Exhibit h
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
ACORN INVESTMENT TRUST
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Terms of Appointment and Duties..........................................1
2. Third Party Administrators for Defined Contribution Plans ...............3
3. Fees and Expenses........................................................4
4. Representations and Warranties of the Transfer Agent.....................5
5. Representations and Warranties of the Fund...............................6
6. Wire Transfer Operating Guidelines.......................................6
7. Data Access and Proprietary Information..................................8
8. Indemnification..........................................................9
9. Standard of Care........................................................10
10. Confidentiality.........................................................11
11. Covenants of the Fund and the Transfer Agent............................12
12. Termination of Agreement................................................12
13. Assignment and Third Party Beneficiaries................................14
14. Subcontractors..........................................................14
15. Miscellaneous...........................................................15
16. Additional Funds........................................................16
17. Limitations of Liability of the Trustees and Shareholders...............16
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 1st day of July, 1999, by and between ACORN INVESTMENT
TRUST, a Massachusetts business trust, having its principal office and place of
business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (the
"Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
having its principal office and place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund intends to initially offer shares in five (5) series, such
series shall be named in the attached Schedule A which may be amended by the
parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Section 17, being herein referred to as a "Portfolio," and
----------
collectively as the "Portfolios"); and
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
-------------------------------
1.1 Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, the Fund, on behalf of the Portfolios, hereby
employs and appoints the Transfer Agent to act as, and the Transfer
Agent agrees to act as its transfer agent for the Fund's authorized
and issued shares of beneficial interest ("Shares"), dividend
disbursing agent, custodian of certain retirement plans and agent in
connection with any accumulation, open-account or similar plan
provided to the shareholders of each of the respective Portfolios of
the Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("prospectus") of
the Fund on behalf of the applicable Portfolio, including without
limitation any periodic investment plan or periodic withdrawal
program. In accordance with procedures established from time to time
by agreement between the Fund on behalf of each of the Portfolios, as
applicable and the Transfer Agent, the Transfer Agent agrees that it
will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Declaration of Trust
of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above,
the Transfer Agent shall execute transactions directly with
broker-dealers authorized by the Fund;
(e) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause to
be paid over in the appropriate manner such monies as instructed by
the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Transfer Agent
of indemnification satisfactory to the Transfer Agent and protecting
the Transfer Agent and the Fund, and the Transfer Agent at its option,
may issue replacement certificates in place of mutilated stock
certificates upon presentation thereof and without such indemnity;
(i) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of the Fund
which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. The Transfer Agent shall also provide the Fund
on a regular basis with the total number of Shares which are
authorized and issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to the issue or sale
of such Shares, which functions shall be the sole responsibility of
the Fund.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plan (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing Shareholder
proxies, Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions
by federal authorities for all Shareholders, preparing and
2
mailing confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account
information;
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all transactions and
receipts and disbursements of money and securities and deliver a copy
of such report for the Fund for each business day to the Fund no later
than 9:00 AM Eastern Time, or such earlier time as the Fund may
reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The responsibility of the Transfer Agent for
the Fund's compliance with applicable blue sky requirements is solely
limited to the initial establishment of transactions subject to blue
sky compliance by the Fund and providing a system which will enable
the Fund to monitor the total number of Shares sold in each State. The
Fund shall (i) identify to the Transfer Agent in writing those
transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State;
(d) National Securities Clearing Corporation (the "NSCC"). (i) in a
timely manner and without receipt of supporting documentation from a
Shareholder accept and effectuate the registration and maintenance of
accounts through Networking and the purchase, redemption, transfer and
exchange of shares in such accounts through Fund/SERV (networking and
Fund/SERV being programs operated by the NSCC on behalf of NSCC's
participants, including the Fund), in accordance with instructions
transmitted to and received by the Transfer Agent by transmission from
NSCC on behalf of broker-dealers and banks which have been established
by, or in accordance with the instructions of authorized persons, as
hereinafter defined on the dealer file maintained by the Transfer
Agent; (ii) issue instructions to Fund's banks for the settlement of
transactions between the Fund and NSCC (acting on behalf of its
broker-dealer and bank participants); (iii) provide account and
transaction information from the affected Portfolio's records on DST
Systems, Inc. computer system TA2000 ("TA2000 System") in accordance
with NSCC's Networking and Fund/SERV rules for those broker-dealers;
(iv) maintain Shareholder accounts on TA2000 System through
Networking; (v) comply with all applicable laws, rules, and
regulations, including NSCC rules and procedures relating to
Networking; (iv) with respect to Networking, comply with the
provisions of each Fund's current prospectus and statement of
additional information; (vii) implement and maintain procedures
reasonably designed to ensure the accuracy of all transmissions
through Networking and to limit the access to, and the inputting of
data into, Networking to persons specifically authorized by the
Transfer Agent; (viii) otherwise perform any and all duties,
functions, procedures and responsibilities pursuant to each NSCC
matrix level and as otherwise established by NSCC from time to time;
and (ix) conduct the activities noted herein in a businesslike and
competent manner.
