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EXHIBIT 8d
FORM OF TRANSFER AGENCY AGREEMENT
This Transfer Agency Agreement is made as of the ___ of _________, 1995
between Pacific Horizon Funds, Inc., a Maryland corporation (herein called the
"Company"), having its principal office and place of business at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000-0000 and BISYS Fund Services Ohio, Inc., an Ohio
corporation having its principal office and place of business at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000-0000 (herein called the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises herein set forth,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
1. "Approved Institution" shall mean an entity so named in a
Certificate. From time to time the Company may amend a previously delivered
Certificate by delivering to the Transfer Agent a Certificate naming an
additional entity or deleting any entity named in a previously delivered
Certificate.
2. "Board of Directors" shall mean the Board of Directors of the
Company.
3. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Transfer Agent by the Company which is signed by any Officer, as hereinafter
defined, and actually received by the Transfer Agent.
4. "Class" shall mean a subclass of shares within a particular
Fund.
5. "Custodian" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Company, or its successor(s).
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6. "Company Accountant" shall mean the entity appointed as
accountant under the terms and conditions of the Accounting Services Agreement
between the entity and the Company, or its successor(s).
7. "Company Business Day" shall be deemed to be each day the
Company is open for trading.
8. "Manager" shall mean Bank of America, NT&SA, acting under the
terms and conditions of the Management Agreement and includes any successor and
assigns.
9. "Officer" shall be deemed to be the Company's Chairman of the
Board, the Company's President, any Vice President of the Company, the Company's
Secretary, the Company's Treasurer, the Company's Controller, any Assistant
Controller of the Company, any Assistant Treasurer of the Company, any Assistant
Secretary of the Company, and any other person duly authorized by the Board of
Directors of the Company to execute any Certificate, instruction, notice or
other instrument on behalf of the Company and named in the Certificate annexed
hereto as Appendix A, as such Certificate may be amended from time to time, and
any person reasonably believed by the Transfer Agent to be such a person.
10. "Prospectus" shall mean with respect to a Class of Shares, the
last Company prospectus actually received by the Transfer Agent from the Company
with respect to such Class of Shares and with respect to which the Company has
indicated a Registration Statement under the Securities Act of 1933, as amended,
has become effective, including the Statements of Additional Information,
incorporated by reference therein.
11. "Funds" shall mean the various portfolios of the Company as
described from time to time in the current and effective Prospectuses.
12. "Shares" shall mean all or any part of each Class of shares of
common stock of the Company listed in the Certificate, attached hereto as
Appendix B, as may be amended from time to time, which are from time to time
authorized and/or issued by the Company.
13. "Transfer Agent" shall mean BISYS Fund Services Ohio, Inc., as
transfer agent and dividend disbursing agent under the terms and conditions of
this Agreement, its successor(s) or assign(s).
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14. "Out-of-Pocket Expenses" means amounts reasonably necessary
and actually paid to third parties by the Transfer Agent in the provision of the
Transfer Agent services or pursuant to this Agreement. Such amounts will not
include charges of legal counsel, but will otherwise include amounts paid for
the following purposes: (i) postage and all freight and other delivery and
bonding charges incurred by the Transfer Agent in delivering materials to and
from the Company and in delivering all materials to shareholders; (ii) all
direct telephone, telephone transmission, telecopy, or other electronic
transmission expenses incurred by the Transfer Agent in communication with the
Company's dealers, shareholders or others, as required for the Transfer Agent to
perform the services to be provided hereunder; (iii) all charges related to the
settlement of shareholder transactions, including but not limited to NSCC/FUND
SERV charges, bank wire charges, and checking account charges; (iv) charges
associated with satisfying Internal Revenue Service tax reporting requirements;
(v) expenses associated with Securities and Exchange Commission examinations of
Company books and records; (vi) paper stocks and printing costs for statements,
checks, envelopes, tax and other forms; and (vii) such other expenses paid or
incurred by Transfer Agent on behalf of the Company at the request of the
Manager.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Company hereby appoints the Transfer Agent as transfer
agent of all the Shares of the Company and as dividend disbursing agent during
the period of this Agreement.
2. (a) The Transfer Agent hereby accepts appointment as
transfer agent and dividend disbursing agent and agrees to perform the duties
thereof as herein set forth, including those duties set forth in Schedule I(a)
hereto.
(b) The services and specific capabilities to be provided
under this Agreement by the Transfer Agent shall include those specifically
listed in this Agreement.
3. Upon the request of the Transfer Agent, the Company shall
deliver the following documents to the Transfer Agent:
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(a) A copy of the Articles of Incorporation of the
Company and all amendments thereto certified by the Secretary of the Company;
(b) A copy of the By-Laws of the Company certified by the
Secretary of the Company;
(c) A copy of a resolution of the Board of Directors of
the Company certified by the Secretary of the Company appointing the Transfer
Agent and authorizing the execution of this Transfer Agency Agreement;
(d) A Certificate signed by the Secretary or any
Assistant Secretary of the Company specifying with respect to each Class or
Fund, the number of authorized Shares, the number of such authorized Shares
issued, and the number of such authorized Shares issued and currently
outstanding; the names and specimen signatures of the Officers of the Company;
and the name and address of the legal counsel for the Company;
(e) Copies of the Company's Registration Statement, as
amended to date, and the most recently filed Post-Effective Amendment thereto,
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and under the Investment Company Act of
1940, as amended, together with any applications filed in connection therewith;
and
(f) Opinion of counsel for the Company with respect to
the validity of the authorized and outstanding Shares, whether such Shares are
fully paid and non-assessable and the status of such Shares under the Securities
Act of 1933, as amended, and any other applicable federal law or regulation
(i.e., if subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor).
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Company shall deliver to the Transfer Agent the following
documents on or before the effective date of any increase or decrease in the
total number of Shares authorized to be issued:
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(a) A certified copy of the amendment to the Articles of
Incorporation giving effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for
the Company with respect to the validity of the Shares of the Company and the
status of such Shares under the Securities Act of 1933, as amended, and any
other applicable federal law or regulation (i.e., if subject to registration,
that they have been registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the
Transfer Agent is expressly limited to the previously authorized number of
Shares, a certified copy of a resolution of the Board of Directors of the
Company increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares of the Company
pursuant to actions such as stock dividends or stock splits, and prior to any
reduction in the number of Shares outstanding, the Company shall deliver the
following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the
Board of Directors and/or the shareholders of the Company authorizing such
issuance of additional Shares of the Company or such reduction, as the case may
be; and
(b) An opinion of counsel for the Company with respect to
the validity of the Shares of the Company and the status of such Shares under
the Securities Act of 1933, as amended, and any other applicable federal law or
regulation (i.e., if subject to registration, that they have been registered and
that the Registration Statement has become effective, or, if exempt, the
specific grounds therefor).
