Exhibit 9.2
INVESTMENT COMPANY SERVICES AGREEMENT
Henssler Funds, Inc.
This AGREEMENT, dated as of the 1st day of May, 1998 , made
by and between Henssler Funds, Inc. ("Fund" ), a corporation
operating as an open-end, management investment company
registered under the Investment Company Act of 1940, as amended
(the "Act" ), duly organized and existing under the laws of the
State of Maryland, Henssler Asset Management, LLC ("Adviser"), a
corporation duly organized under the laws of the State of
Georgia, X.X. Xxxxxxxx & Associates, Ltd ("Associates"), a
corporation duly organized under the laws of the State of
Georgia, and Declaration Service Company ("Declaration"), a
corporation duly organized under the laws of the Commonwealth of
Pennsylvania (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Fund is authorized by its Articles of
Incorporation and By-Laws to issue separate series of shares
representing interests in separate investment portfolios which
are identified on Schedule "C" attached hereto and which Schedule
"C" may be amended from time to time by mutual agreement of the
Fund and Declaration; and
WHEREAS, the Fund and the Adviser have entered into an
"Operating Services Agreement" dated as of May 1, 1998,
authorizing the Adviser to provide certain investment company
services to the Fund, and which further authorizes the Adviser to
enter into this Investment Company Services Agreement (hereafter
"Agreement") on behalf of the Fund; and
WHEREAS, the Parties desire to enter into an agreement
whereby Declaration will provide the services to the Fund as
specified herein and set forth in particular in Schedule "A"
which is attached hereto and made a part hereof.
NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein, and in exchange of good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the Parties hereto, intending to be legally bound,
do hereby agree as follows:
GENERAL PROVISIONS
SECTION 1. APPOINTMENT. The Adviser hereby appoints
Declaration as servicing agent to the Fund and Declaration
hereby accepts such appointment. In order that Declaration may
perform its duties under the terms of this Agreement, the Board
of Directors of the Fund shall direct the officers, investment
adviser, legal counsel, independent accountants and custodian
of the Fund to cooperate fully with Declaration and, upon
request of Declaration, to provide such information, documents
and advice relating to the Fund which Declaration requires to
execute its responsibilities hereunder. In connection with its
duties, Declaration shall be entitled to rely, and will be held
harmless by the Fund when acting in reasonable reliance, upon
any instruction, advice or document relating to the Fund as
provided to Declaration by any of the aforementioned persons on
behalf of the Fund. All fees charged by any such persons
acting on behalf of the Fund will be deemed an expense of the
Fund.
Any services performed by Declaration under this Agreement
will conform to the requirements of:
(a) the provisions of the Act and the Securities Act
of 1933, as amended, and any rules or regulations in force
thereunder;
(b) any other applicable provision of state and
federal law;
(c) the provisions of the Articles of Incorporation
and the By-Laws as amended from time to time and delivered to
Declaration;
(d) any policies and determinations of the Board of
Directors of the Fund which are communicated to Declaration;
and
(e) the policies of the Fund as reflected in the
Fund's registration statement as filed with the U.S. Securities
and Exchange Commission.
Nothing in this Agreement will prevent Declaration or any
officer thereof from providing the same or comparable services
for or with any other person, firm or corporation. While the
services supplied to the Fund may be different than those
supplied to other persons, firms or corporations, Declaration
will provide the Fund equitable treatment in supplying
services. The Fund recognizes that it will not receive
preferential treatment from Declaration as compared with the
treatment provided to other Declaration clients.
SECTION 2. DUTIES AND OBLIGATIONS OF DECLARATION.
Subject to the provisions of this Agreement, Declaration
will provide to the Fund the specific services as set forth in
Schedule "A" attached hereto.
SECTION 3. DEFINITIONS. For purposes of this Agreement:
"CERTIFICATE" will mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement.
To be effective, such Certificate shall be given to and received
by the custodian and shall be signed on behalf of the Fund by any
two of its designated officers, and the term Certificate shall
also include instructions communicated to the custodian by
Declaration.
"CUSTODIAN" will refer to that agent which provides
safekeeping of the assets of the Fund.
"INSTRUCTIONS" will mean communications containing
instructions transmitted by electronic or telecommunications
media including, but not limited to, Industry Standardization for
Institutional Trade Communications, computer-to-computer
interface, dedicated transmission line, facsimile transmission
(which may be signed by an officer or unsigned) and tested telex.