3
(e) New Procedures. The Transfer Agent and the fund may, from time to
time, agree in writing that the Fund or another of the Fund's Agents
will perform some or all of the services described in this Section 1,
---------
or that additional or different services shall be performed by the
Transfer Agent, and any such written agreement will supersede any
provisions of this agreement with respect to the subject matter
thereof; and
(f) Additional Telephone Support Services. If the parties elect to
have the Transfer Agent provide additional telephone support services
----------
under this Agreement, the parties will agree to such services, fees
and sub-contracting as stated in Schedule 1.2(f) entitled "Telephone
Support Services" attached hereto.
2. Third Party Administrators for Defined Contribution Plans
---------------------------------------------------------
2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain deferred compensation or other
retirement plans ("Plan or Plans") for the benefit of the individual
Plan participant (the "Plan Participant"), such Plan(s) being
qualified under Section 401(a) of the Internal Revenue Code of 1986,
as amended ("Code") and administered by third party administrators
which may be plan administrators as defined in the Employee Retirement
Income Security Act of 1974, as amended (the "TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule
2.1 entitled "Third Party Administrator Procedures," as may be amended
by the Transfer Agent and the Fund from time to time ("Schedule 2.1"),
the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name of
the Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the Fund
---------
and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
---------
deemed exception services ("Exception Services") when such
transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform services
under Section 1 of this Agreement;
---------
(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000 System;
or
(c) Require more manual intervention by the Transfer Agent, either in
the entry of data or in the modification or amendment of reports
generated by the TA2000 System than is usually required by non-
retirement plan and pre-nightly transactions.
4
3. Fees and Expenses
-----------------
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent an annual
maintenance fee for each Shareholder account as set forth in the
attached fee schedule ("Schedule 3.1"). Such fees and out-of-pocket
expenses and advances identified under Section 3.2 below may be
changed from time to time subject to mutual written agreement between
the Fund and the Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent for
out-of-pocket expenses, including but not limited to confirmation
statements, investor processing, postage, forms, audio response,
telephone, microfilm, microfiche, records storage, or advances
incurred by the Transfer Agent for the items set out in Schedule 3.1
attached hereto. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Fund, will be
reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the
mailing date of such materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective
billing notice, except for any fees or expenses that are subject to
good faith dispute. In the event of such a dispute, the Fund may only
withhold that portion of the fee or expense subject to the good faith
dispute. The Fund shall notify the Transfer Agent in writing within
twenty-one (21) calendar days following the receipt of each billing
notice if the Fund is disputing any amounts in good faith. If the Fund
does not provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Fund. The Fund shall
settle such disputed amounts within five (5) days of the day on which
the parties agree on the amount to be paid by payment of the agreed
amount. If no agreement is reached, then such disputed amounts shall
be settled as may be required by law or legal process.
3.5 Cost of Living Adjustment. Following the Initial Term, unless the
parties shall otherwise agree and provided that the service mix and
volumes remain consistent as previously provided in the Initial Term,
the total fee for all services shall equal the fee that would be
charged for the same services based on a fee rate (as reflected in a
fee rate schedule) increased by the percentage increase for the
twelve-month period of such previous calendar year of the Consumer
Price Index for Urban Wage Earners and Clerical Workers, for the
Boston area, as published bimonthly by the United States Department of
Labor, Bureau of Labor Statistics, or, in the event that publication
of such Index is terminated, any successor or substitute index,
appropriately adjusted, acceptable to both parties.
3.6 Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the
Fund shall pay the Transfer Agent interest thereon (from the due date
to the date of payment) at a per annum rate equal to
5
one percent (1.0%) plus the Prime Rate (that is, the base rate on
corporate loans posted by large domestic banks) published by The Wall
Street Journal (or, in the event such rate is not so published, a
reasonably equivalent published rate selected by the Fund) on the
first day of publication during the month when such amount was due.
