EXHIBIT 9(a)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of July 1, 1996 by and between XXXXXX TRUST
AND SAVINGS BANK, an Illinois corporation ("Xxxxxx"), and THE XXXXXX INSIGHT
FUNDS, INC., a Maryland corporation (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain Xxxxxx to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and Xxxxxx wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Directors to give Oral
Instructions and Written Instructions on behalf of the Fund and listed on the
Authorized Persons Appendix attached hereto and made a part hereof or any
amendment thereto
as may be received by Xxxxxx. An Authorized Person's scope of authority may be
limited by the Fund by setting forth such limitation in the Authorized Persons
Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by
Xxxxxx from an Authorized Person or from a person reasonably believed by Xxxxxx
to be an Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the
1940 Act and the CEA.
(h) "Shares" mean the shares of common stock of any series or
class of the Fund.
(i) "Written Instructions" mean written instructions signed by
an Authorized Person and received by Xxxxxx. The instructions may be delivered
by hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints Xxxxxx to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. Xxxxxx
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable,
will provide Xxxxxx with the following:
(a) Certified or authenticated copies of the
resolutions of the Fund's Board of
Directors, approving the appointment of
Xxxxxx or its affiliates to provide
services to the Fund and approving this
Agreement;
(b) A copy of the Fund's most recent effective
registration statement;
(c) A copy of the advisory agreement with
respect to each investment Portfolio of
the Fund (each, a Portfolio);
(d) A copy of the distribution agreement with
respect to each class of Shares of the
Fund;
(e) A copy of each Portfolio's administration
agreements if Xxxxxx is not providing the
Portfolio with such services;
(f) Copies of any shareholder servicing
agreements made in respect of the Fund or
a Portfolio; and
(g) Copies (certified or authenticated where
applicable) of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. Xxxxxx undertakes to comply
with all applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by Xxxxxx hereunder. Except as specifically set forth
herein, Xxxxxx assumes no responsibility for such compliance by the Fund or any
of its investment portfolios.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, Xxxxxx shall
act only upon Oral Instructions and Written Instructions.
(b) Xxxxxx shall be entitled to rely upon any Oral
Instructions and Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by Xxxxxx
to be an Authorized Person) pursuant to this Agreement. Xxxxxx may assume that
any Oral Instruction or Written Instruction received hereunder is not in any way
inconsistent with the provisions of organizational documents or this Agreement
or of any vote, resolution or proceeding of the Fund's Board of Directors or of
the Fund's shareholders, unless and until Xxxxxx receives Written Instructions
to the contrary.
(c) The Fund agrees to forward to Xxxxxx Written Instructions
confirming Oral Instructions so that Xxxxxx receives the Written Instructions by
the close of business on the same day that such Oral Instructions are received.
The fact that such confirming Written Instructions are not received by Xxxxxx
shall in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from an Authorized
Person, Xxxxxx shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that Xxxxxx'x actions comply with
the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If Xxxxxx is in doubt as to any action
it should or should not take, Xxxxxx may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If Xxxxxx shall be in doubt as to any
question of law pertaining to any action it should or should not take, Xxxxxx
may request advice at its own cost from such counsel of its own choosing (who
may be counsel for the Fund, the Fund's investment adviser or Xxxxxx, at the
option of Xxxxxx).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions Xxxxxx receives
from the Fund, and the advice it receives from counsel, Xxxxxx may rely upon and
follow the advice of counsel. In the event Xxxxxx so relies on the advice of
counsel, Xxxxxx remains liable for any action or omission on the part of Xxxxxx
which constitutes willful misfeasance, bad faith, negligence or reckless
disregard by Xxxxxx of any duties, obligations or responsibilities set forth in
this Agreement.
(d) Protection of Xxxxxx. Xxxxxx shall be protected in any
action it takes or does not take in reliance upon directions, advice or Oral
Instructions or Written Instructions it receives from the Fund or from counsel
and which Xxxxxx believes, in good faith, to be consistent with those
directions, advice or Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon Xxxxxx (i) to seek
such directions, advice or Oral Instructions or Written Instructions, or (ii) to
act in accordance with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of another provision of this Agreement, the
same is a condition of Xxxxxx'x properly taking or not taking such action.