"ORAL INSTRUCTION" will mean an authorization, instruction,
approval, item or set of data, or information of any kind
transmitted to Declaration in person or by telephone, telegram,
telecopy or other mechanical or documentary means LACKING
ORIGINAL SIGNATURE, by a person or persons reasonably identified
to Declaration to be a person or persons so authorized by a
resolution of the Board of Directors of the Fund to give Oral
Instructions to Declaration on behalf of the Fund.
"SHAREHOLDERS" will mean the registered owners of the shares
of the Fund in accordance with the share registry records
maintained by Declaration for the Fund.
"SHARES" will mean the issued and outstanding shares of the
Fund.
"SIGNATURE GUARANTEE" will mean the guarantee of signatures
by an "eligible guarantor institution" as defined in Rule 17Ad-
15 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Eligible guarantor institutions include banks,
brokers, dealers, credit unions, national securities exchanges,
registered securities associations, clearing agencies and savings
associations. Broker-dealers guaranteeing signatures must be
members of a clearing corporation or maintain net capital of at
least $100,000. Signature guarantees will be accepted from any
eligible guarantor institution which participates in a signature
guarantee program.
"WRITTEN INSTRUCTION" will mean an authorization,
instruction, approval, item or set of data or information of any
kind transmitted to Declaration in an original writing CONTAINING
AN ORIGINAL SIGNATURE or a copy of such document transmitted by
telecopy including transmission of such signature reasonably
identified to Declaration to be the signature of a person or
persons so authorized by a resolution of the Board of Directors
of the Fund, or so identified by the Fund to give Written
Instructions to Declaration on behalf of the Fund.
CONCERNING ORAL AND WRITTEN INSTRUCTIONS For all
purposes under this Agreement, Declaration is
authorized to act upon receipt of the first of any
Written or Oral Instruction it receives from the Fund
or its agents. In cases where the first instruction is
an Oral Instruction that is not in the form of a
document or written record, a confirmatory Written
Instruction or Oral Instruction in the form of a
document or written record shall be delivered. In
cases where Declaration receives an Instruction,
whether Written or Oral, to enter a portfolio
transaction onto the Fund's records, the Fund shall
cause the broker/dealer executing such transaction to
send a written confirmation to the Custodian.
Declaration shall be entitled to rely on the first
Instruction received. For any act or omission
undertaken by Declaration in compliance therewith, it
shall be free of liability and fully indemnified and
held harmless by the Fund, provided however, that in
the event a Written or Oral Instruction received by
Declaration is countermanded by a subsequent Written or
Oral Instruction received prior to acting upon such
countermanded Instruction, Declaration shall act upon
such subsequent Written or Oral Instruction. The sole
obligation of Declaration with respect to any follow-up
or confirmatory Written Instruction or Oral Instruction
in documentary or written form shall be to make
reasonable efforts to detect any such discrepancy
between the original Instruction and such confirmation
and to report such discrepancy to the Fund. The Fund
shall be responsible and bear the expense of its taking
any action, including any reprocessing, necessary to
correct any discrepancy or error. To the extent such
action requires Declaration to act, the Fund shall give
Declaration specific Written Instruction as to the
action required.
The Fund will file with Declaration a certified copy of each
resolution of the Fund's Board of Directors authorizing execution
of Written Instructions or the transmittal of Oral Instructions
as provided above.
SECTION 4. INDEMNIFICATION.
(a) Declaration, its directors, officers, employees,
shareholders, and agents will be liable for any loss suffered by
the Fund resulting from the willful misfeasance, bad faith,
negligence or reckless disregard on the part of Declaration in
the performance of its obligations and duties under this
Agreement.
(b) Any director, officer, employee, shareholder or agent
of Declaration, who may be or become an officer, director,
employee or agent of the Fund, will be deemed, when rendering
services to the Fund, or acting on any business of the Fund
(other than services or business in connection with Declaration'
duties hereunder), to be rendering such services to or acting
solely for the Fund and not as a director, officer, employee,
shareholder or agent of, or under the control or direction of
Declaration even though such person may be receiving compensation
from Declaration.