3. The Company is authorized to issue (a) 15,000,000,000 shares
representing interests in the Treasury Money Market Fund-Pacific Horizon
shares; (b) 15,000,000,000 shares representing interests in the Treasury Money
Market Fund-Horizon Service shares; (c) 14,400,000,000 shares representing
interests in the Treasury Money Market Fund-Horizon shares; (d) 15,000,000,000
shares representing interests in the Prime Money Market Fund-Pacific Horizon
shares; (e) 15,000,000,000 shares representing interests in the Prime Money
Market Fund-
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Horizon Service shares; (f) 28,000,000,000 shares representing interests in the
Prime Money Market Fund-Horizon shares; (g) 1,000,000,000 shares representing
interests in the Aggressive Growth Fund; (h) 250,000,000 shares representing
interests in the U.S. Government Securities Fund; (i) 250,000,000 shares
representing interests in the Capital Income Fund; (j) 250,000,000 shares
representing interests in the California Tax-Exempt Bond Fund, (k) 1,500,000,000
shares representing interests in the Tax-Exempt Money Market Fund- Pacific
Horizon shares; (l) 3,000,000,000 shares representing interests in the Tax-
Exempt Money Market Fund-Horizon Service shares; (m) 3,000,000,000 shares
representing interests in the Tax- Exempt Money Market Fund-Horizon shares; (n)
1,000,000,000 shares representing interests in the California Tax-Exempt Money
Market Fund- Pacific Horizon shares; (o) 1,000,000,000 shares representing
interests in the California Tax-Exempt Money Market Fund-Horizon Service
shares; (p) 15,000,000,000 shares representing interests in the Treasury Only
Money Market Fund- Pacific Horizon shares; (q) 15,000,000,000 shares
representing interests in the Treasury Only Money Market Fund-Horizon Service
shares; (r) 7,000,000,000 shares representing interests in the Treasury Only
Money Market Fund-Horizon shares; (s) 15,000,000,000 shares representing
interests in the Government Money Market Fund- Pacific Horizon shares; (t)
15,000,000,000 shares representing interests in the Government Money Market
Fund-Horizon Service shares; (u) 7,000,000,000 shares representing interests in
the Government Money Market Fund-Horizon shares; (v) 100,000,000 shares
representing interests in the Flexible Bond Fund; (w) 100,000,000 shares
representing interests in the Blue Chip Fund; (x) 100,000,000 shares
representing interests in the Asset Allocation Fund; (y) 100,000,000 shares
representing interests in the National Municipal Bond Fund; (z) 100,000,000
shares representing interests in the Utilities Fund; (aa) 100,000,000 shares
representing interests in the Growth and Income Fund; (bb) 100,000,000 shares
representing interests in the International Equity Fund; (cc) 100,000,000 shares
representing interests in the Short-Term Government Fund; (dd) 100,000,000
shares representing interests in the International Bond Fund; and (ee)
100,000,000 shares representing interests in the Corporate Bond Fund; each with
par value of $.001 per share. The Transfer Agent shall record issues of all
shares and shall notify the Company in case any proposed issue of shares by the
Company shall result in an over-issue as defined by Section 8-104(2) of Article
8 of the Maryland Commercial Law Article. In case any issue of shares would
result in such an over-issue, the
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Transfer Agent shall refuse to issue said shares and shall not countersign and
issue certificates (if any) for such shares.
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or
other capital adjustment requiring a change in the form of Share certificates,
the Transfer Agent will issue Share certificates in the new form in exchange
for, or upon transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of the Share
certificates in the new form;
(b) A certified copy of any amendment to the Articles of
Incorporation with respect to the change; and
(c) Specimen Share certificates for each Class of Shares
in the new form approved by the Board of Directors of the Company, with a
Certificate signed by the Secretary or any Assistant Secretary of the Company as
to such approval.
2. The Company at its expense shall furnish the Transfer Agent
with a sufficient supply of blank Share certificates in the new form if
certificates are to be issued and from time to time will replenish such supply
upon the request of the Transfer Agent. Such blank Share certificates shall be
properly signed by facsimile or otherwise by Officers of the Company authorized
by law or by the By-Laws to sign Share certificates and, if required shall bear
the corporate Seal of the Company or facsimile thereof. The Company agrees to
indemnify and exonerate, save and hold the Transfer Agent harmless, from and
against any and all claims or demands that may be asserted against the Transfer
Agent with respect to the genuineness of any Share certificate supplied to the
Transfer Agent pursuant to this paragraph.
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ARTICLE V
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. The Transfer Agent acknowledges that it has received a copy of
the Company's Prospectuses with respect to its currently authorized Funds and
Classes of Shares, which Prospectuses describe how sales and redemption of
Shares of the Company shall be made, and the Transfer Agent agrees to accept
purchase orders and redemption requests with respect to Company Shares on each
Company Business Day in accordance with such Prospectuses. The Company agrees to
notify the Transfer Agent as soon as possible under the circumstances of any
changes in the procedures set forth in the Prospectus regarding such purchase
and redemption procedures.
2. On each Company Business Day, a duly authorized officer or
employee of the Transfer Agent shall furnish the following information by
telephone call to an Officer of the Company or by such other form to such other
person as shall be agreed upon from time to time by the Company and the Transfer
Agent:
(a) The total dollar amount to be applied to the purchase
of Shares of each Class or Fund on such day, computed by aggregating the amount
so specified in such of the purchase orders described in paragraph 1 of this
Article V with respect to which payment has been, or will be, credited by the
Custodian to the Company's custody account with the Custodian on such day. The
Transfer Agent shall also accept with respect to each Company Business Day, at
such times as are agreed upon from time to time by the Transfer Agent and the
Company, a computer tape consistent in all respects with the Transfer Agent's
tape layout package, as amended from time to time, upon prior written notice to
the Company or its Distributor, which is believed by the Transfer Agent to be
furnished by or on behalf of any Approved Institution. The Transfer Agent shall
not be liable for any loss or damage to the Company or its shareholders in the
event that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or transmission is
found to be incorrect.
(b) The total dollar amount of Shares of each Class or
Fund to be redeemed on such day, computed by aggregating the amount so specified
in (i) such of the
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redemption requests described in paragraph 1 of this Article V with respect to
which the amount payable as redemption proceeds has been, or will be, charged by
the Custodian on such day, and (ii) all computer tapes described in paragraph
2(a) of this Article V with respect to which the amount payable as redemption
proceeds has been, or will be, charged by the Custodian on such day.
3. On each Company Business Day, the Transfer Agent shall, as of
the time at which the Company computes the net asset value of each Class or Fund
of the Company, issue to and redeem from the shareholder accounts specified in a
purchase order, redemption request or computer tape, which in accordance with
the Prospectuses is effective on such Company Business Day, the appropriate
number of full and fractional Shares based on the net asset value per Share of
such Class or Fund specified in an advice received on such Company Business Day
from the Company or the Company Accountant. Notwithstanding the foregoing, if a
redemption specified in a computer tape is for a dollar value of Shares in
excess of the dollar value of uncertificated Shares in the specified account,
the Transfer Agent shall not effect such redemption in whole or in part and
shall within twenty-four (24) hours orally advise both the Company and the
Approved Institution which supplied such tape of the discrepancy.
4. In connection with a reinvestment of a dividend or
distribution on Shares of any Class or Fund of the Company, the Transfer Agent
shall, as of each Company Business Day, as specified in a Certificate or
resolution described in paragraph 1 of Article VI, issue Shares of a Class or
Fund to the appropriate shareholder account, based on the net asset value per
Share of such Class or Fund specified in an advice received from the Company or
its Company Accountant on such Company Business Day.
