TRANSFER AGENCY AGREEMENT
Agreement made as of the 30th day of December, 1993 between Xxxxxx Xxxxxxxx
Investment Trust, (the "Trust") a Delaware business trust, having its principal
office and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
Supervised Service Company Inc., ("SSC") a Delaware corporation having its
principal offi ce and place of business at 000 Xxxxx XxXxxxx, Xxxxxxx XX 00000
(hereinafter referred to as the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. "Approved Institution" shall mean an entity so named in a Certificate.
From time to time the Trust may amend a previously delivered Certificate by
delivering to the Transfer Agent a Certificate naming an additional entity or
deleting any entity named in a previously delivered Certificate.
2. The "Board of Trustees" shall mean the Board of Trustees of the Trust.
3. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Transfer
Agent by the Trust which is signed by any Officer, as hereinafter defined, and
actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed as custodian
under the terms and conditions of the Custody Agreement between the financial
institution and the Trust, or its successor(s).
5. "Trust Business Day" shall be deemed to be each day on which the New
York Stock Exchange, Inc. is open for trading.
6. "Officer" shall be deemed to be the Trust's President, any Vice
President of the Trust, the Trust's Secretary, the Trust's Treasurer, the
Trust's Controller, any Assistant Controller of the Trust, any Assistant
Treasurer of the Trust and any Assistant Secretary of the Trust, and any other
person duly authorized by the Board of Trustees to execute any Certificate,
instruction, notice or other instrument on behalf of the Trust and named in the
Certificate annexed hereto as Appendix A, as such Certificate may be amended
from time to time, and any person reasonably believed by the Transfer Agent to
be such a person.
7. "Out-of-Pocket Expenses" means amounts reasonably necessary and actually
incurred by Transfer Agent in the provision of Transfer Agent services or
pursuant to this Agreement for the following purposes: postage (and first class
mail insurance in connection with mailing share certificates), envelopes, check
forms, continuous forms, forms for reports and statements, stationery, and other
similar items, telephone and telegraph charges incurred in answering inquiries
from dealers or shareholders, microfilm used to record transactions in
shareholder accounts and computer tapes used for permanent storage of records
and cost of insertion of materials in mailing envelopes by outside
firms. Transfer Agent may, at its option, arrange to have various service
providers submit invoices directly to the Trust for payment of out-of-pocket
expenses reimbursable hereunder; and such other expenses paid or incurred by
Transfer Agent at the request of the Trust. Any charges associated with special
or exception processing shall also be considered Out-of-Pocket Expenses.
8. "Prospectus" shall mean the most recent Trust prospectus actually
received by the Transfer Agent from the Trust with respect to which the Trust
has indicated a registration statement under the federal Securities Act of 1933
has becomes effective, including the Statement of Additional Information,
incorporated by reference therein.
9. "Shares" shall mean all or any part of each class of the shares of
beneficial interest of the Trust or any series thereof listed in the Certificate
as to which the Transfer Agent acts as transfer agent hereunder, as may be
amended from time to time, which are authorized and/or issued by the Trust.
10. "Transfer Agent" shall mean Supervised Service Company, Inc., ("SSC"),
as transfer agent and dividend disbursing agent under the terms and conditions
of this Agreement, its successor(s) or assign(s).
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Trust hereby constitutes and appoints the Transfer Agent as transfer
agent of the Trust and as dividend disbursing agent during the period of this
Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as hereinafter
set forth.
3. In connection with such appointment, the Trust upon the request of the
Transfer Agent, shall deliver the following documents to the Transfer Agent:
(i) A copy of the Agreement and Declaration of Trust of the Trust and
all amendments thereto (the "Declaration") certified by the Secretary of the
Trust;
(ii) A copy of the By-Laws of the Trust certified by the Secretary of
the Trust;
(iii) A copy of a resolution of the Board of Trustees of the Trust
certified by the Secretary of the Trust appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Trust specifying:
the number of authorized Shares or, if applicable, the fact that the number of
authorized Shares is unlimited, the number of such authorized Shares issued, the
number of such authorized Shares issued and currently outstanding; the names and
specimen signatures of the Officers of the Trust; and the name and address of
the legal counsel for the Trust;
(v) Specimen Share certificates, if any, for each series or class of
Shares in the form approved by the Board of Trustees of the Trust (and in a
format compatible with the Transfer Agent's system), together with a Certificate
signed by the Secretary of the Trust as to such approval;
(vi) Copies of the Trust's Registration Statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the Trust
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and under the Investment Company Act of 1940, as amended, together with
any applications filed in connection therewith; and
(vii) Opinion of counsel for the Trust with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective or, if exempt, the specific grounds therefor.)
