TRANSFER AGENCY AGREEMENT
This Agreement made as of the 2nd day of October, 1997 between Investors
Xxxx Series Fund, Inc., a Maryland corporation (the "Fund"), and Xxxxx & Babson,
Inc., a Missouri corporation (the "Transfer Agent").
WITNESSETH
That in consideration of the mutual promises hereinafter 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, as hereinafter defined. From time to time, the Fund 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. The "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Fund.
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 Fund which is signed by any Officer, as
hereinafter defined, and actually received by the Transfer Agent.
4. "CUSTODIAN" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between
the financial institution and the Fund, or its successor(s).
5. "FUND BUSINESS DAY" shall be determined as set out in the Fund's
prospectuses as shall be effective from time to time.
6. "OFFICER" shall be deemed to be the Fund's President, any Vice
President, Secretary, Treasurer, Controller, any Assistant Controller, any
Assistant Treasurer and any Assistant Secretary, and any other person duly
authorized by the Board of Directors of the Fund to execute any
Certificate, instruction, notice or other instrument on behalf of the Fund,
and any person reasonably believed by the Transfer Agent to be such a
person.
7. "OUT-OF-POCKET EXPENSES" means amounts reasonably necessary and
actually incurred by Transfer Agent in the provision of Transfer Agent
services or pursuant to this Agreement for the following purposes: postage
(and first class mail insurance in connection with mailing Share
certificates), envelopes, check forms, continuous forms, forms for reports
and statements, stationery and other similar items, telephone and telegraph
charges incurred in answering inquiries from dealers or shareholders,
microfilm used to record transactions in shareholder accounts and computer
tapes used for permanent storage of records and cost of insertion of
materials in mailing envelopes by outside firms. Any charges associated
with special or exception processing shall also be considered Out-of-Pocket
Expenses.
8. "PROSPECTUS" shall mean the most recent Fund prospectus actually
received by the Transfer Agent from the Fund with respect to which the Fund
has indicated a registration statement under the Securities Act of 1933, as
amended, has become effective, including the Statement of Additional
Information, incorporated by reference therein.
9. "SHARES" shall mean all or any part of each class or series of the
shares of beneficial interest of the Fund or portfolio listed in the
Certificate as to which the Transfer Agent acts as transfer agent
hereunder, as may be amended from time to time, which are authorized and/or
issued by the Fund.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. Effective as of the date of this Agreement, the Fund hereby
constitutes and appoints the Transfer Agent as transfer agent of all the
Shares of the Fund and as dividend disbursing agent during the period of
this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as
hereinafter set forth.
3. In connection with such appointment, the Fund upon the request of
the Transfer Agent, shall deliver the following documents to the Transfer
Agent:
(i) A copy of the Articles of Incorporation of the Fund and all
amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-laws of the Fund certified by the Secretary
of the Fund;
(iii) A copy of a resolution of the Board of Directors of the
Fund certified by the Secretary of the Fund appointing the Transfer
Agent and authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund
specifying: the number of authorized Shares, the number of such
authorized Shares issued, the number of such authorized Shares issued
and currently outstanding, the names and specimen signatures of the
Officers of the Fund and the name and address of the legal counsel for
the Fund;
(v) Specimen Share certificate for each or series class of Shares
in the form approved by the Board of Directors of the Fund (and in a
format compatible with the Transfer Agent's system), together with a
Certificate signed by the Secretary of the Fund as to such approval;
(vi) Copies of the Fund's registration statement, as amended to
date, and the most recently filed Post-Effective Amendment thereto,
filed by the Fund 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
(vii) Opinion of counsel for the Fund with respect to the
validity of the authorized and outstanding Shares, whether such Shares
are fully paid and nonassessable 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. If requested by the Transfer Agent, the Fund 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:
(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
Fund with respect to the validity of the Shares of the Fund 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 was theretofore expressly limited, a certified copy of
a resolution of the Board of Directors of the Fund increasing the
authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares pursuant to stock
dividends or stock splits, etc., and prior to any reduction in the number
of Shares outstanding, if requested by the Transfer Agent, the Fund 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 Fund authorizing such
issuance of additional Shares or such reduction, as the case may be;
and
(b) An opinion of counsel for the Fund with respect to the
validity of the Shares 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 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;
(c) Specimen Share certificates for each class of Shares in the
new form approved by the Board of Directors of the Fund, with a
Certificate signed by the Secretary of the Fund as to such approval;
and
(d) An opinion of counsel for the Fund with respect to the
validity of the Shares in the new form 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 the
Shares have been registered and that the registration statement has
become effective or, if exempt, the specific grounds therefor).
