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EXHIBIT 8(a)
AMENDED AND RESTATED
TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY AND
SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT, made as of July 1, 2000, by and between XXXXXXX XXXXX
BALANCED CAPITAL FUND, INC. (f/k/a Xxxxxxx Xxxxx Capital Fund, Inc.), a Maryland
corporation (the "Corporation"), on behalf of itself and XXXXXXX XXXXX BALANCED
CAPITAL FUND (f/k/a Xxxxxxx Xxxxx Capital Fund) (the "Fund"), and FINANCIAL DATA
SERVICES, INC., a Florida corporation ("FDS").
WITNESSETH:
WHEREAS, the Corporation appointed FDS to be the Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent for the Fund upon, and
subject to, the terms and provisions of a prior Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent Agreement ("Prior Agreement")
between a Xxxxxxx Xxxxx Capital Fund, Inc. and FDS; and
WHEREAS, the Corporation and FDS desire to amend and restate terms and
provisions of the Prior Agreement to reflect the name change of the Corporation
and the Fund, among other things;
NOW, THEREFORE, in consideration of mutual covenants contained in this
Agreement, the Corporation and FDS agree as follows:
1. APPOINTMENT OF FDS AS TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND
SHAREHOLDER SERVICING AGENT.
(a) The Corporation hereby appoints FDS to act as Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent for the Fund upon, and
subject to, the terms and provisions of this Agreement.
(b) FDS hereby accepts the appointment as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund, and agrees to act
as such upon, and subject to the terms and provisions of this Agreement.
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2. DEFINITIONS.
(a) In this Agreement:
(I) The term "Act" means the Investment Company Act of 1940 as
amended from time to time and any rule or regulation thereunder;
(II) The term "Account" means any account of a Shareholder, as
defined below, or, if the shares are held in an account in the name of a
Broker-Dealer, as defined below, for the benefit of an identified person, such
account, including a Plan Account, any account under a plan (by whatever name
referred to in the Prospectus) pursuant to the Self-Employed Individuals
Retirement Act of 1962 ("Xxxxx Act Plan") and any account under a plan (by
whatever name referred to in the Prospectus) pursuant to Section 401(k) of the
Internal Revenue Code ("Corporation Master Plan");
(III) The term "application" means an application made by a
Shareholder or prospective Shareholder respecting the opening of an Account;
(IV) The term "Fund Distributor" means Xxxxxxx Xxxxx Funds
Distributor, a division of Princeton Funds Distributor, Inc., a Delaware
corporation;
(V) The term "Broker-Dealer" means a registered broker-dealer
that sells shares of the Fund pursuant to a selected dealer's agreement with the
Corporation;
(VI) The term "Officer's Instruction" means an instruction in
writing given on behalf of a Fund to FDS, and signed on behalf of the Fund by
the President, any Vice President, the Secretary or the Treasurer of the
Corporation;
(VII) The term "Plan Account" means an account opened by a
Shareholder or prospective Shareholder in respect to an open account, monthly
payment or withdrawal plan (in each case by whatever name referred to in the
Prospectus), and may also include an account relating to any other plan if and
when provision is made for such plan in the Prospectus;
(VIII) The term "Prospectus" means the Prospectus and the
Statement of Additional Information of the relevant Fund as from time to time in
effect;
(IX) The term "Shareholder" means a holder of record of Shares;
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(X) The term "Shares" means shares of stock of the Corporation
irrespective of class or series.
3. DUTIES OF FDS AS TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND
SHAREHOLDER SERVICING AGENT.