(c) The Fund agrees to indemnify and hold Declaration
harmless, together with its directors, officers, employees,
shareholders and agents from and against any and all claims,
demands, expenses and liabilities (whether with or without basis
in fact or law) of any and every nature which Declaration may
sustain or incur or which may be asserted against Declaration by
any person by reason of, or as a result of:
(i) any action taken or omitted to be taken by
Declaration except claims, demands, expenses and liabilities
arising from willful misfeasance, bad faith, gross negligence or
reckless disregard on the part of Declaration in the performance
of its obligations and duties under this Agreement; or
(ii) any action taken or omitted to be taken by
Declaration in reliance upon any Certificate, instrument, order
or stock certificate or other document reasonably believed by
Declaration to be genuine and signed, countersigned or executed
by any duly authorized person, upon the Oral Instructions or
Written Instructions of an authorized person of the Fund, or upon
the written opinion of legal counsel for the Fund or Declaration;
or
(iii) the offer or sale of shares of the Fund to
any person, natural or otherwise, which is in violation of any
state or federal law.
If a claim is made against Declaration as to which
Declaration may seek indemnity under this Section, Declaration
will notify the Fund promptly after receipt of any written
assertion of such claim threatening to institute an action or
proceeding with respect thereto and will notify the Fund promptly
of any action commenced against Declaration within ten (10) days
after Declaration has been served with a summons or other legal
process. Failure to notify the Fund will not, however, relieve
the Fund from any liability which it may have on account of the
indemnity under this Section so long as the Fund has not been
prejudiced in any material respect by such failure.
The Fund and Declaration will cooperate in the control of
the defense of any action, suit or proceeding in which
Declaration is involved and for which indemnity is being provided
by the Fund to Declaration. The Fund may negotiate the
settlement of any action, suit or proceeding in which Declaration
is a party, subject to Declaration's approval, which will not be
unreasonably withheld. Declaration reserves the right, but not
the obligation, to participate in the defense or settlement of a
claim, action or proceeding with its own counsel. Costs or
expenses incurred by Declaration in connection with, or as a
result of such participation, will be borne solely by the Fund
if:
(i) Declaration has received an opinion of counsel
from counsel to the Fund stating that the use of counsel to the
Fund by Declaration would present an impermissible conflict of
interest;
(ii) the defendants in, or targets of, any such action
or proceeding include both Declaration and the Fund, and legal
counsel to Declaration has reasonably concluded that there are
legal defenses available to it which are different from or
additional to those available to the Fund or which may be adverse
to or inconsistent with defenses available to the Fund (in which
case the Fund will not have the right to direct the defense of
such action on behalf of Declaration); or
(iii) the Fund authorizes Declaration to employ
separate counsel at the expense of the Fund.
(d) The terms of this Section will survive the termination
of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) Declaration represents and warrants that:
(i) it is a corporation duly organized and
existing and in good standing under the laws of Pennsylvania;
(ii) it is empowered under applicable laws and by
its Certificate of Incorporation and By-Laws to enter into and
perform this Agreement;
(iii) all requisite corporate proceedings have
been taken to authorize Declaration to enter into and perform
this Agreement;
(iv) it has and will continue to have access to the
facilities, personnel and equipment required to fully perform its
duties and obligations hereunder;
(v) no legal or administrative proceeding have been
instituted or threatened which would impair Declaration ability
to perform its duties and obligations under this Agreement;
(vi) its entrance into this Agreement shall not cause a
material breach or be in material conflict with any other
agreement or obligation of Declaration or any law or regulation
applicable to it;
(vii) it is registered as a transfer agent under
Section 17A(c)(2) of the Exchange Act;
(viii) this Agreement has been duly authorized by
Declaration and, when executed and delivered, will constitute
valid, legal and binding obligation of Declaration, enforceable
in accordance with its terms.
(b) The Fund represents and warrants that:
(i) it is a business Fund duly organized and existing
and in good standing under the laws of the State of Maryland;
(ii) it is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and perform
this Agreement;
(iii) all requisite proceedings have been taken to
authorize the Fund to enter into and perform this Agreement;
(iv) no legal or administrative proceedings have been
instituted or threatened which would impair the Fund's ability to
perform its duties and obligations under this Agreement;
(v) the Fund's entrance into this Agreement shall not
cause a material breach or be in material conflict with any other
agreement or obligations of the Fund, or any law or regulation
applicable to either;
(vi) the Shares are properly registered or otherwise
authorized for issuance and sale;
(vii) this Agreement has been duly authorized by
the Fund and, when executed and delivered, will constitute valid,
legal and binding obligation of the Fund, enforceable in
accordance with its terms.