2. The Fund at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time
to time will replenish such supply upon the request of the Transfer Agent.
Such blank Share certificates shall be compatible with the Transfer Agent's
system and shall be properly signed by facsimile or otherwise by Officers
of the Fund authorized by law or by the By-laws to sign Share certificates
and, if required, shall bear the corporate seal or facsimile thereof. The
Fund 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 Article.
ARTICLE V
ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of
the Fund's Prospectus, which Prospectus describes how sales and redemption
of Shares of the Fund shall be made, and the Transfer Agent agrees to
accept purchase orders and redemption requests with respect to Shares on
each Fund Business Day in accordance with such Prospectus. The Fund agrees
to provide the Transfer Agent with sufficient advance notice to enable the
Transfer Agent to effect any changes in the procedures set forth in the
Prospectus regarding such purchase and redemption procedure; provided,
however, that in no event will such advance notice be less than thirty (30)
days.
(b) The Transfer Agent shall also accept with respect to each
Fund Business Day, at such times as are agreed upon from time to time
by the Transfer Agent and the Fund, a computer tape or electronic data
transmission consistent in all respects with the Transfer Agent's
record format, as amended from time to time, 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 losses or
damages to the Fund 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.
2. On each Fund Business Day, the Transfer Agent shall, as of the time
at which the Fund computes the net asset value of the Fund, issue to and
redeem from the accounts specified in a purchase order, redemption request
or computer tape or electronic data transmission, which in accordance with
the Prospectus is effective on such Fund Business Day, the appropriate
number of full and fractional Shares based on the net asset value per Share
of such Fund specified in an advice received on such Fund Business Day from
the Fund. Notwithstanding the foregoing, if a redemption specified in a
computer tape or electronic data transmission 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 the
Approved Institution which supplied such tape of the discrepancy.
3. In connection with a reinvestment of a dividend or distribution of
Shares of the Fund, the Transfer Agent shall as of each Fund Business Day,
as specified in a Certificate or resolution described in paragraph 1 of
succeeding Article VI, issue Shares of the Fund based on the net asset
value per Share of such Fund specified in an advice received from the Fund
on such Fund Business Day.
4. On each Fund Business Day, the Transfer Agent shall supply the Fund
with a statement specifying with respect to the immediately preceding Fund
Business Day: the total number of Shares of the Fund (including fractional
Shares) issued and outstanding at the opening of business on such day; the
total number of Shares of the Fund sold on such day, pursuant to the
preceding paragraph 2 of this Article; the total number of Shares of the
Fund redeemed from shareholders by the Transfer Agent on such day; the
total number of Shares of the Fund, if any, sold on such day pursuant to
the preceding paragraph 3 of this Article, and the total number of Shares
of the Fund issued and outstanding.
5. In connection with each purchase and each redemption of Shares, the
Transfer Agent shall send such statements as are prescribed by the Federal
Securities laws applicable to transfer agents or as described in the
Prospectus. If the Prospectus indicates that certificates for Shares are
available and if specifically requested in writing by any shareholder, or
if otherwise required hereunder, the Transfer Agent will countersign (if
necessary), issue and mail to such shareholder at the addres set forth in
the records of the Transfer Agent a Share certificate for any full Share
requested.
