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EXHIBIT 9C
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this 5th day of November, 1996,
by and between Xxxxxx Investment Funds, Inc., a series company currently
sponsoring the Bond Fund and the Growth Stock Fund (each, a "Fund", and
together, the "Funds") and Firstar Trust Company, a corporation organized under
the laws of the State of Wisconsin (hereinafter referred to as the "Agent").
WHEREAS, the Funds are open-ended management investment companies which
shall be registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
WHEREAS, the Agent is a trust company and, among other things, is in the
business of administering transfer and dividend disbursing agent functions for
the benefit of its customers;
NOW, THEREFORE, the Funds and the Agent do mutually promise and agree as
follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT
Subject to the terms and conditions set forth in this Agreement, the Funds
hereby employ and appoint the Agent to act as transfer agent and dividend
disbursing agent.
The Agent shall perform all of the customary services of a transfer agent
and dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to:
A. Receive orders for the purchase of shares;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated shares being
held in the appropriate shareholder account;
C. Process redemption requests received in good order;
D. Pay monies in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between funds within the same family of funds;
G. Issue and/or cancel certificates as instructed; replace lost, stolen or
destroyed certificates upon receipt of satisfactory indemnification or surety
bond;
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H. Prepare and transmit payments for dividends and distributions declared
by the Funds;
I. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic investment,
dividend reinvestment, etc.);
J. Record the issuance of shares of the Funds and maintain, pursuant to
Rule 17ad-10(e) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), a record of the total number of shares of the Funds which are
authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail, receive and
tabulate proxies;
L. Mail shareholder reports and prospectuses to current shareholders;
M. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders;
N. Provide shareholder account information upon request and prepare and
mail confirmations and statements of account to shareholders for all purchases,
redemptions and other confirmable transactions as agreed upon with the Funds;
and
O. Provide a Blue Sky System which will enable the Funds to monitor the
total number of shares sold in each state. In addition, the Funds shall
identify to the Agent in writing those transactions and assets to be treated as
exempt from the Blue Sky reporting to the Funds for each state. The
responsibility of the Agent for the Funds' Blue Sky state registration status
is solely limited to the initial compliance by the Funds and the reporting of
such transactions to the Funds.
2. COMPENSATION
The Funds agree to pay the Agent for performance of the duties listed in
this Agreement; the fees and out-of-pocket expenses include, but are not
limited to the following: printing, postage, forms, stationery, record
retention, mailing, insertion, programming, labels, shareholder lists and proxy
expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Funds and the Agent.
The Funds agree to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
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3. REPRESENTATIONS OF AGENT
The Agent represents and warrants to the Funds that:
A. It is a trust company duly organized, existing and in good standing
under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act;
C. It is duly qualified to carry on its business in the state of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter and perform this Agreement; and
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
G. It will comply with all applicable requirements of the Securities Act
of 1933, as amended (the "Securities Act"), the Exchange Act, the Investment
Company Act, and any laws, rules, and regulations of governmental authorities
having jurisdiction.
4. REPRESENTATIONS OF THE FUNDS
Xxxxxx Investment Funds, Inc. represents and warrants to the Agent that:
A. It is an open-ended diversified investment company under the Investment
Company Act;
B. It is a corporation organized, existing, and in good standing under the
laws of Maryland;
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Articles of Incorporation
have been taken to authorize it to enter into and perform this Agreement;
E. It will comply with all applicable requirements of the Securities Act,
the Exchange Act, the Investment Company Act, and any laws, rules and
regulations of governmental authorities having jurisdiction; and
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F. A registration statement under the Securities Act will become 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 Funds
being offered for sale.
5. COVENANTS OF FUNDS AND AGENT
The Funds shall furnish the Agent a certified copy of the resolution of
the Board of Directors of the Funds authorizing the appointment of the Agent
and the execution of this Agreement. The Funds shall provide to the Agent a
copy of the Articles of Incorporation and Bylaws of Xxxxxx Investment Funds,
Inc. and all amendments thereto.
The 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 and the rules thereunder,
the Agent agrees that all such records prepared or maintained by the Agent
relating to the services to be performed by the Agent hereunder are the
property of the Funds and will be preserved, maintained and made available in
accordance with such section and rules and will be surrendered to the Funds on
and in accordance with their request.
