Fund.
15.2 Massachusetts Law to Apply. This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with the
laws of The Commonwealth of Massachusetts.
15.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, such party shall
not be liable for damages to the other for any damages resulting from such
failure to perform or otherwise from such causes.
15.4 Consequential Damages. Neither party to this Agreement shall be liable to
the other party for special, indirect or consequential damages under any
provision of this Agreement or for any special, indirect or consequential
damages arising out of any act or failure to act hereunder.
15.5 Survival. All provisions regarding indemnification, warranty, liability,
and limits thereon, and confidentiality and/or protections of proprietary
rights and trade secrets shall survive the termination of this Agreement.
15.6 Severability. If any provision or provisions of this Agreement shall be
held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
15.7 Priorities Clause. In the event of any conflict, discrepancy or ambiguity
between the terms and conditions contained in this Agreement and any
Schedules or attachments hereto, the terms and conditions contained in
this Agreement shall take precedence.
15.8 Waiver. No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other party
shall be construed as a waiver of any succeeding breach of the same or of
any other covenant or condition.
15.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect
to the subject matter hereof whether oral or written.
15.10 Counterparts. This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
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15.11 Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto each agree that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence
and whether or not such reproduction was made by a party in the regular
course of business, and that any enlargement, facsimile or further
reproduction shall likewise be admissible in evidence.
15.12 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Artisan Funds, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
16. Additional Funds
----------------
In the event that the Fund establishes one or more series or classes of
Shares, in addition to those listed on the attached Schedule A, with
respect to which it desires to have the Transfer Agent render services as
transfer agent under the terms hereof, it shall so notify the Transfer
Agent in writing, and if the Transfer Agent agrees in writing to provide
such services, such series of Shares shall become a Portfolio hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ARTISAN FUNDS, INC.
BY:
------------------------------------------
ATTEST:
-----------------------------
STATE STREET BANK AND TRUST COMPANY
BY:
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Vice Chairman
ATTEST:
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