Notwithstanding any other provision hereof, such interest rate shall
be no greater than permitted under applicable provisions of
Massachusetts law.
4. Representations and Warranties of the Transfer Agent
----------------------------------------------------
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
5. Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
5.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be
made, with respect to all Shares of the Fund being offered for sale.
6
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
-------------------------------------------------------------
Commercial Code
---------------
6.1 Obligation of Sender. The Transfer Agent is authorized to promptly
debit the appropriate Fund account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"Security Procedure") chosen for funds transfer on the form provided
by the Transfer Agent (the "Fund Selection Form") and in the amount of
money that the Transfer Agent has been instructed to transfer. The
Transfer Agent shall execute payment orders in compliance with the
Security Procedure and with the Fund instructions on the execution
date provided that such payment order is received by the customary
deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications received
after the customary deadline will be deemed to have been received the
next business day.
6.2 Security Procedure. The Fund acknowledges that the Security Procedure
it has designated on the Fund Selection Form was selected by the Fund
from security procedures offered by the Transfer Agent. The Fund shall
restrict access to confidential information relating to the Security
Procedure to authorized persons as communicated to the Transfer Agent
in writing. The Fund must notify the Transfer Agent immediately if it
has reason to believe unauthorized persons may have obtained access to
such information or of any change in the Fund's authorized personnel.
The Transfer Agent shall verify the authenticity of all Fund
instructions according to the Security Procedure.
6.3 Account Numbers. The Transfer Agent shall process all payment orders
on the basis of the account number contained in the payment order. In
the event of a discrepancy between any name indicated on the payment
order and the account number, the account number shall take precedence
and govern.
6.4 Rejection. The Transfer Agent reserves the right to decline to process
or delay the processing of a payment order which (a) is in excess of
the collected balance in the account to be charged at the time of the
Transfer Agent's receipt of such payment order; (b) if initiating such
payment order would cause the Transfer Agent, in the Transfer Agent's
sole judgement, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Transfer Agent;
or (c) if the Transfer Agent, in good faith, is unable to satisfy
itself that the transaction has been properly authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, the Transfer
Agent assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for failure
to detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the
Transfer Agent complies with the Security Procedure. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
7
6.7 Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the
unauthorized payment order within thirty (30) days of notification by
the Transfer Agent of the acceptance of such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant to
these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association, the
Transfer Agent will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution, as the
case may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are provisional
until the Transfer Agent receives final settlement for such entry from
the Federal Reserve Bank. If the Transfer Agent does not receive such
final settlement, the Fund agrees that the Transfer Agent shall
receive a refund of the amount credited to the Fund in connection with
such entry, and the party making payment to the Fund via such entry
shall not be deemed to have paid the amount of the entry.
6.9 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours
notice of which may be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back. Fund
must report any objections to the execution of an order within thirty
(30) days.
7. Data Access and Proprietary Information
---------------------------------------
7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Transfer Agent as
part of the Fund's ability to access certain Fund-related data
("Customer Data") maintained by the Transfer Agent on databases under
the control and ownership of the Transfer Agent or other third party
("Data Access Services") constitute copyrighted, trade secret, or
other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other
third party. In no event shall Proprietary Information be deemed
Customer Data. The Fund agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it shall not
divulge any Proprietary Information to any person or organization
except as may be provided hereunder. Without limiting the foregoing,
the Fund agrees for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers, or (ii) solely from equipment at the locations agreed to
between the Fund and the Transfer Agent and (iii) solely in accordance
with the Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
8
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform in a timely manner of such fact and dispose of such
information in accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted
to any other computer terminal or other device except as expressly
permitted by the Transfer Agent (such permission not to be
unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent; and
(f) Honor all reasonable written requests made by the Transfer Agent
to protect at the Transfer Agent's expense the rights of the Transfer
Agent in Proprietary Information at common law, under federal
copyright law and under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by
a written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest
of the Transfer Agent and that the disclosure of such Proprietary
Information in breach of this Agreement would cause the Transfer Agent
immediate, substantial and irreparable harm, the value of which would
be extremely difficult to determine. Accordingly, the parties agree
that, in addition to any other remedies that may be available in law,
equity, or otherwise for the disclosure or use of the Proprietary
Information in breach of this Agreement, the Transfer Agent shall be
entitled to seek and obtain a temporary restraining order, injunctive
relief, or other equitable relief against the continuance of such
breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations
from which the Transfer Agent may obtain certain data included in the
Data Access Services are solely responsible for the contents of such
data and the Fund agrees to make no claim against the Transfer Agent
arising out of the contents of such third-party data, including, but
not limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL
COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION
THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER
AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED
HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event the
Transfer Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with
security procedures established by the Transfer Agent from time to
time.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this
---------
Section shall survive termination of this Agreement.
