EX99.23(h)
TRANSFER AGENCY AGREEMENT
This Agreement made as of the 31st day of March 31, 1995 between
Babson Enterprise Fund, Inc., a Maryland corporation (the "Fund"),
and Xxxxx & Xxxxxx, Inc., a Missouri corporation (the "Transfer
Agent").
WITNESSETH
That in consideration of the mutual promises hereinafter set
forth, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases
shall have the following meanings:
1. "Approved Institution" shall mean an entity so named in a
Certificate, as hereinafter defined. From time to time, the Fund may
amend a previously delivered Certificate by delivering to the Transfer
Agent a Certificate naming an additional entity or deleting any entity
named in a previously delivered Certificate.
2. The "Board of Directors" shall mean the Board of Directors
of the Fund.
3. "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement to be
given to the Transfer Agent by the Fund which is signed by any Officer,
as hereinafter defined, and actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed
as custodian under the terms and conditions of the Custody Agreement
between the financial institution and the Fund, or its successor(s).
5. "Fund Business Day" shall be determined as set out in the
Fund's prospectuses as shall be effective from time to time.
6. "Officer" shall be deemed to be the Fund's President, any
Vice President, Secretary, Treasurer, Controller, any Assistant
Controller, any Assistant Treasurer and any Assistant Secretary, and any
other person duly authorized by the Board of Directors of the Fund to
execute any Certificate, instruction, notice or other instrument on
behalf of the Fund, and any person reasonably believed by the Transfer
Agent to be such a person.
7. "Out-of-Pocket Expenses" means amounts reasonably
necessary and actually incurred by Transfer Agent in the provision of
Transfer Agent services or pursuant to this Agreement for the following
purposes: postage (and first class mail insurance in connection with
mailing Share certificates), envelopes, check forms, continuous forms,
forms for reports and statements, stationery and other similar items,
telephone and telegraph charges incurred in answering inquiries from
dealers or shareholders, microfilm used to record transactions in
shareholder accounts and computer tapes used for permanent storage of
records and cost of insertion of materials in mailing envelopes by
outside firms. Any charges associated with special or exception
processing shall also be considered Out-of-Pocket Expenses.
8. "Prospectus" shall mean the most recent Fund prospectus
actually received by the Transfer Agent from the Fund with respect to
which the Fund has indicated a registration statement under the
Securities Act of 1933, as amended, has become effective, including the
Statement of Additional Information, incorporated by reference therein.
9. "Shares" shall mean all or any part of each class or
series of the shares of beneficial interest of the Fund or portfolio
listed in the Certificate as to which the Transfer Agent acts as
transfer agent hereunder, as may be amended from time to time, which are
authorized and/or issued by the Fund.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. Effective as of the date of this Agreement, the Fund hereby
constitutes and appoints the Transfer Agent as transfer agent of all the
Shares of the Fund and as dividend disbursing agent during the period of
this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer
agent and dividend disbursing agent and agrees to perform duties thereof
as hereinafter set forth.
3. In connection with such appointment, the Fund upon the
request of the Transfer Agent, shall deliver the following documents to
the Transfer Agent:
(i) A copy of the Articles of Incorporation of the Fund
and all
amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-laws of the Fund certified by the
Secretary of the
Fund;
(iii) A copy of a resolution of the Board of Directors of
the Fund
certified by the Secretary of the Fund appointing the Transfer
Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund
specifying: the number of authorized Shares, the number of such
authorized Shares issued, the number of such authorized Shares
issued and currently outstanding, the names and specimen
signatures of the Officers of the Fund and the name and address of
the legal counsel for the Fund;
(v) Specimen Share certificate for each or series class of
Shares in the form approved by the Board of Directors of the Fund
(and in a format compatible with the Transfer Agent's system),
together with a Certificate signed by the Secretary of the Fund as
to such approval;
(vi) Copies of the Fund's registration statement, as
amended to date, and the most recently filed Post-Effective
Amendment thereto, filed by the Fund with the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
and under the Investment Company Act of 1940, as amended, together
with any applications filed in connection therewith; and
(vii) Opinion of counsel for the Fund with respect to the
validity of the authorized and outstanding Shares, whether such
Shares are fully paid and nonassessable and the status of such
Shares under the Securities Act of 1933, as amended, and any other
applicable federal law or regulation (i.e., if subject to
registration, that they have been registered and that the
registration statement has become effective or, if exempt, the
specific grounds therefor).
