Exhibit 9g
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the __ day of December, 1996 by and among Xxxxxx
Xxxxxxx Asset Management, Inc., a Delaware corporation ("MSAM"), ACCESS
INVESTOR SERVICES, INC., a Delaware corporation ("ACCESS") and Xxxxxx Xxxxxxx
Fund, Inc., a Maryland corporation.
RECITAL:
WHEREAS, the Xxxxxx Xxxxxxx Fund, Inc. is registered as an open-end,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act") which has issued shares of several series
(collectively, the "Funds", and individually, a "Fund"); and
WHEREAS, MSAM is responsible for the provision of certain transfer agent,
fund accounting and administration services to the Fund pursuant to the
Agreement between MSAM and the Fund dated as of [November 17, 1992] (the "MSAM
Administration Agreement"); and
WHEREAS, MSAM wishes to retain ACCESS to provide sub-transfer agent
services with respect to the Fund, and ACCESS is willing to furnish such
services;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT: DUTIES OF ACCESS
1.01 Subject to the terms and conditions set forth in this Agreement,
MSAM hereby employs and appoints ACCESS as sub-transfer agent, dividend
disbursing agent and shareholder service agent for each of the Funds.
1.02 ACCESS hereby accepts such employment and appointments and agrees
that on and after the effective date of this Agreement it will act as the sub-
transfer agent, dividend disbursing agent and shareholder service agent for each
of the Funds on the terms and conditions set forth herein.
1.03 ACCESS agrees that its duties and obligations hereunder will be
performed in a competent, efficient and workmanlike manner with due diligence in
accordance with reasonable industry practice, and that the necessary facilities,
equipment and personnel for such performance will be provided.
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1.04 In order to assure compliance with section 1.03 and to implement
a cooperative effort to improve the quality of sub-transfer agency and
shareholder services received by each of the Funds and its shareholders, ACCESS
agrees to provide and maintain quantitative performance objectives, including
maximum target turn-around times and maximum target error rates, for the various
services provided hereunder. ACCESS also agrees to provide a reporting system
designed to provide MSAM and the Board of Directors of the Funds (the "Board")
on a quarterly basis with quantitative data comparing actual performance for the
period with the performance objectives. The foregoing procedures are designed
to provide a basis for continuing monitoring by MSAM and the Board of the
quality of services rendered hereunder.
ARTICLE 2. FEES AND EXPENSES
2.01 For the services to be performed by ACCESS pursuant to this
Agreement, MSAM agrees to pay ACCESS the fees provided in the fee schedules
agreed upon from time to time by MSAM and ACCESS.
2.02 In addition to the amounts paid under section 2.01 above, each of
the Funds agree to reimburse ACCESS promptly for reasonable out-of-pocket
expenses or advances paid on the Fund's behalf by ACCESS in connection with its
performance under this Agreement for postage, freight, envelopes, checks,
drafts, continuous forms, reports and statements, telephones, telegraph, costs
of outside mailing firms, necessary outside record storage costs, media for
storage of records (e.g., microfilm, microfiche and computer tapes) and printing
costs incurred due to special requirements of such Fund. In addition, any other
special out-of-pocket expenses paid by ACCESS at the specific request of any of
the Funds will be promptly reimbursed by the requesting Fund. Postage for
mailings of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to ACCESS by the respective Fund three
business days prior to the mailing date of such materials.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF ACCESS
ACCESS represents and warrants to MSAM and the Funds that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
3.02 It is duly qualified to carry on its business in the states of
Texas and Missouri.
3.03 It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement.
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3.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.05 It has and will continue to have during the term of this
Agreement access to the necessary facilities, equipment and personnel to perform
its duties and obligations hereunder.
3.06 It will maintain a system regarding "as of" transactions as follows:
(a) Each "as of" transaction effected at a price other than that
in effect on the day of processing for which an estimate has not been given
to any of the affected Funds and which is necessitated by ACCESS error, or
delay for which ACCESS is responsible or which could have been avoided
through the exercise of reasonable care, will be identified, and the net
effect of such transactions determined, on a daily basis for each such
Fund.