5. On each Company Business Day, the Transfer Agent shall supply
the Company Accountant with a statement specifying with respect to the
immediately preceding Company Business Day (or the same day if a money market
portfolio): the total number of Shares of each Class or Fund (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of each Class or Fund sold on such day, pursuant
to paragraph 3 of this Article V; the total number of Shares of each Class or
Fund redeemed by the Transfer Agent on such day; the total number of Shares of
each Class or Fund, if any, sold on such day pursuant to paragraph 4 of this
Article V; and the total
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number of Shares of each Class or Fund issued and outstanding. On the same day
such statement is received by the Company, the Company shall confirm the
information contained therein, after making any necessary corrections, by
delivering to the Transfer Agent a Certificate with respect to the same.
6. In connection with each purchase and each redemption of
Shares, and each reinvestment of a dividend or distribution of Shares, the
Transfer Agent shall send to the affected shareholder such statements as are
prescribed by the federal securities laws applicable to transfer agents and as
are described in the applicable Prospectuses. If the Prospectuses indicate that
certificates for Shares are available and if specifically requested in writing
by any shareholder, or if otherwise required hereunder, the Transfer Agent shall
countersign, issue and mail by first-class mail to such shareholder at the
address set forth in the records of the Transfer Agent, a Share certificate for
any full Shares requested.
7. As of each Company Business Day, the Transfer Agent shall
furnish the Custodian with a written statement (which may be by facsimile
transfer) setting forth the number and dollar amount of each Class or Fund of
Shares to be redeemed on such Company Business Day in accordance with paragraph
3 of this Article V.
8. Upon receipt of a proper redemption request and moneys paid to
it by the Custodian in connection with a redemption of Shares, the Transfer
Agent shall cancel the redeemed Shares and, after making appropriate deduction
for any withholding of taxes required of it by applicable law, (a) in the case
of a redemption of Shares pursuant to a redemption described in paragraph 1 of
this Article V, make payment in accordance with the Company's redemption and
payment procedures described in the Prospectuses, and (b) in the case of a
redemption of Shares pursuant to a computer tape described in paragraph 2(a) of
this Article V, make payment by directing a federal funds wire order to the
account previously designated by the Approved Institution specified in the
computer tape.
9. The Transfer Agent shall not be required to issue any Shares
after it has received from an Officer of the Company or from an appropriate
federal or state authority written notification that the sale of Shares has been
suspended or discontinued, and the Transfer Agent shall be entitled to rely upon
such written notification.
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10. Upon the issuance of any Shares in accordance with this
Agreement, the Transfer Agent shall not be responsible for the payment of any
original issue or other taxes required to be paid by the Company in connection
with such issuance of any Shares.
11. The Transfer Agent shall accept a computer tape consistent
with the Transfer Agent's tape layout package, as amended from time to time upon
prior notice to the Company or the Distributor, which is reasonably believed by
the Transfer Agent to be furnished by or on behalf of an Approved Institution
and is represented to be instructions with respect to the transfer of Shares
from one account of such Approved Institution to another such account, and shall
effect the transfers specified in said computer tape. The Transfer Agent shall
not be liable for any losses to the Company or its shareholders in the event
that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or transmission is
found to be incorrect.
12. (a) Except as otherwise provided in sub-paragraph (b) of
this paragraph and in paragraph 14 of this Article V, Shares shall be
transferred or redeemed upon presentation to the Transfer Agent of Share
certificates or instructions properly endorsed for transfer or redemption,
accompanied by such documents as the Transfer Agent deems necessary to evidence
the authority of the person making such transfer or redemption, and bearing
satisfactory evidence of the payment of any transfer taxes. In the case of small
estates where no administration is contemplated, the Transfer Agent may, when
furnished with an appropriate surety bond, and without further approval of the
Company, transfer or redeem Shares registered in the name of a decedent where
the current market value of the Shares being transferred does not exceed such
amount as may from time to time be prescribed by various states. The Transfer
Agent reserves the right to refuse to transfer or redeem Shares until it is
satisfied that the endorsement on the share certificate or instructions is valid
and genuine, and for that purpose it will require, unless otherwise instructed
by an authorized officer of the Company, a guarantee of signature, acceptable to
the Transfer Agent and in compliance with applicable law. The Transfer Agent
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 shall incur no
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liability for the refusal, in good faith, to make transfers or redemptions which
the Transfer Agent, in its judgment, deems improper or unauthorized, or until it
is satisfied that there is no basis to any claims adverse to such transfer or
redemption. The Transfer Agent may, in effecting transfers and redemptions of
Shares, rely upon those provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time and as is applicable to the transfer in question, and
the Company shall indemnify the Transfer Agent for any act performed or omitted
by it in good faith in reliance upon such laws.
(b) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Transfer Agent shall be fully
protected by the Company in the event the Transfer Agent does not require any
instruments, documents, assurances, endorsements or guarantees, including,
without limitation, any signature guarantees, in connection with a redemption or
transfer of Shares whenever the Transfer Agent reasonably believes that
requiring the same would be inconsistent with the transfer and redemption
procedures as described in the applicable Prospectus.
13. Notwithstanding any provision contained in this Agreement to
the contrary, the Transfer Agent shall not be required or expected to require,
as a condition to any transfer of any Shares pursuant to paragraph 12 of this
Article V or any redemption of any Shares pursuant to a computer tape described
in this Agreement, any documents, including, without limitation, any documents
of the kind described in sub-paragraph (a) of paragraph 13 of this Article V, to
evidence the authority of the person requesting the transfer or redemption
and/or the payment of any share transfer taxes, and shall be fully protected in
acting in accordance with the applicable provisions of this Article V.
14. (a) As used in this Agreement, the terms "computer tape"
and "computer tape believed by the Transfer Agent to be furnished by an Approved
Institution" shall include any tape or electronic transmission generated by the
Transfer Agent to reflect information believed by the Transfer Agent to have
been input by an Approved Institution, via a remote terminal or other similar
link, into a data processing, storage, or collection system, or similar system
(the "System"), located on the Transfer Agent's premises or utilized by the
Transfer Agent. For
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purposes of paragraph 2 of this Article V, such computer tape shall be deemed to
have been furnished at such times as are agreed upon from time to time by the
Transfer Agent and Company only if the information reflected thereon was input
into the System at such times as are agreed upon from time to time by the
Transfer Agent and the Company.
(b) Nothing contained in this Agreement shall constitute
any agreement or representation by the Transfer Agent to permit, or to agree to
permit, any Approved Institution to input information into a System.
(c) The Transfer Agent reserves the right to approve in
advance any Approved Institution, such approval not to be unreasonably withheld.
The Transfer Agent also reserves the right to terminate any and all automated
data communications, at its discretion, upon a reasonable attempt to notify the
Company when in the opinion of the Transfer Agent continuation of such
communications would jeopardize the accuracy and/or integrity of the Company's
records on the System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Company shall furnish to the Transfer Agent a copy of a
resolution of its Board of Directors, certified by the Secretary or any
Assistant Secretary, either (i) setting forth with respect to a Class or Fund of
Shares the date of the declaration of a dividend or distribution, the date of
accrual or payment, as the case may be, thereof, the record date as of which
Shareholders entitled to payment or accrual shall be determined, the amount per
Share of such dividend or distribution, the payment date on which all previously
accrued and unpaid dividends are to be paid, and the total amount, if any,
payable to the Transfer Agent on such payment date, or (ii) authorizing the
declaration of dividends and distributions on a daily or other periodic basis
and authorizing the Transfer Agent to rely on a Certificate setting forth the
information described in subsection (i) of this paragraph.
