TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made the ____ day of _________, 1996, by and between
MUTUAL FUND SELECT GROUP, a Massachusetts business trust, having its principal
place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund"),
and DST SYSTEMS, INC., a Missouri corporation, having its principal place of
business at 0000 Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("DST"):
WITNESSETH:
WHEREAS, the Fund is a Massachusetts business trust registered with
the Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended; and
WHEREAS, the Fund wishes to appoint DST as transfer agent and
dividend disbursing agent as to any and all shares issued by the Fund; and
WHEREAS, DST wishes to accept such appointment; and
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
In connection with the appointment of DST as Transfer Agent
and Dividend Disbursing Agent for the Fund, there will be
filed with DST the following documents:
A. A certified copy of the Votes of the Board of
Trustees of the Fund appointing DST as
Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and
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designating certain persons to sign stock
certificates, if any, and give written
instructions and requests on behalf of the
Fund;
B. A certified copy of the Articles of
Incorporation and all future amendments
affecting the number of authorized shares or
DST's provision of services hereunder;
C. A certified copy of the Bylaws of the Fund;
D. Copies of all current and future Registration
Statements and amendments thereto, filed with
the Securities and Exchange Commission;
E. Specimens of all forms of outstanding stock
certificates, if any;
F. An opinion of counsel for the Fund with
respect to:
(1) Fund's organization and existence under
the laws of its state of organization,
(2) The status of all shares of stock of
Fund covered by the appointment under the
Securities Act of 1933, as amended, and any other
applicable federal or state statute, and
(3) That all issued shares are, and all unissued
shares will be when issued, validly issued, fully
paid and nonassessable.
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2. Certain Representations and Warranties of DST.
DST represents and warrants to the Fund that:
A. It is a corporation duly organized and
existing and in good standing under the laws
of Missouri.
B. It is duly qualified to carry on its business
in the State of Missouri.
C. It is empowered under applicable laws and by
its Articles of Incorporation and bylaws to
enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the
extent required under the Securities Exchange
Act of 1934.
E. All requisite corporate proceedings have been
taken to authorize it to enter into and
perform this Agreement.
F. It has and will continue to have and maintain
the necessary facilities, equipment and
personnel to perform its duties and
obligations under this Agreement.
3. Certain Representations and Warranties of the
Fund. The Fund represents and warrants to DST
that:
A. It is a business trust duly organized and
existing and in good standing under the laws
of the Commonwealth of Massachusetts.
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B. It is an open-end diversified management
investment company registered under the
Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of
1933 has been filed and is effective with respect to the
shares of the Fund being offered for sale.
D. All requisite steps have been and, in the
future, will be taken to register the Fund's
shares for sale in applicable states.
E. The Fund is empowered under applicable laws
and by Articles of Incorporation and bylaws
to enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement,
effective the ___th day of _________, 1996, the Fund
hereby employs and appoints DST as Transfer Agent and
Dividend Disbursing Agent as to all current and future
issued and outstanding shares of the Fund.
B. DST hereby accepts such employment and
appointment and agrees that it will act as
the Fund's Transfer Agent and Dividend
Disbursing Agent. DST agrees that it will
also act as agent in connection with the
Fund's periodic investment and withdrawal
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payment accounts, other open-account and
similar plans for shareholders, if any.
C. DST agrees to provide the necessary
facilities, equipment and personnel to
perform its duties and obligations hereunder
in accordance with industry practice.
D. The Fund agrees to deliver to DST in Kansas
City, Missouri, as soon as they are
available, all of its shareholder account
records.
