FORM OF
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ____ day of __________, 199_ by and between
XXXX XXXXXXX DECLARATION TRUST, a Massachusetts business trust, having its
principal office and place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000 (the "Trust"), and Xxxx Xxxxxxx Investor Services
Corporation, a Delaware corporation having its principal office and place of
business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("JHISC").
WITNESSETH:
WHEREAS, the Trust desires to appoint JHISC as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and JHISC desires to accept such appointment;
WHEREAS, the Trust is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Trust intends to initially offer shares in ten series
designated as: Xxxx Xxxxxxx V.A. Emerging Equities Xxxx, Xxxx Xxxxxxx V.A.
Discovery Xxxx, Xxxx Xxxxxxx V.A. International Xxxx, Xxxx Xxxxxxx V.A. 500
Index Xxxx, Xxxx Xxxxxxx V.A. Diversified Core Equity Xxxx, Xxxx Xxxxxxx V.A.
Sovereign Investors Xxxx, Xxxx Xxxxxxx V.A. Sovereign Bond Xxxx, Xxxx Xxxxxxx
V.A. Strategic Income Xxxx, Xxxx Xxxxxxx V.A. Global Income Fund and Xxxx
Xxxxxxx V.A. Money Market Fund, together with all other series subsequently
established by the Trust and made subject to this Agreement (each, a "Fund"
and collectively, the "Funds");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of JHISC
1.01 Subject to the terms and conditions set forth in this
Agreement, the Trust hereby employs and appoints JHISC to act, and JHISC
agrees to act, as transfer agent and dividend dispursing agent with
respect to the authorized and issued shares of beneficial interest
("Shares") of each series of the Trust subject to this Agreement and to
provide to the shareholders of the Trust ("Shareholders") such services
in connection therewith as may be set out in the prospectuses of the
Trust from time to time.
1.02 JHISC agrees that it will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Trust and JHISC, JHISC shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to each Fund's Custodian
authorized pursuant to the Trust's Declaration of
Trust (the "Custodian");
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(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the
appropriate Shareholder account;
(iii) Receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
(iv) 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;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Funds, processsing the
reinvestment of distributions on each Fund at the
net asset value per share for that Fund next
computed after the payment (in accordance with the
Fund's then-current prospectus);
(vii) Maintain records of account for and advise the Trust
and its Shareholders as to the foregoing; and
(viii) Record the issuance of Shares of each Fund and
maintain pursuant to Rule 17Ad-10(e) of the rules
and regulations of the Securities and Exchange
Commission a record of the total number of Shares of
each Fund which are authorized, based upon data
provided to it by each Fund, and issued and
outstanding. JHISC shall also provide each 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 these Shares or
to take cognizance of any laws relating to the issue
or sale of these Shares, which functions shall be
the sole responsibility of each Fund.
(b) In calculating the number of shares to be issued on
purchase or reinvestment, or redeemed or repurchased, or
the amount of the purchase payment or redemption or
repurchase payments owed, JHISC shall use the net asset
value per share (as described in each fund's then-current
prospectus) computed by it or such other person as may be
designated by the Trust's board of trustees. It is
understood that, unless the Trust directs otherwise, the
issuance, redemption or repurchase of the Funds' shares
arising out of an automatic transaction under an insurance
contract (such as investment of net premiums, death of
insureds, deduction of fees and charges, transfers,
surrenders, loans, loan repayments, deductions of interest
on loans, lapses, reinstatements and similar automatic
transactions) shall be effected at the net asset value per
share computed as of the close of business on the day as of
which said automatic transaction is effected, even though
the "order" for purchase, sale or redemption of the Funds'
shares is not received until after said close of business.
All other issuances, redemptions or repurchases of the
Funds' shares shall be effected at net asset values per
share next computed after receipt of the orders therefore
and said orders shall become irrevocable at the time as of
which said value is next computed.
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(c) In addition to and not in lieu of the services set forth in
the above paragraph (a), JHISC shall: (i) perform all of
the customary services of a transfer agent and dividend
disbursing agent including but not limited to: maintaining
all Shareholder accounts, preparing Shareholder meeting
lists, mailing proxies, receiving and tabulating proxies,
mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts, preparing and filing
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 and redemptions
of Shares and other confirmable transactions in Shareholder
accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information
and (ii) provide a system which will enable the Trust to
monitor the total number of each Fund's Shares sold in each
State.
(d) In addition, the Trust shall (i) identify to JHISC in
writing those transactions and assets to be treated as
exempt from the 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 JHISC
for the Trust's blue sky State registration status is
solely limited to the initial establishment of transactions
subject to blue sky compliance by the Trust and the
reporting of these transactions to the Trust as provided
above.
(e) Additionally, JHISC shall:
(i) Utilize a system to identify all share transactions
which involve purchase and redemption orders that
are processed at a time other than the time of the
computation of net asset value per share next
computed after receipt of such orders, and shall
compute the net effect upon each Fund of the
transactions so identified on a daily and cumulative
basis.
