EXHIBIT (h)(1)
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of this __ day of ____, 2003, by
and between Lifetime Achievement Fund, Inc., a Maryland corporation (the
"Company"), and UMB Fund Services, Inc., a Wisconsin corporation, its successors
and assigns ("UMBFS").
R E C I T A L S:
WHEREAS, the Company is registered under the 1940 Act as an open-end
management investment company; and
WHEREAS, the Company desires to retain UMBFS to render certain transfer
agency and dividend disbursement services, and UMBFS is willing to render such
services, all in accordance with the terms of this Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this Agreement, the
following capitalized terms shall have the meanings set forth hereinafter
whenever they appear in this Agreement:
1.01 1940 ACT shall mean the Investment Company Act of 1940, as amended
from time to time.
1.02 AUTHORIZED PERSON shall mean any individual who is authorized to
provide UMBFS with Instructions and requests on behalf of the Company, whose
name shall be certified to UMBFS from time to time pursuant to Section 7.01 of
this Agreement.
1.03 BOARD OF DIRECTORS shall mean the Board of Directors of the
Company.
1.04 CUSTODIAN shall mean the financial institution appointed as
custodian under the terms and conditions of the custody agreement between the
financial institution and the Company, or its successor.
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1.05 ARTICLES OF INCORPORATION shall mean the Articles of Incorporation
or other similar operational document of the Company, as the case may be, as the
same may be amended from time to time.
1.06 EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as
amended from time to time.
1.07 FUND shall mean each separate series of Shares offered by the
Company representing interests in a separate portfolio of securities and other
assets for which the Company has appointed UMBFS as transfer agent and dividend
disbursing agent under this Agreement.
1.08 FUND BUSINESS DAY shall mean each day on which the New York Stock
Exchange, Inc. is open for trading.
1.09 INSTRUCTIONS shall mean an oral communication from an Authorized
Person or a written communication signed by an Authorized Person and actually
received by UMBFS. Instructions shall include manually executed originals,
telefacsimile transmissions of manually executed originals or electronic
communications.
1.10 PROSPECTUS shall mean the current Prospectus and Statement of
Additional Information with respect to a Fund (including any applicable
supplement) actually received by UMBFS from the Company with respect to which
the Company has indicated a registration statement has become effective under
the Securities Act and the 1940 Act.
1.11 SECURITIES ACT shall mean the Securities Act of 1933, as amended
from time to time.
1.12 SHARES shall mean such shares of beneficial interest, or class
thereof, of each respective Fund of the Company as may be issued from time to
time.
1.13 SHAREHOLDER shall mean a record owner of Shares of each respective
Fund of the Company.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 APPOINTMENT. The Company hereby appoints UMBFS as transfer agent
and dividend disbursing agent of all the Shares of the Company during the term
of this Agreement with respect to each Fund listed on Schedule A hereto, and any
additional Fund the Company and UMBFS may agree to include on any amended
Schedule A. UMBFS hereby accepts such appointment as transfer agent and dividend
disbursing agent and agrees to perform the duties thereof as hereinafter set
forth.
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2.02 DUTIES.
A. UMBFS shall perform the transfer agent and dividend disbursement
services described on Schedule B hereto and such additional services as may be
agreed to by the parties from time to time and set forth in an amendment to
Schedule B (collectively, the "Services"). UMBFS shall have no duties or
responsibilities other than those specifically set forth in this Agreement, and
no covenant or obligation to carry out any other duties or responsibilities
shall be implied in this Agreement against UMBFS.
B. UMBFS may, in its discretion, appoint other parties to carry out
some or all of its responsibilities under this Agreement.
2.03 DELIVERIES.
A. In connection with UMBFS's appointment as transfer agent and
dividend disbursing agent, the Company shall deliver or cause the following
documents to be delivered to UMBFS:
(1) A copy of the Articles of Incorporation and By-laws of the
Company and all amendments thereto, certified by the Secretary of the Company;
(2) A certificate signed by the President and Secretary of the
Company specifying the number of authorized Shares and the number of such
authorized Shares issued and currently outstanding, if any, the validity of the
authorized and outstanding Shares, whether such shares are fully paid and
non-assessable, and the status of the Shares under the Securities Act and any
other applicable federal law or regulation;
(3) A certified copy of the resolutions of the Board of Directors
of the Company appointing UMBFS as transfer agent and dividend disbursing agent
and authorizing the execution of this Transfer Agency Agreement on behalf of the
Company;
(4) Copies of the Company's Registration Statement, as amended to
date, and the most recently filed Post-Effective Amendment thereto, filed by the
Company with the Securities and Exchange Commission under the Securities Act and
the 1940 Act, together with any applications filed in connection therewith; and
(5) The certificate required by Section 7.01 of this Agreement,
signed by an officer of the Company and designating the names of the Company's
initial Authorized Persons.
B. The Company agrees to deliver or to cause to be delivered to
UMBFS in Milwaukee, Wisconsin, at the Company's expense, all of its Shareholder
account records in a format acceptable to UMBFS, as well as all other documents,
records and information that UMBFS may reasonably request in order for UMBFS to
perform the Services hereunder.