(a) Subject to the succeeding provisions of the Agreement, FDS hereby
agrees to perform the following functions as Transfer Agent, Dividend Disbursing
Agent and Shareholder Servicing Agent for the Fund:
(I) Issuing, transferring and redeeming Shares;
(II) Opening, maintaining, servicing and closing Accounts;
(III) Acting as agent for the Fund's Shareholders and/or
customers of a Broker-Dealer in connection with Plan Accounts, upon the terms
and subject to the conditions contained in the Prospectus and application
relating to the specific Plan Account;
(IV) Acting as agent of the Fund and/or a Broker-Dealer,
maintaining such records as may permit the imposition of such contingent
deferred sales charges as may be described in the Prospectus, including such
reports as may be reasonably requested by the Corporation with respect to such
Shares as may be subject to a contingent deferred sales charge;
(V) Upon the redemption of Shares subject to such a contingent
deferred sales charge, calculating and deducting from the redemption proceeds
thereof the amount of such charge in the manner set forth in the Prospectus. FDS
shall pay, on behalf of the Fund's Distributor, to a Broker-Dealer such deducted
contingent deferred sales charges imposed upon all Shares maintained in the name
of that Broker-Dealer. Sales charges imposed upon any other Shares shall be paid
by FDS to the Fund Distributor;
(VI) Exchanging the investment of a Shareholder into, or from,
the shares of other open-end investment companies or other series portfolios of
the Corporation, if any, if and to the extent permitted by the Prospectus at
the direction of such Shareholder;
(VII) Processing redemptions;
(VIII) Examining and approving legal transfers;
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(IX) Furnishing such confirmations of transactions relating to
their Shares as required by applicable law;
(X) Acting as agent for the Corporation with respect to
furnishing each Shareholder such appropriate periodic statements relating to
Accounts, together with additional enclosures, including appropriate income tax
information and income tax forms duly completed, as required by applicable law,
as well as furnishing such information to each Broker-Dealer to enable the
Broker-Dealer to provide such information to its customers;
(XI) Acting as agent for the Corporation with respect to mailing
annual and semi-annual reports prepared by or on behalf of the Fund, and mailing
new Prospectuses upon their issue to each Shareholder as required by applicable
law as well as causing such materials to be mailed to each Broker-Dealer to
enable the Broker-Dealer to deliver such materials to its customers;
(XII) Furnished such periodic statements of transactions
effected by FDS, reconciliations, balances and summaries as the Fund may
reasonably request;
(XIII) Maintaining such books and records relating to
transactions effected by FDS as are required by the Act, or by any other
applicable provision of law, rule or regulation, to be maintained by the
Corporation or its transfer agent with respect to such transactions, and
preserving, or causing to be preserved, any such books and records for such
periods as may be required by any such law, rule or regulation and as may be
agreed upon from time to time between FDS and the Corporation. In addition, FDS
agrees to maintain and preserve master files and historical computer tapes on a
daily basis in multiple separate locations a sufficient distance apart to ensure
preservation of at least one copy of such information;
(XIV) Withholding taxes on non-resident alien Accounts,
preparing and filing U.S. Treasury Department Form 1099 and other appropriate
forms as required by applicable law with respect to dividends and distributions;
and
(XV) Reinvesting dividends for full and fractional Shares and
disbursing cash dividends, as applicable, pursuant to instructions received from
the Shareholder at the time an Account is established.
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(b) FDS agrees to act as proxy agent in connection with the
holding of annual, if any, and special meetings of Shareholders, mailing such
notices, proxies and proxy statements in connection with the holding of such
meetings as may be required by applicable law, receiving and tabulating votes
cast by proxy and communicating to the Corporation the results of such
tabulation accompanied by appropriate certificates, and preparing and furnishing
to the Corporation certified lists of Shareholders as of such date, in such form
and containing such information as may be required by the Corporation.
(c) FDS agrees to deal with, and answer in a timely manner, all
correspondence and inquiries relating to the functions of FDS under this
Agreement with respect to Accounts.
(d) FDS agrees to furnish to the Corporation such information
and at such intervals as is necessary for the Fund to comply with the
registration and/or the reporting requirements (including applicable escheat
laws) of the Securities and Exchange Commission, Blue Sky authorities or other
governmental authorities.
(e) FDS agrees to provide to the Corporation such information as
may reasonably be required to enable the Fund to reconcile the number of
outstanding Shares between FDS' records and the account books of the
Corporation.
(f) Notwithstanding anything in the foregoing provisions of this
paragraph, FDS agrees to perform its functions thereunder subject to such
modification (whether in respect of particular cases or in any particular class
of cases) as may from time to time be agreed in a writing signed by both
parties.
4. COMPENSATION.
(a) The Corporation agrees to pay FDS the fees and charges, as
well as FDS' out of pocket costs, for services described in this Agreement as
set forth in the Schedule of Fees attached hereto.
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5. RIGHT OF INSPECTION.
(a) FDS agrees that it will, in a timely manner, make available
to, and permit, any officer, accountant, attorney or authorized agent of the
Corporation to examine and make transcripts and copies (including photocopies
and computer or other electronical information storage media and print-outs) of
any and all of its books and records which relate to any transaction or function
performed by FDS under or pursuant to this Agreement.
6. CONFIDENTIAL RELATIONSHIP.
(a) FDS agrees that it will, on behalf of itself and its
officers and employees, treat all transactions contemplated by this Agreement,
and all information germane thereto, as confidential and not to be disclosed to
any person (other than the Shareholder concerned, or the Corporation, or as may
be disclosed in the examination of any books or records by any person lawfully
entitled to examine the same) except as may be authorized by the Corporation by
way of an Officer's Instruction.
7. INDEMNIFICATION.
(a) The Corporation shall indemnify and hold FDS harmless from
any loss, costs, damage and reasonable expenses, including reasonable attorney's
fees (provided that such, attorney is appointed with the Corporation's consent,
which consent shall not be unreasonably withheld) incurred by it resulting from
any claim, demand, action or suit in connection with the performance of its
duties hereunder, provided that this indemnification shall not apply to actions
or omissions of FDS in cases of willful misconduct, failure to act in good faith
or negligence by FDS, its officers, employees or agents, and further provided
that prior to confessing any claim against it which may be subject to this
indemnification, FDS shall give the Corporation reasonable opportunity to defend
against said claim in its own name or in the name of FDS. An action taken by FDS
upon any Officer's Instruction reasonably believed by it to have been properly
executed shall not constitute willful misconduct, failure to act in good faith
or negligence under this Agreement.