6. As of each Fund Business Day, the Transfer Agent shall furnish the
Fund with an advice setting forth the number and dollar amount of Shares to
be redeemed on such Fund Business Day in accordance with paragraph 2 of
this Article.
7. 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 the preceding paragraph l(a) of this Article, make payment in
accordance with the Fund's redemption and payment procedures described in
the Prospectus; and (b) in the case of a redemption of Shares pursuant to a
computer tape or electronic data transmission described in the preceding
paragraph l(b) of this Article, make payment by directing a federal funds
wire order to the account previously designated by the Approved Institution
specified in said computer tape or electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares after
it has received from an Officer of the Fund 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.
9. 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 Fund in connection with
such issuance of any Shares.
10. The Transfer Agent shall accept a computer tape or electronic data
transmission consistent with the Transfer Agent's record format, as amended
from time to time, which is reasonably believed by the Transfer Agent to be
furnished by or on behalf of any 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 or electronic data transmission.
The Transfer Agent shall not be liable for any losses to the Fund 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.
11. (a) Except as otherwise provided in subparagraph (b) of this
paragraph and in paragraph 13 of this Article, Shares will 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
stock 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
Fund, 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 stock certificate or instructions is valid and genuine, and for
that purpose it will require, unless otherwise instructed by an
authorized Officer of the Fund, a guarantee of signature by an
"Eligible Guarantor Institution" as that term is defined by SEC Rule
17Ad-15. 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
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, applicable to the transfer of securities,
and the Fund shall indemnify the Transfer Agent for any act done or
omitted by it in good faith in reliance upon such laws. In no event
will the Fund indemnify the Transfer Agent for any act done by it as a
result of willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties. The Transfer Agent shall be entitled to
accept, and shall be fully protected by the Fund in accepting, any
request from any entity to carry out any transaction in Shares
received by the Transfer Agent through any of the various programs
offered through the National Securities Clearing Corporation ("NSCC")
(including, but not limited to, Networking and FundServ). Any such
entity shall constitute an Approved Institution as defined herein.
(b) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Transfer Agent shall
be fully protected by the Fund in not requiring 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 Prospectus.
12. 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 11 of
this Article or any redemption of any Shares pursuant to a computer tape or
electronic data transmission described in this Agreement, any documents,
including, without limitation, any documents of the kind described in
subparagraph (a) of paragraph 11 of this Article, to evidence the authority
of the person requesting the transfer or redemption and/or the payment of
any stock transfer taxes, and shall be fully protected in acting in
accordance with the applicable provisions of this Article.
13. (a) As used in this Agreement, the terms "computer tape or
electronic data transmission" and "computer tape believed by the Transfer
Agent to be furnished by an Approved Institution", shall include any tapes
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 th Transfer
Agent's premises. For purposes of paragraph 1 of this Article, such a
computer tape or electronic data transmission shall be deemed to have been
furnished at such times as are agreed upon from time to time by the
Transfer Agent and Fund only if the information reflected thereon was input
to the System at such times as are agreed upon from time to time by the
Transfer Agent and the Fund.
(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 Fund when in the opinion of the
Transfer Agent continuation of such communications would jeopardize
the accuracy and/or integrity of the Fund's records on the System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund 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 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, as the case may be, shall be determined, the amount per Share
of such dividend or distribution, the paymen 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 mail date specified in such Certificate or resolution, as
the case may be, the Fund shall, in the case of a cash dividend or
distribution, cause the Custodian to deposit in an account in the name of
the Transfer Agent on behalf of the Fund an amount of cash, if any,
sufficient for the Transfer Agent to make the payment, as of the mail date,
specified in such Certificate or resolution, as the case may be, to the
shareholders who were of record on the record date. The Transfer Agent
will, 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 (ii) wiring such amounts to the
accounts previously designated by an Approved Institution, as the case may
be. 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 payments of
any cash dividend or distribution to all shareholders of the Fund as of the
record date, the Transfer Agent shall, upon notifying the Fund, 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 Fund agrees to pay the Transfer Agent
for any and all costs, both direct and Out-of-Pocket Expenses, incurre 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 Fund, 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. Anything in this Agreement to the
contrary notwithstanding, the Fund shall be solely responsible for the
accurate, complete and timely filing with the proper federal, state and
local authorities of all tax information with respect to any Fund account
maintained under Matrix Level 3 through any of the various programs offered
through the NSCC (including, but not limited to, Networking and FundServ).