8. Indemnification
---------------
8.1A The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any
and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to actions taken
in good faith and without negligence or willful misconduct on the part
of the Transfer Agent or its agents or subcontractors and arising out
of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement (including the defense
of any law suit in which the Transfer Agent or affiliate is a named
party);
(b) The Fund's lack of good faith, negligence or willful misconduct;
or
(c) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account
maintained by the Transfer Agent.
8.1B The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any
and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to:
(a) Action taken or omitted, by the Transfer Agent, or its agents or
subcontractors in reliance on: (i) any information, records,
documents, data, stock certificates or services, which are received by
the Transfer Agent or its agents or subcontractors by machine readable
input, facsimile, CRT data entry, electronic instructions or other
similar means authorized by the Fund, and which have been prepared,
maintained or performed by the Fund or any other person or firm on
behalf of the Fund including but not limited to any broker-dealer, TPA
or previous transfer agent or registrar; (ii) any instructions or
requests of the Fund or any of its officers; (iii) any instructions or
opinions of legal counsel with respect to any matter arising in
connection with the services to be performed by the Transfer Agent
under this Agreement which are provided to the Transfer Agent after
consultation with such legal counsel; or (iv) any paper or document,
reasonably believed to be genuine, authentic and signed by the proper
person or persons;
10
(b) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination or
ruling by any federal or any state agency with respect to the offer or
sale of such Shares; or
(c) Upon the Fund's request entering into any agreements required by
the National Securities Clearing Corporation (the "NSCC") for the
transmission of Fund or Shareholder data through the NSCC clearing
systems.
8.2 In order that the indemnification provisions contained in this Section
-------
8 shall apply, upon the assertion of a claim for which the Fund may be
-
required to indemnify the Transfer Agent, the Transfer Agent shall
promptly notify the Fund of such assertion, and shall keep the Fund
advised with respect to all developments concerning such claim. The
Fund shall have the option to participate with the Transfer Agent in
the defense of such claim or to defend against said claim in its own
name or in the name of the Transfer Agent. The Transfer Agent shall in
no case confess any claim or make any compromise in any case in which
the Fund may be required to indemnify the Transfer Agent except with
the Fund's prior written consent.
9. Standard of Care
----------------
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure the accuracy
of all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless said
errors are caused by its negligence, bad faith, or willful misconduct
or that of its employees or agents. The parties agree that any
encoding or payment processing errors shall be governed by this
standard of care and Section 4-209 of the Uniform Commercial Code is
superseded by Section 9 of this Agreement. This standard of care also
---------
shall apply to Exception Services, as defined in Section 2.3 herein,
-----------
but such application shall take into consideration the manual
processing involved in, and time sensitive nature of, Exception
Services.
10. Confidentiality
---------------
10.1 The Transfer Agent and the Fund agree that they will not, at any time
during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other
business organization, any customers' lists, trade secrets, cost
figures and projections, profit figures and projections, or any other
secret or confidential information whatsoever, whether of the Transfer
Agent or of the Fund, used or gained by the Transfer Agent or the Fund
during performance under this Agreement. The Fund and the Transfer
Agent further covenant and agree to retain all such knowledge and
information acquired during and after the term of this Agreement
respecting such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of the Transfer
Agent or the Fund and their successors and assigns. In the event of
breach of the foregoing by either party, the remedies provided by
Section 7.3 shall be
-----------
11
available to the party whose confidential information is disclosed.
The above prohibition of disclosure shall not apply to the extent that
the Transfer Agent must disclose such data to its sub-contractor or
Fund agent for purposes of providing services under this Agreement.
10.2 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for records
of Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the
Transfer Agent will endeavor to notify the Fund and to secure
instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right, however,
to exhibit the Shareholder records to any person whenever it is
advised by counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person or if required by law
or court order.