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ARTICLE III
COMPENSATION & EXPENSES
3.01 COMPENSATION. As compensation for the performance of the Services,
the Company agrees to pay UMBFS the fees set forth on Schedule C attached
hereto. Fees shall be adjusted in accordance with Schedule C or as otherwise
agreed to by the parties from time to time. The parties may amend Schedule C to
include fees for any additional services requested by the Company, enhancements
to current Services, or to add Funds for which UMBFS has been retained. The
Company agrees to pay UMBFS's then current rate for any Services added to, or
any enhancements to existing Services set forth on, Schedule C after the
execution of this Agreement.
3.02 EXPENSES. The Company also agrees to promptly reimburse UMBFS for
all out-of-pocket expenses or disbursements incurred by UMBFS in connection with
the performance of Services under this Agreement. Out-of-pocket expense shall
include, but not be limited to, those items specified on Schedule C hereto. If
requested by UMBFS, out-of-pocket expenses are payable in advance. Payment of
postage expenses, if prepayment is requested, is due at least seven days prior
to the anticipated mail date. In the event UMBFS requests advance payment, UMBFS
shall not be obligated to incur such expenses or perform the related Service(s)
until payment is received.
3.03 PAYMENT PROCEDURES.
A. The Company agrees to pay all amounts due hereunder within
thirty (30) days of the date reflected on the statement for such Services (the
"Due Date"). Except as provided in Schedule C, UMBFS shall xxxx Service fees
monthly, and out-of-pocket expenses as incurred (unless prepayment is requested
by UMBFS). UMBFS may, at its option, arrange to have various service providers
submit invoices directly to the Company for payment of reimbursable
out-of-pocket expenses.
B. The Company is aware that its failure to remit to UMBFS all
amounts due on or before the Due Date will cause UMBFS to incur costs not
contemplated by this Agreement, including, but not limited to carrying,
processing and accounting charges. Accordingly, in the event that UMBFS does not
receive any amounts due hereunder by the due date, the Company agrees to pay a
late charge on the overdue amount equal to one and one-half percent (1.5%) per
month or the maximum amount permitted by law, whichever is less. In addition,
the Company shall pay UMBFS's reasonable attorney's fees and court costs if any
amounts due UMBFS are collected by or through an attorney. The parties hereby
agree that such late charge represents a fair and reasonable computation of the
costs incurred by reason of the company's late payment. Acceptance of such late
charge shall in no event constitute a waiver by UMBFS of the Company's default
or prevent UMBFS from exercising any other rights and remedies available to it.
C. In the event that any charges are disputed, the Company shall,
on or before the Due Date, pay all undisputed amounts due hereunder and notify
UMBFS in writing of any disputed charges for out-of-pocket expenses which it is
disputing in good faith. Payment for such disputed charges shall be due on or
before the close of the fifth (5th) business day after the day on which UMBFS
provides to the Fund documentation which an objective observer would agree
reasonably supports the disputed charges (the "Revised Due Date"). Late charges
shall not begin to accrue as to charges disputed in good faith until the first
day after the Revised Due Date.
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3.04 ALLOCATION OF RISK. The Company acknowledges that the fees charged
by UMBFS under this Agreement reflect the allocation of risk between the
parties, including the exclusion of remedies and limitations on liability in
Article VIII. Modifying the allocation of risk from what is stated herein would
affect the fees that UMBFS charges. Accordingly, in consideration of those fees,
the Company agrees to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
A. UMBFS agrees to accept purchase orders and redemption requests
with respect to the Shares of each Fund via postal mail, telephone or personal
delivery on each Fund Business Day in accordance with such Fund's Prospectus;
provided, however, that UMBFS shall only accept purchase orders from states in
which the Shares are qualified for sale, as indicated from time to time by the
Company. UMBFS shall, as of the time at which the net asset value of each Fund
is computed on each Fund Business Day, issue to and redeem from the accounts
specified in a purchase order or redemption request in proper form and accepted
by the Fund the appropriate number of full and fractional Shares based on the
net asset value per Share of the respective Fund specified in an advice received
on such Fund Business Day from or on behalf of the Fund. UMBFS shall not be
responsible for the payment of any original issue or other taxes required to be
paid by the Company in connection with the issuance of any Shares in accordance
with this Agreement. UMBFS shall not be required to issue any Shares after it
has received from an Authorized Person or from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and UMBFS shall be entitled to rely upon such written
notification. Payment for Shares shall be in the form of a check, wire transfer,
Automated Clearing House transfer or such other methods to which the parties
shall mutually agree.
B. Upon receipt of a redemption request and monies paid to it by
the Custodian in connection with a redemption of Shares, UMBFS shall cancel the
redeemed Shares and after making appropriate deduction for any withholding of
taxes required of it by applicable federal law, make payment in accordance with
the Fund's redemption and payment procedures described in the Prospectus.