(ii) If upon any day the cumulative net effect of such
transactions upon the Fund is negative and exceeds a
dollar amount equivalent to 1/2 of 1 cent per share,
JHISC shall promptly make a payment to the Fund in
cash or through the use of a credit in the manner
described in paragraph (iv) below, in such amount as
may be necessary to reduce the negative cumulative
net effect to less than 1/2 of 1 cent per share.
(iii) If on the last business day of any month the
cumulative net effect upon the Fund of such
transactions (adjusted by the amount of all prior
payments and credits by JHISC and the Fund) is
negative, the Fund shall be entitled to a reduction
in the fee next payable under the Agreement by an
equivalent amount, except as provided in paragraph
(iv) below. If on the last business day in any month
the cumulative net effect upon the Fund of such
transactions (adjusted by the amount of all prior
payments and credits by JHISC and the Fund) is
positive, JHISC shall be entitled to recover certain
past payments and reductions in fees, and to a
credit against all future payments and fee
reductions that may be required under the Agreement
as herein described in paragraph (iv) below.
(iv) At the end of each month, any positive cumulative
net effect upon the Fund of such transactions shall
be deemed to be a credit to JHISC which shall first
be applied to permit JHISC to recover any prior cash
payments and fee reductions made by it to the Fund
under paragraphs (ii) and (iii) above during the
calendar year, by increasing the amount of the
monthly fee under the Agreement next payable in an
amount equal to prior payments and fee reductions
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made by JHISC during such calendar year, but not
exceeding the sum of that month's credit and credits
arising in prior months during such calendar year to
the extent such prior credits have not previously
been utilized as contemplated by this paragraph. Any
portion of a credit to JHISC not so used by it shall
remain as a credit to be used as payment against the
amount of any future negative cumulative net effects
that would otherwise require a cash payment or fee
reduction to be made to the Fund pursuant to
paragraphs (ii) or (iii) above (regardless of
whether or not the credit or any portion thereof
arose in the same calendar year as that in which the
negative cumulative net effects or any portion
thereof arose).
(v) JHISC shall supply to the Fund from time to time, as
mutually agreed upon, reports summarizing the
transactions identified pursuant to paragraph (i)
above, and the daily and cumulative net effects of
such transactions, and shall advise the Fund at the
end of each month of the net cumulative effect at
such time. JHISC shall promptly advise the Fund if
at any time the cumulative net effects exceeds a
dollar amount equivalent to 1/2 of 1 cent per share.
(vi) In the event that this Agreement is terminated for
whatever cause, or this provision 1.02 (d) is
terminated pursuant to paragraph (vii) below, the
Fund shall promptly pay to JHISC an amount in cash
equal to the amount by which the cumulative net
effect upon the Fund is positive or, if the
cumulative net effect upon the Fund is negative,
JHISC shall promptly pay to the Fund an amount in
cash equal to the amount of such cumulative net
effect.
(vii) This provision 1.02 (e) of the Agreement may be
terminated by JHISC at any time without cause,
effective as of the close of business on the date
written notice (which may be by telex) is received
by the Trust.
Procedures applicable to certain of these services may be
established from time to time by agreement between the Trust and
JHISC.
Article 2 Fees and Expenses
2.01 For performance by JHISC pursuant to this Agreement, the
Trust on behalf of each Fund agrees to pay JHISC an annual maintenance
fee for each Shareholder account as set out in the initial fee schedule
attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.02 below may be changed from time to time
subject to mutual written agreement between the Fund and JHISC.
2.02 In addition to the fee paid under Section 2.01 above, the
Trust on behalf of each Fund agrees to reimburse JHISC for out-of-pocket
expenses or advances incurred by JHISC for the items set out in the fee
schedule attached hereto. In addition, any other expenses incurred by
JHISC at the request or with the consent of a Fund, will be reimbursed
by the Trust on behalf of such Fund.
2.03 The Trust on behalf of each Fund agrees to pay all fees and
reimbursable expenses promptly following the mailing of the respective
billing notice. Postage for mailing of proxies to all shareholder
accounts shall be advanced to JHISC by the Trust on behalf of the Funds
at least seven (7) days prior to the mailing date of such materials.
Article 3 Representations and Warranties of JHISC
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JHISC represents and warrants to the Trust that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware, and is duly qualified
and in good standing as a foreign corporation under the Laws of The
Commonwealth of Massachusetts.
3.02 It has corporate power and authority to enter into and
perform its obligations under this Agreement.
3.03 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
Article 4 Representations and Warranties of the Trust
The Trust represents and warrants to JHISC that:
4.01 It is a business trust duly organized and existing and in
good standing under the laws of The Commonwealth of Massachusetts.
4.02 It has power and authority to enter into and perform this
Agreement.
4.03 All trust proceedings required by the Declaration of Trust
and By-Laws have been taken to authorize it to enter into and perform
this Agreement.
4.04 It is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
4.05 A registration statement under the Securities Act of 1933,
as amended, with respect to the shares of each series of the Trust
subject to this Agreement has become effective, and appropriate state
securities law filings have been made and will continue to be made.
