Exhibit 9(A)
Transfer Agency and Service Agreement between
M Fund, Inc. and investors Bank & Trust Company
TRANSFER AGENCY AND SERVICE AGREEMENT
Between
M FUND, INC.
and
INVESTORS BANK & TRUST COMPANY
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the ___ day of ________, 1995 by and between M FUND,
INC., a corporation organized under the laws of Maryland (the "Company"), and
INVESTORS BANK & TRUST COMPANY, a Massachusetts trust company (the "Bank").
WITNESSETH:
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WHEREAS, the Company desires to appoint the Bank as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Company is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Company intends to initially offer shares in four series, (such
series, together with all other series subsequently established by the Company
and made subject to this Agreement in accordance with Article 17, being herein
referred to as the "Fund(s)");
NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the
Company and the Bank agree as follows:
ARTICLE 1. Terms of Appointment; Duties of the Bank
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1.01 Subject to the terms and conditions set forth in this Agreement, the
Company hereby employs and appoints the Bank to act as, and the Bank agrees to
act as, transfer agent for each of the Fund(s)' authorized and issued shares of
beneficial interest ("Shares"), dividend disbursing agent and agent in
connection with certain other activities.
1.02 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Company and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefor to the
custodian of the Company appointed by the Board of Directors of the
Company (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
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(iii) Receive for acceptance, redemption requests and redemption
directions and deliver the appropriate documentation therefor to the
Custodian;
(iv) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause to be
paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and distributions
declared by the Company on behalf of a Fund; and
(vii) Create and maintain all necessary records including those
specified in Article 10 hereof, in accordance with all applicable laws,
rules and regulations, including but not limited to records required by
Section 31(a) of the Investment Company Act of 1940, as amended (the
"1940 Act"), and those records pertaining to the various functions
performed by it hereunder. All records shall be available for inspection
and use by the Company. Where applicable, such records shall be
maintained by the Bank for the periods and in the places required by Rule
31a-2 under the 1940 Act.
(viii) Make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Company, or any person retained by
the Company. Upon reasonable notice by the Company, the Bank shall make
available during regular business hours its facilities and premises
employed in connection with its performance of this Agreement for
reasonable visitation by the Company, or any person retained by the
Company, or by regulatory authorities.
(ix) At the expense of and at the request of the Company, the Bank shall
maintain an adequate supply of blank share certificates for each Fund
providing for the issuance of certificates to meet the Bank's
requirements therefor. Such share certificates shall be properly signed
by facsimile. The Company agrees that, notwithstanding the death,
resignation, or removal of any officer of the Company whose signature
appears on such certificates, the Bank may continue to countersign
certificates which bear such signatures until otherwise directed by the
Company. Share certificates may be issued and accounted for entirely by
the Bank and do not require any third party registrar or other endorsing
party.
(x) Issue replacement share certificates in lieu of certificates which
have been lost, stolen, mutilated or destroyed, without any further
action by the Board of Directors or any officer of the Company, upon
receipt by the Bank of properly executed affidavits and lost certificate
bonds, in form satisfactory to the Bank with the Company and the Bank as
obligees under the bond. At the discretion of the Bank, and at its sole
risk, the Bank may issue replacement certificates without requiring the
affidavits and
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lost certificate bonds described above and the Bank agrees to indemnify
the Company against any and all losses or claims which may arise by
reason of the issuance of such new certificates in the place of the ones
allegedly lost, stolen or destroyed.
(xi) Record the issuance of Shares of the Company and maintain, pursuant
to Rule 17Ad-10(e) under the 1934 Act, a record of the total number of
Shares of the Company which are authorized, based upon data provided to
it by the Company or its agents, and issued and outstanding. The Bank
shall also provide the Company on a regular basis with the total number
of Shares which are authorized and issued and outstanding and shall have
no obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to the
issue or sale of such Shares, which functions shall be the sole
responsibility of the Company.
(b) In addition to and not in lieu of the services set forth in the above
paragraph (a) or in any Schedule hereto, the Bank shall: (i) perform all of
the customary services of a transfer agent, dividend disbursing agent and, as
relevant, agent in connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan or periodic
withdrawal program); including but not limited to maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing Shareholder reports and prospectuses to current
Shareholders, preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and transmitting
confirmation forms and statements of account to Shareholders for all purchases
and redemptions of Shares and other confirmable transactions in Shareholder
accounts (in accordance with the Purchase and Redemption Procedures set forth in
Appendix I attached hereto), responding to Shareholder telephone calls and
Shareholder correspondence, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information; and (ii) provide a
system which will enable the Company to monitor the total number of shares sold
in each State. The Company shall (i) identify to the Bank in writing those
transactions and assets to be treated as exempt from blue sky reporting for
each State and (ii) verify the establishment of transactions for each State on
the system prior to activation and thereafter monitor the daily activity for
each State. The responsibility of the Bank for a Fund's blue sky state
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by such Fund(s) and the reporting of
such transactions to the Fund(s) as provided above.
