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EXHIBIT 9.2
FORM OF TRANSFER AGENCY AGREEMENT
This Transfer Agency Agreement is made as of the 25th of
October, 1997 between Time Horizon Funds, a Delaware Business Trust (herein
called the "Company"), having its principal office and place of business at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 and PFPC Inc., a Delaware
corporation having its principal office and place of business at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (herein called the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises herein
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 Company 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. "Board of Trustees" shall mean the Board of
Trustees of the Company.
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 Company which is signed by any Officer, as
hereinafter defined, and actually received by the Transfer Agent.
4. "Class" shall mean a subclass of shares within a
particular Fund.
5. "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(s).
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6. "Company Accountant" shall mean the entity appointed
as accountant under the terms and conditions of the Accounting Services
Agreement between the entity and the Company, or its successor(s).
7. "Company Business Day" shall be deemed to be each day
the Company is open for trading.
8. "Manager" shall mean Bank of America, NT&SA, acting
under the terms and conditions of the Management Agreement and includes any
successor and assigns.
9. "Officer" shall be deemed to be the Company's
Chairman of the Board, the Company's President, any Vice President of the
Company, any Assistant Vice President of the Company, the Company's Secretary,
the Company's Treasurer, the Company's Controller, any Assistant Controller of
the Company, any Assistant Treasurer of the Company, any Assistant Secretary of
the Company, and any other person duly authorized by the Board of Trustees of
the Company to execute any Certificate, instruction, notice or other instrument
on behalf of the Company 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.
10. "Prospectus" shall mean with respect to a Class of
Shares, the last Company prospectus actually received by the Transfer Agent
from the Company with respect to such Class of Shares and with respect to which
the Company has indicated a Registration Statement under the Securities Act of
1933, as amended, has become effective, including the Statements of Additional
Information, incorporated by reference therein.
11. "Funds" shall mean the various portfolios of the
Company as described from time to time in the current and effective
Prospectuses.
12. "Shares" shall mean all or any part of each Class of
shares of beneficial interest in the Company listed in the Certificate, attached
hereto as Appendix B, as may be amended from time to time, which are from time
to time authorized and/or issued by the Company.
13. "Transfer Agent" shall mean PFPC Inc., as transfer
agent and dividend disbursing agent under the terms
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and conditions of this Agreement, its successor(s) or assign(s).
14. "Out-of-Pocket Expenses" means amounts reasonably
necessary and actually paid to third parties by the Transfer Agent in the
provision of the Transfer Agent services or pursuant to this Agreement. Such
amounts will not include charges of legal counsel, but will otherwise include
amounts paid for the following purposes: (i) postage and all freight and other
delivery and bonding charges incurred by the Transfer Agent in delivering
materials to and from the Company and in delivering all materials to
shareholders; (ii) all direct telephone, telephone transmission, telecopy, or
other electronic transmission expenses incurred by the Transfer Agent in
communication with the Company's dealers, shareholders or others, as required
for the Transfer Agent to perform the services to be provided hereunder; (iii)
all charges related to the settlement of shareholder transactions, including
but not limited to NSCC/FUND SERV charges, bank wire charges, and checking
account charges; (iv) charges associated with satisfying Internal Revenue
Service tax reporting requirements; (v) expenses associated with Securities and
Exchange Commission examinations of Company books and records; (vi) paper
stocks and printing costs for statements, checks, envelopes, tax and other
forms; and (vii) such other expenses paid or incurred by Transfer Agent on
behalf of the Company at the request of the Manager.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Company hereby appoints the Transfer Agent as
transfer agent and as dividend disbursing agent of all the Shares of the
Company.
2. (a) The Transfer Agent hereby accepts appointment
as transfer agent and dividend disbursing agent and agrees to perform the
duties thereof as herein set forth, including those duties set
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forth in Schedule I(a) hereto.
(b) The services and specific capabilities to be
provided under this Agreement by the Transfer Agent shall include those
specifically listed in this Agreement.
3. Upon the request of the Transfer Agent, the Company
shall deliver the following documents to the Transfer Agent:
(a) A copy of the Declaration of Trust of
the Company and all amendments thereto certified by the Secretary of the
Company;
(b) A copy of the By-Laws of the Company
certified by the Secretary of the Company;
(c) A copy of a resolution of the Board of
Trustees of the Company certified by the Secretary of the Company appointing
the Transfer Agent and authorizing the execution of this Transfer Agency
Agreement;
(d) A Certificate signed by the Secretary or any
Assistant Secretary of the Company specifying with respect to each Class or
Fund, the number of authorized Shares, the number of such authorized Shares
issued, and the number of such authorized Shares issued and currently
outstanding; the names and specimen signatures of the Officers of the Company;
and the name and address of the legal counsel for the Company;
(e) 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 of 1933, as amended, and under the
Investment Company Act of 1940, as amended, together with any applications
filed in connection therewith; and
(f) Opinion of counsel for the Company 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).
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ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. Prior to the issuance of any additional Shares of the
Company pursuant to actions such as stock dividends or stock splits, and prior
to any reduction in the number of Shares outstanding, the Company 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 Company authorizing
such issuance of additional Shares of the Company or such reduction, as the
case may be; and
(b) a representation from the Company that such
action has been properly authorized;
2. The Company is authorized to issue an unlimited
number of shares of Class A, Class B and Class K shares of Time Horizon
Portfolio 1, Time Horizon Portfolio 2 and Time Horizon Portfolio 3.