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. If requested by the Transfer Agent, the Fund shall deliver
to the Transfer Agent the following documents on or before the effective
date of any increase or decrease in the total number of Shares
authorized to be issued:
(a) A certified copy of the amendment to the Articles of
Incorporation giving effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for
the Fund with respect to the validity of the Shares of the Fund
and the status of such Shares under the Securities Act of 1933, as
amended, and any other applicable federal law or regulation (i.e.,
if subject to registration, that they have been registered and
that the registration statement has become effective or, if
exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the
Transfer Agent was theretofore expressly limited, a certified copy
of a resolution of the Board of Directors of the Fund increasing
the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares pursuant to
stock dividends or stock splits, etc., and prior to any reduction in the
number of Shares outstanding, if requested by the Transfer Agent, the
Fund shall deliver the following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the
Board of Directors and/or the shareholders of the Fund authorizing
such issuance of additional Shares or such reduction, as the case
may be; and
(b) An opinion of counsel for the Fund with respect to
the validity of the Shares and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable
federal law or regulation (i.e., if subject to registration, that
they have been registered and that the registration statement has
become effective, or, if exempt, the specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or
other capital adjustment requiring a change in the form of Share
certificates, the Transfer Agent will issue Share certificates in the
new form in exchange for, or upon transfer of, outstanding Share
certificates in the old form, upon receiving:
a) A Certificate authorizing the issuance of the Share
certificates in the new form;
(b) A certified copy of any amendment to the Articles of
Incorporation with respect to the change;
(c) Specimen Share certificates for each class of Shares
in the new form approved by the Board of Directors of the Fund,
with a Certificate signed by the Secretary of the Fund as to such
approval; and
(d) An opinion of counsel for the Fund with respect to the
validity of the Shares in the new form and the status of such
Shares under the Securities Act of 1933, as amended, and any other
applicable federal law or regulation (i.e., if subject to
registration, that the Shares have been registered and that the
registration statement has become effective or, if exempt, the
specific grounds therefor).
2. The Fund at its expense shall furnish the Transfer Agent
with a sufficient supply of blank Share certificates in the new form and
from time to time will replenish such supply upon the request of the
Transfer Agent. Such blank Share certificates shall be compatible with
the Transfer Agent's system and shall be properly signed by facsimile or
otherwise by Officers of the Fund authorized by law or by the By-laws to
sign Share certificates and, if required, shall bear the corporate seal
or facsimile thereof. The Fund agrees to indemnify and exonerate, save
and hold the Transfer Agent harmless from and against any and all claims
or demands that may be asserted against the Transfer Agent with respect
to the genuineness of any Share certificate supplied to the Transfer
Agent pursuant to this Article.
ARTICLE V
ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a
copy of the Fund's Prospectus, which Prospectus describes how
sales and redemption of Shares of the Fund shall be made, and the
Transfer Agent agrees to accept purchase orders and redemption
requests with respect to Shares on each Fund Business Day in
accordance with such Prospectus. The Fund agrees to provide the
Transfer Agent with sufficient advance notice to enable the
Transfer Agent to effect any changes in the procedures set forth
in the Prospectus regarding such purchase and redemption
procedure; provided, however, that in no event will such advance
notice be less than thirty (30) days.
(b) The Transfer Agent shall also accept with respect to
each Fund Business Day, at such times as are agreed upon from time
to time by the Transfer Agent and the Fund, a computer tape or
electronic data transmission consistent in all respects with the
Transfer Agent's record format, as amended from time to time,
which is believed by the Transfer Agent to be furnished by or on
behalf of any Approved Institution. The Transfer Agent shall not
be liable for any losses or damages to the Fund or its
shareholders in the event that a computer tape or electronic data
transmission from an Approved Institution is unable to be
processed for any reason beyond the control of the Transfer Agent,
or if any of the information on such tape or transmission is found
to be incorrect.
2. On each Fund Business Day, the Transfer Agent shall, as of
the time at which the Fund computes the net asset value of the Fund,
issue to and redeem from the accounts specified in a purchase order,
redemption request or computer tape or electronic data transmission,
which in accordance with the Prospectus is effective on such Fund
Business Day, the appropriate number of full and fractional Shares based
on the net asset value per Share of such Fund specified in an advice
received on such Fund Business Day from the Fund. Notwithstanding the
foregoing, if a redemption specified in a computer tape or electronic
data transmission is for a dollar value of Shares in excess of the
dollar value of uncertificated Shares in the specified account, the
Transfer Agent shall not effect such redemption in whole or in part and
shall within twenty-four (24) hours orally advise the Approved
Institution which supplied such tape of the discrepancy.
3. In connection with a reinvestment of a dividend or
distribution of Shares of the Fund, the Transfer Agent shall as of each
Fund Business Day, as specified in a Certificate or resolution described
in paragraph 1 of succeeding Article VI, issue Shares of the Fund based
on the net asset value per Share of such Fund specified in an advice
received from the Fund on such Fund Business Day.
4. On each Fund Business Day, the Transfer Agent shall supply
the Fund with a statement specifying with respect to the immediately
preceding Fund Business Day: the total number of Shares of the Fund
(including fractional Shares) issued and outstanding at the opening of
business on such day; the total number of Shares of the Fund sold on
such day, pursuant to the preceding paragraph 2 of this Article; the
total number of Shares of the Fund redeemed from shareholders by the
Transfer Agent on such day; the total number of Shares of the Fund, if
any, sold on such day pursuant to the preceding paragraph 3 of this
Article, and the total number of Shares of the Fund issued and
outstanding.
