EXHIBIT 23(H)(3)
TRANSFER AGENT SERVICING AGREEMENT
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 2nd day of August,
1999, by and between XYZ Funds, Inc., a Maryland corporation (hereinafter
referred to as the "Company"), and Firstar Mutual Fund Services, LLC, a
Wisconsin limited liability company (hereinafter referred to as the "Firstar").
WHEREAS, the Company is an open-end management investment company which is
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Company is authorized to create separate series, each with
its own separate investment portfolio;
WHEREAS, Firstar is in the business of administering transfer and dividend
disbursing agent functions for investment companies; and
WHEREAS, the Company desires to retain Firstar to provide transfer and
dividend disbursing agent services to the XYZ Fund and each additional series of
the Company listed on Exhibit A attached hereto (each, a "Fund"), as may be
amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and Firstar agree as follows:
1. APPOINTMENT OF TRANSFER AGENT
The Company hereby appoints Firstar as Transfer Agent of the Company on
the terms and conditions set forth in this Agreement, and Firstar hereby accepts
such appointment and agrees to perform the services and duties set forth in this
Agreement in consideration of the compensation provided for herein.
2. DUTIES AND RESPONSIBILITIES OF FIRSTAR
Firstar shall perform all of the customary services of a transfer agent
and dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to:
A. Receive orders for the purchase of shares;
B. Process purchase orders with prompt delivery, where appropriate, of
payment and supporting documentation to the Company's custodian, and
issue the appropriate number of uncertificated shares with such
uncertificated shares being held in the appropriate shareholder
account;
C. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Company's
custodian;
D. Pay monies upon receipt from the Company's custodian, where
relevant, in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the shareholder's
instructions;
F. Process exchanges between funds and/or classes of shares of funds
both within the same family of funds and with the Firstar Money
Market Funds, if applicable;
G. Prepare and transmit payments for dividends and distributions
declared by the Company with respect to the Fund;
H. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
I. Record the issuance of shares of the Fund and maintain, pursuant to
Rule 17ad-10(e) promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), a record of the total number
of shares of the Fund which are authorized, issued and outstanding;
J. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
K. Mail shareholder reports and prospectuses to current shareholders;
L. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to dividends
and distributions for all shareholders;
M. Provide shareholder account information upon request and prepare and
mail confirmations and statements of account to shareholders for all
purchases, redemptions and other confirmable transactions as agreed
upon with the Company;
N. Provide a Blue Sky System which will enable the Company to
monitor the total number of shares of the Fund sold in each
state. In addition, the Company or its agent, including Firstar,
shall identify to Firstar in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting for
each state. The responsibility of Firstar for the Company's Blue
Sky state registration status under this Agreement is solely
limited to the initial compliance by the Company and the
reporting of such transactions to the Company or its agent.
O. Answer telephone calls and correspondence from shareholders
relating to their accounts during Firstar's normal business
hours. Firstar shall strive to promptly respond to all such
telephone or written inquiries from shareholders. Copies of all
correspondence from shareholders involving complaints about the
management of the Company, services provided by or for the
Company, Firstar or others, shall be promptly forwarded to the
Company. Firstar shall keep records of substantive shareholder
telephone calls and correspondence and replies thereto, and of
the lapse of time between receipt of such calls and
correspondence and replies.
P. Prepare such reports as may be reasonably requested from time to
time by the Company or its Board of Directors relating to fees paid
out under a Fund's Rule 12b-1 plan.
3. COMPENSATION
The Company agrees to pay Firstar for the performance of the duties listed
in this Agreement as set forth on Exhibit A attached hereto; the fees and
out-of-pocket expenses include, but are not limited to the following: printing,
postage, forms, stationery, record retention (if requested by the Company),
mailing, insertion, programming (if requested by the Company), labels,
shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Company and Firstar.
The Company agrees to pay all fees and reimbursable expenses within ten
(10) business days following the receipt of the billing notice.