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ARTICLE IV
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. The Transfer Agent acknowledges that it has received
a copy of the Company's Prospectuses with respect to its currently authorized
Funds and Classes of Shares, which Prospectuses describe how sales and
redemption of Shares of the Company shall be made, and the Transfer Agent
agrees to accept purchase orders and redemption requests with respect to
Company Shares on each Company Business Day in accordance with such
Prospectuses. The Company agrees to notify the Transfer Agent as soon as
possible under the circumstances of any changes in the procedures set forth in
the Prospectus regarding such purchase and redemption procedures.
2. On each Company Business Day, a duly authorized
officer or employee of the Transfer Agent shall furnish the following
information by telephone call to an Officer of the Company or by such other
form to such other person as shall be agreed upon from time to time by the
Company and the Transfer Agent:
(a) The total dollar amount to be applied to the
purchase of Shares of each Class or Fund on such day, computed by aggregating
the amount so specified in such of the purchase orders described in paragraph 1
of this Article IV with respect to which payment has been, or will
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be, credited by the Custodian to the Company's custody account with the
Custodian on such day. The Transfer Agent shall also accept with respect to
each Company Business Day, at such times as are agreed upon from time to time
by the Transfer Agent and the Company, a computer tape consistent in all
respects with the Transfer Agent's tape layout package, as amended from time to
time, upon prior written notice to the Company or its Distributor, 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 loss or damage to
the Company 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.
(b) The total dollar amount of Shares of each
Class or Fund to be redeemed on such day, computed by aggregating the amount so
specified in (i) such of the redemption requests described in paragraph 1 of
this Article IV with respect to which the amount payable as redemption proceeds
has been, or will be, charged by the Custodian on such day, and (ii) all
computer tapes described in paragraph 2(a) of this Article IV with respect to
which the amount payable as redemption proceeds has been, or will be, charged
by the Custodian on such day.
3. On each Company Business Day, the Transfer Agent
shall, as of the time at which the Company computes the net asset value of each
Class or Fund of the Company, issue to and redeem from the shareholder accounts
specified in a purchase order, redemption request or computer tape, which in
accordance with the Prospectuses is effective on such Company Business Day, the
appropriate number of full and fractional Shares based on the net asset value
per Share of such Class or Fund specified in an advice received on such Company
Business Day from the Company or the Company Accountant. Notwithstanding the
foregoing, if a redemption specified in a computer tape 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 (24) hours orally advise the Approved
Institution which supplied such tape of the discrepancy.
4. In connection with a reinvestment of a dividend or
distribution on Shares of any Class or Fund of the Company, the Transfer Agent
shall, as of each Company
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Business Day, as specified in a Certificate or resolution described in
paragraph 1 of Article V, issue Shares of a Class or Fund to the appropriate
shareholder account, based on the net asset value per Share of such Class or
Fund specified in an advice received from the Company or its Company Accountant
on such Company Business Day.
5. On each Company Business Day, the Transfer Agent
shall supply the Company Accountant with a statement specifying with respect to
the immediately preceding Company Business Day (or the same day if a money
market portfolio): the total number of Shares of each Class or Fund (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of each Class or Fund sold on such day,
pursuant to paragraph 3 of this Article IV; the total number of Shares of each
Class or Fund redeemed by the Transfer Agent on such day; the total number of
Shares of each Class or Fund, if any, sold on such day pursuant to paragraph 4
of this Article IV; and the total number of Shares of each Class or Fund issued
and outstanding.
6. In connection with each purchase and each redemption
of Shares, and each reinvestment of a dividend or distribution of Shares, the
Transfer Agent shall send to the affected shareholder such statements as are
prescribed by the federal securities laws applicable to transfer agents and as
are described in the applicable Prospectuses. If the Prospectuses indicate
that certificates for Shares are available and if specifically requested in
writing by any shareholder, or if otherwise required hereunder, the Transfer
Agent shall countersign, issue and mail by first-class mail to such shareholder
at the address set forth in the records of the Transfer Agent, a Share
certificate for any full Shares requested.
7. With respect to each Company Business Day, the
Transfer Agent shall furnish the Custodian on such Company Business Day or the
next Company Business Day (in accordance with the prospectus) with a written
statement (which may be by facsimile transfer) setting forth the number and
dollar amount of each Class or Fund of Shares to be redeemed on such Company
Business Day in accordance with paragraph 3 of this Article IV.
8. 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 may make payment for redeemed shares prior to receipt of
moneys from the
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Custodian), the Transfer Agent shall cancel any Shares certificates relating to
such redeemed Shares or make an equivalent designation on the appropriate
records with respect to any uncertificated Shares relating to such 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 paragraph 1 of this Article IV, make
payment in accordance with the Company's redemption and payment procedures
described in the Prospectuses, and (b) in the case of a redemption of Shares
pursuant to a computer tape described in paragraph 2(b) of this Article IV,
make payment by directing a federal funds wire order to the account previously
designated by the Approved Institution specified in the computer tape.
9. The Transfer Agent shall not be required to issue any
Shares after it has received from an Officer of the Company 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.
10. 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 Company in
connection with such issuance of any Shares.
11. The Transfer Agent shall accept a computer tape
consistent with the Transfer Agent's tape layout package, as amended from time
to time upon prior notice to the Company or the Distributor, which is
reasonably believed by the Transfer Agent to be furnished by or on behalf of
an 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.
The Transfer Agent shall not be liable for any losses to the Company 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.
12. (a) Except as otherwise provided in sub-paragraph
(b) of this paragraph and in paragraph 14 of this Article IV, Shares shall be
transferred or redeemed
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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 any 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 other appropriate information requested by the
Transfer Agent, and without further approval of the Company, 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 Company (which instruction shall not prohibit the Transfer Agent from
requesting a signature guarantee from a participant in a Medallion Program
approved by the Security Transfer Association), a guarantee of signature,
acceptable to the Transfer Agent and in compliance with applicable law. 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 and as is
applicable to the transfer in question, and the Company shall indemnify the
Transfer Agent for any act performed or omitted by it in good faith in reliance
upon such laws.