5. In connection with each purchase and each redemption of
Shares, the Transfer Agent shall send such statements as are prescribed
by the Federal Securities laws applicable to transfer agents or as
described in the Prospectus. If the Prospectus indicates that
certificates for Shares are available and if specifically requested in
writing by any shareholder, or if otherwise required hereunder, the
Transfer Agent will countersign (if necessary), issue and mail to such
shareholder at the address set forth in the records of the Transfer
Agent a Share certificate for any full Share requested.
6. As of each Fund Business Day, the Transfer Agent shall
furnish the Fund with an advice setting forth the number and dollar
amount of Shares to be redeemed on such Fund Business Day in accordance
with paragraph 2 of this Article.
7. Upon receipt of a proper redemption request and moneys paid
to it by the Custodian in connection with a redemption of Shares, the
Transfer Agent shall cancel the redeemed Shares and after making
appropriate deduction for any withholding of taxes required of it by
applicable law: (a) in the case of a redemption of Shares pursuant to a
redemption described in the preceding paragraph l(a) of this Article,
make payment in accordance with the Fund's redemption and payment
procedures described in the Prospectus; and (b) in the case of a
redemption of Shares pursuant to a computer tape or electronic data
transmission described in the preceding paragraph l(b) of this Article,
make payment by directing a federal funds wire order to the account
previously designated by the Approved Institution specified in said
computer tape or electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares
after it has received from an Officer of the Fund or from an appropriate
federal or state authority written notification that the sale of Shares
has been suspended or discontinued, and the Transfer Agent shall be
entitled to rely upon such written notification.
9. Upon the issuance of any Shares in accordance with this
Agreement, the Transfer Agent shall not be responsible for the payment
of any original issue or other taxes required to be paid by the Fund in
connection with such issuance of any Shares.
10. The Transfer Agent shall accept a computer tape or
electronic data transmission consistent with the Transfer Agent's record
format, as amended from time to time, which is reasonably believed by
the Transfer Agent to be furnished by or on behalf of any Approved
Institution and is represented to be instructions with respect to the
transfer of Shares from one account of such Approved Institution to
another such account, and shall effect the transfers specified in said
computer tape or electronic data transmission. The Transfer Agent shall
not be liable for any losses to the Fund or its shareholders in the
event that a computer tape or electronic data transmission from an
Approved Institution is unable to be processed for any reason beyond the
control of the Transfer Agent, or if any of the information on such tape
or transmission is found to be incorrect.
11. (a) Except as otherwise provided in subparagraph (b) of
this paragraph and in paragraph 13 of this Article, Shares will be
transferred or redeemed upon presentation to the Transfer Agent of
Share certificates or instructions properly endorsed for transfer
or redemption, accompanied by such documents as the Transfer Agent
deems necessary to evidence the authority of the person making
such transfer or redemption, and bearing satisfactory evidence of
the payment of stock transfer taxes. In the case of small estates
where no administration is contemplated, the Transfer Agent may,
when furnished with an appropriate surety bond, and without
further approval of the Fund, transfer or redeem Shares registered
in the name of a decedent where the current market value of the
Shares being transferred does not exceed such amount as may from
time to time be prescribed by various states. The Transfer Agent
reserves the right to refuse to transfer or redeem Shares until it
is satisfied that the endorsement on the stock certificate or
instructions is valid and genuine, and for that purpose it will
require, unless otherwise instructed by an authorized Officer of
the Fund, a guarantee of signature by an "Eligible Guarantor
Institution" as that term is defined by SEC Rule 17Ad-15. The
Transfer Agent also reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the requested transfer or
redemption is legally authorized, and it shall incur no liability
for the refusal, in good faith, to make transfers or redemptions
which the Transfer Agent, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis to
any claims adverse to such transfer or redemption. The Transfer
Agent may, in effecting transfers and redemptions of Shares, rely
upon those provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as
the same may be amended from time to time, applicable to the
transfer of securities, and the Fund shall indemnify the Transfer
Agent for any act done or omitted by it in good faith in reliance
upon such laws. In no event will the Fund indemnify the Transfer
Agent for any act done by it as a result of willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties.
The Transfer Agent shall be entitled to accept, and shall be fully
protected by the Fund in accepting, any request from any entity to
carry out any transaction in Shares received by the Transfer Agent
through any of the various programs offered through the National
Securities Clearing Corporation ("NSCC") (including, but not
limited to, Networking and FundServ). Any such entity shall
constitute an Approved Institution as defined herein.
(b) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Transfer Agent
shall be fully protected by the Fund in not requiring any
instruments, documents, assurances, endorsements or guarantees,
including, without limitation, any signature guarantees, in
connection with a redemption or transfer of Shares whenever the
Transfer Agent reasonably believes that requiring the same would
be inconsistent with the transfer and redemption procedures as
described in the Prospectus.