2. Upon the payment date specified in such Certificate or
resolution, the Company shall, in the case of a cash dividend or distribution,
cause the Custodian to pay to the Transfer Agent an amount of cash, if any,
sufficient for the Transfer Agent to make the payment, if any, as of the payment
date, specified in such Certificate or
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resolution, to the shareholders who were of record on the record date who are
entitled to receive the cash dividend or distribution. The Transfer Agent shall,
upon receipt of any such cash, make payment of such cash dividends or
distributions to the shareholders of record as of the record date by: (i)
mailing a check, payable to the registered shareholder, to the address of record
or dividend mailing address, or transmitting payment through the Automated
Clearing House System, or (ii) wiring such amounts, or transmitting such amounts
through the Automated Clearing House System, to the accounts previously
designated by an Approved Institution. The Transfer Agent shall not be liable
for any improper payments made in good faith and without negligence, in
accordance with a Certificate or resolution described in the preceding
paragraph. If the Transfer Agent shall not receive from the Custodian sufficient
cash to make payment of any cash dividend or distribution to all shareholders of
a Class or Fund of Shares of the Company as of the record date who are entitled
to receive the cash dividend or distribution, the Transfer Agent shall, upon
notifying the Company, withhold payment to all shareholders of record as of the
record date until sufficient cash is provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be
responsible for the determination of the rate or form of dividends or capital
gain distributions due to the shareholders. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate that
is incorrect. The Company agrees to pay the Transfer Agent for any and all
costs, both direct and Out-of-Pocket Expenses, incurred in such corrective work
as necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such
appropriate information returns concerning the payment of dividend and capital
gain distributions with the proper federal, state and local authorities as are
required by law to be filed by the Company but shall in no way be responsible
for the collection or withholding of taxes due on such dividends or
distributions due to shareholders, except and only to the extent required by
applicable law. To the extent such collection or withholding of taxes is
required of the Transfer Agent, it shall pay on a timely basis to the
appropriate authority any amounts required to be remitted to the authority.
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ARTICLE VII
CONCERNING THE COMPANY
1. The Company represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under
the laws of the State of Maryland.
(b) It is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been held to
authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under the
Investment Company Act of 1940 (the "1940 Act"), as amended.
(e) A registration statement under the Securities Act of
1933, as amended, with respect to the Shares is effective. The Company shall
notify the Transfer Agent if such registration statement or any state securities
registrations have been terminated or a stop order has been entered with respect
to the Shares.
2. Each copy of the Articles of Incorporation of the Company and
any amendment thereto provided by the Company to the Transfer Agent shall be
certified by the Secretary of State (or other appropriate official) of the state
of organization, and if such Articles of Incorporation and/or amendments are
required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Transfer Agent. Each copy of the Articles of Incorporation and
By-Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Directors of the Company, shall be certified by the Secretary or
Assistant Secretary of the Company.
3. It shall be the sole responsibility of the Company to deliver
to the Transfer Agent the Company's currently effective Prospectuses and, for
purposes of this Agreement, the Transfer Agent shall not be deemed to have
notice of any information contained in such Prospectuses until they are actually
received by the Transfer Agent.
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ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Company
that:
(a) It is a corporation duly organized and existing under
the laws of the State of Ohio.
(b) It is empowered under applicable law and by its
Charter and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been held to
authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under
Section 17A of the Securities Exchange Act of 1934, as amended. The Transfer
Agent shall promptly give written notice to the Company and the Manager in the
event that its registration is revoked or a proceeding is commenced that could
result in such revocation.
2. The Transfer Agent shall not be liable and shall be
indemnified in acting upon any computer tape, writing or document reasonably
believed by it to be genuine and to have been signed or made by the proper
person or persons and shall not be held to have any notice of any change of
authority of any person until receipt of written notice thereof from the Company
or such person. It shall also be protected in processing Share certificates
which bear the proper countersignature of the Transfer Agent and which it
reasonably believes to bear the proper manual or facsimile signature of the
Officers of the Company.
3. The Transfer Agent upon notice to and consent of the Company,
which consent will not be unreasonably withheld, may establish such additional
procedures, rules and regulations governing the transfer or registration of
Share certificates as it may deem advisable and consistent with such rules and
regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in
Schedules I and II hereto in the form and manner and for such period as it may
deem advisable and is agreeable to the Company but not inconsistent with the
rules and regulations of appropriate government authorities, in
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particular Rules 31a-2 and 31a-3 under the 1940 Act, as amended. The Transfer
Agent may deliver to the Company from time to time at its discretion, for
safekeeping or disposition by the Company in accordance with law, such records,
papers, Share certificates which have been cancelled in transfer, exchange or
redemption, or other documents accumulated in the execution of its duties as
such Transfer Agent, as the Transfer Agent may deem expedient, other than those
which the Transfer Agent is required to maintain pursuant to applicable laws and
regulations. The Company shall assume all responsibility for any failure
thereafter to produce any record, paper, cancelled Share certificate, or other
document so returned, if and when required. The records maintained by the
Transfer Agent pursuant to this paragraph 4, which have not been previously
delivered to the Company pursuant to the foregoing provisions of this paragraph
4, shall be considered to be the property of the Company, shall be made
available upon request for inspection by the officers, employees, and auditors
of the Company or other persons authorized by the Company and shall be delivered
to the Company upon request and in any event upon the date of termination of
this Agreement, as specified in Article IX of this Agreement, in the form and
manner kept by the Transfer Agent on such date of termination or such earlier
date as may be requested by the Company. Upon reasonable request by the Company,
the Transfer Agent shall provide in hard copy or on microfilm, whichever the
Transfer Agent shall elect, any records included in any such delivery which are
maintained by the Transfer Agent on a computer disk or are similarly maintained.
5. The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its bad faith,
negligence, willful misfeasance or reckless disregard of its duties under this
Agreement.
6. In performing its services hereunder, the Transfer Agent shall
seek to attain the Performance Objectives set forth in Schedule IV hereto. The
Transfer Agent's failure to meet any Transfer Agent performance objective shall
not in and of itself constitute wilful misconduct or negligence under this
Agreement.
7. (a) The Company shall indemnify and hold harmless the
Transfer Agent from and against all claims (whether with or without basis in
fact or law), demands,
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expenses (including attorneys' fees) and liabilities of any and every nature
which the Transfer Agent may sustain or incur or which may be asserted against
the Transfer Agent by any person as a result of any action taken or omitted to
be taken by the Transfer Agent in good faith and without negligence or willful
misconduct or in reliance upon (i) any provision of this Agreement; (ii) the
Prospectuses; (iii) any instruction or order including, without limitation, any
computer tape reasonably believed by the Transfer Agent to have been received
from an Approved Institution; (iv) any instrument or order reasonably believed
by it to be genuine and to be signed, countersigned or executed by any duly
authorized Officer of the Company; (v) any Certificate or other instruction of
an Officer; or (vi) any opinion of legal counsel for the Company or the Transfer
Agent. The Company shall indemnify and hold harmless the Transfer Agent from and
against all claims (whether with or without basis in fact or law), demands,
expenses (including attorneys' fees) and liabilities of any nature which the
Transfer Agent may sustain or incur or which may be asserted against the
Transfer Agent by any person by reason of or as a result of any action taken or
omitted to be taken by the Transfer Agent in good faith in connection with its
appointment or in reasonable reliance upon any law, act, regulation or any
interpretation of the same even though such law, act or regulation may have been
altered, changed, amended or repealed thereafter.