(b) Notwithstanding the foregoing or any other
provision contained in this Agreement to the contrary, the Transfer Agent shall
be fully protected by the Company in the event the Transfer Agent does not
require 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
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requiring the same would be inconsistent with the transfer and redemption
procedures as described in the applicable Prospectus.
13. 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 paragraph
12 of this Article IV or any redemption of any Shares pursuant to a computer
tape described in this Agreement, any documents, including, without limitation,
any documents of the kind described in sub-paragraph (a) of paragraph 12 of
this Article IV, to evidence the authority of the person requesting the
transfer or redemption and/or the payment of any share transfer taxes, and
shall be fully protected in acting in accordance with the applicable provisions
of this Article IV.
14. (a) As used in this Agreement, the terms
"computer tape" and "computer tape believed by the Transfer Agent to be
furnished by an Approved Institution" shall include any tape or electronic
transmission 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 or utilized by the Transfer Agent. For purposes of paragraph 2 of
this Article IV, such computer tape shall be deemed to have been furnished at
such times as are agreed upon from time to time by the Transfer Agent and
Company only if the information reflected thereon was input into the System at
such times as are agreed upon from time to time by the Transfer Agent and the
Company.
(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 into 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 Company when in the opinion of the Transfer Agent
continuation of such communications would jeopardize the accuracy and/or
integrity of the Company's records on the System.
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15. Any interest or other earnings on bank cash balances
or otherwise in connection with purchases or redemptions of Shares, dividends
payable with respect to Shares or on any other "float" with respect to the
Company shall be for the benefit and account of the Company."
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
1. The Company shall furnish to the Transfer Agent a
copy of a resolution of its Board of Trustees, certified by the Secretary or
any Assistant Secretary, either (i) setting forth with respect to a Class or
Fund of Shares 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 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 subsection (i) of this paragraph.
2. Upon the payment date specified in such Certificate
or resolution, the Company shall, in the case of a cash dividend or
distribution, cause the Custodian to pay to the Transfer Agent an amount of
cash, if any, sufficient for the Transfer Agent to make the payment, if any, as
of the payment date, specified in such Certificate or resolution, to the
shareholders who were of record on the record date who are entitled to receive
the cash dividend or distribution. The Transfer Agent shall, 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 transmitting payment through the Automated Clearing House System,
(ii) wiring such amounts, or transmitting such amounts through the Automated
Clearing House System, to the accounts previously designated by an Approved
Institution, or (iii) other appropriate means as provided in the applicable
Fund's prospectus. The Transfer Agent shall not be liable for any improper
payments made in good faith and without negligence, in accordance with a
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Certificate or resolution described in the preceding paragraph. If the
Transfer Agent shall not receive from the Custodian sufficient cash to make
payment of any cash dividend or distribution to all shareholders of a Class or
Fund of Shares of the Company as of the record date who are entitled to receive
the cash dividend or distribution, the Transfer Agent shall, upon notifying the
Company, 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 or
by a Company Accountant that is incorrect. The Company 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 Company 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. To the extent such collection or withholding of taxes is
required of the Transfer Agent, it shall pay on a timely basis to the
appropriate authority any amounts required to be remitted to the authority.
ARTICLE VI
CONCERNING THE COMPANY
1. The Company 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 of Trust and By-Laws to enter into and perform this
Agreement.
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(c) All requisite corporate proceedings have been
held to authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under
the Investment Company Act of 1940 (the "1940 Act"), as amended.
(e) A registration statement under the Securities
Act of 1933, as amended, with respect to the Shares is effective. The Company
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. Each copy of the Declaration of Trust of the Company
and any amendment thereto provided by the Company to the Transfer Agent shall be
certified by the Secretary of State (or other appropriate official) of the state
of organization, and if such Articles of Incorporation and/or amendments are
required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Transfer Agent. Each copy of the Declaration of Trust and
By-Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Trustees of the Company, shall be certified by the Secretary or
Assistant Secretary of the Company.
3. It shall be the sole responsibility of the Company to
deliver to the Transfer Agent the Company's currently effective Prospectuses
and, for purposes of this Agreement, the Transfer Agent shall not be deemed to
have notice of any information contained in such Prospectuses until they are
actually received by the Transfer Agent.
ARTICLE VII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the
Company 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.
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(c) All requisite corporate proceedings have been
held to authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent
under Section 17A of the Securities Exchange Act of 1934, as amended. The
Transfer Agent shall promptly give written notice to the Company and the
Manager in the event that its registration is revoked or a proceeding is
commenced that could result in such revocation.
2. The Transfer Agent shall not be liable and shall be
indemnified in acting upon any computer tape, writing or document reasonably
believed by it to be genuine and to have been signed or made by the proper
person or persons 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
Company 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 Company.
3. The Transfer Agent upon notice to and consent of the
Company, which consent will not be unreasonably withheld, 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 Schedules I and II hereto in the form and manner and for such
period as it may deem advisable and is agreeable to the Company but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular Rules 31a-2 and 31a-3 under the 1940 Act, as
amended. The Transfer Agent may deliver to the Company from time to time at
its discretion, for safekeeping or disposition by the Company in accordance
with law, such records, papers, Share certificates which have been cancelled in
transfer, exchange or redemption, or other 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 required to maintain
pursuant to applicable laws and regulations. The Company shall assume all
responsibility for any failure thereafter to produce any record, paper,
cancelled Share certificate, or other document so returned, if and when
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required. The records maintained by the Transfer Agent pursuant to this
paragraph 4, which have not been previously delivered to the Company pursuant
to the foregoing provisions of this paragraph 4, 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 or other persons
authorized by the Company and shall be delivered to the Company upon request
and in any event upon the date of termination of this Agreement, as specified
in Article VIII 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 Company. Upon reasonable request by the Company, the Transfer Agent shall
provide in hard copy or on microfilm, whichever the Transfer Agent shall elect,
any records included in any such delivery which are maintained by the Transfer
Agent on a computer disk or are similarly maintained.