(b) The cumulative net effect of the transactions included in
paragraph (a) above will be determined each day throughout each month. If,
on any day during the month, the cumulative net effect upon any Fund is
negative and exceeds an amount equivalent to 1/2 of 1 cent per share of
such Fund, ACCESS shall promptly make a payment to such Fund (in cash or
through use of a credit as described in paragraph (c) below) in such amount
as necessary to reduce the negative cumulative net effect to less than 1/2
of 1 cent per share of such Fund. If on the last business day of the month
the cumulative net effect (adjusted by the amount of any payments pursuant
to the preceding sentence) upon any Fund is negative, ACCESS shall
promptly make a payment to such Fund (in cash or through use of a credit as
described in paragraph (c) below) of an equivalent amount. If on the last
business day of the month the cumulative net effect (similarly adjusted)
upon any Fund is positive, ACCESS shall be entitled to recover certain past
payments and to a credit against all future payments made under this
paragraph to such Fund, as described in paragraph (c) below.
(c) At the end of each month, any positive cumulative net effect
upon any Fund shall be deemed to be a credit to ACCESS which shall first be
applied to recover from that Fund any payments made by Access to such Fund
under paragraph (b) above during the year. Any portion of a credit to
ACCESS not so used 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 payment to such Fund pursuant to paragraph (b) above.
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ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF MSAM.
MSAM hereby represents and warrants on behalf of itself and the
Funds that:
4.01 MSAM is duly organized and in good standing under the laws of the
State of Delaware.
4.02 The Funds are duly organized and existing and in good standing
under the laws of the State of Maryland.
4.03 The Funds are series of an open-end, diversified, management
investment company registered under the Investment Company Act of 1940, as
amended.
4.04 MSAM is empowered under applicable laws and regulations and by
its Articles of Incorporation and by-laws to enter into and perform this
Agreement.
4.05 All requisite proceedings have been taken by MSAM's and the
Funds' Boards to authorize MSAM to enter into and perform this Agreement.
4.06 A registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective, and appropriate state
securities laws filings have been made and will continue to be made, with
respect to all Fund shares being offered for sale.
ARTICLE 5. INDEMNIFICATION.
5.01 ACCESS shall not be responsible for and each of the Funds shall
indemnify and hold ACCESS harmless from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liabilities
arising out of or attributable to:
(a) All actions of ACCESS required to be taken by ACCESS for the
benefit of such Fund pursuant to this Agreement, provided ACCESS has acted
in good faith with due diligence and without negligence or willful
misconduct.
(b) The reasonable reliance by ACCESS on, or reasonable use by
ACCESS of, information, records and documents which have been prepared or
maintained by or on behalf of such Fund or have been furnished to ACCESS by
or on behalf of such Fund.
(c) The reasonable reliance by ACCESS on, or the carrying out by
ACCESS of, any instructions or requests of such Fund.
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(d) The offer or sale of such Fund's shares in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any 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 such shares in such state unless such
violation results from any failure by ACCESS to comply with written
instructions of such Fund that no offers or sales of such Fund's shares be
made in general or to the residents of a particular state.
(e) Such Fund's refusal or failure to comply with the terms of
this Agreement, or such Fund's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of such Fund
hereunder.
5.02 ACCESS shall indemnify and hold each of the Funds harmless from
and against any and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising out of or attributable to ACCESS'
refusal or failure to comply with the terms of this Agreement, or ACCESS' lack
of good faith, negligency or willful misconduct, or the breach of any
representation or warranty of ACCESS hereunder.
5.03 At any time ACCESS may apply to any authorized officer of any of
the Funds for instructions, and may consult with any of the Funds' legal
counsel, at the expense of such concerned Fund, with respect to any matter
arising in connection with the services to be performed by ACCESS under this
Agreement, and ACCESS shall not be liable and shall be indemnified by such
concerned Fund for any action taken or omitted by it in good faith in reasonable
reliance upon such instructions or upon the opinion of such counsel. ACCESS
shall be protected and indemnified in acting upon any paper or document
reasonably believed by ACCESS to be genuine and to have been signed by the
proper person or persons and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the
concerned Fund. ACCESS shall also be protected and indemnified in recognizing
stock certificates which ACCESS reasonably believes to bear the proper manual or
facsimile signatures of the officers of the concerned Fund, 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 any 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, 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 In no event and under no circumstances shall any party to this
Agreement be liable to another 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 one party may be
required to indemnify another, 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 MSAM AND ACCESS.
6.01 MSAM shall promptly furnish to ACCESS the following:
(a) Certified copies of the resolution of the Funds' Board
authorizing the appointment of ACCESS and the execution and delivery of
this Agreement.