E. Subject to the provisions of Sections 19. and
20. hereof, DST agrees that it will perform
all of the usual and ordinary services of
Transfer Agent and Dividend Disbursing Agent
and as Agent for the various shareholder
accounts, including, without limitation, the
following: issuing, transferring and
cancelling stock certificates; maintaining
all shareholder accounts; preparing
shareholder meeting lists, mailing proxies,
receiving and tabulating proxies (outside
agency bills treated as out-of-pocket
expenses); mailing shareholder reports and
prospectuses; withholding taxes on
nonresident alien and foreign corporation
accounts, for pension and deferred income
accounts for which DST is the named trustee
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or custodian, on accounts which DST has been advised are
subject to backup withholding or other instances agreed
upon by the parties; preparing and mailing checks for
disbursement of income dividends and capital gains
distributions, preparing and filing U.S. Treasury
Department Form 1099 for shareholders as directed by the
Fund; preparing and mailing confirmation forms to
shareholders and dealers with respect to purchases and
liquidation of the Fund shares and other transactions in
shareholder accounts for which confirmations are
required or as directed by the Fund; recording
reinvestments of dividends and distributions in Fund
shares; and preparing and mailing checks for payments
upon redemption and for disbursements to withdrawal plan
holders.
5. Limit of Authority.
Unless otherwise expressly limited by the resolution of
appointment or by subsequent action by the Fund, the
appointment of DST as Transfer Agent will be construed to
cover the full amount of the Shares of the Fund for which DST
is appointed as the same will, from time to time, be
constituted, and any subsequent increases in such authorized
amount.
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In case of such increase the Fund will file with
DST:
A. If the appointment of DST was theretofore
expressly limited, a certified copy of a Vote
of the Board of Trustees of the Fund
increasing the authority of DST;
B. A certified copy of the amendment to the
Articles of Incorporation authorizing the increase of
shares.
6. Compensation and Expenses.
A. In consideration for its services hereunder
as Transfer Agent and Dividend Disbursing
Agent, the Fund will pay to DST from time to
time a reasonable compensation for all
services rendered as Agent, and also, all its
reasonable out-of-pocket expenses, charges,
counsel fees, and other disbursements
incurred in connection with the agency. Such
compensation will be set forth in a separate
schedule to be agreed to by the Fund and DST,
a copy of which is attached hereto and
incorporated herein by reference. If the
Fund has not paid such compensation and
expenses to DST within a reasonable time, and
as permitted by applicable law, DST may
charge against any monies held under this
Agreement in the Fund's name, the amount of
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any compensation, expense, loss or liability for which
DST shall be entitled to reimbursement under this
Agreement.
B. The Fund agrees to promptly reimburse DST for
all reasonable out-of-pocket expenses or
advances incurred by DST in connection with
the performance of services under this
Agreement, for postage (which may be required
to be paid in advance) and first class mail
insurance in connection with mailing stock
certificates, envelopes, check forms,
continuous forms, forms for reports and
statements, stationery, and other similar
items, telephone and telegraph charges
incurred in answering or making inquiries
from or of dealers or shareholders, microfilm
used each year to record the previous year's
transactions in shareholder accounts and
computer tapes used for permanent storage of
records and cost of insertion of materials in
mailing envelopes by outside firms.
7. Operation of DST System.
A. In connection with the performance of its
services under this Agreement, DST is
responsible for such items as:
(1) The accuracy of entries made by DST in
DST's records reflecting orders and
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instructions received by DST from
dealers, shareholders, the Fund or its
principal underwriter;
(2) The availability and the accuracy of shareholder
lists, shareholder account verifications,
confirmations and other shareholder account
information to be produced from its records or
data;
(3) The accurate and timely issuance of dividend and
distribution checks in accordance with
instructions received from the Fund;
(4) The accuracy of redemption transactions and
payments in accordance with redemption
instructions received from dealers, shareholders
or the Fund;
(5) The deposit daily in the Fund's appropriate bank
account of all checks and payments received
directly or individually from dealers or
shareholders for investment in shares;
(6) The requiring of proper forms of instructions,
signatures and signature guarantees and any
necessary documents supporting the legality of
transfers, redemptions and other shareholder
account transactions, all in conformance
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with DST's present procedures with such
changes as may be required or approved
by the Fund; and
(7) The maintenance of a current duplicate set of the
Fund's essential records maintained by DST for the
Fund under this agreement at a secure distant
location.
B. DST is not responsible for and shall have no
liability as a result of or which arises out
of errors, inaccuracies or omissions in the
Fund's books and records as received by DST
from the prior transfer and dividend
disbursing agent and any errors, inaccuracies
or omissions in reports, lists,
verifications, confirmations or other
information or data derived or produced
therefrom.