11. Covenants of the Fund and the Transfer Agent
--------------------------------------------
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
11.2 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
11.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable.
To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Transfer Agent agrees
that all such records prepared or maintained by the Transfer Agent
relating to the services to be performed by the Transfer Agent
hereunder are the property of the Fund and will be preserved,
maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
12. Termination of Agreement
------------------------
12.1 Term. The initial term of this Agreement (the "Initial Term") shall be
three (3) years from the date first stated above unless terminated
pursuant to the provisions of this Section 12. Unless a terminating
party gives written notice to the other party one hundred and twenty
(120) days before the expiration of the Initial Term, this Agreement
will renew automatically from year to year after the Initial Term
(each such year-to-year renewal term a "Renewal Term"). If one hundred
and twenty (120) days before the
12
expiration of the Initial Term or a Renewal Term the parties to this
Agreement do not agree upon a Fee Schedule for the upcoming Renewal
Term, the fees shall be increased pursuant to Section 3.5 of this
Agreement.
12.2 Early Termination. Notwithstanding anything contained in this
Agreement, should the Fund desire to move any of its services provided
by the Transfer Agent hereunder to a successor service provider prior
to the expiration of the then current Initial or Renewal Term, or
without the required notice, the Transfer Agent shall make a good
faith effort to facilitate the conversion on such prior date; however,
there can be no guarantee or assurance that the Transfer Agent will be
able to facilitate a conversion of services on such prior date. In
connection with the foregoing, should services be converted to a
successor service provider, the fees payable to the Transfer Agent
shall be calculated as if the services had been performed by the
Transfer Agent until the expiration of the then current Initial or
Renewal Term and calculated at the asset and/or Shareholder account
levels, as the case may be, on the date notice of termination was
given to the Transfer Agent, and the payment of all fees to the
Transfer Agent as set forth herein shall be accelerated to the
business day immediately prior to the conversion or termination of
services, except (a) as provided in Section 12.6 below or (b) if the
------------
Fund is liquidated or its assets merged or purchased or the like with
or by another entity which does not utilize the services of the
Transfer Agent, the fees payable to the Transfer Agent shall be
calculated as if the services had been performed by the Transfer Agent
until the later of (i) the date on which the Transfer Agent actually
ceases performing the services for the Fund and (ii) 120 days after
the notice of termination was given to the Transfer Agent. If the
Fund's assets are merged or purchased or the like with or by another
entity which utilizes the services of the Transfer Agent, the fees
payable to the Transfer Agent shall be calculated through the date on
which the Transfer Agent ceases performing the services for the Fund.
12.3 Expiration of Term. After the expiration of the Initial Term or
Renewal Term whichever currently in effect, should either party
exercise its right to terminate, all out-of-pocket expenses or costs
associated with the movement of records and material will be borne by
the Fund. Additionally, the Transfer Agent reserves the right to
charge for any other reasonable expenses associated with such
termination.
12.4 Confidential Information. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations.
12.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the Transfer
Agent being outstanding for more than ninety (90) days, except with
respect to any amount subject to a good faith dispute within the
meaning of Section 3.4 of this Agreement.
-----------
12.6 Material Breach. The Fund may terminate this Agreement by notice to
the Transfer Agent, effective at the time specified therein, without
further liability for the payment of fees beyond the effective date of
such termination, upon the material breach by the
13
Transfer Agent of any provision of this Agreement; provided that,
after receiving written notice from the Fund of the existence of such
material breach, the Transfer Agent fails to correct such material
breach within 10 days after receipt of such notice.
12.7 Bankruptcy. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b)
an action is commenced by or against the other party under Title 11 of
the United States Code or a receiver, conservator or similar officer
is appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
13. Assignment and Third Party Beneficiaries
----------------------------------------
13.1 Except as provided in Section 14.1 below neither this Agreement nor
------------
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. Any attempt to do so
in violation of this Section shall be void. Unless specifically stated
to the contrary in any written consent to an assignment, no assignment
will release or discharge the assignor from any duty or responsibility
under this Agreement.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in
this Agreement to anyone other than the Transfer Agent and the Fund,
and the duties and responsibilities undertaken pursuant to this
Agreement shall be for the sole and exclusive benefit of the Transfer
Agent and the Fund. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective permitted successors
and assigns.
13.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in Section 14.1 and Schedule 1.2(f), neither party shall make
any commitments with third parties that are binding on the other party
without the other party's prior written consent.