(c) Delivery of Documents
The Fund will furnish or cause to be furnished to
Declaration the following documents;
(i) current Prospectus and Statement of Additional
Information;
(ii) most recent Annual Report;
(iii) most recent Semi-Annual Report for registered
investment companies on Form N-SAR;
(iv) certified copies of resolutions of the Fund's
Board of Directors authorizing the execution of Written
Instructions or the transmittal of Oral Instructions and those
persons authorized to give those Instructions.
(d) Record Keeping and Other Information
Declaration will create and maintain all records required of
it pursuant to its duties hereunder and as set forth in Schedule
"A" in accordance with all applicable laws, rules and
regulations, including records required by Section 31(a) of the
Act. All such records will be the property of the Fund and will
be available during regular business hours for inspection,
copying and use by the Fund. Where applicable, such records will
be maintained by Declaration for the periods and in the places
required by Rule 31a-2 under the Act. Upon termination of this
Agreement, Declaration will deliver all such records to the Fund
or such person as the Fund may designate.
In case of any request or demand for the inspection of the
Share records of the Fund, Declaration shall notify the Fund and
secure instructions as to permitting or refusing such inspection.
Declaration may, however, exhibit such records to any person in
any case where it is advised by its counsel that it may be held
liable for failure to do so.
SECTION 6. COMPENSATION. The Adviser agrees to pay
Declaration compensation for its services, and to reimburse it
for expenses at the rates, times, manner and amounts as set forth
in Schedule "B" attached hereto and incorporated herein by
reference and as will be set forth in any amendments to such
Schedule "B" agreed upon in writing by the Parties. Upon receipt
of an invoice therefor, the Adviser agrees to pay such fees
within five (5) business days. In addition, the Adviser agrees
to reimburse Declaration for any out-of-pocket expenses paid by
Declaration on behalf of the Fund within ten (10) calendar days
of the Fund's receipt of an invoice therefor. In the event
Adviser is unable to pay such invoices for services or out- of-
pocket expenses, for any reason, Associates agrees to pay
Declaration the full amount(s) due within five (5) additional
business days.
For the purpose of determining fees payable to Declaration,
the value of the Fund's net assets will be computed at the times
and in the manner specified in the Fund's Prospectus and
Statement of Additional Information then in effect.
During the term of this Agreement, should the Fund seek
services or functions in addition to those outlined below or in
Schedule "A" attached hereto, a written amendment to this
Agreement specifying the additional services and corresponding
compensation will be executed by the Parties.
In the event that Adviser or Associates is more than sixty
(60) days delinquent in its payments of monthly xxxxxxxx in
connection with this Agreement (with the exception of specific
amounts which may be contested in good faith by the Fund), this
Agreement may be terminated upon thirty (30) days' written notice
by Declaration. The Adviser must notify Declaration in writing
of any contested amounts within thirty (30) days of receipt of a
billing for such amounts. Disputed amounts are not due and
payable while they are being disputed.
SECTION 7. DAYS OF OPERATION. Nothing contained in this
Agreement is intended to or will require Declaration, in any
capacity hereunder, to perform any functions or duties on any
holiday, day of special observance or any other day on which the
New York Stock Exchange ("NYSE" ) is closed. Functions or duties
normally scheduled to be performed on such days will be performed
on and as of the next succeeding business day on which the NYSE
is open. Notwithstanding the foregoing, Declaration will compute
the net asset value of the Fund on each day required pursuant to
Rule 22c-1 promulgated under the Act.
SECTION 8. ACTS OF GOD, ETC. Declaration will not be
liable or responsible for delays or errors caused by acts of God
or by reason of circumstances beyond its control including, acts
of civil or military authority, national emergencies, labor
difficulties, mechanical breakdown, insurrection, war, riots, or
failure or unavailability of transportation, communication or
power supply, fire, flood or other catastrophe.