(c) Additionally, the Bank shall utilize a system to identify all share
transactions which involve purchase and redemption orders that are processed at
a time other than the time of the computation of net asset value per share next
computed after receipt of such orders, and shall compute the net effect upon the
Fund(s) of such transactions so identified on a daily and cumulative basis.
(d) The Bank shall perform its services hereunder in accordance with the
Purchase and Redemption Procedures set forth in Appendix I attached hereto.
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ARTICLE 2. Sale of Company Shares
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2.01 Whenever the Company shall sell or cause to be sold any Shares of a Fund,
the Company or its agents, or the shareholder or its agent shall deliver or
cause to be delivered to the Bank a document duly specifying: (i) the name of
the Fund whose Shares were sold; (ii) the number of Shares sold, trade date,
and price; (iii) the amount of money to be delivered to the Custodian for the
sale of such Shares and specifically allocated to such Fund; and (iv) in the
case of a new account, a new account application or sufficient information to
establish an account.
2.02 The Bank will, upon receipt by it of a check or other payment identified
by it as an investment in Shares of one of the Funds and drawn or endorsed to
the Bank as agent for, or identified as being for the account of, one of the
Funds, promptly deposit such check or other payment to the appropriate account
postings necessary to reflect the investment. The Bank will notify the Company,
or its designee, and the Custodian of all purchases and related account
adjustments.
2.03 Under procedures as established by mutual agreement between the Company
and the Bank, the Bank shall issue to the purchaser or his authorized agent such
Shares, computed to the nearest three decimal points, as he is entitled to
receive, based on the appropriate net asset value of the Funds' Shares,
determined in accordance with the prospectus and applicable Federal law or
regulation. In issuing Shares to a purchaser or his authorized agent, the Bank
shall be entitled to rely upon the latest directions, if any, previously
received by the Bank from the purchaser or his authorized agent concerning the
delivery of such Shares.
2.04 The Bank shall not be required to issue any Shares of the Company where
it has received a written instruction from the Company or written notification
from any appropriate Federal or State authority that the sale of the Shares of
the Fund(s) in question has been suspended or discontinued, and the Bank shall
be entitled to rely upon such written instructions or written notification.
2.05 Upon the issuance of any Shares of any Fund(s) in accordance with
foregoing provisions of this Section, the Bank shall not be responsible for the
payment of any original issue or other taxes, if any, required to be paid by the
Company in connection with such issuance.
2.06 The Bank may establish such additional rules and regulations governing
the transfer or registration of Shares as it may deem advisable and consistent
with such rules and regulations generally adopted by transfer agents, or with
the written consent of the Company, any other rules and regulations.
ARTICLE 3. Returned Checks
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3.01 In the event that any check or other order for the transfer of money is
returned unpaid for any reason, the Bank will take such steps as the Bank may,
in its discretion, deem appropriate to protect the Company from financial loss
or as the Company or its designee may instruct. Provided that the standard
procedures, as agreed upon from time to time, between the Company and the Bank,
regarding purchases and redemptions of Shares, are adhered to by the Bank, the
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Bank shall not be liable for any loss suffered by a Fund as a result of returned
or unpaid purchase or redemption transactions. Legal or other expenses incurred
to collect amounts owed to a Fund as a consequence of returned or unpaid
purchase or redemption transactions shall be an expense of the Company.
ARTICLE 4. Redemptions
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4.01 Shares of any Fund may be redeemed in accordance with the procedures set
forth in Appendix I attached hereto and the Bank will duly process all
redemption requests.