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. Unless the Trust has authorized an unlimited number of Shares, the Trust
shall deliver to the Transfer Agent the following documents on or before the
effective date of any increase or decrease in the total number of Shares
authorized to be issued:
(a) A certified copy of any amendment to the Declaration giving effect
to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for the Trust
with respect to the validity of the Shares of the Trust and the status of such
Shares under the Securities Act of 1933, as amended, and any other applicable
federal law or
regulation (i.e., if subject to registration, that they have been registered and
that the Registration Statement has become effective or, if exempt, the specific
grounds therefor); and
(c) In the case of an increase, if the appointment of the Transfer
Agent was theretofore expressly limited, a certified copy of a resolution of the
Board of Trustees of the Trust increasing the authority of the Transfer Agent.
2. Unless the Trust has authorized an unlimited number of Shares, prior to
the issuance of any additional Shares of the Trust pursuant to share dividends
or share splits, etc., and prior to any reduction in the number of shares
outstanding, the Trust shall deliver the following documents to the Transfer
Agent:
(a) A certified copy of the resolution(s) adopted by the Board of
Trustees and/or the shareholders of the Trust authorizing such issuance of
additional Shares of the Trust or such reduction, as the case may be, and
(b) An opinion of counsel for the Trust with respect to the validity
of the Shares of the Trust and the status of such Shares under the Securities
Act of 1933, as amended, and any other applicable federal law or regulation
(i.e., if subject to registration, that they have been registered and that the
Registration Statement has become effective, or, if exempt, the specific grounds
therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative share split, recapitalization or other
capital adjustment requiring a change in
the form of any Share certificates of the Trust, the Transfer Agent will issue
Share certificates in the new form in exchange for, or upon transfer of,
outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of the Share certificates
in the new form;
(b) A certified copy of any amendment to the Declaration with respect
to the change;
(c) Specimen Share certificates for each class of Shares in the new
form approved by the Board of Trustees of the Trust, with a Certificate signed
by the Secretary of the Trust as to such approval; and
(d) An opinion of counsel for the Trust with respect to the validity
of the Shares in the new form and the status of such Shares under the Securities
Act of 1933, as amended, and any other applicable federal law or regulation
(i.e., if subject to registration, that the Shares have been registered and that
the Registration Statement has become effective or, if exempt, the specific
grounds therefor.)
2. The Trust at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time to
time will replenish such supply upon the request of the Transfer Agent. Such
blank Share certificates shall be compatible with the Transfer Agent's system
and shall be properly signed by facsimile or otherwise by Officers of the Trust
authorized by law or by the By-Laws to sign Share certificates and, if required
shall bear the corporate Seal or facsimile
thereof. The Trust agrees to indemnify and exonerate, save and hold the Transfer
Agent harmless, from and against any and all claims or demands that may be
asserted against the Transfer Agent with respect to the genuineness of any Share
certificate supplied to the Transfer Agent pursuant to this section.
ARTICLE V
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of the
Trust's prospectus and statement of additional information, which prospectus and
statement of additional information describe how sales and redemption of Shares
of the Trust shall be made, and the Transfer Agent agrees to accept purchase
orders and redemption requests with respect to Shares of the Trust on each Trust
Business Day in accordance with such prospectus and statement of additional
information. The Trust agrees to provide the Transfer Agent with sufficient
advance notice to enable the Transfer Agent to effect any changes in the
procedures set forth in the prospectus and statement of additional information
regarding such purchase and redemption procedure; provided, however, that in no
event will such advance notice be less than 30 days.
(b) The Transfer Agent shall also accept with respect to each Trust
Business Day, at such times as are agreed upon from time to time by the Transfer
Agent and the Trust, a computer tape or electronic data transmission consistent
in all respects with the Transfer Agent's tape layout package, as amended from
time to
time, which is believed by the Transfer Agent to be furnished by or on behalf of
any Approved Institution. The Transfer Agent shall not be liable for any losses
or damages to the Trust or its shareholders in the event that a computer tape or
electronic data transmission from an Approved Institution is unable to be
processed for any reason beyond the control of the Transfer Agent, or if any of
the information on such tape or transmission is found to be incorrect.
2. On each Trust Business Day the Transfer Agent shall, as of the time at
which the Trust computes the net asset value of each series of the Trust, issue
to and redeem from the accounts specified in a purchase order, redemption
request, or computer tape or electronic data transmission, which in accordance
with the Prospectus is effective on such Trust Business Day, the appropriate
number of full and fractional Shares based on the net asset value per Share of
each series of the Trust specified in an advice received on such Trust Business
Day from the Trust. The Transfer Agent shall be responsible for verifying that
the amounts provided to the Transfer Agent by or on behalf of the Trust are
consistent with the number of shares issued or redeemed, based upon the
applicable per share net asset value. Notwithstanding the foregoing, if a
redemption specified in a computer tape or electronic data transmission is for a
dollar value of Shares in excess of the dollar value of uncertificated Shares in
the specified account, the Transfer Agent shall not effect such redemption in
whole or in part and shall within twenty-four hours
orally advise the Approved Institution which supplied such tape of the
discrepancy.