8. Indemnification
A. DST will not be responsible for, and the Fund
will hold harmless and indemnify DST from and
against any loss by or liability to the Fund
or a third party, including attorney's fees,
in connection with any claim or suit
asserting any such liability arising out of
or attributable to actions taken or omitted
by DST pursuant to this Agreement, unless DST
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has acted negligently or in bad faith. The matters
covered by this indemnification include but are not
limited to those of Section 14. hereof and any costs,
including legal fees, incurred in enforcing this right
of indemnification. The Fund will be responsible for,
and will have the right to conduct or control the
defense of any litigation asserting liability against
which DST is indemnified hereunder. DST will not be
under any obligation to prosecute or defend any action
or suit in respect of the agency relationship hereunder,
which, in its opinion, may involve it in expense or
liability, unless the Fund will, as often as requested,
furnish DST with reasonable, satisfactory security and
indemnity against such expense or liability and pay all
costs, including attorney's fees, as incurred.
B. DST will hold harmless and indemnify the Fund
from and against any loss or liability
arising out of DST's failure to comply with
the terms of this Agreement or out of DST's
negligence, misconduct, or bad faith, except
to the extent DST is entitled to
indemnification under Subsection A. hereof
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9. Certain Covenants of DST and the Fund.
A. The Fund hereby agrees that all requisite
steps will be taken by the Fund from time to time when
and as necessary to register the Fund's shares for sale
in all states in which the Fund's shares shall at the
time be offered for sale and require registration. If at
any time the Fund will receive notice of any stop order
or other proceeding in any such state affecting such
registration or the sale of the Fund's shares, or of any
stop order or other proceeding under the Federal
securities laws affecting the sale of the Fund's shares,
the Fund will give prompt notice thereof to DST.
B. DST hereby agrees to perform such transfer
agency functions as are attached hereto as
Exhibit A and 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, and to carry such insurance as
specified in Exhibit B.
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C. To the extent required by Section 31 of the
Investment Company Act of 1940 as amended and
Rules thereunder, DST agrees that all records
maintained by DST relating to the services to
be performed by DST under this Agreement are
the property of the Fund and will be
preserved and will be surrendered promptly to
the Fund on request. The Fund will be
responsible for the costs of storing and
retrieving such records.
D. DST agrees to furnish the Fund annual reports of its
financial condition, consisting of a balance sheet,
earnings statement and any other public financial
information reasonably requested by the Fund. The annual
financial statements will be certified by DST's
certified public accountants.
E. DST represents and agrees that it will use
its best efforts to keep current on the
trends of the investment company industry
relating to transfer agent services and will
use its best efforts to continue to modernize
and improve its system without additional
cost to the Fund. Notwithstanding the
foregoing, (i) DST shall not be liable for
failing to make any modification or
improvement as to the necessity which the
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Fund has not advised DST in writing; (ii) for any delay
in the implementation of such modification or
improvement where DST reasonably required more time than
was permitted by circumstances or regulations; and (iii)
the Fund may be charged for utilization of any
modification or improvement if utilization of such
modification or improvement is charged to DST's clients
generally, and provided such modification or improvement
is utilized to provide services to the Fund hereunder.
F. DST will permit the Fund and its authorized
representatives to make periodic inspections of its
operations as such would involve the Fund at reasonable
times during business hours, subject to such authorized
representatives' execution of DST's Confidentiality and
Limited Use Agreement.
10. Recapitalization or Readjustment.
--------------------------------
In case of any recapitalization, readjustment or
other change in the capital structure of the Fund
requiring a change in the form of share
certificates, DST will issue or register
certificates in the new form in exchange for, or
in transfer of, the outstanding certificates in
the old form, upon receiving:
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A. Written instructions from an officer of the
Fund;
B. Certified copy of the amendment to the
Articles of Incorporation or other document
effecting the change;
C. Certified copy of the order or consent of
each governmental or regulatory authority,
required by law to the issuance of the shares
in the new form, and an opinion of counsel
that the order or consent of no other
government or regulatory authority is
required;
D. Specimens of the new certificates in the form
approved by the Board of Trustees of the
Fund, with a certificate of the Clerk of the
Fund as to such approval;
E. Opinion of counsel for the Fund stating:
(1) The status of the shares of stock of the
Fund in the new form under the Securities Act of
1933, as amended and any other applicable federal
or state statute; and
(2) That the issued shares in the new form are, and
all unissued shares will be, when issued, validly
issued, fully paid and nonassessable.