ARTICLE VII
CONCERNING THE FUND
1. The Fund 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 taken to
authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933, as
amended, with respect to the Shares is effective. The Fund 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 Fund and copies
of all amendments thereto 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 By-laws and copies of all amendment thereto, and
copies of resolutions of the Board of Directors of the Fund shall be
certified by the Secretary of the Fund under seal.
3. The Fund shall promptly deliver to the Transfer Agent written
notice of any change in the Officers authorized to sign Share certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates
shall die, resign or be removed prior to issuance of such Share
certificates, the Transfer Agent may issue such Share certificates of the
Fund notwithstanding such death, resignation or removal, and the Fund shall
promptly deliver to the Transfer Agent such approval, adoption or
ratification as may be required by law.
4. It shall be the sole responsibility of the Fund to deliver to the
Transfer Agent the Fund's currently effective Prospectus and, for purposes
of this Agreement, the Transfer Agent shall not be deemed to have notice of
any information contained in such Prospectus until a reasonable time after
it is actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized and existing under the
laws of the State of Missouri.
(b) It is empowered under applicable law and by its Articles of
Incorporation and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken 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.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or
made by an Officer of the Fund or person designated by the Fund 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 Fund 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 Fund.
3. The Transfer Agent upon notice to the Fund 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 it may deem advisable
and is agreeable to the Fund, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules
31a-2 and 31a-3 under the Investment Company Act of 1940, as amended. The
Transfer Agent acknowledges that such records are the property of the Fund.
The Transfer Agent may deliver to the Fund from time to time at its
discretion, for safekeeping or disposition by the Fund in accordance with
law, such records, papers, 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 itself required to maintain
pursuant to applicable laws and regulations. The Fund 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. Such records maintained by the Transfer Agent pursuant to this
paragraph 4, which have not been previously delivered to the Fund pursuant
to the foregoing provisions of this paragraph 4, shall be considered to be
the property of the Fund, shall be made available upon request for
inspection by the Officers, employees and auditors of the Fund, and records
shall be delivered to the Fund 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 Fund.
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,
willful misfeasance, gross negligence or reckless disregard of its duties
under this Agreement.
6. (a) The Fund shall indemnify and exonerate, save and hold harmless
the Transfer Agent from and against any and all claims (whether with or
without basis in fact or law), demands, expenses (including reasonable
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 by reason of or as a result of any action taken or
omitted to be taken by any prior transfer agent of the Fund or as a result
of any action taken or omitted to be taken by the Transfer Agent in good
faith and without gross negligence or willful misfeasance or in reliance
upon: (i) any provision of this Agreement; (ii) the Prospectus; (iii) any
instruction or order including, without limitation, any computer tape or
electronic data transmission reasonably believed by the Transfer Agent to
have been received from an Approved Institution; (iv) any instrument, order
or Share certificate reasonably believed by it to be genuine and to be
signed, countersigned or executed by any duly authorized Officer of the
Fund; (v) any Certificate or other instructions of an Officer; (vi) any
opinion of legal counsel for the Fund or the Transfer Agent; or (vii) any
request by any entity to carry out any transaction in Shares received by
the Transfer Agent through any of the various programs offered through the
NSCC (including, but not limited to, Networking and FundServ). The Fund
shall indemnify and exonerate, save and hold the Transfer Agent harmless
from and against any and all claims (whether with or without basis in fact
or law), demands, expenses (including reasonable 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 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
relianc upon any law, act, regulation or any interpretation of the same
even though such law, act or regulation may thereafter have been altered,
changed, amended or repealed.