3. In connection with a reinvestment of a dividend or distribution of
Shares of a series of the Trust, the Transfer Agent shall as of each Trust
Business Day, as specified in a Certificate or resolution described in paragraph
1 of succeeding Article VI, issue Shares of such series based on the net asset
value per Share of such series specified in an advice received from the Trust on
such Trust Business Day.
4. On each Trust Business Day the Transfer Agent shall supply the Trust
with a statement specifying with respect to the immediately preceding Trust
Business Day: the total number of Shares of each series of the Trust (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of each series of the Trust sold on such day,
pursuant to preceding paragraph 2 of this Article; the total number of Shares of
each series of the Trust redeemed from Shareholders by the Transfer Agent on
such day; the total number of Shares of each series of the Trust, if any, sold
on such day pursuant to preceding section 3 of this Article, and the total
number of Shares of each series of the Trust issued and outstanding.
5. In connection with each purchase and each redemption of Shares, the
Transfer Agent shall send such statements as are prescribed by the federal
Securities laws applicable to transfer agents or as described in the Prospectus.
If the Prospectus indicates that certificates for Shares are available and if
specifically requested in writing by any shareholder, or if otherwise required
hereunder, the Transfer Agent will countersign, issue and mail to such
shareholder at the address set forth in the records of the Transfer Agent a
Share certificate for any full Share requested.
6. As of each Trust Business Day the Transfer Agent shall furnish the Trust
with an advice setting forth the number and dollar amount of Shares of each
series of the Trust to be redeemed on such Trust Business Day in accordance with
paragraph 2 of this Article.
7. Upon receipt of a proper redemption request and moneys paid to it by the
Custodian in connection with a redemption of Shares, the Transfer Agent shall
cancel the redeemed Shares and after making appropriate deduction for any
withholding of taxes required of it by applicable law (a) in the case of a
redemption of Shares pursuant to a redemption described in preceding paragraph
1(a) of this Article, make payment in accordance with the Trust's redemption and
payment procedures described in the Prospectus, and (b) in the case of a
redemption of Shares pursuant to a computer tape or electronic data transmission
described in preceding paragraph 1(b) of this Article, make payment by directing
a federal funds wire order to the account previously designated by the Approved
Institution specified in said computer tape or electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares after it
has received from an Officer of the Trust or from an appropriate federal or
state authority written notification
that the sale of Shares has been suspended or discontinued, and the Transfer
Agent shall be entitled to rely upon such written notification.
9. Upon the issuance of any Shares in accordance with this Agreement, the
Transfer Agent shall not be responsible for the payment of any original issue or
other taxes required to be paid by the Trust in connection with such issuance of
any Shares.
10. The Transfer Agent shall accept a computer tape or electronic data
transmission consistent with the Transfer Agent's tape layout package, as
amended from time to time, which is reasonably believed by the Transfer Agent to
be furnished by or on behalf of any Approved Institution and is represented to
be instructions with respect to the transfer of Shares from one account of such
Approved Institution to another such account, and shall effect the transfers
specified in said computer tape or electronic data transmission. The Transfer
Agent shall not be liable for any losses to the Trust or its shareholders in the
event that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or transmission is
found to be incorrect.
11. (a) Except as otherwise provided in paragraph (b) of this Section 11
and in Section 13 of this Article, Shares will be transferred or redeemed upon
presentation to the Transfer Agent of Share certificates or instructions
properly endorsed for transfer or redemption, accompanied by such documents as
the Transfer Agent deems necessary to evidence the authority of the person
making
such transfer or redemption, and bearing satisfactory evidence of the payment of
share transfer taxes. In the case of small estates where no administration is
contemplated, the Transfer Agent may, when furnished with an appropriate surety
bond, and without further approval of the Trust, transfer or redeem Shares
registered in the name of a decedent where the current market value of the
Shares being transferred does not exceed such amount as may from time to time be
prescribed by various states. The Transfer Agent reserves the right to refuse to
transfer or redeem Shares until it is satisfied that the endorsement on the
share certificate or instructions is valid and genuine, and for that purpose it
will require, unless otherwise instructed by an authorized officer of the Trust,
a guarantee of signature by an "Eligible Guarantor Institution" as that term is
defined by SEC Rule 17Ad-l5. The Transfer Agent 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 the
Transfer Agent, in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis to any claims adverse to such transfer or
redemption. The Transfer Agent may, in effecting transfers and redemptions of
Shares, rely upon those provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time, applicable to the transfer of securities, and the
Trust shall indemnify the Transfer Agent for any act done or omitted by
it in good faith in reliance upon such laws, except that in no event will the
Trust indemnify the Transfer Agent against any liability arising directly or
indirectly out of any willful misfeasance, bad faith or negligence by the
Transfer Agent or reckless disregard by the Transfer Agent of its duties
hereunder.