12. Notwithstanding any provision contained in this Agreement to
the contrary, the Transfer Agent shall not be required or expected to
require, as a condition to any transfer of any Shares pursuant to
paragraph 11 of this Article or any redemption of any Shares pursuant to
a computer tape or electronic data transmission described in this
Agreement, any documents, including, without limitation, any documents
of the kind described in subparagraph (a) of paragraph 11 of this
Article, to evidence the authority of the person requesting the transfer
or redemption and/or the payment of any stock transfer taxes, and shall
be fully protected in acting in accordance with the applicable
provisions of this Article.
13. (a) As used in this Agreement, the terms "computer tape
or electronic data transmission" and "computer tape believed by
the Transfer Agent to be furnished by an Approved Institution",
shall include any tapes generated by the Transfer Agent to reflect
information believed by the Transfer Agent to have been input by
an Approved Institution, via a remote terminal or other similar
link, into a data processing, storage or collection system, or
similar system (the "System"), located on the Transfer Agent's
premises. For purposes of paragraph 1 of this Article, such a
computer tape or electronic data transmission shall be deemed to
have been furnished at such times as are agreed upon from time to
time by the Transfer Agent and Fund only if the information
reflected thereon was input to the System at such times as are
agreed upon from time to time by the Transfer Agent and the Fund.
(b) Nothing contained in this Agreement shall constitute
any agreement or representation by the Transfer Agent to permit,
or to agree to permit, any Approved Institution to input
information into a System.
(c) The Transfer Agent reserves the right to approve, in
advance, any Approved Institution; such approval not to be
unreasonably withheld. The Transfer Agent also reserves the right
to terminate any and all automated data communications, at its
discretion, upon a reasonable attempt to notify the Fund when in
the opinion of the Transfer Agent continuation of such
communications would jeopardize the accuracy and/or integrity of
the Fund's records on the System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a
resolution of its Board of Directors, certified by the
Secretary or any Assistant Secretary, either: (i) setting forth
the date of the declaration of a dividend or distribution, the date of
accrual or payment, as the case may be, thereof, the record date as of
which shareholders entitled to payment, or accrual, as the case may be,
shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and
unpaid dividends are to be paid and the total amount, if any, payable to
the Transfer Agent on such payment date; or (ii) authorizing the
declaration of dividends and distributions on a daily or other periodic
basis and authorizing the Transfer Agent to rely on a Certificate
setting forth the information described in subsection (i) of this
paragraph.
2. Upon the mail date specified in such Certificate or
resolution, as the case may be, the Fund shall, in the case of a cash
dividend or distribution, cause the Custodian to deposit in an account
in the name of the Transfer Agent on behalf of the Fund an amount of
cash, if any, sufficient for the Transfer Agent to make the payment, as
of the mail date, specified in such Certificate or resolution, as the
case may be, to the shareholders who were of record on the record date.
The Transfer Agent will, upon receipt of any such cash, make payment of
such cash dividends or distributions to the shareholders of record as of
the record date by: (i) mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address; or
(ii) wiring such amounts to the accounts previously designated by an
Approved Institution, as the case may be. The Transfer Agent shall not
be liable for any improper payments made in good faith and without
negligence, in accordance with a Certificate or resolution described in
the preceding paragraph. If the Transfer Agent shall not receive from
the Custodian sufficient cash to make payments of any cash dividend or
distribution to all shareholders of the Fund as of the record date, the
Transfer Agent shall, upon notifying the Fund, withhold payment to all
shareholders of record as of the record date until sufficient cash is
provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be
responsible for the determination of the rate or form of dividends or
capital gain distributions due to the shareholders. It is expressly
agreed and understood that the Transfer Agent is not liable for any loss
as a result of processing a distribution based on information provided
in the Certificate that is incorrect. The Fund agrees to pay the
Transfer Agent for any and all costs, both direct and Out-of-Pocket
Expenses, incurred in such corrective work as necessary to remedy such
error.
4. It is understood that the Transfer Agent shall file such
appropriate information returns concerning the payment of dividend and
capital gain distributions with the proper federal, state and local
authorities as are required by law to be filed by the Fund, but shall in
no way be responsible for the collection or withholding of taxes due on
such dividends or distributions due to shareholders, except and only to
the extent required by applicable law. Anything in this Agreement to the
contrary notwithstanding, the Fund shall be solely responsible for the
accurate, complete and timely filing with the proper federal, state and
local authorities of all tax information with respect to any Fund
account maintained under Matrix Level 3 through any of the various
programs offered through the NSCC (including, but not limited to,
Networking and FundServ).
ARTICLE VII
CONCERNING THE FUND
1. The Fund represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under
the laws of the State of Maryland.
(b) It is empowered under applicable laws and by its
Articles of Incorporation and By-laws to enter into and perform
this Agreement.
(c) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under the
Investment Company Act of 1940, as amended.
(e) A registration statement under the Securities Act of
1933, as amended, with respect to the Shares is effective. The
Fund shall notify the Transfer Agent if such registration
statement or any state securities registrations have been
terminated or a stop order has been entered with respect to the
Shares.
