Exhibit 8(a)
TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY AND
SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT, made as of _______ __, 2002, by and between Xxxxxxx Xxxxx
Principal Protected Trust, a Delaware business trust (the "Trust"), on behalf of
itself and each of its series listed on Exhibit "A," as such exhibit may be
amended from time to time (each, a "Fund" and together, the "Funds"), and
FINANCIAL DATA SERVICES, INC., a Florida corporation ("FDS").
WITNESSETH:
WHEREAS, the Trust wishes to appoint FDS to be the Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent for the Funds upon,
and subject to, the terms and provisions of this Agreement, and FDS is desirous
of accepting such appointment upon, and subject to, such terms and provisions;
NOW, THEREFORE, in consideration of mutual covenants contained in this
Agreement, the Trust and FDS agree as follows:
1. Appointment of FDS as Transfer Agent, Dividend Disbursing Agent and
Shareholder Servicing Agent.
(a) The Trust hereby appoints FDS to act as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Funds upon, and subject
to, the terms and provisions of this Agreement.
(b) FDS hereby accepts the appointment as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Funds, and agrees to
act as such upon, and subject to, the terms and provisions of this Agreement.
2. Definitions.
(a) In this Agreement:
(I) The term "Act" means the Investment Company Act of 1940 as
amended from time to time and any rule or regulation thereunder;
(II) The term "Account" means any account of a Shareholder, as
defined below, or, if the shares are held in an account in the name of a
Broker-Dealer, as defined below, for the benefit of an identified person, such
account, including a Plan Account, any account under a plan (by whatever name
referred to in the Prospectus) pursuant to the Self-Employed Individuals
Retirement Act of 1962 ("Xxxxx Act Plan") and any account under a plan (by
whatever name referred to in the Prospectus) pursuant to ss.401 (k) of the
Internal Revenue Code ("Corporation Master Plan");
(III) The term "application" means an application made by a
Shareholder or prospective Shareholder respecting the opening of an Account;
(IV) The term "FAMD" means FAM Distributors, Inc., a Delaware
corporation;
(V) The term "Broker-Dealer" means a registered broker-dealer that
sells shares of the Funds pursuant to a selected dealer agreement with the
Trust;
(VI) The term "Officer's Instruction" means an instruction in
writing given on behalf of a Fund to FDS, and signed on behalf of the Fund by
the President, any Vice President, the Secretary or the Treasurer of the Trust;
(VII) The term "Plan Account" means an account opened by a
Shareholder or prospective Shareholder in respect to an open account, monthly
payment or
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withdrawal plan (in each case by whatever name referred to in the Prospectus),
and may also include an account relating to any other plan if and when provision
is made for such plan in the Prospectus;
(VIII) The term "Prospectus" means the Prospectus and the Statement
of Additional Information of the relevant Fund as currently in effect;
(IX) The term "Shareholder" means a holder of record of Shares;
(X) The term "Shares" means shares of the Fund irrespective of class
or series.
3. Duties of FDS as Transfer Agent, Dividend Disbursing Agent and
Shareholder Servicing Agent.
(a) Subject to the succeeding provisions of the Agreement, FDS hereby
agrees to perform the following functions as Transfer Agent, Dividend Disbursing
Agent and Shareholder Servicing Agent for the Funds:
(I) Issuing, transferring and redeeming Shares;
(II) Opening, maintaining, servicing and closing Accounts;
(III) Acting as agent for the Funds' Shareholders and/or customers
of a Broker-Dealer in connection with Plan Accounts, upon the terms and subject
to the conditions contained in the Prospectus and application relating to the
specific Plan Account;
(IV) Acting as agent of the Funds and/or a Broker-Dealer,
maintaining such records as may permit the imposition of such contingent
deferred sales charges as may be described in the Prospectus, including such
reports as may be reasonably requested by the Trust with respect to such Shares
as may be subject to a contingent deferred sales charge;
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(V) Upon the redemption of Shares subject to such a contingent
deferred sales charge, calculating and deducting from the redemption proceeds
thereof the amount of such charge in the manner set forth in the Prospectus. FDS
shall pay, on behalf of FAMD, to a Broker-Dealer such deducted contingent
deferred sales charges imposed upon all Shares maintained in the name of that
Broker-Dealer, or maintained in the name of an account identified as a customer
account of that Broker-Dealer. Sales charges imposed upon any other Shares shall
be paid by FDS to FAMD;
(VI) Exchanging the investment of a Shareholder into, or from, the
shares of other open-end investment companies or other series portfolios of the
Trust, if any, if and to the extent permitted by the Prospectus at the direction
of such Shareholder;
(VII) Processing redemptions;
(VIII) Examining and approving legal transfers;
(IX) Furnishing such confirmations of transactions relating to their
Shares as required by applicable law;
(X) Acting as agent for the Trust with respect to furnishing each
Shareholder such appropriate periodic statements relating to Accounts, together
with additional enclosures, including appropriate income tax information and
income tax forms duly completed, as required by applicable law, as well as