Nothing in this subsection shall excuse Xxxxxx when an action or omission on the
part of Xxxxxx constitutes willful misfeasance, bad faith, negligence or
reckless disregard by Xxxxxx of any duties, obligations or responsibilities set
forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of
Xxxxxx, shall be the property of the Fund. Such books and records shall be
prepared and maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Fund and Authorized Persons shall
have access to such books and records at all times during Xxxxxx'x normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by Xxxxxx to the Fund or to an Authorized
Person, at the Fund's expense.
8. CONFIDENTIALITY. Xxxxxx agrees to keep confidential all records of
the Fund and information relating to the Fund and its shareholders, unless the
release of such records or information is otherwise consented to, in writing, by
the Fund. The Fund agrees that such consent shall not be unreasonably withheld
and may not be withheld where Xxxxxx may be exposed to civil or criminal
contempt proceedings or when required to divulge such information or records to
duly constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. Xxxxxx shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the expression of their
opinion, as required by the Fund.
10. DISASTER RECOVERY. Xxxxxx shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment. In the
event of equipment failures, Xxxxxx shall, at no additional expense to the Fund,
exercise its best efforts in good faith to minimize service interruptions.
Xxxxxx shall have no liability with respect to the loss of data or service
interruptions caused by equipment
failure, provided such loss or interruption is not caused by Xxxxxx'x own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
or obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by Xxxxxx
during the term of this Agreement, the Fund will pay to Xxxxxx a fee or fees as
may be agreed to from time to time in writing by the Fund and Xxxxxx.
12. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless
Xxxxxx from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the Securities Laws
and any state and foreign securities and blue sky laws, and amendments thereto),
and expenses, including reasonable attorneys' fees and disbursements, arising
directly or indirectly from any action or omission to act which Xxxxxx takes (i)
at the request or on the direction of or in reliance on the advice of the Fund
or (ii) upon Oral Instructions or Written Instructions. Xxxxxx shall not,
however, be indemnified against any liability (or any expenses incident to such
liability) arising out of Xxxxxx'x or its affiliates' own willful misfeasance,
bad faith, negligence or reckless disregard of its duties and obligations under
this Agreement.
13. RESPONSIBILITY OF XXXXXX.
(a) Xxxxxx shall be under no duty to take any action on behalf
of the Fund except as specifically set forth herein or as may be specifically
agreed to by Xxxxxx in writing. Xxxxxx shall be obligated to exercise care and
diligence in the performance of its duties hereunder, to act in good faith and
to use its best efforts, within reasonable limits, in performing
services provided for under this Agreement. Xxxxxx shall be liable for any
damages arising out of Xxxxxx'x failure to perform its duties under this
Agreement to the extent such damages arise out of Xxxxxx'x willful misfeasance,
bad faith, negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) Xxxxxx, shall not be liable for losses
beyond its control, provided that Xxxxxx has acted in accordance with the
standard of care set forth above; and (ii) Xxxxxx shall not be under any duty or
obligation to inquire into and shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which Xxxxxx reasonably believes to be
genuine; or (B) subject to Section 10, delays or errors or loss of data
occurring by reason of circumstances beyond Xxxxxx'x control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood, catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the
contrary, Xxxxxx shall not be liable to the Fund for any consequential, special
or indirect losses or damages which the Fund may incur or suffer by or as a
consequence of Xxxxxx'x performance of the services provided hereunder, whether
or not the likelihood of such losses or damages was known by Xxxxxx or its
affiliates.
14. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Furnish state-by-state registration
reports to the Fund;
(ii) Calculate sales load, if any, or
compensation payment, if applicable, and
provide such information to the Fund;
(iii) Calculate dealer commissions, if any,
for the Fund, if applicable;
(iv) Calculate 12b-1 payments;
(v) Maintain proper shareholder
registrations;
(vi) Review new applications and correspond
with shareholders to complete or correct
information;
(vii) Direct payment processing of checks or
wires;
(viii) Prepare and certify stockholder lists in
conjunction with proxy solicitations;
(ix) Countersign share certificates;
(x) Prepare and mail to shareholders
confirmation of activity;
(xi) Provide toll-free lines for direct
shareholder use, plus customer liaison
staff for on-line inquiry response;
(xii) Mail duplicate confirmations to
broker-dealers of their clients'
activity, whether executed through the
broker-dealer or directly with Xxxxxx;
(xiii) Provide periodic shareholder lists and
statistics to the clients;
(xiv) Provide detailed data for
underwriter/broker confirmations;
(xv) Prepare periodic mailing of year-end tax
and statement information;
(xvi) Notify on a timely basis the
administrator, investment adviser,
accounting agent, and custodian of fund
activity; and
(xvii) Perform other participating
broker-dealer shareholder services as
may be agreed upon from time to time.
(b) Services Provided by Xxxxxx Under Oral Instructions or
Written Instructions.
(i) Accept and post daily Fund purchases and
redemptions;
(ii) Accept, post and perform shareholder
transfers and exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when
requested in writing by the
shareholder).
(c) Purchase of Shares. Xxxxxx shall issue and credit an
account of an investor, in the manner described in the Fund's prospectus, once
it receives:
(i) A purchase order;
(ii) Proper information to establish a
shareholder account; and
(iii) Confirmation of receipt or crediting of
funds for such order to the Fund's
custodian.
(d) Redemption of Shares. Xxxxxx shall redeem Shares only if
that function is properly authorized by the certificate of incorporation or
resolution of the Fund's Board of Directors. Shares shall be redeemed and
payment therefor shall be made in accordance with the Fund's prospectus, when
the recordholder tenders Shares in proper form and directs the method of
redemption. If the recordholder has not directed that redemption proceeds be
wired, when the Custodian provides Xxxxxx with funds, the redemption check shall
be sent to and made payable to the recordholder, unless:
(i) the surrendered certificate is drawn to
the order of an assignee or holder and
transfer authorization is signed by the
recordholder; or
(ii) Transfer authorizations are signed by
the recordholder when Shares are held in
book-entry form.
When a broker-dealer notifies Xxxxxx of a redemption desired by a customer, and
the Custodian provides Xxxxxx with funds, Xxxxxx shall prepare and send the
redemption check to the broker-dealer and made payable to the broker-dealer on
behalf of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution
of the Fund's Board of Directors authorizing the declaration and payment of
dividends and distributions, Xxxxxx shall issue dividends and distributions
declared by the Fund in Shares, or, upon shareholder election, pay such
dividends and distributions in cash, if provided for in the Fund's prospectus.
Such issuance or payment, as well as payments upon redemption as described
above, shall be made after deduction and payment of the required amount of funds
to be withheld in accordance with any applicable tax laws or other laws, rules
or regulations. Xxxxxx
shall mail to the Fund's shareholders such tax forms and other information, or
permissible substitute notice, relating to dividends and distributions paid by
the Fund as are required to be filed and mailed by applicable law, rule or
regulation.
Xxxxxx shall prepare, maintain and file with the IRS and other
appropriate taxing authorities reports relating to all dividends above a
stipulated amount paid by the Fund to its shareholders as required by tax or
other law, rule or regulation.
(f) Shareholder Account Services.
(i) Xxxxxx may arrange, in accordance with
the prospectus, for issuance of Shares
obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire
orders, checks and applications.
(ii) Xxxxxx may arrange, in accordance with
the prospectus, for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Fund has exchange
privileges;
- Automatic redemption from an account
where that shareholder participates in a
automatic redemption plan; and/or
- Redemption of Shares from an account
with a checkwriting privilege.
(g) Communications to Shareholders. Upon timely Written
Instructions, Xxxxxx shall mail all communications by the Fund to its
shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of
Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, Xxxxxx will receive and tabulate the proxy cards
for the meetings of the Fund's shareholders.