ARTICLE 5. Transfers and Exchanges
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5.01 The Bank is authorized to review and process transfers of Shares of each
Fund, exchanges between Funds on the records of the Funds maintained by the
Bank, and exchanges between the Company and any other entity as may be permitted
by the Prospectus of the Company. If Shares to be transferred are represented
by outstanding certificates, the Bank will, upon surrender to it of the
certificates in proper form for transfer, and upon cancellation thereof,
countersign and issue new certificates for a like number of Shares and deliver
the same. If the Shares to be transferred are not represented by outstanding
certificates, the Bank will, upon an order therefor by or on behalf of the
registered holder thereof in proper form, credit the same to the transferee on
its books. If Shares are to be exchanged for Shares of another Fund, the Bank
will process such exchange in the same manner as a redemption and sale of
Shares, except that it may in its discretion waive requirements for information
and documentation.
ARTICLE 6. Right to Seek Assurances
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6.01 Subject to compliance with the 1940 Act, the Bank 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
Bank, in its judgment, deems improper or unauthorized, or until it is satisfied
that there is no basis for any claims adverse to such transfer or redemption.
The Bank may, in effecting transfers, rely upon the 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, which in the
opinion of Company legal counsel or of its own legal counsel approved by the
Company which approval will not be unreasonably withheld, protect it in not
requiring certain documents in connection with the transfer or redemption of
Shares of any Fund, and the Company shall indemnify the Bank for any act done
or omitted by it in reliance upon such laws or opinions of Company counsel or
its own counsel.
ARTICLE 7. Distributions
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7.01 The Company or its agent will promptly notify the Bank of the
declaration of any dividend or distribution. The Company shall furnish to the
Bank a resolution of the Board of Directors of the Company certified by an
officer of the Company (a "Certificate"): (i) authorizing the declaration of
dividends on a specified periodic basis and authorizing the Bank to rely on a
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Certificate specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined and the amount payable per
share to Shareholders of record as of the date and the total amount payable to
the Bank on the payment date; or (ii) setting forth the date of the declaration
of any dividend or distribution by a Fund, the date of payment thereof, the
record date as of which Shareholders entitled to payment shall be determined,
and the amount payable per share to the Shareholders of record as of that date
and the total amount payable to the Bank on the payment date.
7.02 The Bank, on behalf of the Company, shall instruct the Custodian to
place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. The Bank will calculate, prepare and
credit such dividend or distribution to the account of, Fund Shareholders, and
maintain and safeguard all underlying records.
7.03 The Bank will replace lost checks at its discretion and in conformity
with regular business practices.
7.04 The Bank will maintain all records necessary to reflect the crediting of
dividends which are reinvested in Shares of the Company, including without
limitation daily dividends.
7.05 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Directors of the Company.
7.06 If the Bank shall not receive from the Custodian sufficient cash to make
payment to all Shareholders of the Company as of the record date, the Bank
shall, upon notifying the Company, withhold payment to all Shareholders of
record as of the record date until such sufficient cash is provided to the Bank.
ARTICLE 8. Other Duties
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8.01 In addition to the duties expressly provided for herein, the Bank shall
perform such other duties and functions and shall be paid such amounts therefor
as may from time to time be agreed to in writing.
ARTICLE 9. Taxes
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9.01 It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and capital gain distributions and
tax withholding with the proper Federal, State and local authorities as are
required by law to be filed by the Company and shall withhold such sums as are
required to be withheld by applicable law.
ARTICLE 10. Books and Records
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10.01 The Bank shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax identification
numbers; (ii) numbers of Shares held;
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(iii) historical information (as available from prior transfer agents) regarding
the account of each Shareholder, including dividends paid and date and price of
all transactions on a Shareholder's account; (iv) any stop or restraining order
placed against a Shareholder's account; (v) information with respect to
withholdings; (vi) any capital gain or dividend reinvestment order, plan
application, dividend address and correspondence relating to the current
maintenance of a Shareholder's account; (vii) certificate numbers and
denominations for any Shareholders holding certificates; (viii) any information
required in order for the Bank to perform the calculations contemplated or
required by this Agreement; and (ix) such other information and data as may be
required by applicable law.
10.02 Any records required to be maintained by Rule 31a-1 under the 1940 Act
will be preserved for the periods prescribed in Rule 31a-2 under the 1940 Act.
Such records may be inspected by the Company at reasonable times and shall be
the property of the Company. The Bank may, at its option at any time, and shall
forthwith upon the Company's demand, turn over to the Company and cease to
retain in the Bank's files, records and documents created and maintained by the
Bank in performance of its service or for its protection. At the end of the
six-year retention period, such periods and documents will either be turned over
to the Company, or destroyed in accordance with the Company's authorization.
10.03 Procedures applicable to the services to be performed hereunder may be
established from time to time by agreement between the Company and the Bank.
The Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its opinion, qualifies to perform any services
to be performed hereunder. The Bank shall keep records relating to the services
performed hereunder, in the form and manner as it may deem advisable.
ARTICLE 11. Fees and Expenses.
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11.01 For performance by the Bank pursuant to this Agreement, the Company
agrees to pay the Bank an annual maintenance fee for each Shareholder account as
set out in the initial fee schedule attached hereto. Such fees and out-of-
pocket expenses and advances identified under Section 11.02 below may be changed
from time to time subject to mutual written agreement between the Company and
the Bank.
11.02 In addition to the fee paid under Section 11.01 above, the Company
agrees to reimburse the Bank for out-of-pocket expenses or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In
addition, any other expenses incurred by the Bank at the request or with the
consent of the Company including, without limitation, any equipment or supplies
specifically ordered by the Company or required to be purchased by the Company,
will be reimbursed by the Company.
11.03 The Company agrees to pay all fees and reimbursable expenses within
thirty days following the mailing of the respective billing notice. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to the Bank by the Company at least seven
(7) days prior to the mailing date of such material.
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ARTICLE 12. Representations and Warranties of the Bank
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The Bank represents and warrants to the Company that:
12.01 It is a trust company duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts.
12.02 It is empowered under applicable laws and by its charter and by-laws to
enter into and perform this Agreement.
12.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
12.04 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
ARTICLE 13. Representations and Warranties of the Company
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The Company represents and warrants to the Bank that:
13.01 It is a corporation duly organized and existing and in good standing
under the laws of the State of its incorporation as set forth in the preamble
hereto.
13.02 It is empowered under applicable laws and by its charter documents and
by-laws to enter into and perform this Agreement.
13.03 All proceedings required by said charter documents and by-laws have
been taken to authorize it to enter into and perform this Agreement.
13.04 It is an open-end investment company registered under the 0000 Xxx.
13.05 A registration statement on Form N-1A (including a prospectus and
statement of additional information) under the Securities Act of 1933 and the
1940 Act is or will be effective and will remain effective, with respect to all
Shares of the Company being offered for sale.
13.06 When Shares are hereafter issued in accordance with the terms of the
Prospectus, such Shares shall be validly issued, fully paid and nonassessable by
the Company.
ARTICLE 14. Indemnification
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14.01 Except as set forth in subparagraph (f) hereof, the Bank shall not be
responsible for, and the Company shall indemnify and hold the Bank harmless from
and against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to:
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(a) All actions taken or omitted to be taken by the Bank or its agent or
subcontractors in good faith in reliance on or use by the Bank or its agents or
subcontractors of information, records and documents which (i) are received by
the Bank or its agents or subcontractors and furnished to it by or on behalf of
the Fund(s), (ii) have been prepared and/or maintained by the Company or any
other person or firm on behalf of the Fund(s), and (iii) were received by the
Bank or its agents or subcontractors from a prior transfer agent.
(b) Any action taken or omitted to be taken by the Bank in connection with
its appointment in good faith in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed.
(c) The Company's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Company's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Company hereunder.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests, whether written or oral, of the
Company.
(e) The offer or sale of Shares by the Company in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any State that such Shares be registered in such State or
in violation of any stop order or other determination or ruling by any federal
agency or any State with respect to the offer or sale of such Shares in such
state.
(f) In addition to any other limitation provided herein, or by law,
indemnification under this Agreement shall not apply to actions or omissions of
the Bank or its directors, officers, employees, agents or subcontractors in
cases of its own gross negligence, willful misconduct, bad faith, reckless
disregard of its duties or their own duties hereunder, knowing violation of law
or fraud.
14.02 The Bank shall indemnify and hold the Fund(s) harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributed to any action or failure or omission
to act by the Bank as a result of the Bank's lack of good faith, negligence,
willful misconduct, knowing violation of law or fraud.
14.03 At any time the Bank may apply to any officer of the Company for
instructions, or to act upon the advice of Fund counsel or independent counsel
of its own selection and approved by the Fund which approval will not be
unreasonably withheld, with respect to any matter arising in connection with the
services to be performed by the Bank under this Agreement, and the Bank and its
agents or subcontractors shall not be liable and shall be indemnified by the
Company for any action taken or omitted by it in reliance upon such
instructions or upon opinion of such counsel except for a knowing violation of
law. The Bank shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Fund(s), reasonably believed to be
genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided the Bank or its
agents or subcontractors by
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machine readable input, telex, CRT data entry or other similar means authorized
by the Fund(s), and shall not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from the Fund(s). The
Bank shall also be protected and indemnified in recognizing stock certificates
which are reasonably believed to bear the proper manual or facsimile signatures
of an officer of the Company, and one proper countersignature of any former
transfer agent or registrar, or of a co-transfer agent or co-registrar.