5. (a) 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 or reckless disregard of its duties
under this Agreement.
(b) Notwithstanding anything to the contrary,
neither the Transfer Agent nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not the
likelihood of such losses or damages was known by the Transfer Agent or its
affiliates.
6. In performing its services hereunder, the Transfer
Agent shall seek to attain the Performance Objectives set forth in Schedule III
hereto. The Transfer Agent's failure to meet any Transfer Agent performance
objective shall not in and of itself constitute willful misconduct or
negligence under this Agreement.
7. (a) The Company shall indemnify and hold harmless
the Transfer Agent, its officers, directors and employees from and against all
claims (whether with or without basis in fact or law), demands, expenses
(including attorneys' 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 as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith and without negligence or
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willful misconduct or in reliance upon (i) any provision of this Agreement;
(ii) the Prospectuses; (iii) any instruction or order including, without
limitation, any computer tape reasonably believed by the Transfer Agent to have
been received from an Approved Institution; (iv) any instrument or order
reasonably believed by it to be genuine and to be signed, countersigned or
executed by any duly authorized Officer of the Company; (v) any Certificate or
other instruction of an Officer; or (vi) any opinion of legal counsel for the
Company or the Transfer Agent. The Company shall indemnify and hold harmless
the Transfer Agent from and against all claims (whether with or without basis
in fact or law), demands, expenses (including attorneys' fees) and liabilities
of any 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 good faith
in connection with its appointment or in reasonable reliance upon any law, act,
regulation or any interpretation of the same even though such law, act or
regulation may have been altered, changed, amended or repealed thereafter.
(b) The Transfer Agent shall indemnify and hold
harmless the Company, its officers, directors and employees from and against
all claims (whether with or without basis in fact or law), demands, expenses
(including attorneys' fees) and liabilities of any and every nature which the
Company may sustain or incur or which may be asserted against the Company by
any person as a result of any action taken or omitted to be taken by the
Transfer Agent which constitutes bad faith, negligence, reckless disregard or
willful misfeasance or arising out of a failure of the Transfer Agent to comply
with this Agreement or a breach by the Transfer Agent of any representation or
warranty contained in this Agreement or the attached Exhibits or Schedules.
(c) Neither party ("Indemnified Party") shall
settle nor make any compromise of any claim, demand, expense or liability to
which it may seek indemnity pursuant to paragraph 7(a) or (b) of this Article
VII (each, an "Indemnifiable Claim") without the express written consent of the
other party ("Indemnifying Party"). The Indemnified Party shall notify the
Indemnifying Party within 15 days or a reasonable time (whichever is longer) of
receipt of notification of an Indemnifiable Claim, provided that the failure by
the Indemnified Party to furnish such notification shall not impair its right
to seek
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indemnification from the Indemnifying Party unless the Indemnifying Party's
ability to adequately defend the Indemnifiable Claim is impaired as a result of
such failure, and further provided, that if as a result of the Indemnified
Party failure to provide the Indemnifying Party with timely notice of the
initiation of litigation, a judgment by default is entered, prior to seeking
indemnification from the Indemnifying Party, the Indemnified Party, at its own
cost and expense, shall oppose such judgment. The Indemnifying Party 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 Indemnifying
Party and reasonably acceptable to the Indemnified Party. The Indemnified
Party may join in such defense at its own expense, but to the extent that it
shall so desire, the Indemnifying Party shall direct such defense. The
Indemnifying Party shall not settle any Indemnifiable Claim without the express
written consent of the Indemnified Party if the Indemnified Party determines
that such settlement would have an adverse effect on the Indemnified Party
beyond the scope of this Agreement. In such event, each of the Indemnifying
Party and the Indemnified Party 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 Indemnifying Party fails or refuses to
defend an Indemnifiable Claim, the Indemnified Party may provide its own
defense at the cost and expense of the Indemnifying Party.
(d) Notwithstanding any provision in this
Agreement to the contrary, the Indemnifying Party shall not indemnify the
Indemnified Party against any liability or expense arising out of the
Indemnified Party's negligence, willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement. The Indemnified Party shall indemnify and hold harmless the
Indemnifying Party from and against any and all claims (whether with or without
basis in fact or law), 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 Indemnified Party as a result of the Indemnified
Party's bad faith, negligence, willful misfeasance, gross negligence or
reckless disregard of its duties under this Agreement.
(e) Notwithstanding any provision in this
Agreement to the contrary, the Transfer Agent may not avoid liability under
this Agreement for any loss or damage by reason of its reliance on (i) a
Certificate signed by an
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Officer that is associated with or employed by the Transfer Agent or any of its
affiliates (an "Affiliated Officer"); (ii) any other instruction of an
Affiliated Officer or (iii) information provided by a Company Accountant that
is associated with or employed by the Transfer Agent or any of its affiliates
(an "Affiliated Company Accountant"), if such loss or damage was the result of
an Affiliated Officer's or an Affiliated Company Accountant's negligence,
willful misfeasance, bad faith, or reckless disregard of its duties and
obligations under this Agreement.
8. Excluded from the consideration of whether the
Transfer Agent has been negligent or has breached this Agreement shall be 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 (collectively, "Causes"), including without limitation 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. The obligations of the parties hereto under
paragraphs 2, 5, 6, 7 and 8 of Article VII shall survive termination of this
Agreement.