14. Subcontractors
--------------
14.1 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial
Data Services, Inc., a Massachusetts corporation ("Boston Financial")
which is duly registered as a transfer agent pursuant to Section
17A(c)(2) of the Securities Exchange Act of 1934, as amended, (ii) a
Boston Financial subsidiary duly registered as a transfer agent or
(iii) a Boston Financial affiliate duly registered as a transfer
agent; provided, however, that the Transfer Agent shall be fully
responsible to the Fund for the acts and omissions of Boston Financial
or its subsidiary or affiliate as it is for its own acts and
omissions.
14.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties in the performance of
services ancillary to the services to be performed under this
agreement and not acting as agent of the Transfer Agent hereunder,
such as by way of example and not limitation, Airborne Services,
Federal Express, United Parcel Service,
14
the U.S. Mails, the NSCC and telecommunication companies,
provided, if the Transfer Agent selected such company, the
Transfer Agent shall have exercised due care in selecting the
same.
15. Miscellaneous
-------------
15.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
15.2 Massachusetts Law to Apply. This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with
the laws of The Commonwealth of Massachusetts.
15.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of
God, strikes, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond
its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or
otherwise from such causes.
15.4 Consequential Damages. Neither party to this Agreement shall be
liable to the other party for special, indirect or consequential
damages under any provision of this Agreement or for any special,
indirect or consequential damages arising out of any act or
failure to act hereunder.
15.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or
protections of proprietary rights and trade secrets shall survive
the termination of this Agreement.
15.6 Severability. If any provision or provisions of this Agreement
shall be held invalid, unlawful, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired.
15.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this
Agreement and any Schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
15.8 Waiver. No waiver by either party or any breach or default of any
of the covenants or conditions herein contained and performed by
the other party shall be construed as a waiver of any succeeding
breach of the same or of any other covenant or condition.
15.9 Merger of Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior
agreement with respect to the subject matter hereof whether oral
or written.
15.10 Counterparts. This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument.
15
15.11. Reproduction of Documents. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by
any commercial photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process. The parties
hereto each agree that any such reproduction shall be admissible
in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party
in the regular course of business, and that any enlargement,
facsimile or further reproduction shall likewise be admissible in
evidence.
15.12 Notices. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other
address or addresses of which the respective party shall have
notified the other.
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Xxxxxx Asset Management, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
16. Additional Funds
----------------
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Schedule A, with respect to
which it desires to have the Transfer Agent render services as transfer
agent under the terms hereof, it shall so notify the Transfer Agent in
writing, and if the Transfer Agent agrees in writing to provide such
services, such series of Shares shall become a Portfolio hereunder.
17. Limitations of Liability of the Trustees and Shareholders
---------------------------------------------------------
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the
Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or
Shareholders individually but are binding only upon the assets and
property of the Fund.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ACORN INVESTMENT TRUST
BY: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Assistant Treasurer
ATTEST:
/s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
STATE STREET BANK AND TRUST COMPANY
BY: signature illegible
-----------------------------------
Vice Chairman
ATTEST:
signature illegible
------------------------------------
17
SCHEDULE A
Acorn Fund
Acorn International
Acorn Twenty
Acorn Foreign Forty
Acorn U.S.A.
ACORN INVESTMENT TRUST STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxxx X. Xxxxxx BY: signature illegible
------------------------------ -----------------------------------
Xxxxxxx X. Xxxxxx
Assistant Treasurer
SCHEDULE 1.2(f)
ADDITIONAL TELEPHONE SUPPORT FEES AND SERVICES
Dated ____________
I. SERVICES
1. Transfer Agent and Telephone Support Functions
a. Answer telephone inquiries from [XXX 8 a.m. to 8 p.m. Boston time
Monday through Friday except Christmas Day XXX] [XXX OTHER HOLIDAY
COVERAGE AVAILABLE?XXX] from [XXX existing customers and prospective
customers XXX] of the Fund [XXX for sales literature XXX] in
accordance with the telephone script provided by the Fund.
b. Answer questions pertaining thereto the extent that such questions are
answerable based upon the information supplied to the Transfer Agent
by the Fund.