In the event of equipment failures beyond Declaration'
control, Declaration will, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions but will
have no liability with respect thereto. The foregoing obligation
will not extend to computer terminals located outside of premises
maintained by Declaration. Declaration has entered into and
maintains in effect agreements making reasonable provision for
emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
SECTION 9. INSPECTION AND OWNERSHIP OF RECORDS. In the
event of a request or demand for the inspection of the records of
the Fund, Declaration will use its best efforts to notify the
Fund and to secure instructions as to permitting or refusing such
inspection. Declaration may, however, make such records
available for inspection to any person in any case where it is
advised in writing by its counsel that it may be held liable for
failure to do so after notice to the Fund.
Declaration recognizes that the records it maintains for the
Fund are the property of the Fund and will be surrendered to the
Fund upon written notice to Declaration as outlined under Section
10(c) below. The Fund is responsible for the payment in advance
of any fees owed to Declaration. Declaration agrees to maintain
the records and all other information of the Fund in a
confidential manner and will not use such information for any
purpose other than the performance of Declaration' duties under
this Agreement.
SECTION 10. DURATION AND TERMINATION.
(a) The initial term of this Agreement will be for the
period of two (2) years, commencing on the date hereinabove
first written (the "Effective Date" ) and will continue
thereafter subject to termination by either Party as set forth in
subsection (c) below.
(b) The fee schedules set forth in Schedule "B" attached
hereto will be fixed for the initial term commencing on the
Effective Date of this Agreement and will continue thereafter
subject to their review and any adjustment.
(c) After the initial term of this Agreement, a Party may
give written notice to the other (the day on which the notice is
received by the Party against which the notice is made shall be
the "Notice Date" ) of a date on which this Agreement shall be
terminated ("Termination Date" ). The Termination Date shall be
set on a day not less than one hundred eighty (180) days after
the Notice Date. The period of time between the Notice Date and
the Termination Date is hereby identified as the "Notice Period"
. Any time up to, but not later than fifteen (15) days prior to
the Termination Date, the Adviser or Associates will pay to
Declaration such compensation as may be due as of the Termination
Date and will likewise reimburse Declaration for any out-of-
pocket expenses and disbursements reasonably incurred or expected
to by incurred by Declaration up to and including the Termination
Date.
(d) In connection with the termination of this Agreement,
if a successor to any of Declaration' duties or responsibilities
under this Agreement is designated by the Fund by written notice
to Declaration, Declaration will promptly, on the Termination
Date and upon receipt by Declaration of any payments owed to it
as set forth in Section 10(c) above, transfer to the successor,
at the Adviser's expense, all records which belong to the Fund
and will provide appropriate, reasonable and professional
cooperation in transferring such records to the named successor.
(e) Should the Fund desire to move any of the services
outlined in this Agreement to a successor service provider prior
to the Termination Date, Declaration shall make a good faith
effort to facilitate the conversion on such prior date, however,
there can be no guarantee that Declaration will be able to
facilitate a conversion of services prior to the end of the
Notice Period. Should services be converted to a successor
service provider prior to the end of the Notice Period, or if the
Fund is liquidated or its assets merged or purchased or the like
with another entity, payment of fees to Declaration shall be
accelerated to a date prior to the conversion or termination of
services and calculated as if the services had remained at
Declaration until the expiration of the Notice Period and shall
be calculated at the asset levels on the Notice Date.
(f) Notwithstanding any other provisions of Paragraph 10,
in the event the Fund deregisters as an Investment Company with
the United States Securities and Exchange Commission ("SEC"),
this Agreement may be terminated by the Fund upon ninety (90)
days written notice to Declaration. The Termination Date shall be
ninety (90) days after the receipt of such notice by Declaration.
Any time up to, but not later than fifteen (15) days prior to the
Termination Date, the Adviser or Associates will pay to
Declaration such compensation as may be due as of the Termination
Date and will likewise reimburse Declaration for any out- of-
pocket expenses and disbursements reasonably incurred or expected
to be incurred by Declaration up to and including the Termination
Date.
(g) Notwithstanding the foregoing, this Agreement may be
terminated at any time by either Party in the event of a material
breach by the other Party involving gross negligence, willful
misfeasance, bad faith or a reckless disregard of its obligations
and duties under this Agreement provided that such breach shall
have remained unremedied for sixty (60) days or more after
receipt of written specification thereof.