10. At any time, the Transfer Agent may apply to an
Officer of the Company that is not associated with or employed by the Transfer
Agent or any of its affiliates, 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 omitted 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 Company 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 with counsel of the Company, or upon notice to and consent of
the Company and Manager, its own counsel, at the
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expense of the Company 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 Company or its own counsel.
11. The Transfer Agent shall issue and mail subscription
warrants for Shares of capital stock, Shares representing stock dividends,
exchanges or splits, or act as conversion agent upon receiving written
instructions from an Officer and such other documents as the Transfer Agent may
deem necessary.
12. The Transfer Agent shall supply shareholder lists to
the Company upon receiving a request therefor from an Officer of the Company.
13. (a) The Transfer Agent shall treat confidentially
and as proprietary information of the Company records and other information
relative to the Company and to persons who are at any time shareholders of the
Company, and shall not use such records and information for any purpose other
than the performance of its responsibilities and duties hereunder. In case of
any request or demand for the inspection of the shareholder records of the
Company, the Transfer Agent shall to the extent permitted by applicable law
endeavor to notify the Company 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 may be exposed to
civil or criminal contempt proceedings or when requested to divulge information
and records to duly constituted authorities; provided, however, that in
connection with any such disclosure the Transfer Agent shall, to the extent
permitted by applicable law, promptly notify the Company and the Manager that
such disclosure has been made or is to be made.
(b) The Company shall treat confidentially and as
proprietary information relative to the Transfer Agent and shall not use such
information for any purposes other than the performance of its responsibilities
and duties hereunder.
(c) The obligations of confidentiality in Paragraphs
13(a) and (b) shall survive termination or cancellation of this Agreement and
shall not apply to any information which a party has in its possession when
disclosed to it by the other party, information which a party develops,
information which is or becomes known to the
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public other than by breach of this Agreement, or information rightfully
received by either party from a third-party without the obligation of
confidentiality.
14. At the request of an Officer of the Company, the
Transfer Agent shall address and mail such appropriate notices to shareholders
as the Company may direct.
15. 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, or the authority
of the Approved Institution or of the Company 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, or
the authority of the Approved Institution or of the Company 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 share dividend; or
(d) The legality of any recapitalization or
readjustment of Shares.
16. The Transfer Agent shall be entitled to receive and
the Company 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 legal
expenses and attorneys' 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 Company.
17. 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.
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18. Purchase and Price of Services.
(a) The Company shall compensate the Transfer
Agent for, and the Transfer Agent will provide, beginning on the execution date
of this Agreement and continuing until the termination of this Agreement as
provided herein, the Services set forth herein in Schedule I(a).
(b) The current unit prices for the Services
shall be as set forth in a separate fee letter (the "Fee Schedule"). At least
90 days prior to the end of each calendar year, the Transfer Agent may
negotiate with the Company to adjust the Fee Schedule for the following
calendar year upon the approval of the Board of Trustees of the Company.
Notwithstanding the above, at any time the Transfer Agent shall be entitled to
increased fees or one-time charges due to changes in legal or regulatory
requirements; provided that such increased fees or one-time charges shall be
subject to the approval of the Board of Trustees of the Company, which
approval shall not be unreasonably withheld.
19. Billing and Payment.
(a) The Transfer Agent shall xxxx the Company 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
Company 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 shall be provided to the Company
monthly. The Transfer Agent may from time to time request the Company to make
additional advances when appropriate.
(b) The Company shall pay the Transfer Agent in
immediately available funds at Wilmington, Delaware within thirty (30) days of
the date of the xxxx, provided the xxxx is received in proper order and on a
timely basis.
ARTICLE VIII
TERMINATION
1. Either of the parties hereto may terminate this
Agreement by giving to the other party notice in writing specifying the date of
such termination, which shall
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be not less than 90 days after the date of receipt of such notice.
Notwithstanding the foregoing, the Company may at any time terminate this
Agreement in accordance with the provisions of Schedule III hereto.
2. If either party fails to observe, keep or perform any
material term or condition of this Agreement, or if a voluntary or involuntary
petition is commenced by or against either party under Title 11 of the United
States Code or a party becomes insolvent, or should any substantial part of
either party's property be subject to any levy, seizure, assignment,
application or sale for or by any creditor or government agency, the other
party may terminate this Agreement in whole or in part. The party seeking to
terminate this Agreement shall give the other party written notice of any of
the foregoing claimed to be a basis for termination, and the Agreement shall
terminate 30 days after the receipt of the notice if the party receiving the
notice has then failed to correct or remedy the situation. The party charged
with alleged material breach may initiate the procedures in Article IX
Paragraph 5 and, in that case, termination shall not be effective during the
pendency of such procedures. In the event such notice is given by the Company,
it shall be accompanied by a copy of a resolution of the Board of Trustees of
the Company, certified by the Secretary or any Assistant Secretary, electing to
terminate this Agreement.
3. In the event such notice is given by the Transfer
Agent, the Company shall, on or before the termination date, deliver to the
Transfer Agent a copy of a resolution of its Board of Trustees certified by
the Secretary or an Assistant Secretary designating a successor transfer agent
or transfer agents. In the absence of such designation by the Company, the
Company 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.
4. In the event this Agreement is terminated as provided
herein, upon the written request of the Company, the Transfer Agent shall
deliver the records of the Company on electromagnetic media to the Company or
its successor transfer agent. The Company shall be responsible to the Transfer
Agent for the reasonable costs and expenses associated with the preparation and
delivery of such media, including copies of computer ready formats, to the
extent
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such costs were approved by the Company prior to such costs being incurred.