11. Stock Certificates.
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The Fund will furnish DST with a sufficient supply of blank
stock certificates and from time to time will renew such
supply upon the request of DST. Such certificates will be
signed manually or by facsimile signatures of the officers of
the Fund authorized by law and by bylaws to sign share
certificates, and if required, will bear the Funds's seal or
facsimile thereof.
12. Death, Resignation or Removal of Signing Officer.
------------------------------------------------
The Fund will file promptly with DST written
notice of any change in the officers authorized to
sign share certificates, written instructions or
requests, together with two signature cards
bearing the specimen signature of each newly
authorized officer. In case any officer of the
Fund who will have signed manually or whose
facsimile signature will have been affixed to
blank share certificates will die, resign, or be
removed prior to the issuance of such
certificates, DST may issue or register such share
certificates as the share certificates of the Fund
notwithstanding such death, resignation, or
removal, until specifically directed to the
contrary by the Fund in writing. In the absence
of such direction, the Fund will file promptly
with DST such approval, adoption, or ratification
as may be required by law.
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13. Future Amendments of Articles of Incorporation and
Bylaws.
The Fund will promptly file with DST copies of all
material amendments to its Articles of
Incorporation or bylaws made after the date of
this Agreement.
14. Instructions, Opinion of Counsel and Signatures.
-----------------------------------------------
Except as otherwise provided for in a written
memorandum signed by both parties hereto, at any
time DST may apply to any officer of the Fund, The
Chase Manhattan Bank ("Chase") or Mutual Fund
Select Group for instructions, and if such
instructions are not received within a reasonable
time following subsequent notification with the
Fund's Chief Executive Officer, then DST may
consult with legal counsel for the Fund or its own
legal counsel at the expense of the Fund, with
respect to any matter arising in connection with
the agency and it will not be liable for any
action taken or omitted by it in good faith in
reliance upon such instructions or upon the
opinion of such counsel. DST will be protected in
acting upon any paper or document reasonably
believed by it to be genuine and to have been
signed by the proper person or persons and will
not be held to have notice of any change of
authority of any person, until receipt of written
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notice thereof from the Fund. It will also be protected in
recognizing share certificates which it reasonably believes to
bear the proper manual or facsimile signatures of the officers
of the Fund, and the proper countersignature of any former
Transfer Agent or Registrar, or of a co-Transfer Agent or
co-Registrar.
15. Papers Subject to Approval of Counsel.
-------------------------------------
The acceptance by DST, of its appointment as
Transfer Agent and Dividend Disbursing Agent and
all documents filed in connection with such
appointment and thereafter in connection with the
agencies, will be subject to the approval of legal
counsel for DST (which approval will be not
unreasonably withheld).
16. Certification of Documents.
The required copy of the Articles of Incorporation of the Fund
and copies of all amendments thereto may be duplicates of the
original certified by the Secretary of State (or other
appropriate official) of the Commonwealth of Massachusetts.
The copy of the Bylaws, copies of all amendments thereto, and
copies of resolutions or Votes of the Board of Trustees of the
Fund, will be certified by the Clerk or an Assistant Clerk of
the Fund under the Fund's seal, if any.
17. Records.
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DST will maintain customary records in connection with its
agency, and particularly will maintain those records required
to be maintained pursuant to subparagraph (2)(iv) of paragraph
(b) of Rule 31a-1 under the Investment Company Act of 1940, if
any.
18. Disposition of Books, Records and Cancelled
-------------------------------------------
Certificates. DST may send periodically to the
------------
Fund, or to where designated by the Clerk or an
Assistant Clerk of the Fund, all books, documents,
and all records no longer deemed by it as needed
for current purposes and stock certificates which
have been cancelled in transfer or in exchange.