2. Each copy of the Articles of Incorporation of the Fund and
copies of all amendments thereto shall be certified by the Secretary of
State (or other appropriate official) of the state of organization, and
if such Articles of Incorporation and/or amendments are required by law
also to be filed with a county or other officer or official body, a
certificate of such filing shall be filed with a certified copy
submitted to the Transfer Agent. Each copy of the By-laws and copies of
all amendments thereto, and copies of resolutions of the Board of
Directors of the Fund shall be certified by the Secretary of the Fund
under seal.
3. The Fund shall promptly deliver to the Transfer Agent
written notice of any change in the Officers authorized to sign Share
certificates, notifications or requests, together with a specimen
signature of each new Officer. In the event any Officer who shall have
signed manually or whose facsimile signature shall have been affixed to
blank Share certificates shall die, resign or be removed prior to
issuance of such Share certificates, the Transfer Agent may issue such
Share certificates of the Fund notwithstanding such death, resignation
or removal, and the Fund shall promptly deliver to the Transfer Agent
such approval, adoption or ratification as may be required by law.
4. It shall be the sole responsibility of the Fund to deliver
to the Transfer Agent the Fund's currently effective Prospectus and, for
purposes of this Agreement, the Transfer Agent shall not be deemed to
have notice of any information contained in such Prospectus until a
reasonable time after it is actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized and existing under
the laws of the State of Missouri.
(b) It is empowered under applicable law and by its
Articles of Incorporation and By-laws to enter into and perform
this Agreement.
(c) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under
Section 17A of the Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be
indemnified in acting upon any computer tape or electronic data
transmission, writing or document reasonably believed by it to be
genuine and to have been signed or made by an Officer of the Fund or
person designated by the Fund and shall not be held to have any notice
of any change of authority of any person until receipt of written notice
thereof from the Fund or such person. It shall also be protected in
processing Share certificates which bear the proper countersignature of
the Transfer Agent and which it reasonably believes to bear the proper
manual or facsimile signature of the Officers of the Fund.
3. The Transfer Agent upon notice to the Fund may establish
such additional procedures, rules and regulations governing the transfer
or registration of Share certificates as it may deem advisable and
consistent with such rules and regulations generally adopted by mutual
fund transfer agents.
4. The Transfer Agent shall keep such records as it may deem
advisable and is agreeable to the Fund, but not inconsistent with the
rules and regulations of appropriate government authorities, in
particular Rules 31a-2 and 31a-3 under the Investment Company Act of
1940, as amended. The Transfer Agent acknowledges that such records are
the property of the Fund. The Transfer Agent may deliver to the Fund
from time to time at its discretion, for safekeeping or disposition by
the Fund in accordance with law, such records, papers, documents
accumulated in the execution of its duties as such Transfer Agent, as
the Transfer Agent may deem expedient, other than those which the
Transfer Agent is itself required to maintain pursuant to applicable
laws and regulations. The Fund shall assume all responsibility for any
failure thereafter to produce any record, paper, cancelled Share
certificate or other document so returned, if and when required. Such
records maintained by the Transfer Agent pursuant to this paragraph 4,
which have not been previously delivered to the Fund pursuant to the
foregoing provisions of this paragraph 4, shall be considered to be the
property of the Fund, shall be made available upon request for
inspection by the Officers, employees and auditors of the Fund, and
records shall be delivered to the Fund upon request and in any event
upon the date of termination of this Agreement, as specified in Article
IX of this Agreement, in the form and manner kept by the Transfer Agent
on such date of termination or such earlier date as may be requested by
the Fund.
5. The Transfer Agent shall not be liable for any loss or
damage, including counsel fees, resulting from its actions or omissions
to act or otherwise, except for any loss or damage arising out of its
bad faith, willful misfeasance, gross negligence or reckless disregard
of its duties under this Agreement.
6. (a) The Fund shall indemnify and exonerate, save and hold
harmless the Transfer Agent from and against any and all claims
(whether with or without basis in fact or law), demands, expenses
(including reasonable attorneys' fees) and liabilities of any and
every nature which the Transfer Agent may sustain or incur or
which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be
taken by any prior transfer agent of the Fund or as a result of
any action taken or omitted to be taken by the Transfer Agent in
good faith and without gross negligence or willful misfeasance or
in reliance upon: (i) any provision of this Agreement; (ii)
the Prospectus; (iii) any instruction or order including, without
limitation, any computer tape or electronic data transmission
reasonably believed by the Transfer Agent to have been received
from an Approved Institution; (iv) any instrument, order or Share
certificate reasonably believed by it to be genuine and to be
signed, countersigned or executed by any duly authorized Officer
of the Fund; (v) any Certificate or other instructions of an
Officer; (vi) any opinion of legal counsel for the Fund or the
Transfer Agent; or (vii) any request by any entity to carry out
any transaction in Shares received by the Transfer Agent through
any of the various programs offered through the NSCC (including,
but not limited to, Networking and FundServ). The Fund shall
indemnify and exonerate, save and hold the Transfer Agent harmless
from and against any and all claims (whether with or without basis
in fact or law), demands, expenses (including reasonable
attorneys' fees) and liabilities of any and every nature which the
Transfer Agent may sustain or incur or which may be asserted
against the Transfer Agent by any person by reason of or as a
result of any action taken or omitted to be taken by the Transfer
Agent in good faith in connection with its appointment or in
reliance upon any law, act, regulation or any interpretation of
the same even though such law, act or regulation may thereafter
have been altered, changed, amended or repealed.