(b) Certified copies of the Funds' Articles of Incorporation and
by-laws and all amendments thereto.
6.02 ACCESS hereby agrees to maintain facilities and procedures reasonably
acceptable to MSAM and the Funds for safekeeping of share certificates, check
forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such certificates, forms and
devices.
6.03 ACCESS shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable; provided,
however, that all accounts, books and other records of each of the Funds
(hereinafter referred to as "Fund Records") prepared or maintained by ACCESS
hereunder shall be maintained and kept current in compliance with Section 31
of the Investment Company Act of 1940 and the Rules thereunder (such Section
and Rules being hereinafter referred to as the "1940 Act Requirements"). To
the extent required by the 1940 Act Requirements, ACCESS agrees that all Fund
Records prepared or maintained by ACCESS hereunder are the property of the
concerned Fund and shall be preserved and made available in accordance with
the 1940 Act Requirements, and shall be surrendered promptly to the concerned
Fund on its request. ACCESS agrees at such reasonable times as may be
requested by the Board and at least quarterly to provide (i) written
confirmation to the Board that all fund Records are maintained and kept
current
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in accordance with the 1940 Act Requirements, and (ii) such other reports
regarding its performance hereunder as may be reasonably requested by the Board.
6.04 ACCESS and each of the Funds 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 any of
the Fund Records, ACCESS will endeavor to notify each of the concerned Funds and
to secure instructions from an authorized officer of each of the concerned Funds
as to such inspection. ACCESS reserves the right, however, to exhibit such fund
Records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit such Fund records to such person.
ARTICLE 7. TERMS AND TERMINATION OF AGREEMENT.
7.01 This Agreement shall remain in effect from the date hereof
through December 31, 1997; provided, however, that this Agreement may be
terminated by any party with respect to that party for good and reasonable cause
at any time by giving written notice to the other party at least 120 days prior
to the date on which such termination is to be effective. Any unpaid fees or
reimbursable expenses payable to ACCESS shall be due on any such termination
date. ACCESS agrees to use its best efforts to cooperate with each of the Funds
and the successor sub-transfer agent or agents in accomplishing an orderly
transition.
7.02 Subject to the prior approval of MSAM, this Agreement shall be
renewed and extended for periods of not more than one year each, unless and
until this Agreement is terminated in accordance with section 7.01 above.
ARTICLE 8. MISCELLANEOUS.
8.01 Except as provided in section 8.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by any party without the
written consent of ACCESS or MSAM, as the case may be, provided, however, that
no consent shall be required for any merger of any of the Funds with, or any
sale of all or substantially all the assets of any of the Funds to, another
investment company.
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 ACCESS may, without further consent on the part of MSAM or any of
the Funds, subcontract with DST, Inc., a Missouri corporation, or any other
qualified servicer, for the performance of data processing activities; provided,
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however, that ACCESS shall be as fully responsible to MSAM and each of the Funds
for the acts and omissions of DST, Inc., or other qualified servicer as it is
for its own acts and omissions.
8.04 ACCESS may, without further consent on the part of MSAM or any of
the Funds, provide services to its affiliated companies. Such services may be
provided at cost.
8.05 This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes any
prior agreement with respect thereto, whether oral or written, and this
Agreement may not be modified except by written instrument executed by the
affected parties.
8.06 In the event of a change in the business or regulatory
environment affecting all or any portion of this Agreement, the parties hereto
agree to renegotiate such affected portions in good faith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf and through their duly authorized
officers, as of the date first above written.
XXXXXX XXXXXXX ASSET MANAGEMENT, INC.
BY:
--------------------------------
Vice President
ATTEST:
-------------------------
Assistant Secretary
XXXXXX XXXXXXX FUND, INC.
BY:
--------------------------------
Vice President
ATTEST:
-------------------------
Assistant Secretary
ACCESS INVESTOR SERVICES, INC.
BY:
--------------------------------
Vice President
ATTEST:
-------------------------
Assistant Secretary
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PRICING SCHEDULE
PRICE PER ACCOUNT PLUS OUT OF POCKETS
[TO COME]
* Add $1.00 for Class B or Class C Surcharge
** New funds, when added, will have an annual charge of $15,000 after a six
months zero fee grace period.
(1) Minimum annual charge based on reimbursement, profit margin expenses not
applied.
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