(b) Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, the Transfer Agent shall be fully protected by
the Trust in not requiring any instruments, documents, assurances, endorsements
or guarantees, including, without limitation, any signature guarantees, in
connection with a redemption, or transfer, of Shares whenever the Transfer Agent
reasonably believes that requiring the same would be inconsistent with the
transfer and redemption procedures as described in the Prospectus.
12. Notwithstanding any provision contained in this agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to Section 11 of this Article
or any redemption of any Shares pursuant to a computer tape or electronic data
transmission described in this Agreement, any documents, including, without
limitation, any documents of the kind described in paragraph (a) of Section 11
of this Article, 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.
13. (a) As used in this Agreement, the terms "computer tape" or electronic
data transmission and "computer tape believed by the Transfer Agent to be
furnished by an Approved Institution", shall include any tapes generated by the
Transfer Agent to reflect information believed by the Transfer Agent to have
been input by an Approved Institution, via a remote terminal or other similar
link, into a data processing, storage, or collection system, or similar system
(the "System"), located on the Transfer Agent's premises. For purposes of
Section 1 of this Article, such a computer tape or electronic data transmission
shall be deemed to have been furnished at such times as are agreed upon from
time to time by the Transfer Agent and the Trust only if the information
reflected thereon was input to the System at such times as are agreed upon from
time to time by the Transfer Agent and the Trust.
(b) Nothing contained in this Agreement shall constitute any agreement
or representation by the Transfer Agent to permit, or to agree to permit, any
Approved Institution to input information to a System.
(c) The Transfer Agent reserves the right to approve, in advance, any
Approved Institution, such approval not to be unreasonably withheld. The
Transfer Agent also reserves the right to terminate any and all automated data
communications, at its discretion, upon a reasonable attempt to notify the Trust
when in the opinion of the Transfer Agent continuation of such communications
would jeopardize the accuracy and/or integrity of the Trust's records on the
System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Trust shall furnish to the Transfer Agent a copy of a resolution of
its Board of Trustees or of its Dividend committee, as the case may be,
certified by the Secretary or any Assistant Secretary of the Trust, either (i)
setting 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 the Transfer Agent on such payment date, or
(ii) authorizing the declaration of dividends and distributions on a daily or
other periodic basis and authorizing the Transfer Agent to rely on a Certificate
setting forth the information described in clause (i) of this Section.
2. Upon the mail date specified in such Certificate or resolution, as the
case may be, the Trust shall, in the case of a cash dividend or distribution,
cause the Custodian to deposit in an account in the name of the Transfer Agent
on behalf of the applicable series of the Trust an amount of cash, if any,
sufficient for the Transfer Agent 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. The Transfer Agent will,
upon receipt of any such cash, make payment of such cash dividends or
distributions to the
shareholders of record as of the record date by: (i) mailing a check, payable to
the registered shareholder, to the address of record or dividend mailing
address, or (ii) wiring such amounts to the accounts previously designated by an
Approved Institution, as the case may be. The Transfer Agent shall not be liable
for any improper payments made in good faith and without negligence, in
accordance with a Certificate or resolution described in the preceding
paragraph. If the Transfer Agent shall not receive from the Custodian sufficient
cash to make payments of any cash dividend or distribution to all shareholders
of the Trust or applicable series of the Trust as of the record date, the
Transfer Agent shall, upon notifying the Trust, withhold payment to all
shareholders of record as of the record date until sufficient cash is provided
to the Transfer Agent.
3. It is understood that the Transfer 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. It is expressly agreed and understood
that the Transfer Agent is not liable for any loss as a result of processing a
distribution based on information provided in the Certificate that is incorrect.
The Trust agrees to pay the Transfer Agent for any and all costs, both direct
and out-of-pocket expenses, incurred in such corrective work as necessary to
remedy such error.
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividend and capital gain
distributions with the proper federal, state and local authorities as are
required by law to be filed by the Trust
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 law.
ARTICLE VII
CONCERNING THE TRUST
1. The Trust represents to the Transfer Agent that:
(a) It is a business trust duly organized and existing under the laws
of the State of Delaware.
(b) It is empowered under applicable laws and by its Declaration and
By-Laws to enter into and, perform this Agreement.
(c) All requisite action has been taken to authorize it to enter into
and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933, as
amended, with respect to the Shares is effective. The Trust shall notify the
Transfer Agent if such registration statement or any state securities
registrations have been terminated or a stop order has been entered with respect
to the Shares.
2. The Trust shall promptly deliver to the Transfer Agent written notice of
any change in the Officers authorized to sign Share Certificates, notifications
or requests, together with a specimen signature of each new Officer. In the
event any Officer who shall have signed manually or whose facsimile signature
shall have been affixed to blank Share certificates shall die, resign or
be removed prior to issuance of such Share certificates, the Transfer Agent may
issue such Share certificates of the Trust notwithstanding such death,
resignation or removal, and the Trust shall promptly deliver to the Transfer
Agent such approval, adoption or ratification as may be required by law.