At a minimum all such records will be maintained
for the periods required by applicable law and
under and in compliance with the requirements of
17 C.F.R. Section 240.17Ad-7(g), adopted under the
------
Securities and Exchange Act of 1934.
19. Provisions Relating to DST as Transfer Agent.
A. DST will make original issues of stock
certificates upon written request of an
officer of the Fund and upon being furnished
with a certified copy of a resolution of the
Board of Directors authorizing such original
issue, an opinion of counsel as outlined in
paragraphs 1.D. and G. of this Agreement, any
documents required by paragraphs 5. or 10. of
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this Agreement, and necessary funds for the
payment of any original issue tax.
B. Before making any original issue of
certificates the Fund will furnish DST with
sufficient funds to pay all required taxes on
the original issue of the stock, if any. The
Fund will furnish DST such evidence as may be
required by DST to show the actual value of
the stock. If no taxes are payable DST will
be furnished with an opinion of outside
counsel to that effect.
C. Stock certificates will be transferred and
new certificates issued in transfer, or stock
certificates accepted for redemption and
funds remitted therefor, upon surrender of
the old certificates in form deemed by DST
properly endorsed for transfer or redemption
accompanied by such documents as DST may deem
necessary to evidence that authority of the
person making the transfer or redemption, and
bearing satisfactory evidence of the payment
of any applicable transfer taxes. DST
reserves the right to refuse to transfer or
redeem shares until it is satisfied that the
endorsement or signature on the Certificate
or any other document is valid and genuine,
and for that purpose it may require a
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guarantee of signature by a bank, broker or dealer,
municipal securities dealer or broker, government
securities dealer or broker, credit union, national
securities exchange, registered securities association,
clearing agency, savings association (including savings
bank and savings and loan) or any entity which affixes a
medallion which reasonably appears to be that of a
Signature Guarantee Program (collectively an "Eligible
Guarantor Institution"). DST will incur no liability and
shall be indemnified and held harmless by the Fund for
any action taken by it in accordance with an instruction
bearing what purports to be a signature guarantee or
medallion of an Eligible Guarantor Institution or
otherwise in accordance with DST's Signature Guarantee
Procedures adopted pursuant to 17 C.F.R. Section
240.17Ad-15 under the Securities and Exchange Act of
1934. DST also reserves the right to refuse to transfer
or redeem shares until it is satisfied that the
requested transfer or redemption is legally authorized,
and it will incur no liability and shall be indemnified
and held harmless by the Fund for the refusal in good
faith to make transfers or
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redemptions which, in its judgment, are improper or
unauthorized. DST may, in effecting transfers or
redemptions, rely upon Simplification Acts or other
statutes which protect it and the Fund in not requiring
complete fiduciary documentation. In cases in which DST
is not directed or otherwise required to maintain the
consolidated records of shareholder's accounts, DST will
not be liable for any loss which may arise by reason of
not having such records, provided that such loss could
not have been prevented by the exercise of ordinary
diligence. DST will be under no duty to use a greater
degree of diligence by reason of not having such
records.
D. D. When mail is used for delivery of stock
certificates DST will forward share
certificates in "nonnegotiable" form by first
class or registered mail and share
certificates in "negotiable" form by
registered mail, all such mail deliveries to
be covered while in transit to the addressee
by insurance arranged for by DST.
E. DST will issue and mail subscription
warrants, certificates representing
dividends, exchanges or split ups, or act as
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Conversion Agent upon receiving written instructions
from any officer of the Fund and such other documents as
DST deems necessary.
F. DST will issue, transfer, and split up
certificates and will issue certificates
representing full shares upon surrender of
scrip certificates aggregating one full share
or more when presented to DST for that
purpose upon receiving written instructions
from an officer of the Fund and such other
documents as DST may deem necessary.
G. DST may issue new certificates in place of
certificates represented to have been lost,
destroyed, stolen or otherwise wrongfully
taken upon receiving instructions from the
Fund and indemnity satisfactory to DST and
the Fund, and may issue new certificates in
exchange for, and upon surrender of,
mutilated certificates.