Upon termination as described in this Article VIII, for so long as the Transfer
Agent continues to perform any one or more of the services contemplated by this
Agreement or any Schedule hereto, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification, shall continue
in full force and effect. Fees and out-of-pocket expenses incurred by the
Transfer Agent but unpaid by the Company upon such termination shall be
immediately due and payable upon and notwithstanding such termination.
Subsequent to such termination, for a reasonable fee the Transfer Agent shall
provide the Company with reasonable access to any Company documents or records
remaining in its possession and previously provided to the Company.
ARTICLE IX
MISCELLANEOUS
1. Representatives of the Company's independent outside
auditors ("Auditors") shall have the right from time to time to perform on-site
audits at the facility of the Transfer Agent which do not result in an
unreasonable disruption of the business of the Transfer Agent. Such audits
shall be conducted in accordance with an audit program, the scope and frequency
of which shall be agreed upon from time to time in good faith by the parties.
The Auditors may obtain a reasonable number of copies of records and accounts
directly related to the services to be supplied hereunder by the Transfer
Agent. Except as provided in clause (c) below, nothing in this paragraph shall
be deemed to permit the Auditors to have access to any records or information
concerning (a) any other customer of the Transfer Agent, (b) the manner or
method used by the Transfer Agent in establishing the fees it charges any
customer, including the Company or (c) the Transfer Agent's internal operating
procedures, provided that the Transfer Agent shall permit officers or employees
of the Auditors to have access to such internal operating procedures to the
extent necessary for the proper completion of such audit, and the expression of
their unqualified opinion in the Company's semi-annual report on Form N-SAR and
the performance of any other services required by applicable law, provided such
Auditors have agreed to keep such internal operating procedures confidential
and treat such information as proprietary information of the Transfer Agent.
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2. During the term of this Agreement, at no additional
cost to the Company, the Transfer Agent shall provide a facility capable of
safeguarding the transfer agency and dividend disbursing records of the Company
in case of damage to the primary facility providing those services (the
"Back-Up Facility"). Transfer of the transfer agency and dividend records of
the Company to the Back-Up Facility shall be at the Transfer Agent's expense,
shall commence immediately after damage to the primary facility results in an
inability to provide the transfer agency and dividend disbursing services, and
shall be completed within 72 hours of commencement. After the primary facility
has recovered, the Transfer Agent shall again utilize it to provide the
transfer agency and dividend disbursing services to the Company at no
additional cost to the Company. The Transfer Agent shall use reasonable
efforts to provide the services described in this Agreement from the Back-Up
Facility.
3. The Transfer Agent represents that it has and is
currently registered as a transfer agent with the Securities and Exchange
Commission ("SEC") and has complied with the SEC's regulations for registered
transfer agents. The Transfer Agent agrees that it will continue to be
registered with the SEC as a transfer agent for the duration of this Agreement.
Should the Transfer Agent fail to be registered with the SEC as a transfer
agent at any time during this Agreement, the Company may, upon written notice
to the Transfer Agent, immediately terminate this Agreement.
4. The following procedures will be adhered to in all
disputes arising under this Agreement which the parties cannot resolve
informally. The aggrieved party shall notify the other party in writing of the
nature of the dispute with as much detail as possible about the deficient
performance of the other party. Representatives of the parties shall meet (in
person or by telephone) within seven days of the date of the written
notification to reach an agreement about the nature of the deficiency and the
corrective action to be taken by the respective parties. The representatives of
the parties shall produce a report about the nature of the dispute in detail to
their respective management. If the representatives of the parties are unable
to agree on corrective action, the managers to whom the representatives of the
parties report or their successors ("Management") shall meet or otherwise act
to facilitate an agreement within 14 days of the date of the written
notification. If Management cannot resolve the dispute, or agree upon a
written plan of corrective action
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to do so, within seven days after their initial meeting or other action, or if
the agreed upon completion dates in the written plan of corrective action are
exceeded, either party may request arbitration as provided for in this
Agreement. Except as otherwise specifically provided, neither party shall
terminate this Agreement for breach or initiate arbitration or other dispute
resolution procedures unless and until this dispute resolution procedure has
been employed or waived in writing by both parties.
5. (a) Any controversy or claim between or among the
parties, arising out of or relating to this Agreement or any agreements or
instruments relating hereto or delivered in connection herewith shall at the
request of any party be determined by arbitration. The arbitration shall be
conducted in accordance with the United States Arbitration Act (Title 9, U.S.
Code), notwithstanding any choice of law provision in this Agreement, and
under the auspices and rules of the American Arbitration Association then in
effect. The parties submit to personal jurisdiction in San Francisco,
California. Each party may serve a single request for production of documents.
If disputes arise concerning these requests, the arbitrator(s) shall have sole
and complete discretion to determine the disputes. The arbitrator(s) shall
give effect to statutes of limitation in determining any claim, and any
controversy concerning whether an issue is arbitrable shall be determined by
the arbitrator(s). The arbitrator(s) shall deliver a written opinion setting
forth findings of fact and the rationale for the decision. The arbitrator(s)
shall reconsider the decision once upon the motion and at the expense of a
party.
(b) The confidentiality provisions of Article VII
Paragraph 13 of this Agreement shall apply to the arbitration proceeding, all
evidence taken and the opinion. Judgment upon the decision rendered by the
arbitrator(s) may be entered in any court having jurisdiction. The institution
and maintenance of an action for judicial relief or pursuit of a provisional or
ancillary remedy shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration if
any other party contests such action for judicial relief.