3. It shall be the sole responsibility of the Trust to deliver to the
Transfer Agent the Trust's currently effective Prospectus and, for purposes of
this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in such Prospectus until a reasonable time after it is
actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Trust that:
(a) It is a corporation duly organized and existing under the laws of
the State of Delaware.
(b) It is empowered under applicable law and by its Charter and
By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section l7A of the
Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or made
by an Officer of the Trust
or person designated by the Trust and shall not be held to have any notice of
any change of authority of any person until receipt of written notice thereof
from the Trust or such person. It shall also be protected in processing Share
certificates which bear the proper countersignature of the Transfer Agent and
which it reasonably believes to bear the proper manual or facsimile signature of
the Officers of the Trust.
3. The Transfer Agent upon notice to the Trust may establish such
additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in Schedule
II hereto in the form and manner, and for such period, as it may deem advisable
and is agreeable to the Trust but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules 31a-2
and 31a-3 under the Investment Company Act of 1940, as amended. The Transfer
Agent acknowledges that such records are the property of the Trust. The Transfer
Agent may deliver to the Trust from time to time at its discretion, for
safekeeping or disposition by the Trust in accordance with law, such records,
papers, documents accumulated in the execution of its duties as such Transfer
Agent, as the Transfer Agent may deem expedient, other than those which the
Transfer Agent is itself required to maintain pursuant to applicable laws and
regulations. The Trust shall assume all responsibility for any failure
thereafter to produce any record,
paper, cancelled Share certificate, or other document so returned, if and when
required. The records specified in Schedule II hereto maintained by the Transfer
Agent pursuant to this Section 4, which have not been previously delivered to
the Trust pursuant to the foregoing provisions of this Section 4, shall be
considered to be the property of the Trust, shall be made available upon request
for inspection by the officers, employees, and auditors of the Trust, and
records shall be delivered to the Trust upon request and in any event upon the
date of termination of this Agreement, as specified in Article IX of this
Agreement, in the form and manner kept by the Transfer Agent on such date of
termination or such earlier date as may be requested by the Trust.
5. The Transfer Agent shall not be liable for any loss or damage, including
counsel fees, resulting from its actions or omissions to act or otherwise,
except for any loss or damage arising out of its bad faith, negligence, willful
misfeasance, gross negligence or reckless disregard of its duties under this
Agreement.
6a. The Trust shall indemnify and exonerate, save and hold harmless the
Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorney's fees)
and liabilities of any and every nature which the Transfer Agent may sustain or
incur or which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be taken by any prior
transfer agent of the Trust or as a result of any action taken or omitted to be
taken by the Transfer Agent,
without negligence or willful misconduct, in good faith reliance upon (i) any
provision of this Agreement; (ii) the Prospectus; (iii) any instruction or order
including, without limitation, any computer tape or electronic data transmission
reasonably believed by the Transfer Agent to have been received from an Approved
Institution; (iv) any instrument, order or Share certificate reasonably believed
by it to be genuine and to be signed, countersigned or executed by any duly
authorized Officer of the Trust; (v) any Certificate or other instructions of an
Officer; or (vi) any opinion of legal counsel for the Trust or the Transfer
Agent. The Trust shall indemnify and exonerate, save and hold the Transfer Agent
harmless from and against any and all claims (whether with or without basis in
fact or law), demands, expenses (including reasonable attorney's fees) and
liabilities of any and every nature which the Transfer Agent may sustain or
incur or which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be taken by the
Transfer Agent in connection with its appointment hereunder and in good faith
reliance upon any law, act, regulation or any interpretation of the same even
though such law, act or regulation may thereafter be altered, changed, amended
or repealed.
6b. The Transfer Agent shall not settle any claim, demand, expense or
liability for which it may seek indemnity pursuant to Section 6(a) above (each,
an "Indemnifiable Claim") without the express written consent of the President
of the Trust. The Transfer Agent shall notify the Trust within 15 days of
receipt of
notification of an Indemnifiable Claim, provided that the failure by the
Transfer Agent to furnish such notification shall not impair its right to seek
indemnification from the Trust unless the Trust is unable to adequately defend
the Indemnifiable Claim as a result of such failure, and further provided, that
if as a result of the Transfer Agent's failure to provide the Trust with timely
notice of the institution of litigation a judgment by default is entered, prior
to seeking indemnification from the Trust the Transfer Agent, at its own cost
and expense, shall open such judgment. The Trust shall have the right to defend
any Indemnifiable Claim at its own expense, provided that such defense shall be
conducted by counsel selected by the Trust and reasonably acceptable to the
Transfer Agent. The Transfer Agent may join in such defense at its own expense,
but to the extent that it shall so desire the Trust shall direct such defense.