H. DST will supply a shareholder's list to the Fund for one
meeting of shareholders upon receiving a request
therefor from an officer of the Fund. It will also
supply lists at such other times as may be requested by
an officer of the Fund, but may, in its discretion,
charge therefor.
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I. Upon receipt of written instructions of an
officer of the Fund, DST will address and
mail notices to shareholders.
J. In case of any request or demand for the
inspection of the shareholder records of the
Fund or any other books in the possession of
DST, DST will endeavor to notify the Fund and
endeavor to secure instructions as to
permitting or refusing such inspection. DST
reserves the right, however, to exhibit the
shareholder records or other books to any
person in case it is advised by its counsel
that it may be held responsible for the
failure to exhibit the shareholder records or
other books to such person.
20. Provisions Relating to Dividend Disbursing Agency.
A. DST will, at the expense of the Fund, provide
a special form of check containing the imprint of any
device or other matter desired by the Fund. Said checks
must, however, be of a form and size convenient for use
by DST.
B. If the Fund desires to include additional printed
matter, financial statements, etc., with the dividend
checks, the same will be furnished DST within a
reasonable time prior to the date of mailing of the
dividend checks, at the expense of the Fund.
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C. If the Fund desires its distributions mailed
in any special form of envelopes, sufficient
supply of the same will be furnished to DST
but the size and form of said envelopes will
be subject to the approval of DST. If
stamped envelopes are used, they must be
furnished by the Fund; or if postage stamps
are to be affixed to the envelopes, the
stamps or the cash necessary for such stamps
must be furnished by the Fund (prior to
mailing if so requested by DST).
D. DST will maintain one or more deposit accounts as Agent
for the Fund, into which the funds for payment of
dividends, distributions, redemptions or other
disbursements provided for hereunder will be deposited,
and against which checks will be drawn.
E. DST is authorized and directed to stop
payment of checks issued hereunder, but not
presented for payment, when the payees
thereof allege either that they have not
received the checks or that such checks have
been mislaid, lost, stolen, destroyed or
through no fault of theirs, are otherwise
beyond their control, and cannot be produced
by them for presentation and collection, and,
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to issue and deliver duplicate checks in replacement
thereof. DST shall bear no liability if payment upon
stopped checks is subsequently compelled by a Holder in
Due Course (or a Bona Fide Purchaser for Value).
21. Assumption of Duties By the Fund.
--------------------------------
The Fund or its agent or affiliate may assume
certain duties and responsibilities of DST or
those usual and ordinary services of Transfer
Agent and Dividend Disbursement Agent as those
terms are referred to in Section 4.E. of this
Agreement including but not limited to accepting
shareholder instructions and transmitting orders
based on such instructions to DST, preparing and
mailing confirmations, obtaining certified TIN
numbers, answering telephones, and disbursing
monies of the Fund. To the extent the Fund or its
agent or affiliate assumes such duties and
responsibilities, DST shall be relieved from all
responsibility and liability therefor.
22. Termination of Agreement.
A. This Agreement may be terminated by either
party upon receipt of six (6) months prior
written notice from the other party.
B. The Fund, in addition to any other rights and
remedies, shall have the right to terminate
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this Agreement forthwith upon the occurrence
at any time of any of the following events:
(1) Any interruption or cessation of
operations by DST or its assigns which
materially interferes with the business
operation of the Fund;
(2) The bankruptcy of DST or its assigns or
the appointment of a receiver for DST or
its assigns;
(3) Any merger, consolidation or sale of
substantially all the assets of DST or
its assigns;
(4) The acquisition of a controlling interest in DST
or its assigns, by any broker, dealer, investment
adviser or investment company except as may
presently exist; or
(5) Failure by DST or its assigns to perform its
duties in accordance with the Agreement, which
failure materially adversely affects the business
operations of the Fund and which failure continues
for thirty (30) days after receipt of written
notice from the Fund.
C. In the event of termination, the Fund will
promptly pay DST all amounts due to DST
hereunder.