(b) The Transfer Agent shall not settle any claim, demand,
expense or liability to which it may seek indemnity pursuant to
paragraph 6(a) above (each, an "Indemnifiable Claim") without the
express written consent of an Officer of the Fund. The Transfer Agent
shall notify the Fund within fifteen (15) days of receipt of
notification of an Indemnifiable Claim, provided that the failure by
the Transfer Agent to furnish such notification shall not impair its
right to seek indemnification from the Fund unless the Fund is unable
to adequately defend the Indemnifiable Claim as a result of such
failure, and further provided, that if as a result of the Transfer
Agent's failure to provide the Fund with timely notice of the
institution of litigation a judgment by default is entered, prior to
seeking indemnification from the Fund the Transfer Agent, at its own
cost and expense, shall open such judgment. The Fund 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 Fund
and reasonably acceptable to the Transfer Agent. The Transfer Agent
may join in such defense at its own expense, but to the extent that it
shall so desire the Fund shall direct such defense. The Fund shall not
settle any Indemnifiable Claim without the express written consent of
the Transfer Agent if the Transfer Agent determines that such
settlement would have an adverse effect on the Transfer Agent beyond
the scope of this Agreement. In such event, the Fund and the Transfer
Agent shall each 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 Fund shall fail or refuse to defend an
Indemnifiable Claim, the Transfer Agent may provide its own defense at
the cost and expense of th Fund. Anything in this Agreement to the
contrary notwithstanding, the Fund shall not indemnify the Transfer
Agent against any liability or expense arising out of the Transfer
Agent's willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement. The
Transfer Agent shall indemnify and hold the Fund harmless from and
against any and all 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 Transfer Agent as a result
of the Transfer Agent's lack of good faith, gross negligence or
willful misfeasance.
7. The Transfer Agent shall not be liable to the Fund with respect to
any redemption draft on which the signature of the drawer is forged and
which the Fund's Custodian has advised the Transfer Agent to honor the
redemption (but nothing herein is meant to impose any duties upon the
Fund's Custodian); nor shall the Transfer Agent be liable for any material
alteration or absence or forgery of any endorsement, it being understood
that the Transfer Agent's sole responsibility with respect to inspecting
redemption drafts is to use reasonable care to verify the drawer's
signature against signatures on file.
8. There shall be excluded from the consideration of whether the
Transfer Agent has breached this Agreement in any way, 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 o
transportation, communication or power supply, strikes, lockouts, work
stoppages or other similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of the Fund
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 permitted 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 Fund 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 counsel of the Fund, or upon notice to the
Fund, its own counsel, at the expense of the Fund 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 Fund or its own
counsel.
10. The Transfer Agent may issue new Share certificates in place of
certificates represented to have been lost, stolen or destroyed upon
receiving written instructions from the shareholder accompanied by proof of
an indemnity or surety bond issued by a recognized insurance institution
specified by the Fund or the Transfer Agent. If the Transfer Agent receives
written notification from the shareholder or broker dealer that the
certificate issued was never received, and such notification is made within
thirty (30) days of the date of issuance, the Transfer Agent may reissue
the certificate without requiring a surety bond. The Transfer Agent may
also reissue certificates which are represented as lost, stolen or
destroyed without requiring a surety bond provided that the notification is
in writing and accompanied by an indemnificatio signed on behalf of a
member firm of the New York Stock Exchange and signed by an officer of said
firm with the signature guaranteed. Notwithstanding the foregoing, the
Transfer Agent will reissue a certificate upon written authorization from
an Officer of the Fund.
11. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to notify
the Fund 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 Fund that such disclosure has been
made or is to be made.
12. At the request of an Officer of the Fund, the Transfer Agent will
address and mail such appropriate notices to shareholders as the Fund may
direct.
13. 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 Fund, as the case may be, to
request such sale or issuance;
(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 Fund, as the case may
be, to request such transfer or redemption;
(c) The legality of the declaration of any dividend by the Fund,
or the legality of the issue of any Shares in payment of any stock
dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
14. 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.