The Trust shall not settle any Indemnifiable Claim without the express written
consent of the Transfer Agent if the Transfer Agent determines that such
settlement would have an adverse effect on the Transfer Agent beyond the scope
of this Agreement. In such event, each of the Trust and the Transfer Agent shall
be responsible for their own defense at their own cost and expense, and such
claim shall not be deemed an Indemnifiable Claim hereunder. If the Trust shall
fail or refuse to defend an Indemnifiable Claim, the Transfer Agent may provide
its own defense at the cost and expense of the Trust. Anything in this Agreement
to the contrary notwithstanding, the Trust shall not indemnify the Transfer
Agent against any liability or expense arising out of the Transfer
Agent's willful misfeasance, bad faith, negligence or reckless disregard of its
duties and obligations under this Agreement. The Transfer Agent shall indemnify
and hold the Trust 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 the Transfer Agent
as a result of the Transfer Agent's willful misfeasance, lack of good faith,
negligence, gross negligence or reckless disregard of its duties and obligations
under this Agreement.
7. The Transfer Agent shall not be liable to the Trust with respect to any
redemption draft on which the signature of the drawer is forged and which the
Trust's Custodian or Cash Management bank has advised the Transfer Agent to
honor the redemption; nor shall Transfer Agent be liable for any material
alteration or absence or forgery of any endorsement, it being understood that
the Transfer Agent's sole responsibility with respect to inspecting redemption
drafts is to use reasonable care to verify the drawer's signature against
signatures on file.
8. There shall be excluded from the consideration of whether the Transfer
Agent has been negligent or has breached this Agreement, any period of time, and
only such period of time, during which the Transfer Agent's performance is
materially affected, by reason of circumstances beyond its control including,
without limitation (except as provided below), mechanical breakdowns of
equipment (including any alternative power supply and operating systems
software), flood or catastrophe, acts of
God, failures of transportation, communication or power supply, strikes,
lockouts, work stoppages or other similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of the Trust for
written instructions with respect to any matter arising in connection with the
Transfer Agent's duties and obligations under this Agreement, and the Transfer
Agent shall not be liable for any action taken or permitted by it in good faith
in accordance with such written instructions. Such application by the Transfer
Agent for written instructions from an Officer of the Trust may set forth in
writing any action proposed to be taken or omitted by the Transfer Agent with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken. The Transfer Agent shall not be liable
for any action taken or omitted in accordance with a proposal included in any
such application on or after the date specified therein unless, prior to taking
or omitting any such action, the Transfer Agent has received written
instructions in response to such application specifying the action to be taken
or omitted. The Transfer Agent may consult counsel of the Trust, or upon notice
to the Trust, its own counsel, at the expense of the Trust and shall be fully
protected with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of counsel to the Trust or its own
counsel.
10. The Transfer Agent may issue new Share certificates in place of
certificates represented to have been lost, stolen, or destroyed upon receiving
written instructions from the shareholder accompanied by proof of an indemnity
or surety bond issued by a
recognized insurance institution specified by the Trust or the Transfer Agent.
The Transfer Agent may also reissue certificates which are represented as lost,
stolen, or destroyed without requiring a surety bond provided that the
notification is in writing and accompanied by an indemnification signed on
behalf of a member firm of the New York Stock Exchange and signed by an officer
of said firm with the signature guaranteed. Notwithstanding the foregoing, the
Transfer Agent will reissue a certificate upon written authorization from an
Officer of the Trust.
11. In case of any requests or demands for the inspection of the
shareholder records of the Trust, the Transfer Agent will endeavor to notify the
Trust promptly and to secure instructions from an Officer as to such inspection.
The Transfer Agent reserves the right, however, to exhibit the shareholder
records to any person whenever it receives an opinion from its counsel that
there is a reasonable likelihood that the Transfer Agent will be held liable for
the failure to exhibit the shareholder records to such person; provided,
however, that in connection with any such disclosure the Transfer Agent shall
promptly notify the Trust that such disclosure has been made or is to be made.
12. At the request of an Officer of the Trust the Transfer Agent will
address and mail such appropriate notices to shareholders as the Trust may
direct.
13. Notwithstanding any of the foregoing provisions of this Agreement, the
Transfer Agent shall be under no duty or obligation 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 (provided, however, that nothing contained
in this paragraph (a) shall relieve the Transfer Agent of its obligations set
forth in Article V, Section 2), or the authority of the Approved Institution or
of the Trust, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a redemption of any
Shares, the propriety of the amount to be paid therefor (provided, however, that
nothing contained in this paragraph (b) shall relieve the Transfer Agent of its
obligations set forth in Article V, Section 2), or the authority of the Approved
Institution or of the Trust, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the Trust, 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.
14. The Transfer Agent shall be entitled to receive and the Trust hereby
agrees to pay to the Transfer Agent for its performance hereunder, including its
performance of the duties and functions set forth in Schedule I hereto, (i) its
reasonable out-of-pocket expenses (including reasonable legal expenses and
attorney's fees) incurred in connection with its performance hereunder and (ii)
such compensation as may be agreed upon in writing from time to time by the
Transfer Agent and the Trust.