C. Except as otherwise provided in this paragraph, UMBFS will
transfer or redeem Shares upon presentation to UMBFS of instructions endorsed
for exchange, transfer or redemption, accompanied by such documents as UMBFS
deems necessary to evidence the authority of the person making such transfer or
redemption. UMBFS reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement or instructions are valid and
genuine. For that purpose, it will require, unless otherwise instructed by an
Authorized Person or except as otherwise provided in this paragraph, a guarantee
of signature by an "Eligible Guarantor Institution" as that term is defined by
SEC Rule 17Ad-15. UMBFS 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 UMBFS, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no reasonable
basis to any claims adverse to such transfer or redemption. UMBFS may, in
effecting transfers and redemptions of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers (or such
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other statutes which protect it and the Company in not requiring complete
fiduciary documentation) and shall not be responsible for any act done or
omitted by it in good faith in reliance upon such laws. Notwithstanding the
foregoing or any other provision contained in this Agreement to the contrary,
UMBFS shall be fully protected by each Fund in not requiring any instruments,
documents, assurances, endorsements or guarantees, including, without
limitation, any signature guarantees, in connection with a redemption, exchange
or transfer of Shares whenever UMBFS reasonably believes that requiring the same
would be inconsistent with the transfer and redemption procedures described in
the Prospectus.
D. Notwithstanding any provision contained in this Agreement to
the contrary, UMBFS shall not be required or expected to require, as a condition
to any transfer or redemption of any Shares pursuant to a computer tape or
electronic data transmission, any documents 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.
E. In connection with each purchase and each redemption of
Shares, UMBFS shall send such statements as are prescribed by the Federal
securities laws applicable to transfer agents or as described in the Prospectus.
It is understood that certificates for Shares have not been and will not be
offered by the Company or available to investors.
F. UMBFS and the Company shall establish procedures for effecting
purchase, redemption or transfer transactions accepted from investors by
telephone or other methods consistent with the terms of the Prospectus. UMBFS
may establish such additional procedures, rules and regulations governing the
purchase, redemption or transfer of Shares, as it may deem advisable and
consistent with the Prospectus and industry practice. UMBFS shall not be liable,
and shall be held harmless by the Company, for its actions or omissions which
are consistent with the foregoing procedures.
G. The Company agrees to provide UMBFS with prior notice of any
increase or decrease in the total number of Shares authorized to be issued, or
the issuance of any additional Shares of a Fund pursuant to stock dividends,
stock splits, recapitalizations, capital adjustments or similar transactions,
and to deliver to UMBFS such documents, certificates, reports and legal opinions
as UMBFS may reasonably request.
4.02 DIVIDENDS AND DISTRIBUTIONS.
A. The Company shall give or cause to be given to UMBFS a copy of
a resolution of its Board of Directors, that either:
(i) sets 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 UMBFS on such
payment date, or
(ii) authorizes the declaration of dividends and distributions on
a daily or other periodic basis and further authorizes UMBFS to rely on a
certificate of an Authorized Person setting forth the information described in
subsection (i) of this paragraph.
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B. In connection with a reinvestment of a dividend or
distribution of Shares of a Fund, UMBFS shall as of each Fund Business Day, as
specified in a certificate or resolution described in paragraph A, issue Shares
of the Fund based on the net asset value per Share of such Fund specified in an
advice received from or on behalf of the Fund on such Fund Business Day.
C. Upon the mail date specified in such certificate or
resolution, as the case may be, the Company shall, in the case of a cash
dividend or distribution, cause the Custodian to deposit in an account in the
name of UMBFS on behalf of a Fund, an amount of cash sufficient for UMBFS 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. UMBFS will, upon receipt of any such cash, make payment of such
cash dividends or distributions to the Shareholders as of the record date. UMBFS
shall not be liable for any improper payments made in accordance with a
certificate or resolution described in the preceding paragraph. If UMBFS shall
not receive from the Custodian sufficient cash to make payments of any cash
dividend or distribution to all Shareholders of a Fund as of the record date,
UMBFS shall, upon notifying the Company , withhold payment to such Shareholders
until sufficient cash is provided to UMBFS.
D. It is understood that UMBFS in its capacity as transfer agent
and dividend disbursing 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 pursuant to the terms of this Agreement. It is further
understood that UMBFS shall file with the Internal Revenue Service and
Shareholders such appropriate federal tax forms concerning the payment of
dividend and capital gain distributions 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
federal law.
4.03 RECORDS.
A. UMBFS shall keep those records specified in Schedule D hereto
in the form and manner, and for such period, as it may deem advisable but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular Rules 31a-2 and 31a-3 under the 1940 Act. UMBFS may
deliver to the Company from time to time at UMBFS's discretion, for safekeeping
or disposition by the Company in accordance with law, such records, papers and
documents accumulated in the execution of its duties as transfer agent, as UMBFS
may deem expedient, other than those which UMBFS is itself required to maintain
pursuant to applicable laws and regulations. The Company shall assume all
responsibility for any failure thereafter to produce any record, paper, or other
document so returned, if and when required. To the extent required by Section 31
of the 1940 Act and the rules and regulations thereunder, the records specified
in Schedule D hereto maintained by UMBFS, which have not been previously
delivered to the Company pursuant to the foregoing provisions of this paragraph,
shall be considered to be the property of the Company , shall be made available
upon request for inspection by the officers, employees, and auditors of the
Company, and shall be delivered to the Company promptly upon request and in any
event upon the date of termination of this Agreement, in the form and manner
kept by UMBFS on such date of termination or such earlier date as may be
requested by the Company. Notwithstanding anything contained herein to the
contrary, UMBFS shall be permitted to maintain copies of any such records,
papers and documents to the extent necessary to comply with the recordkeeping
requirements of federal and state securities laws, tax laws and other applicable
laws.