(h) Records. Xxxxxx shall maintain records of the accounts for
each shareholder showing the following information:
(i) Name, address and United States Tax
Identification or Social Security
number;
(ii) Number and class of Shares held and
number and class of Shares for which
certificates, if any, have been issued,
including certificate numbers and
denominations;
(iii) Historical information regarding the
account of each shareholder, including
dividends and distributions paid and the
date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed
against a shareholder's account;
(v) Any correspondence relating to the
current maintenance of a shareholder's
account;
(vi) Information with respect to
withholdings; and
(vii) Any information required in order for
the transfer agent to perform any
calculations contemplated or required by
this Agreement.
(i) Lost or Stolen Certificates. Xxxxxx shall place a stop
notice against any certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements
for reporting such loss or alleged misappropriation. A new certificate shall be
registered and issued only upon:
(i) The shareholder's pledge of a lost instrument bond or
such other appropriate indemnity bond issued by a
surety company approved by Xxxxxx; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect Xxxxxx and its
affiliates.
(j) Shareholder Inspection of Stock Records. Upon a request
from any Fund shareholder to inspect stock records, Xxxxxx will notify the Fund
and the Fund will issue instructions granting or denying each such request.
Unless Xxxxxx has acted contrary to the Fund's instructions, the Fund agrees to
and does hereby, release Xxxxxx from any liability for refusal of permission for
a particular shareholder to inspect the Fund's stock records.
(k) Withdrawal of Shares and Cancellation of Certificates.
Upon receipt of Written Instructions, Xxxxxx shall cancel
outstanding certificates surrendered by the Fund to reduce the total amount of
outstanding shares by the number of shares surrendered by the Fund.
(l) In providing for any or all of the services in section 14
hereof, and in satisfaction or its obligations to provide such services, Xxxxxx
may enter into agreements with one or more other persons to provide such
services to the Fund, provided that any such agreement shall have been approved
by the Board of Directors of the Fund and provided further that Xxxxxx shall be
as fully responsible to the Funds for the acts and omissions of any such service
providers as it would be for its own acts or omissions hereunder.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by Xxxxxx on sixty (60) days' prior written notice to
the other party.
16. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notices shall be addressed (a) if to Xxxxxx, at 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000; (b) if to the Fund, at Xxx Xxxxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or (c) if to neither of the
foregoing, at such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If notice
is sent by confirming telegram, cable, telex or facsimile sending device, it
shall be deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given three days after it has been mailed.
If notice is sent by messenger, it shall be deemed to have been given on the day
it is delivered.
17. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. Subject to approval by the Fund's Board of
Directors, Xxxxxx may assign its rights and delegate its duties hereunder to any
wholly-owned direct or indirect subsidiary of Xxxxxx Bankcorp, Inc., provided
that (i) Xxxxxx gives the Fund sixty (60) days' prior written notice; (ii) the
delegate (or assignee) agrees with the Fund and Xxxxxx to comply with all
relevant provisions of the 1940 Act; (iii) Xxxxxx remains responsible for the
performance of its duties hereunder by such delegate (or assignee); (iv) the
delegate (or assignee)
possesses expertise comparable to or greater than that of Xxxxxx in providing
the services required hereunder; and (v) Xxxxxx and such delegate (or assignee)
promptly provide such information as the Fund or Xxxxxx may request, and respond
to such questions as the Fund or Xxxxxx may ask, relative to the delegation (or
assignment), including (without limitation) the capabilities of the delegate (or
assignee).
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their agreement,
if any, with respect to delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be deemed to be a
contract made in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) Partial Invalidity. If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
(e) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any party
to this Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Senior Vice President
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THE XXXXXX INSIGHT FUNDS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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EXHIBIT A
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THIS EXHIBIT A, dated as of July 1, 1996, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of July 1, 1996 between Xxxxxx Trust
and Savings Bank and The Xxxxxx Insight Funds, Inc..
PORTFOLIOS
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Money Market Fund
Government Money Market Fund
Tax Exempt Money Market Fund
Equity Fund
Short Intermediate Bond Fund
Convertible Securities Fund
Hemisphere Fund
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
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Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------
Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
------------------
Xxxxxxxx Xxxxxxxx /s/ Xxxxxxxx Xxxxxxxx
---------------------
Xxxx Xxxx /s/ Xxxx Xxxx
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Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
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