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D. In the event of termination, DST will use its
best efforts to transfer the books and
records of the Fund to the designated
successor transfer agent and to provide other
information relating to its service provided
hereunder for reasonable compensation
therefore. In this connection, DST's
conversion assistance shall be billed at its
then current rates. DST's present rates are:
(i) for clerical assistance, __________
dollars ($__________) per hour; (ii) for
Supervisor/Manager assistance, __________
dollars ($__________) per hour; and (iii) for
programming assistance, to the extent DST
agrees thereto, __________ ($__________),
__________ ($__________) and __________
($__________) dollars per hour for
non-technical, mainframe and work station
personnel.
E. Nothing herein is intended to, nor does it, compel DST
to disclose non-public information or to provide
programming assistance or information which might tend
to improve, enhance or add functionality to anyone
else's operating systems, respectively.
23. Assignment.
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A. Neither this Agreement nor any rights or
obligations hereunder may be assigned by
either party hereto without the written
consent of the other party. In the event of
a mutually agreed to assignment, each party
shall remain liable for the performance of
its assignee(s). DST may, however, employ
agents to assist it in performing its duties
hereunder. Notwithstanding anything herein
to the contrary, DST shall have no
responsibility or liability hereunder for
services provided or omissions to provide by
unaffiliated, nationally recognized third
parties such as federal Express, Airborne
Services, UPS, the U.S. Mails,
telecommunications companies, etc.
B. This Agreement will inure to the benefit of
and be binding upon the parties and their
respective successors and assigns.
24. Confidentiality.
A. DST agrees that, except as provided in the last sentence
of Section 19.H hereof, or as otherwise required by law,
DST will keep confidential all records of and
information in its possession relating to the Fund or
its shareholders or shareholder accounts and will
505339\0007\02350\969QFL4B.AGR 09/30/96 1:51PM
30
not disclose the same to any person except at
the request or with the consent of the Fund.
B. The Fund agrees to keep confidential all
financial statements and other financial
records (other than statements and records
relating solely to the Fund's business
dealings with DST) and all manuals, systems
and other technical information and data, not
publicly disclosed, relating to DST's
operations and programs furnished to it by
DST pursuant to this Agreement and will not
disclose the same to any person except at the
request or with the consent of DST.
C. The Fund acknowledges that DST and DST have
proprietary rights in and to the computerized
data processing recordkeeping system used by
DST to perform services hereunder including,
but not limited to the maintenance of
shareholder accounts and records, processing
of related information and generation of
output (the "MFS System"), including, without
limitation any changes or modifications of
the MFS System and any other DST or DST
programs, data bases, supporting
documentation, or procedures ("collectively
DST Protected Information") which the Fund's
access to the MFS System or computer hardware
31
or software may permit the Fund or its employees or
agents to become aware of or to access and that the DST
Protected Information constitutes confidential material
and trade secrets of DST. The Fund agrees to maintain
the confidentiality of the DST Protected Information.
The Fund acknowledges that any unauthorized use, misuse,
disclosure or taking of DST Protected Information which
is confidential as provided by law, or which is a trade
secret, residing or existing internal or external to a
computer, computer system, or computer network, or the
knowing and unauthorized accessing or causing to be
accessed of any computer, computer system, or computer
network, may be subject to civil liabilities and
criminal penalties under applicable state law. The Fund
will advise all of its employees and agents who have
access to any DST Protected Information or to any
computer equipment capable of accessing DST or DST
hardware or software of the foregoing. DST is intended
to be, and shall be, a third party beneficiary of the
Fund's obligations and undertakings contained in this
Section.
32
25. Survival of Representations and Warranties,
Indemnifications and Miscellaneous Provisions.
A. All representations and warranties by either
party herein contained will survive the
execution and delivery of this Agreement.
B. All indemnifications and undertakings of
(i) confidential treatment of the other's
information, data, systems, materials, etc.
and (ii) of non-solicitation and
non-employment of employees of the other (and
of affiliates of the other) shall survive the
termination of this agreement.