(b) The Transfer Agent shall indemnify and hold harmless
the Company, its officers, trustees, employees and agents from and against all
claims (whether with or without basis in fact or law), demands, expenses
(including attorneys' fees) and liabilities of any and every nature which the
Company may sustain or incur or which may be asserted against the Company by any
person as a result of any action taken or omitted to be taken by the Transfer
Agent which constitutes bad faith, negligence, reckless disregard or willful
misfeasance or arising out of a failure of the Transfer Agent to comply with
this Agreement or a breach by the Transfer Agent of any representation or
warranty contained in this Agreement or the attached Exhibits or Schedules.
(c) Neither party ("Indemnified Party") shall settle nor
make any compromise of any claim, demand, expense or liability to which it may
seek indemnity pursuant to paragraph 7(a) of this Article VIII (each, an
"Indemnifiable Claim") without the express written consent of the other party
("Indemnifying Party"). The Indemnified
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Party shall notify the Indemnifying Party within 15 days of receipt of
notification of an Indemnifiable Claim, provided that the failure by the
Indemnified Party to furnish such notification shall not impair its right to
seek indemnification from the Indemnifying Party unless the Indemnifying Party's
ability to adequately defend the Indemnifiable Claim is impaired as a result of
such failure, and further provided, that if as a result of the Indemnified Party
failure to provide the Indemnifying Party with timely notice of the initiation
of litigation, a judgment by default is entered, prior to seeking
indemnification from the Indemnifying Party, the Indemnified Party, at its own
cost and expense, shall oppose such judgment. The Indemnifying Party shall have
the right to defend any Indemnifiable Claim at its own expense, provided that
such defense shall be conducted by counsel selected by the Indemnifying Party
and reasonably acceptable to the Indemnified Party. The Indemnified Party may
join in such defense at its own expense, but to the extent that it shall so
desire, the Indemnifying Party shall direct such defense. The Indemnifying Party
shall not settle any Indemnifiable Claim without the express written consent of
the Indemnified Party if the Indemnified Party determines that such settlement
would have an adverse effect on the Indemnified Party beyond the scope of this
Agreement. In such event, each of the Indemnifying Party and the Indemnified
Party shall be responsible for their own defense at their own cost and expense,
and such claim shall not be deemed an Indemnifiable Claim hereunder. If the
Indemnifying Party fails or refuses to defend an Indemnifiable Claim, the
Indemnified Party may provide its own defense at the cost and expense of the
Indemnifying Party.
(d) Notwithstanding any provision in this Agreement to
the contrary, the Indemnifying Party shall not indemnify the Indemnified Party
against any liability or expense arising out of the Indemnifying Party's
negligence, willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement. The Indemnified
Party shall indemnify and hold harmless the Indemnifying Party from and against
any and all claims (whether with or without basis in fact or law), losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to any action or failure or omission to act by the
Indemnified Party as a result of the Indemnified Party's bad faith, negligence,
willful misfeasance, gross negligence or reckless disregard of its duties under
this Agreement.
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8. Excluded from the consideration of whether the Transfer Agent
has been negligent or has breached this Agreement shall be any period of time,
and only such period of time, during which the Transfer Agent's performance is
materially affected by reason of circumstances beyond its control (collectively,
"Causes"), including without limitation mechanical breakdowns of equipment
(including any alternative power supply and operating systems software), flood
or catastrophe, acts of God, failures of transportation, communication or power
supply, strikes, lockouts, work stoppages or other similar circumstances.
9. The obligations of the parties hereto under paragraphs 2, 5,
6, 7 and 8 of Article VIII shall survive termination of this Agreement.
10. At any time, the Transfer Agent may apply to an Officer of the
Company that is not associated with or employed by the Transfer Agent or any of
its affiliates, for written instructions with respect to any matter arising in
connection with the Transfer Agent's duties and obligations under this
Agreement, and the Transfer Agent shall not be liable for any action taken or
omitted by it in good faith in accordance with such written instructions. Such
application by the Transfer Agent for written instructions from an Officer of
the Company may set forth in writing any action proposed to be taken or omitted
by the Transfer Agent with respect to its duties or obligations under this
Agreement and the date on and/or after which such action shall be taken. The
Transfer Agent shall not be liable for any action taken or omitted in accordance
with a proposal included in any such application on or after the date specified
therein unless, prior to taking or omitting any such action, the Transfer Agent
has received written instructions in response to such application specifying the
action to be taken or omitted. The Transfer Agent may consult with counsel of
the Company, or upon notice to and consent of the Company and Manager, its own
counsel, at the expense of the Company and shall be fully protected with respect
to anything done or omitted by it in good faith in accordance with the advice or
opinion of counsel to the Company or its own counsel.
11. The Transfer Agent shall issue and mail subscription warrants
for Shares of capital stock, Shares representing stock dividends, exchanges or
splits, or act as conversion agent upon receiving written instructions from an
Officer and such other documents as the Transfer Agent may deem necessary.
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12. The Transfer Agent shall supply shareholder lists to the
Company upon receiving a request therefor from an Officer of the Company.
13. (a) The Transfer Agent shall treat confidentially and as
proprietary information of the Company records and other information relative to
the Company and to persons who are at any time shareholders of the Company, and
shall not use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder. In case of any request
or demand for the inspection of the shareholder records of the Company, the
Transfer Agent shall endeavor to notify the Company promptly and to secure
instructions from an Officer as to such inspection. The Transfer Agent reserves
the right, however, to exhibit the shareholder records to any person whenever it
receives an opinion from its counsel that there is a reasonable likelihood that
the Transfer Agent will be held liable for the failure to exhibit the
shareholder records to such person; provided, however, that in connection with
any such disclosure the Transfer Agent shall promptly notify the Company and the
Manager that such disclosure has been made or is to be made.
(b) The obligations of confidentiality in Paragraph 13(a)
shall survive termination or cancellation of this Agreement and shall not apply
to any information which a party has in its possession when disclosed to it by
the other party, information which a party develops, information which is or
becomes known to the public other than by breach of this Agreement, or
information rightfully received by either party from a third-party without the
obligation of confidentiality.
14. At the request of an Officer of the Company, the Transfer
Agent shall address and mail such appropriate notices to shareholders as the
Company may direct.
15. Notwithstanding any of the foregoing provisions of this
Agreement, the Transfer Agent shall be under no duty or obligation to inquire
into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor, or the authority of the
Approved Institution or of the Company to request such sale or issuance;
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(b) The legality of a transfer of Shares, or of a
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Approved Institution or of the Company to request such
transfer or redemption;
(c) The legality of the declaration of any dividend by
the Company, or the legality of the issue of any Shares in payment of any share
dividend; or
(d) The legality of any recapitalization or readjustment
of Shares.
16. The Transfer Agent shall be entitled to receive and the
Company hereby agrees to pay to the Transfer Agent for its performance
hereunder, including its performance of the duties and functions set forth in
Schedule I hereto, (i) its reasonable Out-of-Pocket Expenses (including legal
expenses and attorneys' fees) incurred in connection with its performance
hereunder and (ii) such compensation as may be agreed upon in writing from time
to time by the Transfer Agent and the Company.
17. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Transfer Agent.
18. Purchase and Price of Services.
(a) The Company shall compensate the Transfer Agent for,
and the Transfer Agent will provide, beginning on the execution date of this
Agreement and continuing until the termination of this Agreement as provided
herein, the Services set forth herein in Schedule I(a).
