EXHIBIT h.3
TRANSFER AGENCY AND SERVICE AGREEMENT
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
PHOENIX-KAYNE MUTUAL FUNDS
AND
PHOENIX EQUITY PLANNING CORPORATION
TABLE OF CONTENTS
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Page
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ARTICLE 1 - TERMS OF APPOINTMENT; DUTIES OF TRANSFER AGENT............. 1
ARTICLE 2 - FEES AND EXPENSES.......................................... 3
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT........... 3
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF FUND..................... 3
ARTICLE 5 - DATA ACCESS AND PROPRIETARY INFORMATION.................... 4
ARTICLE 6 - INDEMNIFICATION............................................ 5
ARTICLE 7 - STANDARD OF CARE........................................... 6
ARTICLE 8 - COVENANTS.................................................. 6
ARTICLE 9 - TERMINATION................................................ 6
ARTICLE 10 - ASSIGNMENT................................................. 7
ARTICLE 11 - AMENDMENT.................................................. 7
ARTICLE 12 - CONNECTICUT LAW TO APPLY................................... 7
ARTICLE 13 - FORCE MAJEURE.............................................. 7
ARTICLE 14 - CONSEQUENTIAL DAMAGES...................................... 7
ARTICLE 15 - MERGER OF AGREEMENT........................................ 7
ARTICLE 16 - LIMITATIONS OF LIABILITY OF THE TRUSTEES
AND SHAREHOLDERS........................................... 7
ARTICLE 17 - COUNTERPARTS............................................... 8
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the ____ day of ________________, 2002, by and
between PHOENIX-KAYNE MUTUAL FUNDS (hereinafter referred to as the "Fund"), and
PHOENIX EQUITY PLANNING CORPORATION (hereinafter referred to as the "Transfer
Agent").
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint Transfer Agent as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities, and Transfer Agent desires to accept such appointment; and
WHEREAS, the parties wish to set forth herein their mutual
understandings and agreements.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency whereof being hereby acknowledged and affirmed, the parties hereto
agree as follows:
ARTICLE 1 TERMS OF APPOINTMENT; DUTIES OF TRANSFER AGENT
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1.01 Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs and appoints Transfer Agent to act as, and Transfer
Agent agrees to act as, transfer agent for the authorized and issued shares of
beneficial interest or common stock, as the case may be, of the Fund
(hereinafter collectively and singularly referred to as "Shares"), dividend
disbursing agent and agent in connection with any accumulation, open-account or
similar plans provided to the shareholders of the Fund ("Shareholders") and as
set out in the currently effective registration statement of the Fund (the
prospectus and statement of additional information portions of such registration
statement being referred to as the "Prospectus"), including, without limitation,
any periodic investment plan or periodic withdrawal program.
1.02 Transfer Agent agrees that it will perform the following
services pursuant to this Agreement:
(a) In accordance with procedures established from time to time by
agreement between the Fund and Transfer Agent, Transfer Agent shall:
i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian appointed
from time to time by the Trustees of the Fund (which
entity or entities, as the case may be, shall be
referred to as the "Custodian");
ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the each
appropriate Shareholder account;
iii) Receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Transfer Agent shall execute
transactions directly with broker-dealers authorized
by the Fund who shall thereby be deemed to be acting
on behalf of the Fund;
v) At the appropriate time as and when it receives
monies paid to it by any Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by
the redeeming Shareholders;
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vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
vii) Prepare and transmit payments for dividends and
distributions declared by the Fund, if any;
viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Transfer Agent of indemnification
satisfactory to the Transfer Agent and the Fund, and
the Transfer Agent at its option, may issue
replacement certificates in place of mutilated stock
certificates upon presentation thereof and without
such indemnity;
ix) Maintain records of account for and advise the Fund
and its respective Shareholders as to the foregoing;
and
x) Record the issuance of Shares and maintain pursuant
to Rule 17Ad-10(e) under the Exchange Act of 1934, a
record of the total number of Shares which are
authorized, issued and outstanding based upon data
provided to it by the Fund. The Transfer Agent shall
also provide on a regular basis to the Fund the total
number of Shares which are authorized, issued and
outstanding shall have no obligation, when recording
the issuance of Shares, to monitor the issuance of
such Shares or to take cognizance of any laws
relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of each
respective Fund.
(b) In addition to and not in lieu of the services set forth in
the above paragraph (a), Transfer Agent shall: (i) perform all of the customary
services of a transfer agent, dividend disbursing agent and, as relevant, agent
in connection with accumulation, open-account or similar plans (including
without limitation any periodic investment plan or periodic withdrawal program),
including, but not limited to, maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, receiving and tabulating proxies,
mailing Shareholder reports and Prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts, preparing
and filing U.S. Treasury Department Forms 1099 and other appropriate forms
required with respect to dividends and distributions by federal authorities for
all Shareholders, preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account information; and
(ii) provide a system which will enable the Fund to monitor the total number of
Shares sold in each State.