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B. UMBFS agrees to keep all records and other information relative to
the Funds' Shareholders confidential, not to use such information other than for
purposes of fulfilling its duties under the Agreement and not to disclose such
information except: (i) when requested to divulge such information by
duly-constituted authorities or court process, or (ii) when requested by a
Shareholder or Shareholder's agent with respect to information concerning an
account as to which such Shareholder has either a legal or beneficial interest,
or (iii) when requested by the Company, a Fund, the Shareholder, the
Shareholder's agent or the dealer of record with respect to such account, or
(iv) to an affiliate, as defined by Section 248.3(a) of Regulation S-P (17 CFR
248.1-248.30); or (v) pursuant to any other exception permitted by Sections
248.14 and 248.15 of Regulation S-P in the ordinary course of business to carry
out the activities covered by the exception under which UMBFS received the
information. In case of any requests or demands for inspection of the records of
the Funds, UMBFS will endeavor to notify the Company promptly and to secure
instructions from a representative of the Company as to such inspection. Records
and information which have become known to the public through no wrongful act of
UMBFS or any of its employees, agents or representatives, and information which
was already in the possession of UMBFS prior to receipt thereof, shall not be
subject to this paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
5.01 REPRESENTATIONS OF COMPANY. The Company represents and warrants to
UMBFS that:
A. It is a corporation duly organized and existing under the laws
of the State of Maryland; it is empowered under applicable laws and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
and all requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
B. Any officer of the Company has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
previously designated Authorized Person, and to certify to UMBFS the names of
such Authorized Persons.
C. It is duly registered as an investment company under the 1940
Act.
D. A registration statement under the Securities Act 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 Shares of
the Company being offered for sale.
E. All outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with the terms
of the Company's Articles of Incorporation and its Prospectus with respect to
each Fund, such Shares shall be validly issued, fully paid and non-assessable.
F. All shareholder tax reporting has been completed timely and
accurately, including the distribution of Forms 5498s for the 2002 tax year.
G. The Funds, and all shareholder accounts, are in balance and
all accounts reconciled and current as of the date of this Agreement, and (1)
there are no outstanding issues relating to transfer agent activities and
shareholder and Company record keeping, including those related to shareholder
accounts and transaction activity, and (2) there are no existing or potential
claims, litigation or demands by shareholders or others relating to the Company,
or any of the Funds or their officers or Directors, except as disclosed in
writing and dated as of the date of this Agreement to UMBFS.
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5.02 REPRESENTATIONS OF UMBFS. UMBFS represents and warrants to the
Company that:
A. It is a corporation duly organized and existing under the laws
of the State of Wisconsin; it is empowered under applicable law and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
and all requisite proceedings have been taken to authorize it to enter into and
perform this Agreement.
B. It is duly registered as a transfer agent under Section 17A of
the 1934 Act to the extent required.
C. It has received a copy of each Fund's Prospectus which
describes how sales and redemptions of Shares shall be made.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 INFORMATION UPDATES. During the term of this Agreement the Company
shall have the ongoing obligation to provide UMBFS with the following documents
as soon as they become effective: (i) certified copies of all amendments to its
Articles of Incorporation and By-laws made after the date of this Agreement; and
(ii) a copy of each Fund's currently effective Prospectus. For purposes of this
Agreement, UMBFS shall not be deemed to have notice of any information contained
in any such Prospectus until a reasonable time after it is actually received by
UMBFS.
6.02 SHARE QUALIFICATION. The Company agrees to take or cause to be
taken all requisite steps to qualify the Shares for sale in all states in which
the Shares shall at the time be offered for sale and require qualification. If
the Company receives notice of any stop order or other proceeding in any such
state affecting such qualification or the sale of Shares, or of any stop order
or other proceeding under the federal securities laws affecting the sale of
Shares, the Company will give prompt notice thereof to UMBFS.
6.03 COMPLIANCE WITH LAWS. The Company will comply with all applicable
requirements of the Securities Act, the Exchange Act, the 1940 Act, blue sky
laws, and any other applicable laws, rules and regulations.
6.04 ADDITIONAL DUTIES. The Company agrees that it shall advise UMBFS at
least 30 days prior to effecting any change in the Prospectus which would
increase or alter the duties and obligations of UMBFS hereunder, and shall
proceed with such change only if it shall have received the written consent of
UMBFS thereto.
6.05 TRANSFER AGENT SYSTEM. UMBFS shall retain all right, title and
interest in and any and all computer programs, screen formats, report formats,
procedures, data bases, interactive design techniques, derivative works,
inventions, discoveries, patentable or copyrightable matters, concepts,
expertise, trade secrets, trademarks and other related legal rights provided,
developed or utilized by UMBFS in connection with the Services provided by UMBFS
to the C hereunder.