c. [XXX As the Fund and the Transfer Agent may agree in writing, the
Transfer Agent will receive calls and take written transaction
requests from shareholders of the Fund. Transfer Agent transactions
include: [XXX telephone redemptions, account maintenance, exchanges,
transfers, confirmed purchases, account balances and general inquiries
XXX]. Some transactions may result in research which will be done by
the Fund. Other calls may be referred directly to the Fund. Fax any
referrals to [XXX name of company XXX] on the same day the telephone
call is received XXX];
2. Incorporate new information into the above referenced script upon written
instructions from the Fund;
3. Maintain prospect detail information for six (6) months thereafter, provide
such information to the Fund in the form that the Fund may reasonably
request;
4. Send all literature orders for information from Boston Financial/DST [XXX
[how?] [to whom?] XXX] a minimum of [XXX one XXX] transmission per day;
5. Provide the Fund with a [XXX daily/weekly/monthly XXX] telephone report
detailing the calls received during the [XXX day/week/month XXX];
6. [XXX Provide the Fund with monthly conversion reports as selected by the
Fund from DST's standard report package. XXX]
7. TARGET SERVICE LEVELS: Average speed of answer is fifteen (15) seconds,
abandon rate of no more than 2%, and an overall service level of 85%. The
averages will be calculated on a weekly basis.
II. SUBCONTRACTORS
1. The Transfer Agent may, without further consent on the part of the
Fund, subcontract ministerial telephone support services for the
performance hereof.
III. FEES
STATE STREET BANK AND TRUST COMPANY
BY:_______________________________ BY:______________________________
2
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated July 1, 1999
1. On each day on which both the New York Stock Exchange and the Fund are open
for business (a "Business Day"), the TPA(s) shall receive, on behalf of and
as agent of the Fund, Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the
purchases of Shares, and (ii) requests by the Plan for the redemption of
Shares; in each case based on the Plan's receipt of purchase orders and
redemption requests by Participants in proper form by the time required by
the terms of the Plan, but not later than the time of day at which the net
asset value of a Fund is calculated, as described from time to time in that
Fund's prospectus. Each Business Day on which the TPA receives Instructions
shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Transfer Agent of the net amount of such
purchases or redemptions, as the case may be, for each of the Plans. In the
case of net purchases by any Plan, the TPA(s) shall instruct the Trustees
of such Plan to transmit the aggregate purchase price for Shares by wire
transfer to the Transfer Agent on (TD+1). In the case of net redemptions by
any Plan, the TPA(s) shall instruct the Fund's custodian to transmit the
aggregate redemption proceeds for Shares by wire transfer to the Trustees
of such Plan on (TD+1). The times at which such notification and
transmission shall occur on (TD+1) shall be as mutually agreed upon by each
Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Transfer Agent
and such account shall be in the name of that Plan, the TPA(s), or the
nominee of either thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan as
of the statement closing date, purchases and redemptions of Shares by the
Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to each
Fund or any agent designated by it such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary to enable
the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses, proxy
materials, periodic reports and other materials relating to each Fund be
furnished to Participants in which event the Transfer Agent or each Fund
shall mail or cause to be mailed such materials to Participants. With
respect to any such mailing, the TPA(s) shall, at the request of the
Transfer Agent or each Fund, provide at the TPA(s)'s expense a complete and
accurate set of mailing labels with the name and address of each
Participant having an interest through the Plans in Shares.
ACORN INVESTMENT TRUST STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxxx X. Xxxxxx BY: signature illegible
------------------------------ --------------------------------
Xxxxxxx X. Xxxxxx
Assistant Treasurer
2
SCHEDULE 3.1
FEES AND EXPENSES
Dated Effective July 1, 1999 through June 30, 2002
Annual Maintenance Charges - Fees are billable on a monthly basis at the rate of
--------------------------
1/12 of the annual fee. A charge is made for an account in the month that an
account opens or closes. There is a minimum monthly charge of $1500.00 per
month.
Annual Open Account Fee $14.00 per account for account base greater
than 110,000 $16.00 per account for account
base equal to or less than 110,000
Annual Closed Account Fee* $1.20
New Account Set up* $4.50
Manual Transactions* $1.75
Telephone Calls* $1.50
Audio Response $.15/Call
*Charged per month based on volumes
Out-of-Pocket Expenses - Out-of-Pocket expenses include but are not limited to
----------------------
confirmation statements, investor processing, postage, forms, audio response,
telephone, microfilm, microfiche and expenses incurred at the specific direction
of the Fund.
ACORN INVESTMENT TRUST STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxxx X. Xxxxxx BY: signature illegible
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx
Assistant Treasurer