(b) The Transfer Agent shall not settle any claim, demand,
expense or liability to which it may seek indemnity pursuant to
paragraph 6(a) above (each, an "Indemnifiable Claim") without
the express written consent of an Officer of the Fund. The
Transfer Agent shall notify the Fund within fifteen (15) days of
receipt of notification of an Indemnifiable Claim, provided that
the failure by the Transfer Agent to furnish such notification
shall not impair its right to seek indemnification from the Fund
unless the Fund is unable to adequately defend the Indemnifiable
Claim as a result of such failure, and further provided, that if
as a result of the Transfer Agent's failure to provide the Fund
with timely notice of the institution of litigation a judgment by
default is entered, prior to seeking indemnification from the Fund
the Transfer Agent, at its own cost and expense, shall open such
judgment. The Fund shall have the right to defend any
Indemnifiable Claim at its own expense, provided that such defense
shall be conducted by counsel selected by the Fund and reasonably
acceptable to the Transfer Agent. The Transfer Agent may join in
such defense at its own expense, but to the extent that it shall
so desire the Fund shall direct such defense. The Fund shall not
settle any Indemnifiable Claim without the express written consent
of the Transfer Agent if the Transfer Agent determines that such
settlement would have an adverse effect on the Transfer Agent
beyond the scope of this Agreement. In such event, the Fund and
the Transfer Agent shall each be responsible for their own defense
at their own cost and expense, and such claim shall not be deemed
an Indemnifiable Claim hereunder. If the Fund shall fail or refuse
to defend an Indemnifiable Claim, the Transfer Agent may provide
its own defense at the cost and expense of the Fund. Anything in
this Agreement to the contrary notwithstanding, the Fund shall not
indemnify the Transfer Agent against any liability or expense
arising out of the Transfer Agent's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement. The Transfer Agent shall
indemnify and hold the Fund harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to any action or
failure or omission to act by the Transfer Agent as a result of
the Transfer Agent's lack of good faith, gross negligence or
willful misfeasance.
7. The Transfer Agent shall not be liable to the Fund with
respect to any redemption draft on which the signature of the drawer is
forged and which the Fund's Custodian has advised the Transfer Agent to
honor the redemption (but nothing herein is meant to impose any duties
upon the Fund's Custodian); nor shall the Transfer Agent be liable for
any material alteration or absence or forgery of any endorsement, it
being understood that the Transfer Agent's sole responsibility with
respect to inspecting redemption drafts is to use reasonable care to
verify the drawer's signature against signatures on file.
8. There shall be excluded from the consideration of whether
the Transfer Agent has breached this Agreement in any way, any period of
time, and only such period of time during which the Transfer Agent's
performance is materially affected, by reason of circumstances beyond
its control (collectively, "Causes"), including, without limitation,
mechanical breakdowns of equipment (including any alternative power
supply and operating systems software), flood or catastrophe, acts of
God, failures of transportation, communication or power supply, strikes,
lockouts, work stoppages or other similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of
the Fund for written instructions with respect to any matter arising in
connection with the Transfer Agent's duties and obligations under this
Agreement, and the Transfer Agent shall not be liable for any action
taken or permitted by it in good faith in accordance with such written
instructions. Such application by the Transfer Agent for written
instructions from an Officer of the Fund may set forth in writing any
action proposed to be taken or omitted by the Transfer Agent with
respect to its duties or obligations under this Agreement and the date
on and/or after which such action shall be taken. The Transfer Agent
shall not be liable for any action taken or omitted in accordance with a
proposal included in any such application on or after the date specified
therein unless, prior to taking or omitting any such action, the
Transfer Agent has received written instructions in response to such
application specifying the action to be taken or omitted. The Transfer
Agent may consult counsel of the Fund, or upon notice to the Fund, its
own counsel, at the expense of the Fund and shall be fully protected
with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of counsel to the Fund or its own
counsel.
10. The Transfer Agent may issue new Share certificates in place
of certificates represented to have been lost, stolen or destroyed upon
receiving written instructions from the shareholder accompanied by proof
of an indemnity or surety bond issued by a recognized insurance
institution specified by the Fund or the Transfer Agent.