SECTION 11. RIGHTS OF OWNERSHIP. All computer programs and
procedures developed to perform services required to be provided
by Declaration under this Agreement are the property of
Declaration. All records and other data except such computer
programs and procedures are the exclusive property of the Fund
and all such other records and data will be furnished to the Fund
in appropriate form as soon as practicable after termination of
this Agreement for any reason.
SECTION 12. AMENDMENTS TO DOCUMENTS. The Fund will furnish
Declaration written copies of any amendments to, or changes in,
the Articles of Incorporation, By-Laws, Prospectus or Statement
of Additional Information in a reasonable time prior to such
amendments or changes becoming effective. In addition, the Fund
agrees that no amendments will be made to the Prospectus or
Statement of Additional Information of the Fund which might have
the effect of changing the procedures employed by Declaration in
providing the services agreed to hereunder or which amendment
might affect the duties of Declaration hereunder unless the Fund
first obtains Declaration' approval of such amendments or
changes.
SECTION 13. CONFIDENTIALITY. Both Parties hereto agree
that any non-public information obtained hereunder concerning the
other Party is confidential and may not be disclosed to any other
person without the consent of the other Party, except as may be
required by applicable law or at the request of the U.S.
Securities and Exchange Commission or other governmental agency.
Declaration agrees that it will not use any non-public
information for any purpose other than performance of its duties
or obligations hereunder. The obligations of the Parties under
this Section will survive the termination of this Agreement. The
Parties further agree that a breach of this Section would
irreparably damage the other Party and accordingly agree that
each of them is entitled, without bond or other security, to an
injunction or injunctions to prevent breaches of this provision.
SECTION 14. NOTICES. Except as otherwise provided in this
Agreement, any notice or other communication required by or
permitted to be given in connection with this Agreement will be
in writing and will be delivered in person or sent by first class
mail, postage prepaid or by prepaid overnight delivery service to
the respective parties as follows:
If to the Fund: If to Declaration:
--------------- ------------------
Henssler Funds, Inc. Declaration Service Company.
X.X. Xxxxxxxx & Associates, LTD. 000 Xxxxx Xxxx, Xxxxx 0000
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxx Attention: Xxxxxxx X. Xxxxx
President President
If to the Adviser: If to Associates:
------------------ -----------------
Henssler Asset Management, LLC X.X. Xxxxxxxx & Associates, Ltd
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxx Attention: Xx. Xxxx X. Xxxxxxxx
President President
SECTION 15. AMENDMENT. No provision of this Agreement may
be amended or modified in any manner except by a written
agreement properly authorized and executed by the Parties. This
Agreement may be amended from time to time by supplemental
agreement executed by the Parties and the compensation stated in
Schedule "B" attached hereto may be adjusted accordingly as
mutually agreed upon.
SECTION 16. AUTHORIZATION. The Parties represent and
warrant to each other that the execution and delivery of this
Agreement by the undersigned officer of each Party has been duly
and validly authorized; and when duly executed, this Agreement
will constitute a valid and legally binding enforceable
obligation of each Party.
SECTION 17. COUNTERPARTS. This Agreement may be executed
in two or more counterparts, each of which when so executed will
be deemed to be an original, but such
counterparts will together constitute but one and the same
instrument.
SECTION 18. ASSIGNMENT. This Agreement will extend to and
be binding upon the Parties hereto and their respective
successors and assigns; provided, however, that this Agreement
will not be assignable by any of the parties without the written
consent of the other parties, which consents shall be
authorized or approved by a resolution by its respective Boards
of Directors.
SECTION 19. GOVERNING LAW. This Agreement will be governed
by the laws of the State of Pennsylvania and the exclusive venue
of any action arising under this Agreement will be Xxxxxxxxxx
County, Commonwealth of Pennsylvania.
SECTION 20. SEVERABILITY. If any part, term or provision
of this Agreement is held by any court to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or
portions will be considered severable and not be affected and the
rights and obligations of the parties will be construed and
enforced as if the Agreement did not contain the particular part,
term or provision held to be illegal or invalid, provided that
the basic agreement is not thereby materially impaired.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement consisting of sixteen (16) typewritten pages, together
with Schedules "X," "X" and "C" (Pages 17-24, attached), to be
signed by their duly authorized officers as of the day and year
first above written.