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ARTICLE VII
COMPANY INSTRUCTIONS
7.01 AUTHORIZED PERSONS. Upon the execution of this Agreement, the
Company shall provide UMBFS with a certificate containing the names of the
initial Authorized Persons in a form acceptable to UMBFS. Any officer of the
Company shall be considered an Authorized Person (unless such authority is
limited in a writing from the Company and received by UMBFS) and has the
authority to appoint additional Authorized Persons, to limit or revoke the
authority of any previously designated Authorized Person, and to certify to
UMBFS the names of the Authorized Persons from time to time. The Company shall
provide UMBFS with an updated certificate evidencing the appointment, removal or
change of authority of any Authorized Person, it being understood UMBFS shall
not be held to have notice of any change in the authority of any Authorized
Person until receipt of written notice thereof from the Company.
7.02 ACCEPTANCE OF INSTRUCTIONS. UMBFS, its officers, agents or employees
shall accept Instructions given to them by any person representing or acting on
behalf of the Company only if such representative is an Authorized Person. The
Company agrees that when oral Instructions are given, it shall, upon the request
of UMBFS, confirm such Instructions in writing.
7.03 REQUEST FOR INSTRUCTIONS. At any time, UMBFS may request Instructions
from the Company with respect to any matter arising in connection with this
Agreement. If such Instructions are not received within a reasonable time, then
UMBFS may seek advice from legal counsel for the Company at the expense of the
Company, or its own legal counsel at its own expense, and it shall not be liable
for any action taken or not taken by it in good faith in accordance with such
Instructions or in accordance with advice of counsel.
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ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
8.01 LIMITATION OF LIABILITY. Notwithstanding anything contained in
this Agreement to the contrary, UMBFS shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Company or the Funds
in connection with the matters to which this Agreement relates, except for a
loss resulting from UMBFS's willful misfeasance, bad faith or gross negligence
in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Furthermore, UMBFS shall not be
liable for (1) any action taken or omitted to be taken in accordance with or in
reliance upon written or oral instructions, advice, data, documents or
information (without investigation or verification) received by UMBFS from an
officer or representative of the Company or from a representative of any of the
parties referenced in Section 10.09, or (2) any action taken or omission by a
Fund, the Company, investment adviser(s) or any past or current service
provider.
8.02 INDEMNIFICATION. The Company agrees to indemnify and hold harmless
UMBFS, its employees, agents, officers, directors, affiliates and nominees
("Indemnified Parties") from and against any and all claims, demands, actions
and suits, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character which may be asserted against or incurred by any Indemnified Party or
for which any Indemnified Party may be held liable (a "Claim") arising out of or
in any way relating to any of the following:
(a) any action or omission of UMBFS except to the extent a Claim
resulted from UMBFS's willful misfeasance, bad faith, gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties hereunder;
(b) UMBFS's reliance on, implementation of, or use, without
investigation or verification, of information, data, records and documents
received by UMBFS from the Company, or from a representative of any of the
parties referenced in Section 10.09, or any third party acting on behalf of the
Company;
(c) the reliance on, or the implementation of, any Instructions
or any other advice, instructions, requests or directions of the Company or from
a representative of any of the parties referenced in Section 10.09, or any third
party acting on behalf of the Company;
(d) UMBFS's acting upon telephone or electronic instructions
relating to the purchase, exchange or redemption of Shares received by UMBFS in
accordance with procedures established by UMBFS and the Company;
(e) any action taken by or omission of the Company, investment adviser or
sub-adviser(s) or any past or current service provider;
(f) the acceptance, processing and/or negotiation of a fraudulent
payment for the purchase of Shares unless the result of UMBFS's or its
affiliates' willful misfeasance, bad faith or gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. In the absence of a finding to the contrary,
the acceptance, processing and/or negotiation of a fraudulent payment for the
purchase of Shares shall be presumed not to have been the result of UMBFS's or
its affiliates' willful misfeasance, bad faith or gross negligence.
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(g) the offer or sale of Shares in violation of any requirement
under the securities laws or regulations of any state that such Shares be
qualified for sale in such state or in violation of any stop order or
determination or ruling by any state with respect to the offer or sale of such
Shares in such state; or
(h) the Company's refusal or failure to comply with the terms of
the Agreement, or any Claim that arises out of the Company's negligence or
misconduct or breach of any representation or warranty of the Company made
herein.
8.03 INDEMNIFICATION PROCEDURES. UMBFS will notify the Company promptly
after identifying any situation which it believes presents or appears likely to
present a Claim for which the Company may be required to indemnify or hold UMBFS
harmless hereunder. In such event, the Company shall have the option to defend
UMBFS against any Claim, and, in the event that the Company so elects, such
defense shall be conducted by counsel chosen by the Company and approved by
UMBFS in its reasonable discretion. UMBFS shall not confess any Claim or make
any compromise in any case in which the Company will be asked to provide
indemnification, except with the Company's prior written consent. The
obligations of the parties under the Sections 8.02 and 8.03 shall survive the
termination of this Agreement.
8.04 FORCE MAJEURE. UMBFS assumes no responsibility hereunder, and shall
not be liable, for any damage, loss of data or documents, errors, delay or any
other loss whatsoever caused by events beyond its reasonable control. UMBFS
will, however, take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond UMBFS's control.