4. REPRESENTATIONS OF FIRSTAR
Firstar represents and warrants to the Company that:
A. It is a limited liability company duly organized, existing and in
good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws
to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it
to enter and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement; and
G. It will comply with all applicable requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the Exchange
Act, the 1940 Act, and any laws, rules, and regulations of
governmental authorities having jurisdiction.
5. REPRESENTATIONS OF THE COMPANY
The Company represents and warrants to Firstar that:
A. The Company is an open-end diversified investment company under
the 1940 Act;
B. The Company is a corporation organized, existing, and in good
standing under the laws of Maryland;
C. The Company is empowered under applicable laws and by its Articles
of Incorporation and Bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Articles of Incorporation
have been taken to authorize it to enter into and perform this
Agreement;
E. The Company will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws, rules
and regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act will be made
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 Company being offered for sale.
6. COVENANTS OF THE COMPANY AND FIRSTAR
The Company shall furnish Firstar a certified copy of the resolution of
the Board of Directors of the Fund authorizing the appointment of Firstar and
the execution of this Agreement. The Company shall provide to Firstar a copy of
its Articles of Incorporation and Bylaws, and all amendments thereto.
Firstar shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable and as required under
the Exchange Act. To the extent required by Section 31 of the 1940 Act, and the
rules thereunder, Firstar agrees that all such records prepared or maintained by
Firstar relating to the services to be performed by Firstar hereunder are the
property of the Company and will be preserved, maintained and made available in
accordance with such section and rules and will be surrendered to the Company on
and in accordance with its request.
7. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
Firstar shall exercise reasonable care in the performance of its duties
under this Agreement. Firstar shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Company in connection with
matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies beyond
Firstar's control, except a loss resulting from Firstar's refusal or failure to
comply with the terms of this Agreement or from bad faith, negligence, or
willful misconduct on its part in the performance of its duties under this
Agreement. Notwithstanding any other provision of this Agreement, the Company
shall indemnify and hold harmless Firstar from and against any and all claims,
demands, losses, expenses, and liabilities (whether with or without basis in
fact or law) of any and every nature (including reasonable attorneys' fees)
which Firstar may sustain or incur or which may be asserted against Firstar by
any person arising out of any action taken or omitted to be taken by it in
performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction provided to
Firstar by any duly authorized officer of the Company, such duly authorized
officer to be included in a list of authorized officers furnished to Firstar and
as amended from time to time in writing by resolution of the Board of Directors
of the Company.
Firstar shall indemnify and hold the Company harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which the Company may sustain or incur or which may be asserted
against the Company by any person arising out of any action taken or omitted to
be taken by Firstar as a result of Firstar's refusal or failure to comply with
the terms of this Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, Firstar shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond Firstar's control. Firstar will make every reasonable effort to restore
any lost or damaged data and correct any errors resulting from such a breakdown
at the expense of Firstar. Firstar agrees that it shall, at all times, have
reasonable contingency plans with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment to the
extent appropriate equipment is available. Representatives of the Company shall
be entitled to inspect Firstar's premises and operating capabilities at any time
during regular business hours of Firstar, upon reasonable notice to Firstar.
Regardless of the above, Firstar reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation which presents or
appears likely to present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim
which may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which it
shall seek indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the indemnitor
will be asked to indemnify the indemnitee except with the indemnitor's prior
written consent.
8. PROPRIETARY AND CONFIDENTIAL INFORMATION
Firstar agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Company
all records and other information relative to the Company and prior, present, or
potential shareholders (and clients of said shareholders) and not to use such
records and information for any purpose other than the performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Company, which approval shall not be unreasonably
withheld and may not be withheld where Firstar may be exposed to civil or
criminal contempt proceedings for failure to comply after being requested to
divulge such information by duly constituted authorities, or when so requested
by the Company.
9. TERM OF AGREEMENT; AMENDMENT
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue automatically in effect for
successive two year periods. The Agreement may be terminated by either party
upon giving ninety (90) days prior written notice to the two year anniversary
date.
If the Company elects to terminate this Agreement prior to the two year
anniversary of this Agreement, for reasons other than unacceptable service
levels, the Company agrees to reimburse Firstar for the difference between the
termination date and the anniversary date in two year fees based on the current
fees of the Company.