Henssler Funds, Inc. Declaration Service Company
_________________________________ _____________________________
By: Xxxx X. Xxxxxxxx By: Xxxxxxx X. Xxxxx
President President
Henssler Asset Management, LLC X.X. Xxxxxxxx & Associates, Ltd
_________________________________ _____________________________
By: Xxxx X. Xxxxxxxx By: Xxxx X. Xxxxxxxx
President President
SCHEDULE A
ACCOUNTING SERVICES PROVIDED BY DECLARATION SERVICE COMPANY
* Journalize each Portfolio's investment, capital share and income
and expense activities.
* Verify investment buy/sell trade tickets when received from the
adviser and transmit trades to the Fund's custodian for
proper settlement.
* Maintain individual ledgers for investment securities.
* Maintain historical tax lots for each security.
* Reconcile cash and investment balances of each Portfolio with the
custodian, and provide the adviser with the beginning cash
balance available for investment purposes.
* Update the cash availability throughout the day as required by
the adviser.
* Post to and prepare each Portfolio's Statement of Assets and
Liabilities and Statement of Operations.
* Calculate expenses payable pursuant to the Fund's various
contractual obligations.
* Control all disbursements from the Fund on behalf of each
Portfolio and authorize such disbursements upon instructions
of the Fund.
* Calculate capital gains and losses.
* Determine each Portfolio's net income.
* At the Portfolio's expense, obtain security market prices or if
such market prices are not readily available, then obtain
such prices from services approved by the adviser, and in
either case calculate the market or fair value of each
Portfolio's investments.
* Where applicable, calculate the amortized cost value of debt
instruments.
* Transmit or mail a copy of the portfolio valuations to the
adviser.
* Compute the net asset value of each Portfolio.
* Report applicable net asset value and performance data to
performance tracking organizations.
* Compute each Portfolio's yields, total returns, expense
ratios and portfolio turnover rate.
* Prepare and monitor the expense accruals and notify Fund
management of any proposed adjustments.
* Prepare monthly financial statements, which will include,
without limitation, the Schedule of Investments, the
Statement of Assets and Liabilities, the Statement of
Operations, the Statement of Changes in Net Assets, the Cash
Statement, and the Schedule of Capital Gains and Losses.
* Prepare monthly security transactions listings.
* Prepare monthly broker security transactions summaries.
* Supply various Fund and Portfolio statistical data as
requested on an ongoing basis.
* Assist in the preparation of support schedules necessary for
completion of Federal and state tax returns.
* Assist in the preparation and filing of the Fund's annual
and semiannual reports with the SEC on Form N-SAR.
* Assist in the preparation and filing of the Fund's annual
and semiannual reports to shareholders and proxy statements.
* Assist with the preparation of amendments to the Fund's
Registration Statements on From N-1A and other filings
relating to the registration of shares.
* Monitor each Portfolio's status as a regulated investment
company under Subchapter M of the Internal Revenue Code of
1986, as amended from time to time ("Code").
* Determine the amount of dividends and other distributions
payable to shareholders as necessary to, among other things,
maintain the qualification as a regulated investment company
of each Portfolio of the Fund under the Code.
* Provide other accounting services as may be agreed upon from
time to time in writing by the Fund and Declaration.
ADMINISTRATIVE SERVICES PROVIDED BY DECLARATION SERVICE COMPANY
* Provide overall day-to-day Fund administrative management,
including coordination of investment adviser, custodian,
transfer agency, distribution and pricing and accounting
services.
* Preparation and filing of all Federal and State reports
including:
- Fund's post-effective amendments under the Securities
Act of 1933 and the Investment Company Act of 1940.
- Form N-SAR - Semi-Annual report for Registered
Investment Companies.
- The Fund's Annual and Semi-Annual Report.
- Rule 24f-2 Notice - filing regarding sale(s) of
securities.
- Rule 17g-1 filing with the SEC regarding Fidelity Bond
coverage.
- Ongoing monitoring and filing of State Blue Sky
registrations.
* Prepare and file such reports, applications and documents as
may be necessary or desirable to register the Fund's shares
with the Federal and state securities authorities, and
monitor the sale of Fund shares for compliance with Federal
and state securities laws.
* Prepare and file reports to shareholders, including the
annual report to shareholders, and coordinate mailing
Prospectuses, notices, proxy statements, proxies and other
reports to shareholders.