15. The Transfer Agent shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Transfer Agent.
16. Purchase and Prices of Services.
(a) The Trust will compensate the Transfer Agent for, and Transfer
Agent will provide, beginning on the execution date of this Agreement and
continuing until the termination of this Agreement as provided hereinafter, the
Services set forth in Schedule I.
(b) The current unit prices for the Services are set forth in Schedule
III (the "Schedule III Fee Schedule"). The Schedule III Fees may be amended by
the mutual agreement of the Trust and the Transfer Agent. Notwithstanding the
foregoing, the Transfer Agent may increase prices due to changes in legal or
regulatory requirements subject to the approval of the Trust, which approval
shall not be unreasonably withheld.
17. Billing and Payment.
(a) The Transfer Agent shall xxxx the Trust as follows: (i) monthly in
arrears for Accounts maintained and in arrears for any Out-of-Pocket Expenses
incurred by the Transfer Agent, provided, however, that with respect to
Out-of-Pocket Expenses the Transfer Agent shall provide the Trust monthly with
an amount to be advanced to the Transfer Agent for estimated postage expenses
for the following month. Documentation to support reconciliation of actual
postal charges will be provided to the Trust monthly.
The Transfer Agent may from time to time request the Trust to make additional
advances when appropriate.
(b) The Trust shall pay the Transfer Agent in immediately available
funds at United Missouri Bank in Kansas City, Missouri within thirty (30) days
of the date of the xxxx.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than ninety (90) days after the date of receipt of such
notice. In the event such notice is given by the Trust, it shall be accompanied
by a copy of a resolution of the Board of Trustees of the Trust, certified by
its 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 the Transfer Agent, the Trust, on or before the
termination date, shall deliver to the Transfer Agent a copy of a resolution of
its Board of Trustees certified by the Secretary or any Assistant Secretary
designating a successor transfer agent or transfer agents. In the absence of
such designation by the Trust, the Trust shall upon the date specified in the
notice of termination of this Agreement and delivery of the records maintained
hereunder, be deemed to be its own transfer agent and the Transfer Agent shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement.
In the event this Agreement is terminated as provided herein, the Transfer
Agent, upon the written request of the Trust, shall deliver the records of the
Trust on electromagnetic media to the Trust or its successor transfer agent. The
Trust shall be responsible to the Transfer Agent for the reasonable costs and
expenses associated with the preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1. The Trust agrees that prior to effecting any change in the Prospectus
which would increase or alter the duties and obligations of the Transfer Agent
hereunder, it shall advise the Transfer Agent of such proposed change at least
30 days prior to the intended date of the same, and shall proceed with such
change only if it shall have received the written consent of the Transfer Agent
thereto, which shall not be unreasonably withheld.
2. Any notice required or permitted to be given hereunder shall be deemed
given either: (a) when sent by registered or certified mail, postage prepaid,
addressed to the party to whom notice is being given at such party's address set
forth below, or at the last address furnished in writing by such party to the
other party; or (b) upon receipt by the party to whom notice is being given at
such party's address set forth below, or at the last address furnished in
writing by such party to the other party via overnight delivery.
If to the Trust, at:
Xxxxxx Xxxxxxxx Investment Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
With a copy to:
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Transfer Agent, at:
Supervised Service Company
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
With a copy to:
Supervised Service Company
000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
3. 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.
4. 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 the Transfer Agent may assign this Agreement to a corporate
affiliate with advance written notice to, and advance written consent by, the
Trust, which consent shall not be unreasonably withheld.
5. This Agreement shall be governed by and construed in accordance with the
laws of the State of Illinois.
6. 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.
7. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Trust, and no rights shall be granted to any other person
by virtue of this Agreement.
8. (a) The Transfer Agent will endeavor to assist in resolving shareholder
inquiries and errors relating to the period during which prior transfer agents
acted as such for the Trust. Any such inquiries or errors which cannot be
expediently resolved by the Transfer Agent will be referred to the Trust.
(b) The Transfer Agent shall be responsible for the safekeeping and
maintenance of only those transfer agency records, cancelled certificates and
correspondence of the Trust created or produced prior to the time of conversion
which are under its control and acknowledged in a writing to the Trust to be in
its possession. Any expenses or liabilities incurred by the Transfer Agent as a
result of shareholder inquiries, regulatory compliance or audits related to such
records and not caused as a result of Transfer Agent's bad faith, willful
malfeasance or negligence shall be the responsibility of the Trust as provided
in Article VIII herein.
10. The Trust and the Transfer Agent agree that the obligations of the
Trust under this Agreement will not be binding upon any of the Trustees of the
Trust, shareholders of the Trust, nominees, officers, employees or agents,
whether past, present or future, of the Trust, individually, but are binding
only upon the
assets and property of the Trust, as provided in the Declaration. The execution
and delivery of this Agreement have been authorized by the Trustees of the
Trust, and this Agreement has been signed by an authorized officer of the Trust,
acting as such, and neither the authorization by the Trustees nor the execution
and delivery by the officer will be deemed to have been made by them or any
shareholder of the Trust personally, but will bind only the property of the
Trust as provided in the Declaration. No series of the Trust will be liable for
any claims against any other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as the day and year
first above written.