6. INDEMNIFICATION; REMEDIES UPON BREACH
The Agent shall exercise reasonable care in the performance of its duties
under this Agreement. The Agent shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Fund in connection with
matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies beyond
the Agent's control, except a loss resulting from the Agent's refusal or
failure to comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance of its duties
under this Agreement. Notwithstanding any other provision of this Agreement,
the Fund shall indemnify and hold harmless the Agent from and against any and
all claims, demands, losses, expenses, and liabilities (whether with or without
basis in fact or law) of any and every nature (including reasonable attorneys'
fees) which the Agent may sustain or incur or which may be asserted against the
Agent by any person arising out of any action taken or omitted to be taken by
it in performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction provided to
the Agent by any duly authorized officer of the Fund, such duly authorized
officer to be included in a list of authorized officers furnished to the Agent
and as amended from time to time in writing by resolution of the Board of
Directors of the Fund.
Further, the Fund will indemnify and hold the Agent harmless against any
and all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action, or suit as
a result of the negligence of the Fund or the principal underwriter (unless
contributed to by the Agent's breach of this Agreement or other Agreements
between the Fund and the Agent, or the Agent's own negligence or bad faith); or
as a result of the Agent acting upon telephone instructions relating to the
exchange or redemption of shares received by the Agent and reasonably
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believed by the Agent under a standard of care customarily used in the industry
to have originated from the record owner of the subject shares; or as a result
of acting in reliance upon any genuine instrument or stock certificate signed,
countersigned, or executed by any person or persons authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of the Fund
shall be entitled to inspect the Agent's premises and operating capabilities at
any time during regular business hours of the Agent, upon reasonable notice to
the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Fund may be asked to
indemnify or hold the Agent harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that the Agent will use all reasonable care to notify the
Fund promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Fund.
The Fund shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the event that the Fund so elects,
it will so notify the Agent and thereupon the Fund shall take over complete
defense of the claim, and the Agent shall in such situation initiate no further
legal or other expenses for which it shall seek indemnification under this
section. The Agent shall in no case confess any claim or make any compromise
in any case in which the Fund will be asked to indemnify the Agent except with
the Fund's prior written consent.
The Agent shall indemnify and hold the Fund harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which may be asserted against the Fund by any person arising
out of any action taken or omitted to be taken by the Agent
as a result of the Agent's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
7. CONFIDENTIALITY
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Funds and
their shareholders and shall not be disclosed to any other party, except after
prior notification to and approval in writing by the Funds, which approval
shall not be unreasonably withheld and may not be withheld where
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the Agent may be exposed to civil or criminal contempt proceedings for failure
to comply after being requested to divulge such information by duly constituted
authorities.
8. ADDITIONAL SERIES
Xxxxxx Investment Funds, Inc. is authorized to issue separate classes of
shares of beneficial interest representing interests in separate investment
portfolios. The parties intend that each portfolio established by the trust,
now or in the future, be covered by the terms and conditions of this agreement.
9. RECORDS
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Funds but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
The Investment Company Act and the rules thereunder. The Agent agrees that all
such records prepared or maintained by the Agent relating to the services to be
performed by the Agent hereunder are the property of the Funds and will be
preserved, maintained, and made available with such section and rules of the
Investment Company Act and will be promptly surrendered to the Funds on and in
accordance with its request.
10. WISCONSIN LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the state of Wisconsin.
11. AMENDMENT, ASSIGNMENT, TERMINATION AND NOTICE
A. This Agreement may be amended by the mutual written consent of the
parties.
B. This Agreement may be terminated upon sixty (60) days' written notice
given by one party to the other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of the other
party.
D. Any notice required to be given by the parties to each other under the
terms of this Agreement shall be in writing, addressed and delivered, or mailed
to the principal place of business of the other party. If to the Agent, such
notice should to be sent to Mutual Fund Services, 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000. If to the Funds, such notice should be sent to
X.X. Xxx 0000, Xx. Xxxxx, Xxxxxxxxx 00000.
E. In the event that the Funds give to the Agent their written intention
to terminate and appoint a successor transfer agent, the Agent agrees to
cooperate in the
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transfer of its duties and responsibilities to the successor, including any and
all relevant books, records and other data established or maintained by the
Agent under this Agreement.
F. Should the Funds exercise their right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be paid by
the Funds.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
Xxxxxx Investment Funds, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
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Its: President Its: Vice President
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Attest: /s/ Xxxxxxx X. XxXxxxx Attest: /s/ Xxxxxx XxXxx
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Assistant Secretary
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Exhibit A
Transfer Agent Annual Fee Schedule
Xxxxxx Funds
Annual fees based on market value of assets
$14 per shareholder account
$15,000 annual minimum fee applied to each fund
15% discount for the first year
10% discount for the second year