10. NOTICES
Notices of any kind to be given by either party to the other party shall
be in writing and shall be duly given if mailed or delivered as follows: Notice
to Firstar shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Company shall be sent to:
Legacy Funds, Inc.
00 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Corporate Secretary
11. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any of
Firstar's duties or responsibilities hereunder is designated by the Company by
written notice to Firstar, Firstar will promptly, upon such termination and at
the expense of the Company, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by Firstar
under this Agreement in a form reasonably acceptable to the Company (if such
form differs from the form in which Firstar has maintained, the Company shall
pay any expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from Firstar's personnel in the establishment of books,
records, and other data by such successor.
12. GOVERNING LAW
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of Wisconsin. However,
nothing herein shall be construed in a manner inconsistent with the 1940 Act or
any rule or regulation promulgated by the Securities and Exchange Commission
thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer in one or more counterparts as of the day and year
first written above.
XYZ FUNDS, INC. FIRSTAR MUTUAL FUND
SERVICES, LLC
By: By:
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Print: Print:
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Title: Title:
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Date: Date:
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Attest: Attest:
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TRANSFER AGENT AND SHAREHOLDER SERVICING
LOAD FUND ANNUAL FEE SCHEDULE
EXHIBIT A
Separate Series of XYZ Funds, Inc.
NAME OF SERIES DATE ADDED
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XYZ Fund August 2, 1999
Class A
Annual Fee
$16.00 per shareholder account
Minimum annual fees of $25,000 for the first fund and $15,000 for
each additional fund
Plus Out-of-Pocket Expenses, including but not limited to:
Telephone - toll-free lines Proxies
Postage Retention of records
(with prior approval)
Programming (with prior approval) Microfilm/fiche of records
Stationery/envelopes Special reports
Mailing ACH fees
Insurance NSCC charges
ACH Shareholder Services
$125.00 per month per Fund group
$ .50 per account setup and/or change
$ .50 per ACH item
$ .50 per item for EFT payments and purchases
$ 3.50 per correction, reversal, return item
$1.00 per shareholder call
Qualified Plan Fees (Billed to Investors)
Annual maintenance fee per account $12.50/acct.(Cap at $25.00
per SSN)
Transfer to successor trustee $15.00/trans.
Distribution to participant $15.00/trans.(Exclusive of
SWP)
Refund of excess contribution $15.00/trans.
Additional Shareholder Fees (Billed to Investors)
Any outgoing wire transfer $12.00/wire
Telephone Exchange $ 5.00/exchange transaction
Return check fee $20.00/item
Stop payment $20.00/stop
(Liquidation, dividend, draft check)
Research fee $ 5.00/item
(For requested items of the second calendar year [or previous] to the
request)(Cap at $25.00)
NSCC
OUT-OF-POCKET CHARGES
NSCC Interfaces
Setup
Fund/SERV, Networking ACATS, Exchanges $5,000 setup (one time)
DCCS, RAT
Commissions $5,000 setup (one time)
Processing
Fund/SERV $ 50/month
Networking $250/month
CPU Access $ 40/month
Fund/SERV Transactions $.350/trade
Networking - per item $.025/monthly dividend fund
Networking - per item $.015/non-mo. dividend fund
First Data $.100/next-day Fund/SERV trade
First Data $.150/same-day Fund/SERV trade
NSCC Implementation
8 to 10 weeks lead time
Fees and out-of-pocket expenses are billed to the Fund monthly.
ADDITIONAL OUT-OF-POCKET EXPENSES
Database Select Requests $200 per select request
Postage $.31 per one ounce pre-sort
first class envelope
Shareholder Records Search $3.00 per search of lost
shareholder (based upon 2
returned mail items)
PAR System Restore $1,500 per restore
Data and Report Transmission
Monthly Service and Support $160 per month
Per Record Transmitted $.01 per record
New Fund Programming
Fund Group Setup $2,000 per fund group
Fund Addition to Existing Group $1,000 per fund
Additional Classes of Existing Fund $250 per class
Additional Programming $150 per hour