15. Purchase and Prices of Services:
(a) The Fund will compensate the Transfer Agent for, and Transfer
Agent will provide, beginning on the execution date of this Agreement
and continuing until the termination of this Agreement as provided
hereinafter, the services set forth in Schedule I.
(b) The current unit prices for the services are set forth in
Schedule II (the "Schedule II Fees"). Effective as of January 1, 1997,
once in each calendar year, the Transfer Agent may elect to raise the
Schedule II Fees upon ninety (90) days prior notice to the Fund, all
subject to the mutual agreement of the parties hereto. Notwithstanding
the annual right to raise the Schedule II Fees, the Transfer Agent may
increase prices due to changes in legal or regulatory requirements
subjec to the approval of the Fund, which approval shall not be
unreasonably withheld.
16. Billing and Payment:
(a) The Transfer Agent shall xxxx the Fund monthly in arrears for
accounts maintained and Out-of-Pocket Expenses. The Transfer Agent may
from time to time request that the Fund advance estimated expenditures
of an unusual nature subject to reconciliation of actual expenses as
soon as practicable thereafter.
(b) The Fund shall pay the Transfer Agent in immediately
available funds at UMB Bank, n.a. in Kansas City, Missouri within
thirty (30) days of the date of the xxxx. Any amounts due under this
Agreement which are not paid within said thirty (30) day period shall
bear interest at the rate of one and one-half percent (l 1/2%) per
month from such date until paid in full.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such
termination, which shall be not less than sixty (60) days after the date of
receipt of such notice. In the event such notice is given by the Fund, it
shall be accompanied by a copy of a resolution of the Board of Directors of
the Fund, certified by the Secretary or any Assistant Secretary, electing
to terminate this Agreement and designating the successor transfer agent or
transfer agents. In the event such notice is given by the Transfer Agent,
the Fund 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 any Assistant Secretary, designating a successor transfer
agent or transfer agents. In the absence of such designation by the Fund,
the Fund 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.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the Fund, shall deliver the
records of the Fund on electromagnetic media to the Fund or its successor
transfer agent. The Fund shall be responsible to the Transfer Agent for the
reasonable costs and expenses associated with the preparation and delivery
of such media.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees that prior to effecting any change in the
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 at least thirty (30) days prior to the intended date of the
same, and shall proceed with such change only if it shall have received the
written consent of the Transfer Agent thereto, which shall not be
unreasonably withheld.
2. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at:
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Fund may from time to time designate in
writing.
3. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Transfer Agent shall be sufficiently
given if addressed to the Transfer Agent and mailed or delivered to:
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Transfer Agent may from time to time
designate in writing.
4. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the formality of this
Agreement.
5. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns.
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri.
7. 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.
8. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Fund, and no rights shall be granted to any other
person by virtue of this Agreement.
9. (a) The Transfer Agent shall endeavor to assist in resolving
shareholder inquiries and errors relating to the period during which prior
transfer agents acted as such for the Fund. Any such inquiries or errors
which cannot be expediently resolved by the Transfer Agent will be referred
to the Fund.
(b) The Transfer Agent shall only be responsible for the
safekeeping and maintenance of transfer agency records, cancelled
Share certificates and correspondence of the Fund created or produced
prior to the time of conversion which are under its control and
acknowledged in a writing to the Fund to be in its possession. Any
expenses or liabilities incurred by the Transfer Agent as a result of
shareholder inquiries, regulatory compliance or audits related to such
records and not caused as a result of Transfer Agent's bad faith,
willful misfeasance or gross negligence shall be the responsibility of
the Fund as provided in Article VIII herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written INVESTORS XXXX SERIES FUND, INC.
By _____________________
Name: Xxxxx X. Xxxxx
Title: President
XXXXX & XXXXXX, INC.
Name: Xxxxxx X. Xxxxxx
Title: Secretary
TA Agreement/J&B & IMSF