furnishing such information to each Broker-Dealer to enable the Broker-Dealer to
provide such information to its customers;
(XI) Acting as agent for the Trust with respect to mailing annual
and semi-annual reports prepared by or on behalf of the Funds, and mailing new
Prospectuses upon their issue to each Shareholder as required by applicable law
as well as causing such materials to
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be mailed to each Broker-Dealer to enable the Broker-Dealer to deliver such
materials to its customers;
(XII) Furnishing such periodic statements of transactions effected
by FDS, reconciliations, balances and summaries as the Funds may reasonably
request;
(XIII) Maintaining such books and records relating to transactions
effected by FDS as are required by the Act, or by any other applicable provision
of law, rule or regulation, to be maintained by the Trust or its transfer agent
with respect to such transactions, and preserving, or causing to be preserved,
any such books and records for such periods as may be required by any such law,
rule or regulation and as may be agreed upon from time to time between FDS and
the Trust. In addition, FDS agrees to maintain and preserve master files and
historical computer tapes on a daily basis in multiple separate locations a
sufficient distance apart to ensure preservation of at least one copy of such
information;
(XIV) Withholding taxes on non-resident alien Accounts, preparing
and filing U.S. Treasury Department Form 1099 and other appropriate forms as
required by applicable law with respect to dividends and distributions; and
(XV) Reinvesting dividends for full and fractional Shares and
disbursing cash dividends, as applicable, pursuant to instructions received from
the Shareholder at the time an Account is established.
(b) FDS agrees to act as proxy agent in connection with the holding of
annual, if any, and special meetings of Shareholders, mailing such notices,
proxies and proxy statements in connection with the holding of such meetings as
may be required by applicable law, receiving and tabulating votes cast by proxy
and communicating to the Trust the results of such tabulation accompanied by
appropriate certificates, and preparing and furnishing to the Trust certified
lists
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of Shareholders as of such date, in such form and containing such information as
may be required by the Trust.
(c) FDS agrees to deal with, and answer in a timely manner, all
correspondence and inquiries relating to the functions of FDS under this
Agreement with respect to Accounts.
(d) FDS agrees to furnish to the Corporation such information and at such
intervals as is necessary for the Funds to comply with the registration and/or
the reporting requirements (including applicable escheat laws) of the Securities
and Exchange Commission, Blue Sky authorities or other governmental authorities.
(e) FDS agrees to provide to the Trust such information as may reasonably
be required to enable the Funds to reconcile the number of outstanding Shares
between FDS' records and the account books of the Trust.
(f) Notwithstanding anything in the foregoing provisions of this
paragraph, FDS agrees to perform its functions thereunder subject to such
modification, delegation or assignment (whether in respect of particular cases
or in any particular class of cases) as may from time to time be agreed in a
writing signed by both parties.
4. Compensation.
(a) The Corporation agrees to pay FDS the fees and charges, as well as
FDS' out of pocket costs, for services described in this Agreement as set forth
in the Schedule of Fees attached hereto.
5. Right of Inspection.
(a) FDS agrees that it will, in a timely manner, make available to, and
permit, any officer, accountant, attorney or authorized agent of the Trust to
examine and make
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transcripts and copies (including photocopies and computer or other electronical
information storage media and print-outs) of any and all of its books and
records which relate to any transaction or function performed by FDS under or
pursuant to this Agreement.
6. Confidential Relationship.
(a) FDS agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all
information germane thereto, as confidential and not to be disclosed to any
person (other than the Shareholder concerned, or the Trust, or as may be
disclosed in the examination of any books or records by any person lawfully
entitled to examine the same) except as may be authorized by the Trust by way of
an Officer's Instruction.
7. Indemnification.
(a) The Trust shall indemnify and hold FDS harmless from any loss, costs,
damage and reasonable expenses, including reasonable attorney's fees (provided
that such attorney is appointed with the Trust's consent, which consent shall
not be unreasonably withheld) incurred by it resulting from any claim, demand,
action or suit in connection with the performance of its duties hereunder,
provided that this indemnification shall not apply to actions or omissions of
FDS in cases of willful misconduct, failure to act in good faith or negligence
by FDS, its officers, employees or agents, and further provided that prior to
confessing any claim against it which may be subject to this indemnification,
FDS shall give the Trust reasonable opportunity to defend against said claim in
its own name or in the name of FDS. An action taken by FDS upon any Officer's
Instruction reasonably believed by it to have been properly executed shall not
constitute willful misconduct, failure to act in good faith or negligence under
this Agreement.