If the Transfer Agent receives written notification from the shareholder
or broker dealer that the certificate issued was never received, and
such notification is made within thirty (30) days of the date of
issuance, the Transfer Agent may reissue the certificate without
requiring a surety bond. The Transfer Agent may also reissue
certificates which are represented as lost, stolen or destroyed without
requiring a surety bond provided that the notification is in writing and
accompanied by an indemnification signed on behalf of a member firm of
the New York Stock Exchange and signed by an officer of said firm with
the signature guaranteed. Notwithstanding the foregoing, the Transfer
Agent will reissue a certificate upon written authorization from an
Officer of the Fund.
11. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to
notify the Fund promptly and to secure instructions from an Officer as
to such inspection. The Transfer Agent reserves the right, however, to
exhibit the shareholder records to any person whenever it receives an
opinion from its counsel that there is a reasonable likelihood that the
Transfer Agent will be held liable for the failure to exhibit the
shareholder records to such person; provided, however, that in
connection with any such disclosure the Transfer Agent shall promptly
notify the Fund that such disclosure has been made or is to be made.
12. At the request of an Officer of the Fund, the Transfer Agent
will address and mail such appropriate notices to shareholders as the
Fund may direct.
13. Notwithstanding any of the foregoing provisions of this
Agreement, the Transfer Agent shall be under no duty or obligation to
inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor, or the
authority of the Approved Institution or of the Fund, as the case
may be, to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a
redemption of any Shares, the propriety of the amount to be paid
therefor, or the authority of the Approved Institution or of the
Fund, as the case may be, to request such transfer or redemption;
(c) The legality of the declaration of any dividend by the
Fund, or the legality of the issue of any Shares in payment of any
stock dividend; or
(d) The legality of any recapitalization or readjustment
of Shares.
14. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically
set forth in this Agreement, and no covenant or obligation shall be
implied in this Agreement against the Transfer Agent.
15. Purchase and Prices of Services:
(a) The Fund will compensate the Transfer Agent for, and
Transfer Agent will provide, beginning on the execution date of
this Agreement and continuing until the termination of this
Agreement as provided hereinafter, the services set forth in
Schedule I.
(b) The current unit prices for the services are set forth
in Schedule II (the "Schedule II Fees"). Effective as of January
1, 1997, once in each calendar year, the Transfer Agent may elect
to raise the Schedule II Fees upon ninety (90) days prior notice
to the Fund, all subject to the mutual agreement of the parties
hereto. Notwithstanding the annual right to raise the Schedule II
Fees, the Transfer Agent may increase prices due to changes in
legal or regulatory requirements subject to the approval of the
Fund, which approval shall not be unreasonably withheld.
16. Billing and Payment:
(a) The Transfer Agent shall xxxx the Fund monthly in
arrears for accounts maintained and Out-of-Pocket Expenses. The
Transfer Agent may from time to time request that the Fund advance
estimated expenditures of an unusual nature subject to
reconciliation of actual expenses as soon as practicable
thereafter.
(b) The Fund shall pay the Transfer Agent in immediately
available funds at UMB Bank, n.a. in Kansas City, Missouri within
thirty (30) days of the date of the xxxx. Any amounts due under
this Agreement which are not paid within said thirty (30) day
period shall bear interest at the rate of one and one-half percent
(l 1/2%) per month from such date until paid in full.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of
such termination, which shall be not less than sixty (60) days after the
date of receipt of such notice. In the event such notice is given by the
Fund, it shall be accompanied by a copy of a resolution of the Board of
Directors of the Fund, certified by the Secretary or any Assistant
Secretary, electing to terminate this Agreement and designating the
successor transfer agent or transfer agents. In the event such notice is
given by the Transfer Agent, the Fund shall on or before the termination
date, deliver to the Transfer Agent a copy of a resolution of its Board
of Directors, certified by the Secretary or any Assistant Secretary,
designating a successor transfer agent or transfer agents. In the
absence of such designation by the Fund, the Fund shall upon the date
specified in the notice of termination of this Agreement and delivery of
the records maintained hereunder, be deemed to be its own transfer agent
and the Transfer Agent shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the Fund, shall deliver the
records of the Fund on electromagnetic media to the Fund or its
successor transfer agent. The Fund shall be responsible to the Transfer
Agent for the reasonable costs and expenses associated with the
preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1 The Fund agrees that prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations of
the Transfer Agent hereunder, it shall advise the Transfer Agent of such
proposed change at least thirty (30) days prior to the intended date of
the same, and shall proceed with such change only if it shall have
received the written consent of the Transfer Agent thereto, which shall
not be unreasonably withheld.
2. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be sufficiently
given if addressed to the Fund and mailed or delivered to it at:
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Fund may from time to time designate in
writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Transfer Agent shall be
sufficiently given if addressed to the Transfer Agent and mailed or
delivered to:
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Transfer Agent may from time to time
designate in writing.
4. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the
formality of this Agreement.
5. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns.
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
7. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
8. The provisions of this Agreement are intended to benefit
only the Transfer Agent and the Fund, and no rights shall be granted to
any other person by virtue of this Agreement.