(b) The current unit prices for the Services shall be as
set forth in Schedule III (the "Schedule III Fee Schedule"). At least 90 days
prior to the end of each calendar year, the Transfer Agent may negotiate with
the Company to adjust the Schedule III Fee Schedule for the following calendar
year upon the approval of the Board of Directors of the Company. Notwithstanding
the above, at any time the Transfer Agent shall be entitled to increased fees or
one-time charges due to changes in legal or regulatory requirements; provided
that such increased fees or one-time charges shall be subject to the approval of
the Board of
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Directors of the Company, which approval shall not be unreasonably withheld.
19. Billing and Payment.
(a) The Transfer Agent shall xxxx the Company as follows:
(i) monthly in arrears for Accounts maintained and in arrears for any
Out-of-Pocket Expenses incurred by the Transfer Agent; provided, however, that
with respect to Out-of-Pocket Expenses, the Transfer Agent shall provide the
Company monthly with an amount to be advanced to the Transfer Agent for
estimated postage expenses for the following month. Documentation to support
reconciliation of actual postal charges shall be provided to the Company
monthly. The Transfer Agent may from time to time request the Company to make
additional advances when appropriate.
(b) The Company shall pay the Transfer Agent in
immediately available funds at Columbus, Ohio within thirty (30) days of the
date of the xxxx, provided the xxxx is received in proper order and on a timely
basis.
20. Transfer Agent shall provide the Company and the
Manager with annual financial statements not later than 90 days after the end of
each of Transfer Agent's fiscal years. These financial statements shall be
prepared in accordance with generally accepted accounting principles and shall
be audited by an independent firm of certified public accountants. Upon the
Company's request, Transfer Agent shall provide the Company and the Manager with
its quarterly financial statements no later than 45 days after the end of each
fiscal quarter.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement by
giving to the other party notice in writing specifying the date of such
termination, which shall be not less than 90 days after the date of receipt of
such notice. Notwithstanding the foregoing, the Company may at any time
terminate this Agreement in accordance with the provisions of Schedule IV
hereto.
2. If either party fails to observe, keep or perform any material
term or condition of this Agreement, or if a voluntary or involuntary petition
is commenced by or against either party under Title 11 of the United States
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Code or a party becomes insolvent, or should any substantial part of either
party's property be subject to any levy, seizure, assignment, application or
sale for or by any creditor or government agency, the other party may terminate
this Agreement in whole or in part. The party seeking to terminate this
Agreement shall give the other party written notice of any of the foregoing
claimed to be a basis for termination, and the Agreement shall terminate 30 days
after the receipt of the notice if the party receiving the notice has then
failed to correct or remedy the situation. The party charged with alleged
material breach may initiate the procedures in Article X Paragraph 5 and, in
that case, termination shall not be effective during the pendency of such
procedures. In the event such notice is given by the Company, it shall be
accompanied by a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or any Assistant Secretary, electing to terminate
this Agreement.
3. In the event such notice is given by the Transfer Agent, the
Company shall, on or before the termination date, deliver to the Transfer Agent
a copy of a resolution of its Board of Directors certified by the Secretary or
an Assistant Secretary designating a successor transfer agent or transfer
agents. In the absence of such designation by the Company, the Company shall,
upon the date specified in the notice of termination of this Agreement and
delivery of the records maintained hereunder, be deemed to be its own transfer
agent and the Transfer Agent shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement.
4. In the event this Agreement is terminated as provided herein,
upon the written request of the Company, the Transfer Agent shall deliver the
records of the Company on electromagnetic media to the Company or its successor
transfer agent. The Company shall be responsible to the Transfer Agent for the
reasonable costs and expenses associated with the preparation and delivery of
such media, including copies of computer ready formats, to the extent such costs
were approved by the Company prior to such costs being incurred. Upon
termination as described in this Article IX, for so long as the Transfer Agent
continues to perform any one or more of the services contemplated by this
Agreement or any Schedule hereto, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification, shall continue
in full force and effect. Fees and out-of-pocket expenses incurred by the
Transfer Agent but unpaid by the Company upon such
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termination shall be immediately due and payable upon and notwithstanding such
termination. Subsequent to such termination, for a reasonable fee the Transfer
Agent shall provide the Company with reasonable access to any Company documents
or records remaining in its possession and previously provided to the Company.
ARTICLE X
MISCELLANEOUS
1. Representatives of the Company's independent outside auditors
("Auditors") shall have the right from time to time to perform on-site audits at
the facility of the Transfer Agent which do not result in an unreasonable
disruption of the business of the Transfer Agent. Such audits shall be conducted
in accordance with an audit program, the scope and frequency of which shall be
agreed upon from time to time in good faith by the parties. The Auditors may
obtain a reasonable number of copies of records and accounts directly related to
the services to be supplied hereunder by the Transfer Agent. Except as provided
in clause (c) below, nothing in this paragraph shall be deemed to permit the
Auditors to have access to any records or information concerning (a) any other
customer of the Transfer Agent, (b) the manner or method used by the Transfer
Agent in establishing the fees it charges any customer, including the Company or
(c) the Transfer Agent's internal operating procedures, provided that the
Transfer Agent shall permit officers or employees of the Auditors to have access
to such internal operating procedures to the extent necessary for the proper
completion of such audit, and the expression of their unqualified opinion in the
Company's semi-annual report on Form N-SAR and the performance of any other
services required by applicable law, provided such Auditors have agreed to keep
such internal operating procedures confidential and treat such information as
proprietary information of the Transfer Agent.
2. During the term of this Agreement, at no additional cost to
the Company, the Transfer Agent shall provide a facility capable of safeguarding
the transfer agency and dividend disbursing records of the Company in case of
damage to the primary facility providing those services (the "Back-Up
Facility"). Transfer of the transfer agency and dividend records of the Company
to the Back-Up Facility shall be at the Transfer Agent's expense, shall commence
immediately after damage to the primary facility
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results in an inability to provide the transfer agency and dividend disbursing
services, and shall be completed within 72 hours of commencement. After the
primary facility has recovered, the Transfer Agent shall again utilize it to
provide the transfer agency and dividend disbursing services to the Company at
no additional cost to the Company. The Transfer Agent shall use reasonable
efforts to provide the services described in this Agreement from the Back-Up
Facility.
3. The Transfer Agent represents that it has and is currently
registered as a transfer agent with the Securities and Exchange Commission
("SEC") and has complied with the SEC's regulations for registered transfer
agents. The Transfer Agent agrees that it will continue to be registered with
the SEC as a transfer agent for the duration of this Agreement. Should the
Transfer Agent fail to be registered with the SEC as a transfer agent at any
time during this Agreement, the Company may, upon written notice to the Transfer
Agent, immediately terminate this Agreement.
4. The following procedures will be adhered to in all disputes
arising under this Agreement which the parties cannot resolve informally. The
aggrieved party shall notify the other party in writing of the nature of the
dispute with as much detail as possible about the deficient performance of the
other party. Representatives of the parties shall meet (in person or by
telephone) within seven days of the date of the written notification to reach an
agreement about the nature of the deficiency and the corrective action to be
taken by the respective parties. The representatives of the parties shall
produce a report about the nature of the dispute in detail to their respective
management. If the representatives of the parties are unable to agree on
corrective action, the managers to whom the representatives of the parties
report or their successors ("Management") shall meet or otherwise act to
facilitate an agreement within 14 days of the date of the written notification.