8.05 CONSEQUENTIAL DAMAGES. In no event and under no circumstances shall
UMBFS, its affiliates or any of its or their officers, directors, agents or
employees be liable to anyone, including, without limitation, the other party,
under any theory of tort, contract, strict liability or other legal or equitable
theory for lost profits, exemplary, punitive, special, indirect or consequential
damages for any act or failure to act under any provision of this Agreement
regardless of whether such damages were foreseeable and even if advised of the
possibility thereof.
8.06 ADDITIONAL LIMITATIONS AND EXCLUSIONS. Notwithstanding any other
provision of this Agreement, UMBFS shall have no duty or obligation under this
Agreement 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
Company, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares or of a purchase or
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Company, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the
Company, 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.
12
ARTICLE IX
TERM AND TERMINATION
9.01 TERM. This Agreement shall become effective with respect to each
Fund listed on Schedule A hereof as of the date hereof and, with respect to each
Fund not in existence on that date, on the date an amendment to Schedule A to
this Agreement relating to that Fund is executed. This Agreement shall continue
in effect with respect to each Fund until terminated as provided herein.
9.02 TERMINATION.
(a) Either party may terminate this Agreement at any time by
giving the other party a written notice not less than sixty (60) days prior to
the date the termination is to be effective. In the event such notice is given
by the Company pursuant to Section 9.02, it shall be accompanied by a copy of a
resolution of the Board of Directors of the Company 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 UMBFS, the Company shall on or before the termination date, deliver to
UMBFS 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 Company, the Company
shall be deemed to be its own transfer agent as of the termination date and
UMBFS shall thereby be relieved of all duties and responsibilities pursuant to
this Agreement. Fees and out-of-pocket expenses incurred by UMBFS, but unpaid by
the Company upon such termination, shall be immediately due and payable upon and
notwithstanding such termination.
(b) Notwithstanding any other provision of this Agreement, in the
event of an agreement to enter into a transaction that would result in a Change
of Control, as hereinafter defined, of the Company's investment adviser or
sponsor, the Company's ability to terminate this Agreement pursuant to this
Section 9 shall be suspended from the time of such agreement until eighteen
months after the Change of Control. For purposes of this Agreement, a "Change of
Control" of the investment adviser or sponsor means a change in ownership or
control of more than fifty percent (50%) of the common stock or shares of
beneficial interest of such investment adviser or sponsor or its parent company.
9.03 EFFECT OF TERMINATION. Upon the termination of the Agreement as
provided herein, UMBFS, upon the written request of the Company, shall deliver
the records of the Company to the Company or its successor transfer agent in the
form maintained by UMBFS (to the extent permitted by applicable license
agreements) at the expense of the Company. The Company shall be responsible to
UMBFS for all costs and expenses associated with the preparation and delivery of
such media and all reasonable trailing expenses incurred by UMBFS, including,
but not limited to: (a) out-of-pocket expenses; (b) any custom programming
requested by the Company in connection with the preparation of such media and
agreed upon by UMBFS; (c) transportation of forms and other materials used in
connection with the processing of Company transactions by UMBFS; and (d)
transportation of records and files in the possession of UMBFS. In addition,
UMBFS shall be entitled to such compensation as the parties may mutually agree
for any services other than the preparation and delivery of such media requested
by the Company and agreed to by UMBFS in connection with the termination of this
Agreement or the liquidation or merger of the Company. UMBFS shall not reduce
the level of service provided to the Company prior to termination following
notice of termination by the Company.
13
ARTICLE X
MISCELLANEOUS
10.01 NOTICES. Any notice required or permitted to be given by either
party to the other under this Agreement shall be in writing and shall be deemed
to have been given when sent by either an overnight delivery service or by
registered or certified mail, postage prepaid, return receipt requested, to the
addresses listed below, or to such other location as either party may from time
to time designate in writing:
If to UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Executive Vice President
If to the Company: Lifetime Achievement Fund, Inc.
00000 Xxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: President
10.02 AMENDMENTS/ASSIGNMENTS.
A. Except as provided to the contrary herein, 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.
B. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the other
party, except that UMBFS may assign this Agreement to an affiliate with advance
written notice to the Company and except as provided in Section 2.02.
10.03 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Wisconsin, without regard
to its conflict of law provisions.
10.04 SEVERABILITY. If any part, term or provision of this Agreement is
determined by the courts or any regulatory authority having jurisdiction over
the issue to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid.
10.05 COUNTERPARTS. 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.
10.06 NON-EXCLUSIVITY; OTHER AGREEMENTS. The services of UMBFS hereunder
are not deemed exclusive and UMBFS shall be free to render similar and other
services to others. Except as specifically provided herein, this Agreement does
not in any way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not affect any
rights or obligations of any other party hereunder.
14
10.07 CAPTIONS. The captions in the Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
10.08 COMPANY LIMITATIONS. This Agreement is executed by the Company
with respect to each of the Funds and the obligations hereunder are not binding
upon any of the directors, officers or shareholders of the Company individually
but are binding only upon the Fund to which such obligations pertain and the
assets and property of such Fund. All obligations of the Company under this
Agreement shall apply only on a Fund-by-Fund basis, and the assets of one Fund
shall not be liable for the obligations of another Fund. The Fund's Articles of
Incorporation are on file with the State of Maryland.