26. Miscellaneous.
A. This Agreement is executed and delivered in
the State of Missouri and is intended to be
and shall be governed by the laws of said
state.
B. All the terms and provisions of this
Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the
respective successor and assigns of the
parties hereto.
C. No provisions of the Agreement may be amended
or modified, in any manner except by a
written agreement properly authorized and
executed by both parties hereto.
33
D. 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.
E. This Agreement may be executed simultaneously 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.
F. If any part, term or provision of this
Agreement is by the courts held to be
illegal, in conflict with any law or
otherwise invalid, the remaining portion or
portions shall be considered severable and
not be affected, and the rights and
obligations of the parties shall be construed
and enforced as if the Agreement did not
contain the particular part, term or
provision held to be illegal or invalid.
G. The obligations of this Agreement shall only be binding
upon the assets and property of the Fund and shall not
be binding upon any Director, officer or shareholder of
the Fund individually.
H. Each party hereto agrees not to offer
employment to, solicit employment by or
34
employ any employee of the other or, in the case of DST,
of the Fund and its affiliated companies or, in the case
of the Fund, of DST or DST or either of their affiliated
companies. For purposes hereof, an "affiliated company"
shall be any entity which directly or indirectly
controls, is controlled by or is under common control
with the Fund or payment thereof to DST and for
internally determining the appropriate allocation
thereof among the Portfolios.
I. Notice is hereby given that a copy of the
Fund's Agreement and Declaration of Trust and
all amendments thereto is on file with the
Secretary of the Commonwealth of
Massachusetts; that this Agreement has been
executed on behalf of the Fund by the
undersigned duly authorized representative of
the Fund in his/her capacity as such and not
individually; and that the obligations of
this Agreement shall only be binding upon the
assets and property of the Fund and shall not
be binding upon any trustee, officer or
shareholder of the Fund individually.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
35
DST SYSTEMS, INC.
By:____________________________
ATTEST:
_________________________________
MUTUAL FUND SELECT GROUP
By:____________________________
Title:_________________________
ATTEST:
_________________________________
Secretary
36
EXHIBIT A
TRANSFER AGENCY SERVICES AND SYSTEMS FEATURES
FUNCTIONS
A. Issuance of stock certificates
B. Recording of non-certificate shares
C. Purchase, redemptions, exchanges, transfers and legal
D. Changes of address, etc.
E. Daily balancing of the Fund
F. Dividend calculation and disbursement
G. Mailing of quarterly and annual reports, if requested
H. Filing of 1099/1042 information to shareholders and
government
I. Provide N1R information
[J. Systematic withdrawal plans]
K. Pre-authorized checks
L. Purchase reminders
M. Reconcilement of dividend and disbursement accounts
N. Provide research and correspondence to shareholder's
inquiries
O. Daily communication of reports to the Fund
P. Provide listings, labels and other special reports
Q. Proxy issuance and tabulation
R. Annual statements of shareholders on microfilm
S. Blue-sky reports
T. Wire order processing
[U. 12B-1 processing]
37
EXHIBIT B
INSURANCE COVERAGE
Insurance coverages maintained by DST effective May 1, 1993, subject to
deductibles
DESCRIPTION OF POLICY:
Brokers Blanket Bond, Standard form 14 Covering losses caused by
dishonesty of employees, physical loss of securities on or outside
of premises while in possession of authorized person, loss caused by
forgery or alteration of checks or similar instruments.
Coverage: $75,000,000
Errors and Omissions Insurance
Covering replacement of destroyed records and computer errors and
omissions.
Coverage. $10,000,000
Special Forgery Bond
Covering losses through forgery or alteration of checks or drafts of
customers processed by insured but drawn on or against them.
Coverage: $1,000,000
Mail Insurance (apples to all full service operations)
Provides indemnity for security lost in the mails.
Coverage:
$10,000,000 nonnegotiable securities mailed
to domestic locations via registered mail.
38
$1,000,000 nonnegotiable securities mailed to
domestic locations via first-class or
certified mail.
$1,000,000 nonnegotiable securities mailed to
foreign locations via registered mail.
$1,000,000 negotiable securities mailed to
all locations via registered mail.