If Management cannot resolve the dispute, or agree upon a written plan of
corrective action to do so, within seven days after their initial meeting or
other action, or if the agreed upon completion dates in the written plan of
corrective action are exceeded, either party may request arbitration as provided
for in this Agreement. Except as otherwise specifically provided, neither party
shall terminate this Agreement for breach or initiate arbitration or other
dispute resolution procedures unless and until this dispute resolution procedure
has been employed or waived in writing by both parties.
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5. (a) Any controversy or claim between or among the
parties, including, but not limited to, those arising out of or relating to this
Agreement or any agreements or instruments relating hereto or delivered in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this Agreement,
and under the auspices and rules of the American Arbitration Association then in
effect. The parties submit to personal jurisdiction in San Francisco,
California. Each party may serve a single request for production of documents.
If disputes arise concerning these requests, the arbitrator(s) shall have sole
and complete discretion to determine the disputes. The arbitrator(s) shall give
effect to statutes of limitation in determining any claim, and any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall deliver a written opinion setting forth
findings of fact and the rationale for the decision. The arbitrator(s) shall
reconsider the decision once upon the motion and at the expense of a party.
(b) The confidentiality provisions of Article VIII
Paragraph 13 of this Agreement shall apply to the arbitration proceeding, all
evidence taken and the opinion. Judgment upon the decision rendered by the
arbitrator(s) may be entered in any court having jurisdiction. The institution
and maintenance of an action for judicial relief or pursuit of a provisional or
ancillary remedy shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration if
any other party contests such action for judicial relief.
(c) No provision of this paragraph 5 of Article X shall
limit the right of a party to this Agreement to obtain provisional or ancillary
remedies from a court of competent jurisdiction before, after, or during the
pendency of any arbitration. The exercise of a remedy does not waive the right
of either party to resort to arbitration.
(d) If a legal action or arbitration is commenced in
connection with the enforcement of this Agreement or any instrument or agreement
required under this Agreement, the prevailing party shall be entitled to
attorneys' fees actually incurred (including allocated costs for in-house legal
services), costs and necessary disburse-
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ments incurred in connection with such action or proceeding, as determined by
the court or arbitrator(s).
6. The Company agrees that prior to effecting any change in any
Prospectus which would increase or alter the duties and obligations of the
Transfer Agent hereunder, it shall advise the Transfer Agent of such proposed
change prior to the intended date of the same.
7. (a) Notices of any kind to be given to the Manager
hereunder shall be in writing and shall be duly given if mailed or delivered to
the Manager at the following address:
Bank of America NT&SA With a copy to:
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx X. Xxxxx, Esq.
0xx Xxxxx Xxxx xx Xxxxxxx XX&XX
Xxx Xxxxxxx, XX 00000 000 Xxxxx Xxxxxx Xxxxxx
Attn: Xxxxx XxXxxxx-Xxxxxx 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
or at such other address or to such individual as shall be so specified by the
Manager.
(b) Notices of any kind to be given to the Transfer Agent
hereunder shall be in writing and shall be duly given if mailed or delivered to
the Transfer Agent at the following address:
BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
or at such other address or to such individual as shall be so specified by the
Transfer Agent.
(c) Notices of any kind to be given to the Company shall
be in writing and shall be duly given if mailed or delivered to the Company at
the following address:
Pacific Horizon Funds, Inc. With a copy to:
0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxx & Xxxxx
Xxxxxxxx, Xxxx 00000 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx:____________ Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
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8. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties to this Agreement.
9. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the other
party. This Agreement will automatically terminate in the event of its
assignment, as described hereunder, or as such term is defined in the 1940 Act.
10. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without reference to
principles of conflicts of law).
11. This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original; but such counterparts shall,
together, constitute only one instrument.
12. The provisions of this Agreement are intended to benefit only
the Transfer Agent and the Company, and no rights shall be granted to any other
person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the day
and year first above written.
BISYS FUND SERVICES OHIO, INC. PACIFIC HORIZON FUNDS, INC.
By: By:
------------------------ ------------------------
(Signature) (Signature)
------------------------ ------------------------
(Name) (Name)
------------------------ ------------------------
(Title) (Title)
------------------------ ------------------------
(Date Signed) (Date Signed)
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TRANSFER AGENCY AGREEMENT
APPENDIX A
I, Xxxxxxxxx X. Pings, President, and I, W. Xxxxx XxXxxxxx, III,
Secretary, of PACIFIC HORIZON FUNDS, INC., a Maryland corporation (the
"Company"), do hereby certify that:
The following individuals have been duly authorized by the Board of
Directors of the Company in conformity with the Company's Declaration of Trust
and By-Laws to execute any Certificate, instruction, notice or other instrument,
including an amendment to Appendix B or Schedule I hereto, or to give oral
instructions on behalf of the Company, and the signatures set forth opposite
their respective names are their true and correct signatures.
NAME SIGNATURE
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
PACIFIC HORIZON FUNDS, INC.
By:
------------------------
Xxxxxxxxx X. Pings
President
Dated: , 1995 By:
------------ ------------------------
W. Xxxxx XxXxxxxx, III
Secretary
31
TRANSFER AGENCY AGREEMENT
APPENDIX B
I, Xxxxxxxxx X. Pings, President, and I, W. Xxxxx XxXxxxxx, III,
Secretary, of PACIFIC HORIZON FUNDS, INC., a Maryland corporation (the
"Company"), do hereby certify that:
The following is a list of the Classes and Funds of the Company issued
and/or authorized as of the date of this Transfer Agency Agreement:
Fund CLASS
By:
------------------------
Xxxxxxxxx X. Pings
President
Dated: By:
--------------------------- ------------------------
W. Xxxxx XxXxxxxx, III
Secretary
32
SCHEDULE I(A)
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such
times as the Company and the Transfer Agent may agree, the Transfer Agent shall
provide the services set forth below:
Examine and process new accounts, subsequent payments, liquidations,
exchanges, telephone transactions, check redemptions, automatic withdrawals,
certificate issuances, wire order trades, direct trades, dividends, dividend
statements, dealer statements.
DAILY ACTIVITY
Maintain the following shareholder information on computer recordkeeping
systems or in such other manner as the Transfer Agent shall determine:
Name and Address, including Zip Code;
Balance of uncertificated Shares;
Balance of certificated Shares;
Certificate number, number of Shares, issuance date of each certificate
outstanding and cancellation date for each certificate no longer
outstanding, if issued;
Balance of Shares having paid a commission;
Balance of dollars available for redemption;
Dividend code (daily accrual, monthly reinvest, monthly cash or quarterly
cash);
Type of account code (regular account, Automatic Withdrawal Plan);
Dealer, Branch and Salesperson information;
Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available;
Original establishment date for accounts opened by exchange;
33
W-9 withholding status and periodic reporting;
State of residence code;
Social Security or taxpayer identification number, and indication of
certification (SSN also usable as a reference for on-line account lookup);
Historical transactions on the account for the most recent 18 months, or
other period as mutually agreed to from time-to-time;
Indication as to whether phone transactions can be accepted for this
account;
Beneficial owner code, i.e. male, female, joint tenant, etc.;
An alternate or "secondary" account number issued by a dealer (or bank,
etc.) to a customer for use in inquiry and transaction input by "remote
accessors" (Company client institutions with remote terminal access or
transmission capability).