(c) No provision of this paragraph 5 of Article
IX shall limit the right of a party to this Agreement to obtain provisional or
ancillary remedies from a court of competent jurisdiction before, after, or
during the pendency of any arbitration. The exercise of a remedy does
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not waive the right of either party to resort to arbitration.
(d) If a legal action or arbitration is commenced
in connection with the enforcement of this Agreement or any instrument or
agreement required under this Agreement, the prevailing party shall be entitled
to attorneys' fees actually incurred (including allocated costs for in-house
legal services), costs and necessary disbursements incurred in connection with
such action or proceeding, as determined by the court or arbitrator(s).
6. The Company agrees that prior to effecting any change
in any 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 prior to the intended date of the same.
7. (a) Notices of any kind to be given to the
Manager hereunder shall be in writing and shall be duly given if mailed or
delivered to the Manager at the following address:
Bank of America NT&SA With a copy to:
The Mutual Funds Group Xxxxxx X. Xxxxx, Esq.
Xxxx 00000 Xxxx xx Xxxxxxx XX&XX
000 X. Xxxxxxx Xxx. 000 Xxxxx Xxxxxx Xxxxxx
00xx Xxxxx 0xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
or at such other address or to such individual as shall be so specified by the
Manager.
(b) Notices of any kind to be given to the
Transfer Agent hereunder shall be in writing and shall be duly given if mailed
or delivered to the Transfer Agent at the following address:
PFPC Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
or at such other address or to such individual as shall be so specified by the
Transfer Agent.
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(c) Notices of any kind to be given to the
Company shall be in writing and shall be duly given if mailed or delivered to
the Company at the following address:
Time Horizon Funds With a copy to:
000 Xxxxxxxx Xxxxxxx Vedder, Price, Xxxxxxx & Kammholz
Xxxxxxxxxx, XX 00000 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. X'Xxxxx
8. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties to this
Agreement.
9. 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. This Agreement will automatically terminate in the event
of its assignment, as described hereunder, or as such term is defined in the
1940 Act.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without reference to
principles of conflicts of law).
11. 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.
12. The provisions of this Agreement are intended to
benefit only the Transfer Agent and the Company, and no rights shall be granted
to any other person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers, thereunto duly
authorized, as of the day and year first above written.
PFPC INC. TIME HORIZON FUNDS
By: By:
--------------------- ----------------------
(Signature) (Signature)
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--------------------- ----------------------
(Name) (Name)
--------------------- ----------------------
(Title) (Title)
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TRANSFER AGENCY AGREEMENT
APPENDIX A
I, Xxxxxx X. Xxxxxxx, President, and I, Xxxxx X. X'Xxxxx,
Secretary, of Time Horizon Funds, a Delaware business trust (the "Company"), do
hereby certify that:
The following individuals have been duly authorized by the
Board of Trustees of the Company in conformity with the Company's Declaration
of Trust and By-Laws to execute any Certificate, instruction, notice or
other instrument, including an amendment to Appendix B or Schedule I hereto, or
to give oral instructions on behalf of the Company, and the signatures set
forth opposite their respective names are their true and correct signatures.
NAME SIGNATURE
---- ---------
Xxxxxx X. Xxxxx
------------------- -------------------
Xxxxxxx X'Xxxxx
------------------- -------------------
Time Horizon Funds
By:
--------------------------
Xxxxxx X. Xxxxxxx
President
Dated as of: By:
October ___, 1997 --------------------------
Xxxxx X. X'Xxxxx
Secretary
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TRANSFER AGENCY AGREEMENT
APPENDIX B
I, Xxxxxx X. Xxxxxxx, President, and I, Xxxxx X. X'Xxxxx,
Secretary, of Time Horizon Funds, a Delaware business trust (the "Company"), do
hereby certify that:
The following is a list of the Classes and Funds of the
Company issued and/or authorized as of the date of this Transfer Agency
Agreement:
CLASS FUND
----- ----
Class A Portfolio 1
Class A Portfolio 2
Class A Portfolio 3
Class B Portfolio 1
Class B Portfolio 2
Class B Portfolio 3
Class K Portfolio 1
Class K Portfolio 2
Class K Portfolio 3
By:
-------------------------
Xxxxxx X. Xxxxxxx
President
By:
Dated as of: -------------------------
October ___, 1997 Xxxxx X. X'Xxxxx
Secretary
33
SCHEDULE I(a)
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at
such times as the Company and the Transfer Agent may agree, the Transfer Agent
shall provide the services set forth below:
Examine and process new accounts, subsequent payments,
liquidations, transfers, exchanges, telephone transactions, draft check
redemptions, automatic withdrawals, certificate deposits,NSCC trades, wire
order trades, direct trades, dividends, capital gains, daily trade
confirmations, dividend statements, dealer statements.
DAILY ACTIVITY
Maintain the following shareholder information on computer
recordkeeping systems or in such other 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 no
longer outstanding, if issued;
Balance of Shares having paid a commission;
Balance of dollars available for redemption;
Dividend code (daily accrual, monthly reinvest, monthly cash or
quarterly cash);
Type of account code (regular account, Automatic Withdrawal Plan);
Dealer, Branch and Salesperson information;
Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available;
34
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 (SSN also usable as a reference for on-line account
lookup);
Historical transactions on the account for the most recent 13 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 in inquiry and transaction input by
"remote accessors" (Company client institutions with remote terminal
access or transmission capability).
FUNCTIONS
Answer all investor and dealer telephone and/or written inquiries,
except those concerning Company policy or requests for investment
advice which will be referred to the Company or those which the
Company chooses to answer, and provide a staff until 8:00 pm Eastern
time on each business day in connection therewith.
Deposit Company Share certificates into accounts upon receipt of
instructions from the investor or other authorized person, if issued.
Examine and process transfers of Shares ensuring 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, dealer and salesperson codes, etc.