* Assist with layout and printing of shareholder
communications, including Prospectuses and reports to
shareholders.
* Administer contracts on behalf of the Fund with, among
others, the Fund's investment adviser, custodian, transfer
agent/shareholder servicing agent, distributor, and
accounting services agent.
* Prepare and maintain materials for directors/management
meetings including, agendas, minutes, attendance records and
minute books.
* Coordinate shareholder meetings, including assisting Fund
counsel in preparation of proxy materials, preparation of
minutes and tabulation of results.
* Monitor and pay Fund bills, maintain Fund budget and report
budget expenses and variances to Fund management.
* Monitor the Fund's compliance with the investment
restrictions and limitations imposed by the 1940 Act and
state Blue Sky laws and applicable regulations thereunder,
the fundamental and non-fundamental investment policies and
limitations set forth in the Fund's Prospectuses and
Statement of Additional Information, and the investment
restrictions and limitations necessary for each Portfolio of
the Fund to qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as
amended, or any successor statute.
* Prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other
distributions to shareholders.
* Provide administrative services as may be agreed from time
to time in writing by Declaration.
TRANSFER AGENT, SHAREHOLDER SERVICING AGENT AND DIVIDEND
DISBURSING AGENT SERVICES PROVIDED BY DECLARATION SERVICE COMPANY
* Examine and process new accounts, subsequent payments,
liquidations, exchanges, transfers, telephone transactions,
check redemptions automatic withdrawals, and wire order
trades.
* Reinvest or pay dividends and make other distributions.
* Answer investor and dealer telephone and/or written
inquiries, except as otherwise agreed by the Transfer Agent
and the Fund.
* Process and confirm address changes.
* Process standard account record changes as required, i.e.
Dividend Codes, etc.
* Microfilm and/or store source documents for transactions,
such as account applications and correspondence.
* Perform backup withholding for those accounts in accordance
with Federal regulations.
* Solicit missing taxpayer identification numbers.
* Provide remote access inquiry to Fund records via Fund
supplied hardware (fund responsible for connection line and
monthly fee).
* Maintain the following shareholder information in such a
manner as the Transfer Agent shall determine:
- Name and address, including zip code.
- Balance of Shares.
- Number of Shares, issuance date of each share
outstanding and cancellation date of each
share 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 transaction can be
accepted for this account. Beneficial owner code,
i.e. male, female, joint tenant, etc.
* Provide the following reports and statements:
- Prepare daily journals for Fund reflecting all
shares and dollar activity for the previous day.
- Supply information monthly for Fund's preparation
of Blue Sky reporting.
- Supply monthly purchase, redemption and
liquidation information for use in Fund's N-SAR
report.
- Provide monthly average daily balance reports for
the Fund.
- Prepare and mail copies of summary statements to
dealers and investment advisers.
- Mail transaction confirmation statements daily to
investors.
- Address and mail four 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 1099R, 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).
* Prepare and mail confirmation statements to dealers daily.
* Prepare certified list of stockholders for proxy mailing.
SCHEDULE B
Compensation Schedule for Services Provided by Declaration
Service Company
Per Portfolio
0.20% on first $25 million of average annual assets
0.15% on next $25 million of average annual assets
0.10% on next $50 million of average annual assets
0.075% in excess of $100 million of average annual assets
Transfer Agent/ Shareholder Services:
------------------------------------
$ 7.50 per Shareholder Account
Minimum annual fees:
-------------------
Year one (1) $ 56,000
Year two (2) 67,000
Year three (3) 78,000
Thereafter 89,000
PLUS OUT-OF-POCKET EXPENSES TO INCLUDE, BUT NOT LIMITED TO: wire
fees, bank service charges, printing, copying, postage, courier,
account statement/ confirmation (including programming costs for
specialized statements/ confirmations), portfolio price quotation
service, asset allocation charges, travel, telephone,
registration fees, and other standard miscellaneous items.
ADDITIONAL CLASSES OF SHARES PER PORTFOLIO
Each category of fee ( including annual minimums) increases by
50% for the second class of shares per portfolio, and by 25% for
each additional class of shares per portfolio.
SCHEDULE C
Henssler Funds, Inc.
Portfolios covered by this Agreement:
Henssler Equity Fund