10.09 RELIANCE ON INFORMATION AND INSTRUCTIONS. The Directors of the
Company shall cause the officers, directors, investment adviser(s) and
sub-advisers, legal counsel, independent accountants, custodian and other
service providers and agents, past or present, for the Funds to cooperate with
UMBFS and to provide UMBFS with such information, documents and advice as
necessary and/or appropriate or as requested by UMBFS, in order to enable UMBFS
to perform its duties hereunder. In connection with its duties hereunder, UMBFS
shall (without investigation or verification) be entitled, and is hereby
instructed to, rely upon any and all instructions, advice, information or
documents provided to UMBFS by an officer or representative of the Funds or by
any of the aforementioned persons. UMBFS shall be entitled to rely on any
document that it reasonably believes to be genuine and to have been signed or
presented by the proper party. Fees charged by such persons shall be an expense
of the Company. UMBFS shall not be held to have notice of any change of
authority of any officer, agent, representative or employee of the Company,
investment adviser(s) or service provider until receipt of written notice
thereof from the Company. As used in this Agreement, the term "investment
adviser" includes all sub-advisers or persons performing similar services.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
UMB FUND SERVICES, INC. LIFETIME ACHIEVEMENT FUND, INC.
By: ------------------------------ By: -----------------------------
(Signature) (Signature)
------------------------------ --------------------------------
(Name) (Name)
------------------------------ --------------------------------
(Title) (Title)
------------------------------ --------------------------------
(Date Signed) (Date Signed)
15
SCHEDULE A
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
LIFETIME ACHIEVEMENT FUND, INC.
AND
UMB FUND SERVICES, INC.
NAME OF FUNDS
Lifetime Achievement Fund
16
SCHEDULE B
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
LIFETIME ACHIEVEMENT FUND, INC.
AND
UMB FUND SERVICES, INC.
SERVICE SCHEDULE
o Set up and maintain shareholder accounts and records, including IRAs
and other retirement accounts
o Store account documents electronically
o Receive and respond to investor account inquiries by telephone or
mail, or by e-mail if the response does not require the reference to
specific shareholder account information
o Process purchase and redemption orders, transfers, and exchanges,
including automatic purchases and redemptions via postal mail,
telephone and personal delivery, provided payment for shares is in the
form of a check, wire transfer or requested Automated Clearing House
transfer, or such other means as the parties shall mutually agree
o Process dividend payments by check, wire or ACH, or reinvest dividends
o Issue daily transaction confirmations and monthly or quarterly
statements
o Mail prospectus, annual and semiannual reports, and other shareholder
communications to existing shareholders
o File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders
and/or the IRS
o Handle load and multi-class processing, including rights of
accumulation and purchases by letters of intent
o Calculate 12b-1 plan fees
o Provide standards to structure forms and applications for efficient
processing
o UMBISG 4.prompt services (per fund group)
o Tier I and II - Basic Service
The foregoing services do not include correcting, verifying or addressing any
prior actions or inactions by any Fund or by any prior service provider. To the
extent UMBFS agrees to take such actions, those actions taken shall be deemed
part of this service schedule.
17
OPTIONAL SERVICES
The Funds may contract with UMBFS to provide one or more of the following
optional services. Additional fees apply.
o Personal follow-up calls to prospects who return incomplete
applications
o Comprehensive clerical confirmation statements for maintenance
transactions
o UMBISG 0.XXX(R) SERVICES, UMBFS's array of Internet services,
including Adviser Services, RIA/Broker Services, Shareholder Services,
NAV Services and email services.
o Average cost calculations and cost basis statements
o Shareholder "welcome" packages with initial confirmation
o Access to UMBFS's Tax and Retirement Group to answer questions and
coordinate retirement plan options
o Follow up on IRAs, soliciting beneficiary and other information and
sending required minimum distribution reminder letters
o Money market funds for short-term investment or exchanges
o Dedicated service representatives
o Weekend and holiday shareholder services
o Customized reorder form tracking
o Give dealers access through NSCC's Fund/SERV and Networking
o Customized forms and applications
o Postal Clean Up
18
SCHEDULE C
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
LIFETIME ACHIEVEMENT FUND, INC.
AND
UMB FUND SERVICES, INC.
BASE FEES
o Open account fee (annual)
o No load equity and non-daily accrual fixed income funds $9.50
o Additional for 12b-1 fee or Service Plan $0.75
o Additional for front-end load $1.50
o Closed account fee (annual) $3.00
o Annual base fee (per fund) $45,000
o AML fee (annual, per fund) $1,000
ACCOUNT MAINTENANCE FEES (PER OCCURRENCE)
o New account $3.00
o New account (online) $1.60
o Financial transactions $1.50
o Financial transactions (online) $.30
o Maintenance transactions $1.00
o Maintenance transactions (online) $.50
o Inquiry (online) $.30
SHAREHOLDER SERVICING FEES
o Telephone calls (per call) $1.50
o Voice Response Unit (VRU) calls $.35
TAX AND RETIREMENT FEES
o Retirement accounts (XXX/Xxxx/others)
o Annual maintenance fee (per account) $12.50
DOCUMENT SERVICES
o Per statement, confirmation $0.20
o Per statement, confirmation (online) $0.20
o Per tax form $0.20
19
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, statement paper, check
stock, envelopes, tax forms, retirement plan documents, the creation and
delivery of custom statements or statement files, postage and direct delivery
charges, telephone and long distance charges, P.O. box rental, toll-free number
and bank account service fees.