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8. Regarding FDS.
(a) FDS hereby agrees to hire, purchase, develop and maintain such
dedicated personnel, facilities, equipment, software, resources and capabilities
as both parties may mutually determine to be reasonably necessary for the
satisfactory performance of the duties and responsibilities of FDS. FDS warrants
and represents that its officers and supervisory personnel charged with carrying
out its functions as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent for the Trust possess the special skill and technical knowledge
appropriate for that purpose. FDS shall at all times exercise due care and
diligence in the performance of its functions as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Trust. FDS agrees that,
in determining whether it has exercised due care and diligence, its conduct
shall be measured by the standard applicable to persons possessing such special
skill and technical knowledge.
(b) FDS warrants and represents that it is duly authorized and permitted
to act as Transfer Agent, Dividend Disbursing Agent and Shareholder Servicing
Agent under all applicable laws and that it will immediately notify the Trust of
any revocation of such authority or permission or of the commencement of any
proceeding or other action which may lead to such revocation.
9. Termination.
(a) This Agreement shall become effective as of the date first above
written and shall remain in force for two years thereafter and shall thereafter
continue from year to year. This Agreement may be terminated by the Trust or FDS
(without penalty to the Trust or FDS) provided that the terminating party gives
the other party written notice of such termination at least sixty (60) days in
advance, except that the Trust may terminate this Agreement immediately
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upon written notice to FDS if the authority or permission of FDS to act as
Transfer Agent, Dividend Disbursing Agent and Shareholder Servicing Agent has
been revoked or if any proceeding or other action which the Trust reasonably
believes will lead to such revocation has been commenced.
(b) Upon termination of this Agreement, FDS shall deliver all Shareholder
records, books, stock ledgers, instruments and other documents (including
computerized or other electronically stored information) made or accumulated in
the performance of its duties as Transfer Agent, Disbursing Agent and
Shareholder Servicing Agent for the Trust along with a certified locator
document clearly indicating the complete contents therein, to such successor as
may be specified in a notice of termination or Officer's Instruction; and the
Trust assumes all responsibility for failure thereafter to produce any paper,
record or document so delivered and identified in the locator document, if and
when required to be produced.
10. Amendment.
(a) Except to the extent that the performance by FDS or its functions
under this Agreement may from time to time be modified by an Officer's
Instruction, this Agreement may be amended or modified only by further written
agreement between the parties.
11. Governing Law.
(a) This Agreement shall be governed by the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers and their respective
corporate seals hereunto duly affixed and attested, as of the day and year above
written.
XXXXXXX XXXXX PRINCIPAL PROTECTED TRUST
By:__________________________________
Name:
Title:
FINANCIAL DATA SERVICES, INC.
By:__________________________________
Name:
Title:
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EXHIBIT "A"
Series of Xxxxxxx Xxxxx Principal Protected Trust:
- Xxxxxxx Xxxxx Fundamental Principal Protected Fund
- Xxxxxxx Xxxxx Basic Value Principal Protected Fund
SCHEDULE OF FEES
XXXXXXX XXXXX MUTUAL FUNDS
Transfer Agency and Record-keeping Fees:
Each Fund shall pay monthly the following transfer agency and record-keeping
fees to FDS, unless otherwise noted:
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Distribution Channel Annual Account Fee(6)
Class A & D Class B & C
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Proprietary Retail(1) $16 $19
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Third Party(2) $16 $19
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Direct Account $20 $23
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MFA ERISA(3) 0.10% 0.10%
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RG Recordkept Plans(4) $16 $19
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ML Connect Network Plans(5) $16 $19
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Notes:
1 Shares are sold through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("MLPF&S"), excluding MFA ERISA accounts. Certain MLPF&S fee-based program
accounts are subject to separately negotiated transfer agency and
recordkeeping fees.
2 Shares are sold through broker-dealers other than MLPF&S.
3 Shares held in the MLPF&S MFA (Mutual Fund Advisor) program or any other
program requiring equalization under ERISA. Fees are calculated based on
daily average assets.
4 Shares are sold to participants of a defined benefit or defined
contribution plan (a "Plan") that is recordkept by Xxxxxxx Xxxxx.
5 Shares are sold to participants of a Plan for which a third-party
administrator (currently BJSYS, Paychex, Inc., Invesco Retirement, Inc.,
MFS and Xxxxxxxxxxx Funds) is the record-keeper pursuant to certain
agreements with Xxxxxxx Xxxxx.
6 Fees apply to accounts that are active for any portion of a month.
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