9. (a) The Transfer Agent shall endeavor to assist in
resolving shareholder inquiries and errors relating to the period
during which prior transfer agents acted as such for the Fund. Any
such inquiries or errors which cannot be expediently resolved by
the Transfer Agent will be referred to the Fund.
(b) The Transfer Agent shall only be responsible for the
safekeeping and maintenance of transfer agency records, cancelled
Share certificates and correspondence of the Fund created or
produced prior to the time of conversion which are under its
control and acknowledged in a writing to the Fund to be in its
possession. Any expenses or liabilities incurred by the Transfer
Agent as a result of shareholder inquiries, regulatory compliance
or audits related to such records and not caused as a result of
Transfer Agent's bad faith, willful misfeasance or gross
negligence shall be the responsibility of the Fund as provided in
Article VIII herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective corporate officer, thereunto duly
authorized and their respective corporate seals to be hereunto affixed,
as of the day and year first above written.
BABSON ENTERPRISE FUND II, INC.
By /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
[SEAL]
XXXXX & BABSON, INC.
By /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
[SEAL]
SCHEDULE I
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such
times as Fund and Transfer Agent may agree, Transfer Agent will provide the
services set forth below:
Examine and Process New Accounts, Subsequent Payments, Liquidations,
Exchanges, Telephone Transactions, Check Redemptions, Automatic Withdrawals,
Certificate Issuance, Wire Order Trades, Dividends, Dividend Statements,
Dealer Statements.
This Agreement does not apply to services with respect to qualified
plans. Such services, including, but not limited to fiduciary accounting
services and the preparation and mailing of Forms 5498 and 1099R, are
available subject to separate agreement for an additional charge.
DAILY ACTIVITY
Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
Name and Address, including Zip Code
Balance of Uncertificated Shares
Balance of Certificated Shares
Certificate number, number of shares, issuance date of each certificate
outstanding and cancellation date for each certificate date for each
certificate no longer outstanding, if issued
Balance of dollars available for redemption
Dividend code (daily accrual, monthly reinvest, monthly cash or
quarterly cash)
Type of account code
Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available
Original establishment date for accounts opened by exchange W-9
withholding status and periodic reporting
State of residence code
Social Security or taxpayer identification number, and indication of
certification
Historical transactions on the account for the most recent 18 months,
or other period as mutually agreed to from time-to-time
Indication as to whether phone transactions can be accepted for this
account. Beneficial owner code, i.e. male, female, joint tenant, etc.
An alternate or "secondary" account number issued by a dealer (or bank,
etc.) to a customer for use, inquiry and transaction input by "remote
accessors"
FUNCTIONS
Answer investor and dealer telephone and/or written inquiries, except
those concerning Fund policy, or requests for investment advice which
will be referred to the Fund, or those which the Fund chooses to answer
Deposit Fund share certificates into accounts upon receipt of
instructions from the investor or other authorized person, if issued
Examine and process transfers of shares insuring that all transfer
requirements and legal documents have been supplied
Process and confirm address changes
Process standard account record changes as required, i.e. Dividend
Codes, etc.
Microfilm source documents for transactions, such as account
applications and correspondence
Perform backup withholding for those accounts which federal government
regulations indicate is necessary
Solicit missing taxpayer identification numbers
Provide remote access inquiry to Fund records via Fund supplied
hardware (Fund responsible for connection line and monthly fee)
REPORTS PROVIDED
Daily Journals Reflecting all shares and
dollar activity for the
previous day
Blue Sky Report Supply information monthly
for Fund's Preparation of
Blue Sky Reporting
N-SAR Report Supply monthly correspondence,
redemption and liquidation
information for use in fund's
N-SAR Report
Additionally, monthly average daily balance reports will be provided at
the Fund's request to the Fund at no charge.
Prepare and mail copies of summary statements to dealers and investment
advisers
Generate and mail confirmation statements for financial transactions
DIVIDEND ACTIVITY
Reinvest or pay in cash including reinvesting in other funds within the
fund group serviced by the Transfer Agent as described in each Fund
Prospectus
Distribute capital gains simultaneously with income dividends
DEALER SERVICES
Prepare and mail confirmation statements to dealers and
Prepare and mail copies of statements to dealers, same frequency as
investor statements
ANNUAL MEETINGS
Assist Fund in obtaining a qualified service to: address and mail
proxies and related material, tabulate returned proxies and supply
daily reports when sufficient proxies have been received
Prepare certified list of stockholders, hard copy or microform
PERIODIC ACTIVITIES
Mail transaction confirmation statements daily to investors
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably
specified by the Transfer Agent)
Mail periodic statement to investors
Compute, prepare and furnish all necessary reports to Governmental
authorities: Forms 1099DIV, 1099B, 1042 and 1042S
Enclose various marketing material as designated by the Fund in statement
mailings, i.e. monthly and quarterly statements (material must be adaptable
to mechanical equipment as reasonably specified by the Transfer Agent)
SCHEDULE II
TRANSFER AGENT FEE SCHEDULE
(None for this Fund)