(c) In addition, the Fund shall (i) identify to Transfer Agent in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State, and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of Transfer Agent for a Fund's blue
sky State registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the reporting of
such transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of the services in
Article 1 may be established from time to time by agreement between the Fund and
Transfer Agent per the attached service responsibility schedule, if any. The
Transfer Agent may at times perform only a
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portion of these services and the Fund or its agent may perform these services
on behalf of the Fund.
(e) The Transfer Agent shall provide additional services on behalf
of the Fund (i.e., escheatment services) which may be agreed upon in writing
between the Fund and the Transfer Agent.
ARTICLE 2 FEES AND EXPENSES
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2.01 In consideration of the services provided by the Transfer
Agent pursuant to this Agreement, the Fund agrees to pay Transfer Agent an
annual maintenance fee for each Shareholder account as set forth in Schedule A
attached hereto and made a part hereof. Annual Maintenance Fees and
out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the Fund
and Transfer Agent. Nothing herein shall preclude the assignment of all or any
portion of the foregoing fees and expense reimbursements to any sub-agent
contracted by Transfer Agent.
2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees to reimburse Transfer Agent for out-of-pocket expenses or advances
incurred by Transfer Agent for the items set out in Schedule A attached hereto.
In addition, any other expenses incurred by Transfer Agent at the request or
with the consent of any Fund, will be reimbursed by the Fund requesting the
same.
2.03 The Fund agrees to pay all fees and reimbursable expenses
within five days following the mailing of the respective billing notice. The
above fees will be charged against the Fund's custodian checking account five
(5) days after the invoice is transmitted to the Fund. Postage for mailing of
dividends, proxies, Fund reports and other mailings to all Shareholder accounts
shall be advanced to Transfer Agent at least seven (7) days prior to the mailing
date of such materials.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT
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The Transfer Agent represents and warrants to the Fund that:
3.01 It is a corporation organized and existing and in good
standing under the laws of the State of Connecticut.
3.02 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.03 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3.05 It is and shall continue to be a duly registered transfer
agent pursuant to Section 17A(c)(2) of the Securities Exchange
Act of 1934.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF FUND
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The Fund represents and warrants to Transfer Agent that:
4.01 All corporate or trust proceedings, as the case may be,
required to enter into and perform this Agreement have been undertaken and are
in full force and effect.
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4.02 The Fund is an open-end, diversified management investment
company registered under the Investment Company Act of 1940.
4.03 A registration statement under the Securities Act of 1933 is
currently effective for the Fund that is offering its securities for sale and
such registration statement will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares being offered for sale.
ARTICLE 5 DATA ACCESS AND PROPRIETARY INFORMATION
---------------------------------------
5.01 The Fund acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain Fund-related data ("Customer Data") maintained by the
Transfer Agent on data bases under the control and ownership of the Transfer
Agent or other third party ("Data Access Services") constitute copyrighted,
trade secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third party.
In no event shall Proprietary Information be deemed Customer Data. The Fund
agrees to treat all Proprietary Information as proprietary to the Transfer Agent
and further agrees that it shall not divulge any Proprietary Information to any
person or organization except as may be provided hereunder. Without limiting the
foregoing, the Fund agrees for itself and its employees and agents:
(a) to access Customer Data solely from location as may be
designated in writing by the Transfer Agent and solely in
accordance with the Transfer Agent's applicable user
documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely manner of such
fact and dispose of such information in accordance with the
Transfer Agent's instructions;
(d) to refrain from causing or allowing third-party data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of the Transfer Agent;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state
law.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Fund notified the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall endeavor
in a timely manner to correct such failure. Organizations from which the
Transfer Agent may obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Fund agrees to make
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no claim against the Transfer Agent arising out of the contents of such
third-party data, including, but not limited to, the accuracy thereof. DATA
ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN
CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER
AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Fund include the ability
to originate electronic instructions to the Transfer Agent in order to (i)
effect the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information (such transactions constituting a "COEFI"),
then in such event the Transfer Agent shall be entitled to rely on the validity
and authenticity of such instruction without undertaking any further inquiry as
long as such instruction is undertaken in conformity with security procedures
established by the Transfer Agent from time to time.
ARTICLE 6 INDEMNIFICATION
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6.01 The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold Transfer Agent harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to:
(a) All actions of Transfer Agent or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct.
(b) The lack of good faith, negligence or willful misconduct by
the Fund which arises out of the breach of any representation or warranty of the
Fund hereunder.
(c) The reliance on or use by the Transfer Agent or its agents or
subcontractors of information, records and documents which (i) are received by
Transfer Agent or its agents or subcontractors, and (ii) have been prepared,
maintained or performed by the Fund or any other person or firm on behalf of the
Fund including but not limited to any previous transfer agent or registrar.