Supervise Service Company, Inc. Xxxxxx Xxxxxxxx Investment
Trust
By:/s/ Xxxxxxx X. Xxxxxxxx By:/s/ Xxxxx X. Xxxxxxx
----------------------- --------------------
(Signature) (Signature)
Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx
----------------------- --------------------
(Name) (Name)
Vice President President
----------------------- --------------------
(Title) (Title)
1/6/94 Jan. 3, 1994
----------------------- --------------------
(Date Signed) (Date Signed)
SCHEDULE I
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such times as
the Trust and Transfer Agent may agree, Transfer Agent will provide the services
set forth below:
Examine and Process New Accounts, Subsequent Payments, Liquidations,
Exchanges, Telephone Transactions, Check Redemptions, Automatic Withdrawals,
Certificate Issuance, Wire Order Trades, Dividends, Dividend Statements, Dealer
Statements.
DAILY ACTIVITY
--------------
Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
Name and Address, including Zip Code
Balance of Uncertificated Shares
Balance of Certificated Shares
Certificate number, number of shares, issuance date of each certificate
outstanding and cancellation date for each certificate date for each
certificate 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 transactions can be accepted for this
account. Beneficial owner code, i.e. male, female, joint tenant, etc.
An alternate or "secondary" account number issued by a dealer (or bank,
etc.) to a customer for use, inquiry and transaction input by "remote
accessors"
FUNCTIONS
---------
Answer investor and dealer telephone and/or written inquiries, except those
concerning Trust policy, or requests for investment advice which will be
referred to the Trust, or those which the Trust chooses to answer
Deposit Trust share certificates into accounts upon receipt of instructions
from the investor or other authorized person, if issued
Examine and process transfers of shares insuring that all transfer
requirements and legal documents have been supplied
Process and confirm address changes
Process standard account record changes as required, i.e. Dividend Codes,
etc.
Microfilm source documents for transactions, such as account applications
and correspondence
Perform backup withholding for those accounts which federal government
regulations indicate is necessary
Perform withholdings on liquidations, if applicable, for employee benefit
plans. Prepare and mail 5498s and 1099R's
Solicit missing taxpayer identification numbers
Provide remote access inquiry to Trust records via Trust supplied hardware
(Trust responsible for connection line and monthly fee)
REPORTS PROVIDED
----------------
Daily Journals Reflecting all shares and
dollar activity for the
previous day
Blue Sky Report Supply information monthly for
Trust's preparation of Blue
Sky Reporting
N-SAR Report Supply monthly correspondence,
redemption and liquidation
information for use in Trust's
N-SAR Report
Additionally, monthly average daily balance reports will be provided at the
Trust's request to the Trust at no charge.
Prepare and mail copies of summary statements to dealers and investment
advisers
Generate and mail confirmation statements for financial transactions
DIVIDEND ACTIVITY
-----------------
Reinvest or pay in cash including reinvesting in other funds within the
fund group serviced by the Transfer Agent as described in the Trust's
prospectus
Distribute capital gains simultaneously with income dividends
DEALER SERVICES
---------------
Prepare and mail confirmation statements to dealers daily
Prepare and mail copies of statements to dealers, same frequency as
investor statements
SHAREHOLDER MEETINGS
--------------------
Assist Trust in obtaining a qualified service to: address and mail proxies
and related material, tabulate returned proxies and supply daily reports
when sufficient proxies have been received
Prepare certified list of stockholders, hard copy or microform
PERIODIC ACTIVITIES
-------------------
Mail transaction confirmation statements daily to investors
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably specified
by the Transfer Agent)
Mail periodic statements 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 Trust in statement
mailings, i.e. monthly and quarterly statements (material must be adaptable
to mechanical equipment as reasonably specified by the Transfer Agent)
SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
- Account applications
- Cancelled 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 share certificates and
checks
- Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
SCHEDULE III
FEE SCHEDULE
XXXXXX XXXXXXXX INVESTMENT TRUST
Annual Fee Minimum Annual
Per Account Fee per Series
International Equity Fund $25.00 $10,000
Global Equity Fund $25.00 $10,000
European Equity Fund $25.00 $10,000
Pacific Basin Equity Fund $25.00 $10,000
International Small Cap Equity
Fund $25.00 $10,000
Japanese Small Cap Equity Fund $25.00 $10,000
European Small Cap Equity Fund $25.00 $10,000
Emerging Markets Equity Fund $25.00 $10,000
Global Fixed Income Fund $25.00 $10,000
Internal Fixed Income Fund $25.00 $10,000
Emerging Markets Fixed Income
Fund $25.00 $10,000