PROGRAMMING FEES
Additional fees of $150 per hour or as quoted may apply for programming to meet
specialized servicing requirements, to create custom reports, the set-up and
creation of custom statements or to develop client internet products as desired.
CONVERSION FEES
Conversion Services - $90.00/hour, $20,000 maximum
Fees for services not contemplated by this schedule will be negotiated on a
case-by-case basis.
20
SCHEDULE D
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
LIFETIME ACHIEVEMENT FUND, INC.
AND
UMB FUND SERVICES, INC
RECORDS MAINTAINED BY SUNSTONE
Account applications
Canceled certificates plus stock powers and supporting documents
Checks including check registers, reconciliation records, any adjustment records
and tax withholding documentation
Indemnity bonds for replacement of lost or missing stock certificates and checks
Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
Shareholder correspondence
Shareholder transaction records
Share transaction history of the Funds
21
ADDENDUM TO TRANSFER AGENT AGREEMENT
THIS ADDENDUM, dated as of ______, 2003, modifies the Transfer Agent Agreement
by and between UMB Fund Services, Inc. ("UMBFS").) and Lifetime Achievement
Fund, Inc. (the "Company"), such Agreement being hereinafter referred to as the
"Agreement."
WHEREAS, Section 352 of the USA Patriot Act (the "Act") and the Interim Final
Rule (Section 103.130) adopted by the Department of the Treasury's Financial
Crimes Enforcement Network (the "Rule") require the Company to develop and
implement an anti-money laundering program and monitor the operation of its
program and assess its effectiveness;
WHEREAS, in order to assist its transfer agent clients with their anti-money
laundering compliance responsibilities under the Act and the Rule, UMBFS has
provided to the Company for its consideration and approval written procedures
describing various tools designed to promote the detection and reporting of
potential money laundering activity by monitoring certain aspects of shareholder
activity (the " Monitoring Procedures"); and
WHEREAS, the Company desires to implement the Monitoring Procedures as part of
its overall anti-money laundering program and, subject to the terms of the Rule,
delegate to UMBFS the day-to-day operation of the Monitoring Procedures on
behalf of the Company.
NOW THEREFORE, the parties agree, and the Agreement is hereby modified, as
follows:
1. The Company acknowledges that it has had an opportunity to review, consider
and comment upon the Monitoring Procedures provided by UMBFS and the Company
has determined that they, as part of the Company's overall anti-money
laundering program, are reasonably designed to prevent the Company from
being used for money laundering or the financing of terrorist activities and
to achieve compliance with the applicable provisions of the Bank Secrecy Act
and the implementing regulations thereunder.
2. Based on this determination, the Company hereby instructs and directs UMBFS
to implement the Monitoring Procedures on its behalf, as such may be amended
or revised from time to time.
3. It is contemplated that the Monitoring Procedures will be amended from time
to time by the parties as additional regulations are adopted and/or
regulatory guidance is provided relating to the Company's anti-money
laundering responsibilities, including rules relating to investor
verification pursuant to Section 326 of the Patriot Act.
4. UMBFS agrees to provide to the Company (i) prompt written notification of
any transaction or combination of transactions that UMBFS believes, based on
the Monitoring Procedures, evidence money laundering activity in connection
with the Companyor any shareholder of the Company, (ii) any reports received
by UMBFS from any government agency or applicable industry self-regulatory
organization pertaining to UMBFS' anti-money laundering monitoring on behalf
22
of the Company as provided in this Addendum, (iii) any action taken in
response to anti-money laundering violations as described in (i) or (ii),
and (iv) an annual report of its monitoring activities on behalf of the
Company. UMBFS shall provide such other reports on the monitoring activities
conducted at the direction of the Company as may be agreed to from time to
time by UMBFS and the Company's anti-money laundering compliance officer.
5. The Company hereby directs, and UMBFS acknowledges, that UMBFS shall (1)
permit federal regulators access to such information and records maintained
by UMBFS and relating to UMBFS's implementation of the Monitoring Procedures
on behalf of the Company, as they may request, and (2) permit such federal
regulators to inspect UMBFS's implementation of the Monitoring Procedures on
behalf of the Company.
6. Fees and expenses (other than those already set forth in the Agreement) for
services to be provided by UMBFS hereunder shall be as agreed upon between
the Company and UMBFS.
7. This Addendum constitutes the written instructions of the Company pursuant
to the terms of the Agreement. Except to the extent supplemented hereby, the
Agreement shall remain in full force and effect.
IN WITNESS HEREOF, the undersigned have executed this Addendum as of the date
and year first above written.
LIFETIME ACHIEVEMENT FUND, INC.
(the "Company")
By: _____________________________
Authorized Officer
UMB FUND SERVICES, INC.
("UMBFS")
By: _____________________________
Authorized Officer
23