(d) The reliance on, or the carrying out by Transfer Agent or its
agents or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or in
violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state, except to the extent caused by the negligence of the Transfer Agent or
breach of this Agreement by the Transfer Agent.
6.02 Transfer Agent shall indemnify and hold the Fund harmless from
and against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by Transfer Agent, or any sub-agent, as a result of Transfer
Agent's, or such sub-agent's lack of good faith, negligence or willful
misconduct.
6.03 At any time the Transfer Agent may apply to any officer of the
Fund for instructions, and may consult with legal counsel with respect to any
matter arising in connection
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with the services to be performed by Transfer Agent under this Agreement, and
Transfer Agent and its agents or subcontractors shall not be liable and shall be
indemnified by the Fund for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such counsel. The Transfer Agent, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Fund, reasonably believed to
be genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided Transfer Agent or
its agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Fund. Transfer Agent, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signature of the
officers of any Fund, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
6.04 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indeminification shall in no case confess any claim or make any compromise in
any case in which the other party may be required to indemnify it except with
the other party's prior written consent.
6.05 Transfer Agent hereby expressly acknowledges that recourse
against the Fund, if any, shall be subject to those limitations provided by
governing law and the Declaration of Trust of the Fund, as applicable, and
agrees that obligations assumed by the Fund hereunder shall be limited in all
cases to the Fund and its respective assets. Transfer Agent shall not seek
satisfaction of any such obligation from the shareholders or any shareholder of
the Fund, nor shall the Transfer Agent seek satisfaction of any obligations from
the Trustees or any individual Trustee of the Fund.
ARTICLE 7 STANDARD OF CARE
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7.01 The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith, or willful misconduct of that of its employees.
ARTICLE 8 COVENANTS
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8.01 The Fund shall promptly furnish to Transfer Agent the
following:
(a) A certified copy of the resolution of its Trustees authorizing
the appointment of Transfer Agent and the execution and delivery of this
Agreement.
(b) A copy of the Declaration of Trust or Articles of
Incorporation, as the case may be, and By-Laws, if any, and all amendments
thereto of the Fund.
8.02 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
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8.03 The Transfer Agent shall keep records relating to the services
to be performed hereunder, in the form and manner as it may deem advisable. To
the extent required by Section 31 of the Investment Company Act of 1940, as
amended, and the Rules thereunder, Transfer Agent agrees that all such records
prepared or maintained by Transfer Agent relating to the services to be
performed by Transfer Agent hereunder are the property of each respective Fund
and will be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to each respective Fund on
and in accordance with its request.
8.04 The parties agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
8.05 In case of any requests or demands for the inspection of the
Shareholder records, Transfer Agent will endeavor to notify the affected Fund
and to secure instructions from an authorized officer of such Fund as to such
inspection. Transfer Agent reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be held liable for the failure to exhibit the Shareholder records to such
person.
ARTICLE 9 TERMINATION
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9.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
9.02 Should any Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material and
any other reasonable expenses associated with such termination will be borne by
the terminating Fund.
ARTICLE 10 ASSIGNMENT
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10.01 Except as provided in Section 10.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
10.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
10.03 The Transfer Agent may, without further consent on the part of
the Fund, subcontract for the performance hereof with one or more sub-agents;
provided, however, that Transfer Agent shall be as fully responsible to the Fund
for the acts and omissions of any subcontractor as it is for its own acts and
omissions.
ARTICLE 11 AMENDMENT
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11.01 This Agreement may be amended or modified by a written
agreement executed by the parties and authorized or approved by a resolution of
the Trustees/Directors of each respective Fund.
ARTICLE 12 CONNECTICUT LAW TO APPLY
------------------------
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Connecticut.
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ARTICLE 13 FORCE MAJEURE
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13.01 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
ARTICLE 14 CONSEQUENTIAL DAMAGES
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14.01 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
ARTICLE 15 MERGER OF AGREEMENT
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15.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
15.02 This Agreement shall not be merged with or construed in
conjunction with any other current or future agreement between the Fund and
Phoenix Equity Planning Corporation, each and all of which agreements shall at
all times remain separate and distinct.
ARTICLE 16 LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
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16.01 For the Funds which that are formed as Massachusetts business
trusts, notice is hereby given that the Agreement and Declaration of such Trusts
are on file with the Secretary of the Commonwealth of Massachusetts and was
executed on behalf of the Trustees of such Trusts as Trustees and not
individually and that the obligations of this instrument are not binding upon
any of the Trustees or Shareholders individually but are binding only upon the
assets and property of the Fund.
ARTICLE 17 COUNTERPARTS
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17.01 This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
PHOENIX-KAYNE MUTUAL FUNDS
By:
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President
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PHOENIX EQUITY PLANNING CORPORATION
By:
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Executive Vice President
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SCHEDULE A
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FEE SCHEDULE
[To come]
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