8. REGARDING FDS.
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(a) FDS hereby agrees to hire, purchase, develop and maintain
such dedicated personnel, facilities, equipment, software, resources and
capabilities as both parties may mutually determine to be reasonably necessary
for the satisfactory performance of the duties and responsibilities of FDS. FDS
warrants and represents that its officers and supervisory personnel charged with
carrying out its functions as Transfer Agent, Dividend Disbursing Agent and
Shareholder Servicing Agent for the Corporation possess the special skill and
technical knowledge appropriate for that purpose. FDS shall at all times
exercise due care and diligence in the performance of its functions as Transfer
Agent, Dividend Disbursing Agent and Shareholder Servicing Agent for the
Corporation. FDS agrees that, in determining whether it has exercised due care
and diligence, its conduct shall be measured by the standard applicable to
persons possessing such special skill and technical knowledge.
(b) FDS warrants and represents that it is duly authorized and
permitted to act as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent under all applicable laws and that it will immediately notify
the Corporation of any revocation of such authority or permission or of the
commencement of any proceeding or other action which may lead to such
revocation.
9. TERMINATION.
(a) This Agreement shall become effective as of the date first
above written and shall remain in force for two years thereafter and shall
thereafter continue from year to year. This Agreement may be terminated by the
Corporation or FDS (without penalty to the Corporation or FDS) provided that the
terminating party gives the other party written notice of such termination at
least sixty (60) days in advance, except that the Corporation may terminate this
Agreement immediately upon written notice to FDS if the authority or permission
of FDS to act as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent has been revoked or if any proceeding or other action which the
Corporation reasonably believes will lead to such revocation has been commenced.
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(b) Upon termination of this Agreement, FDS shall deliver all
Shareholder records, books, stock ledgers, instruments and other documents
(including computerized or other electronically stored information) made or
accumulated in the performance of its duties as Transfer Agent, Disbursing Agent
and Shareholder Servicing Agent for the Corporation along with a certified
locator document clearly indicating the complete contents therein, to such
successor as may be specified in a notice of termination or Officer's
Instruction; and the Corporation assumes all responsibility for failure
thereafter to produce any paper, record or document so delivered and identified
in the locator document, if and when required to be produced.
10. AMENDMENT.
(a) Except to the extent that the performance by FDS or its
functions under this Agreement may from time to time be modified by an Officer's
Instruction, this Agreement may be amended or modified only by further written
agreement between the parties.
11. GOVERNING LAW.
(a) This Agreement shall be governed by the laws of the State of
New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective duly authorized officers and their
respective corporate seals hereunto duly affixed and attested, as of the day and
year above written.
XXXXXXX XXXXX BALANCED CAPITAL FUND, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
FINANCIAL DATA SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
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SCHEDULE OF FEES
The Corporation will pay to FDS:
1. For all accounts other than those detailed below an annual fee of
$11.00 per Class A and Class D Shareholder Account and $14.00 per
Class B and Class C Shareholder Account. Additionally, a $.20
monthly closed account charge will be assessed to all accounts which
close during the calendar year. Application of this fee will
commence the month following the month the account is closed. At the
end of the calendar year, the closed account fee will be waived.
2. For ERISA accounts held in the MFA program or any other program
requiring equalization under ERISA, the Corporation will pay an
annual fee equal to 10 basis points on the net assets in these
accounts instead of the per account charge.
3. For "Large" and "Mid" market employee benefit plan accounts, the
Corporation will pay an annual fee of $11.00 per Class A and Class D
Shareholder Account and $14.00 per Class B and Class C Shareholder
Account plus $1.00 per transaction.
4. For "Small" market employee benefit plans, the Corporation will pay
per each Shareholder Account based on the following schedule:
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ACCOUNT SIZE BASE FEE TRANSACTIONS
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< $1,000 $7.00 $0.00
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$1,000 < $2,500 $11.00 $0.00
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> $2,500 $11.00 $1.00
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In addition, the Corporation shall reimburse FDS for the following out-of-pocket
expenses incurred by FDS pursuant to this Agreement:
- Postage
- Envelopes/stationery
- Record storage and retrieval
- Telephone (local and long distance)
- Pre-authorized checks
- Returned check fees/charges and other similar fees/charges
- Handling costs (ADP or other similar vendor)
- Fed wire charges (excluding wires to/from the Fund's custody
accounts)
- Forms
- Any other costs agreed in writing by the parties
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