Article 5 Indemnification
5.01 JHISC shall not be responsible for, and the Trust shall
indemnify and hold JHISC harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(a) All actions of JHISC or its agents or subcontractors
required to be taken pursuant to this Agreement, provided
that such actions are taken in good faith and without
negligence or willful misfeasance.
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(b) The Trust's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Trust's bad
faith, gross negligence or willful misfeasance or which
arise out of the reckless disregard of any representation
or warranty of the Trust hereunder.
(c) The reliance on or use by JHISC or its agents or
subcontractors of information, records and documents which
(i) are received by JHISC or its agents or subcontractors
and furnished to it by or on behalf of the Trust, and (ii)
have been prepared and/or maintained by the Trust or any
other person or firm on behalf of the Trust.
(d) The reliance on, or the carrying out by JHISC or its agents
or subcontractors of, any instructions or requests of the
Trust.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the
securities laws or regulations of any state that Fund
Shares be registered in that state or in violation of any
stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of
Shares in that state.
(f) It is understood and agreed that the assets of each Fund
may be used to satisfy the indemnity under this Article 5
only to the extent that the loss, damage, cost, charge,
counsel fee, payment, expense and liability arises out of
or is attributable to services hereunder with respect to
the Shares of such Fund.
5.02 JHISC shall indemnify and hold harmless the Trust on behalf
of each Fund from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liabilities arising out of
or attributed to any action or failure or omission to act by JHISC as a
result of JHISC's lack of good faith, negligence or willful misfeasance.
5.03 At any time JHISC may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by JHISC
under this Agreement, and JHISC and its agents or subcontractors shall
not be liable and shall be indemnified by the Trust for any action taken
or omitted by it in reliance upon such instructions or upon the opinion
of such counsel. JHISC, its agents and subcontractors shall be protected
and indemnified in acting upon any paper or document furnished by or on
behalf of the Trust, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided JHISC or its agents or
subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Trust, and shall not be held to have
notice of any change of authority of any person, until receipt of
written notice thereof from the Trust. JHISC, its agents and
subcontractors shall also be protected and indemnified in recognizing
share certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officer of the Trust, and the
proper countersignature of any former transfer agent or registrar, or of
a co-transfer agent or co-registrar.
5.04 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.
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5.05 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this
Agreement or for any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in
this Article 5 shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion,
and shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall
have the option to participate with the party seeking indemnification in
the defense of such claim. The party seeking indemnification shall in no
case confess any claim or make any compromise in any case in which the
other party may be required to indemnify it except with the other
party's prior written consent.
Article 6 Covenants of the Trust and JHISC
6.01 The Trust shall promptly furnish to JHISC the following:
(a) A certified copy of the resolution(s) of the Trustees of
the Trust authorizing the appointment of JHISC and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Trust
and all amendments thereto.
6.02 JHISC hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Trust for safekeeping of
share certificates and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such
certificates and devices.
6.03 JHISC 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 1940 Act and the rules and
regulations of the Securities and Exchange Commission thereunder, JHISC
agrees that all such records prepared or maintained by JHISC relating to
the services to be performed by JHISC hereunder are the property of the
Trust and will be preserved, maintained and made unavailable in
accordance with such Act and rules, and will be surrendered to the Trust
on and in accordance with its request.
6.04 JHISC and the Trust agree that all books, records,
information and data pertaining to the business of the other party which
are exchanged or received pursuant to the negotiation or the carrying
out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by
law.
6.05 In case of any requests or demands for the inspection of
the Shareholder records of the Trust, JHISC will endeavor to notify the
Trust and to secure instructions from an authorized officer of the Trust
as to such inspection. JHISC reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel
that it may be held liable for the failure to exhibit the Shareholder
records to such person.
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Article 7 Termination of Agreement
7.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days' written notice to the other.
7.02 Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and
material will be borne by the Trust. Additionally, JHISC reserves the
right to charge for any other reasonable expenses associated with such
termination.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
8.03 JHISC may, without further consent on the part of the
Trust, subcontract for the performance hereof with (i) Boston Financial
Data Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(1) of the
Securities Exchange Act of 1934 ("Section 17A(c)(1)") or any other
entity registered as a transfer agent under Section 17A(c)(1) JHISC
deems appropriate in order to comply with the terms and conditions of
this Agreement; provided, however, that JHISC shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor
as it is for its own acts and omissions.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Trustees of the Trust.
Article 10 Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the internal
substantive laws of The Commonwealth of Massachusetts.
Article 11 Merger of Agreement
11.01 This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to
the subject hereof whether oral or written.
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Article 12 Limitation on Liability
12.01 The name "Xxxx Xxxxxxx Declaration Trust" is the
designation of the Trustees under the Declaration of Trust dated
November 15, 1995. The obligations of such Trust are not personally
binding upon, nor shall resort be had to the property of, any of the
Trustees, shareholders, officers, employees or agents of such Trust, but
the Trust's property only shall be bound. Each Fund shall be liable only
for its own obligations under this Agreement and shall not be jointly or
severally liable to the obligations of any other Fund hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
XXXX XXXXXXX DECLARATION TRUST
By:
Its:
XXXX XXXXXXX INVESTOR SERVICES
CORPORATION
By:
Its:
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