FUNCTIONS
Answer all investor and dealer telephone and/or written inquiries, except
those concerning Company policy or requests for investment advice which
will be referred to the Company or those which the Company chooses to
answer, and provide a staff until 8:00 pm Eastern time on each business day
in connection therewith.
Deposit Company Share certificates into accounts upon receipt of
instructions from the investor or other authorized person, if issued.
Examine and process transfers of Shares insuring that all transfer
requirements and legal documents have been supplied.
Process and confirm address changes.
Process standard account record changes as required, i.e. dividend codes,
dealer and salesperson codes, etc.
Microfilm source documents for transactions, such as account applications
and correspondence.
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Use of master account application to establish individual participant
accounts.
Perform backup withholding for those accounts which federal government
regulations indicate is necessary.
Perform withholdings on liquidations, if applicable, for employee benefit
plans.
Prepare and mail shareholder reporting forms relative to processing
performed, including 5498s, W2Ps, and 1099s.
Handle bad purchase check processing by notifying Fund prior to trade
reversal.
Solicit missing taxpayer identification numbers.
Provide remote access inquiry to Company records via Company supplied
hardware.
REPORTS PROVIDED
Daily Journals Reflecting all Shares and
dollar activity for the
previous day
Blue Sky Report Supply information monthly for
Company's preparation of Blue
Sky Reporting
N-SAR Report Supply monthly correspondence,
redemption and liquidation
information for use in
Company's N-SAR Report
12b-1 Report/ Supply monthly dealer
Average Asset Reporting reallowance, commission and
other fee reporting
Additionally, the following will be provided at the Company's request to
the Company at no charge:
1. Shareholder listings:
- by beneficial owner code
- by tax status code
- by state code
- by establishment date
- by dividend code
- by account plan type
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35
- top ten shareholders.
2 Dealer Transaction Totals.
3. Monthly average daily balance reports.
Prepare and mail copies of summary statements to dealers and investment
advisers;
Generate and mail confirmation statements for all financial transactions.
Send copies of financial transaction confirmations to the dealer specified,
as well as investment advisor and possibly other indicated interested
parties;
Monthly management report as Company and Transfer Agent agree that will
provide summary information of Company activity and quality of services
delivered.
DIVIDEND ACTIVITY
Reinvest or pay in cash including reinvesting in other funds within the
fund group serviced by the Transfer Agent as described in each Company
prospectus.
Distribute capital gains simultaneously with income dividend.
DEALER SERVICES
Prepare and mail confirmation statements to dealers daily.
Prepare and mail copies of statements to dealers, same frequency as
investor statements.
Allow on-line access to institutions designated by the Company from time to
time.
SHAREHOLDER MEETINGS
Proxy mailing.
Prepare certified list of Shareholders, hard copy or microfiche as
requested by the Company.
Address and mail proxies and related material. Tabulate returned proxies
and supply daily reports when sufficient proxies have been received
(material must be
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36
adaptable to mechanical equipment as reasonably specified by the Transfer
Agent)
PERIODIC ACTIVITIES
Mail transaction confirmation statements daily to investors.
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably specified
by the Transfer Agent).
Mail periodic statement to investors.
Compute, prepare and furnish all necessary reports to Governmental
authorities: Forms 1096, 1099DIV, 1099B, 1042 and 1042S.
Enclose various marketing material as designated by the Company in
statement mailings, i.e. monthly and quarterly statements (material must be
adaptable to mechanical equipment as reasonably specified by the Transfer
Agent).
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SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
- Account applications
- Cancelled certificates plus stock powers and supporting
documents
- Checks including check registers, reconciliation records, any
adjustment records and tax withholding documentation
- Indemnity bonds for replacement of lost or missing checks
- Liquidation, redemption, withdrawal and transfer requests
including stock powers, signature guarantees and any
supporting documentation
- Proxy records for shareholder meetings held within the
previous twelve (12) months (held with the Transfer Agent's
Compliance Department)
- State and federal tax records
- Journals (or other records of original entry) containing
itemized daily record of all sales and redemptions
- Separate ledger accounts (or other records) showing number of
shares held by each shareholder of record (including details
with respect to periodic investment plans, dividend
reinvestment plans, etc.)
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SCHEDULE III
FEE SCHEDULE - PACIFIC HORIZON FUNDS, INC.
Annual Base Fee Per Portfolio
Annual Open Account Fee
(Non-Daily Dividend) ___ per account
Annual Open Account Fee
(Daily Dividend) $____ per account
Annual Close Account Fee $___ per account
Annual XXX Fee $_____ per TIN
Asset Allocation:
Annual Rebalancing $____ per portfolio
Monthly Rebalancing $____ per portfolio
Transaction Charge $____ per transaction
Payroll Deduction:
Initial Set-Up Fee $___ per portfolio
Transaction Charge $____ per transaction
- Out-of-pocket charges will be billed on a pass-through basis.
- BISYS agrees to annual percentage increases not to exceed the Consumer
Price Index.
- The above schedule is based upon a three year contract. Additional fee
concessions are possible for an extended service contract.
- All conversion costs will be absorbed by BISYS.
39
SCHEDULE IV
TRANSFER AGENT PERFORMANCE OBJECTIVES
PACIFIC HORIZON FUNDS, INC.
The performance objectives set forth below represent what the Company believes
should be reasonably obtainable by the Transfer Agent, given the typical daily
variables associated with any transfer agent operation (i.e., transaction volume
fluctuations).
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"ACCEPTABLE" FOR ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT MONTH TEN
PERCENT (10%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY FOR
THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"MARGINAL" FOR ANY ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT TWENTY
PERCENT (20%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY FOR
THE MONTH PRIOR TO THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
This Agreement may be immediately terminated upon written notice by the Company
to the Transfer Agent in the event that the TRANSFER AGENT FAILS TO MEET THE
PERFORMANCE LEVELS DESCRIBED BELOW AS "UNACCEPTABLE" FOR ANY ONE OR MORE OF THE
LISTED FUNCTIONS BASED ON A TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR
MONTH PERIOD and not cured by the Transfer Agent within a subsequent period of
30 days. Notice of such failure to meet performance objectives shall be provided
in writing by the Company to the Transfer Agent.
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SCHEDULE IV (cont.)
Performance Standards
================================================================================
Function Objective Acceptable Marginal Unacceptable
--------------------------------------------------------------------------------
New Account Processed 97.5% 95.0% 92.5%
Set Up/Processing day of
receipt
--------------------------------------------------------------------------------
Transaction Processed 97.5% 95.0% 92.5%
Processing day of
receipt
--------------------------------------------------------------------------------
Maintenance Processed 85.0% 80.0% 75.0%
Processing within 2
days
--------------------------------------------------------------------------------
Quality of Error rate 99.0% 98.0% 97.05
Entry-New of:
Accounts
--------------------------------------------------------------------------------
Quality of Error rate 99.0% 98.0% 97.0%
Entry- of:
Financial
Transactions
--------------------------------------------------------------------------------
Quality of Error rate 99.0% 97.0% 96.0%
Entry-Clerical of:
Transactions
--------------------------------------------------------------------------------
Research Within 1 day 90.0% 80.0% 75.0%
Turnaround*
================================================================================
* For items other than those that occurred after BISYS became Transfer Agent.
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