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Microfilm source documents for transactions, such as account
applications and correspondence.
Use of master account application to establish individual participant
accounts.
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 shareholder reporting forms relative to processing
performed, including 5498s, 1042s, and 1099s.
Solicit missing taxpayer identification numbers.
Provide remote access inquiry to Company records via Company supplied
hardware.
REPORTS PROVIDED
Daily Journals Reflecting all Shares and
dollar activity for the
previous day
Blue Sky Report Supply information monthly for
Company's preparation of Blue
Sky Reporting
N-SAR Report Supply monthly correspondence,
redemption and liquidation
information for use in
Company's N-SAR Report
12b-1 Report/ Supply monthly dealer
Average Asset Reporting reallowance, commission and
other fee reporting
Additionally, the following will be provided at the Company's request
to the Company at no charge (any such service may be outsourced to
third parties provided it is at no additional charge to the Company):
1. Shareholder listings:
- by beneficial owner code
- by tax status code
- by state code
- by establishment date
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- by dividend code
- by account plan type
- top ten shareholders.
2 Dealer Transaction Totals.
3. Monthly average daily balance reports.
Prepare and mail copies of summary statements to dealers and
investment advisers;
Generate and mail confirmation statements for all financial
transactions. Send copies of financial transaction confirmations to
the dealer specified, as well as investment advisor and possibly other
indicated interested parties, if requested;
Monthly management report as Company and Transfer Agent agree that
will provide summary information of Company activity and quality of
services delivered.
DIVIDEND ACTIVITY
Reinvest or pay in cash including reinvesting in other funds within
the fund group serviced by the Transfer Agent as described in each
Company prospectus.
Distribute capital gains simultaneously with income dividend.
DEALER SERVICES
Prepare and mail confirmation statements to dealers daily.
Prepare and mail copies of statements to dealers, same frequency as
investor statements.
Allow on-line access to institutions designated by the Company from
time to time.
SHAREHOLDER MEETINGS
Proxy mailing.
Prepare certified list of Shareholders, hard copy or microfiche as
requested by the Company.
Address and mail proxies and related material. Tabulate returned
proxies and supply daily reports when
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37
sufficient proxies have been received (material must be adaptable to
mechanical equipment as reasonably specified by the Transfer Agent)
PERIODIC ACTIVITIES
Mail transaction confirmation statements daily to investors.
Address and mail two (2) periodic financial reports (an annual report
and semi-annual report) to fully disclosed recordholders (material
must be adaptable to Transfer Agent's mechanical equipment as
reasonably specified by the Transfer Agent).
Mail periodic statement to investors.
Compute, prepare and furnish all necessary reports to Governmental
authorities: Forms 1096, 1099DIV, 1099B, 1042 and 1042S.
Enclose various marketing material as designated by the Company in
statement mailings, i.e. monthly and quarterly statements (material
must be adaptable to mechanical equipment as reasonably specified by
the Transfer Agent).
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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 checks
- Liquidation, redemption, withdrawal and transfer requests
including stock powers, signature guarantees and any
supporting documentation
- Proxy records for shareholder meetings held within the
previous twelve (12) months (held with the Transfer
Agent's Compliance Department)
- State and federal tax records
- Journals (or other records of original entry) containing
itemized daily record of all sales and redemptions
- Separate ledger accounts (or other records) showing number of
shares held by each shareholder of record (including details
with respect to periodic investment plans, dividend
reinvestment plans, etc.)
-6-
39
SCHEDULE III
TRANSFER AGENT PERFORMANCE OBJECTIVES
TIME HORIZON FUNDS
The performance objectives set forth below represent what the Company believes
should be reasonably obtainable by the Transfer Agent, given the typical daily
variables associated with any transfer agent operation (i.e., transaction
volume fluctuations).
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"ACCEPTABLE" FOR ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT MONTH TEN
PERCENT (10%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY FOR
THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"MARGINAL" FOR ANY ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT MONTH
TWENTY PERCENT (20%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE
COMPANY FOR THE MONTH PRIOR TO THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
This Agreement may be immediately terminated upon written notice by the Company
to the Transfer Agent in the event that the TRANSFER AGENT FAILS TO MEET THE
PERFORMANCE LEVELS DESCRIBED BELOW AS "UNACCEPTABLE" FOR ANY ONE OR MORE OF THE
LISTED FUNCTIONS BASED ON A TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR
MONTH PERIOD and not cured by the Transfer Agent within a subsequent period of
30 days. Notice of such failure to meet performance objectives shall be
provided in writing by the Company to the Transfer Agent.
40
SCHEDULE III (cont.)
Performance Standards
=================================================================================
Function Objective Acceptable Marginal Unacceptable
---------------------------------------------------------------------------------
New Account Processed 97.5% 95.0% 92.5%
Set Up/ day of
Processing receipt
---------------------------------------------------------------------------------
Transaction Processed 97.5% 95.0% 92.5%
Processing day of
receipt
---------------------------------------------------------------------------------
Maintenance Processed 85.0% 80.0% 75.0%
Processing within 2
business
days
---------------------------------------------------------------------------------
Quality of Error rate 99.0% 98.0% 97.0%
Entry-New of:
Accounts
---------------------------------------------------------------------------------
Quality of Error rate 99.0% 98.0% 97.0%
Entry-Financial of:
Transactions
---------------------------------------------------------------------------------
Quality of Error rate 99.0% 97.0% 96.0%
Entry-Clerical of:
Transactions
---------------------------------------------------------------------------------
Research Within 1 90.0% 80.0% 75.0%
Turnaround* business day
=================================================================================
* For items that occurred after PFPC became Transfer Agent.
-2-