14.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, interruption of
electrical power or other utilities, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable to the other for any damages resulting from such
failure to perform or otherwise from such causes.
14.05 Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder as contemplated by this Agreement.
14.06 In order that the indemnification provisions contained in this Article
14 shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking the indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent, which consent shall not be unreasonably
withheld.
ARTICLE 15. Covenants of the Company and the Bank
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15.01 The Company shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Directors of the Company
authorizing the appointment of the Bank and the execution and delivery of this
Agreement.
(b) A copy of the charter documents and by-laws of the Company and all
amendments thereto.
(c) Copies of each vote of the Directors designating authorized persons to
give instructions to the Bank, and a Certificate providing specimen signatures
for such authorized persons.
(d) Certificates as to any change in any officer or Director of the
Company.
(e) If applicable a specimen of the certificate of Shares in each Fund of
the Company in the form approved by the Directors, with a Certificate as to
such approval.
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(f) Specimens of all new certificates for Shares, accompanied by the
Directors' resolutions approving such forms.
(g) All Participation Agreements or account application forms and other
documents relating to shareholder accounts or relating to any plan, program or
service offered by the Company.
(h) A list of all Shareholders of the Fund(s) with the name, address and
tax identification number of each Shareholder, and the number of Shares of the
Fund(s) held by each, certificate numbers and denominations ( if any
certificates have been issued), lists of any account against which stops have
been placed, together with the reasons for said stops, and the number of Shares
redeemed by the Fund(s).
(i) An opinion of counsel for the Company with respect to the validity of
the Shares and the status of such Shares under the Securities Act of 1933.
(j) Copies of the Fund(s) registration statement on Form N-1A as amended
and declared effective by the Securities and Exchange Commission and all post-
effective amendments thereto.
(k) Such other certificates, documents or opinions as may mutually be
deemed necessary or appropriate for the Bank in the proper performance of its
duties.
15.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
15.03 The Bank shall keep records relating to the services to be performed
hereunder, as required by the 1940 Act and in the form and manner as it may deem
advisable. To the extent required by Section 31 of the 1940 Act and the Rules
thereunder, the Bank agrees that all such records prepared or maintained by the
Bank relating to the services to be performed by the Bank hereunder are the
confidential property of the Company and will be preserved, maintained and made
available in accordance with such Section and Rules, and will be surrendered to
the Company on and in accordance with its request.
15.04 The Bank and the Company agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
15.05 In case of any requests or demands for the inspection of the
Shareholder records of the Company, the Bank will endeavor to notify the Company
and to secure instructions from an authorized officer of the Company as to such
instruction. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
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ARTICLE 16. Term of Agreement
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16.01 This Agreement shall become effective on the date hereof (the "
Effective Date") and shall continue in effect for twelve months from the
Effective Date ( the "Initial Term") and from year to year thereafter with
respect to each Fund, provided that subsequent to the Initial Term, this
Agreement may be terminated by either party at any time without payment of any
penalty upon ninety (90) days written notice to the other.
16.02 Should the Company exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Company. Additionally, the Bank reserves the right to charge for any other
reasonable expenses associated with such termination.
ARTICLE 17. Additional Funds
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17.01 In the event that the Company establishes one or more series of Shares
in addition to the initial series with respect to which it desires to have the
Bank render services as transfer agent under the terms hereof, it shall so
notify the Bank in writing, and if the Bank agrees in writing to provide such
services, such series of Shares shall become a Fund hereunder.
ARTICLE 18. Assignment
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18.01 Except as provided in Section 18.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party.
18.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
18.03 The Bank, may without further consent on the part of the Company,
subcontract for the performance of any of the services to be provided hereunder
to third parties, including any affiliate of the Bank, provided that the Bank
shall remain liable hereunder for any acts or omissions of any subcontractor as
if performed by the Bank.
ARTICLE 19. Amendment
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19.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
ARTICLE 20. Massachusetts Law to Apply
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20.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
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ARTICLE 21. Merger of Agreement and Severability
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21.01 This Agreement, including all exhibits or appendices thereto,
constitutes the entire agreement between the parties hereto and supersedes any
prior agreement with respect to the subject hereof whether oral or written.
21.02 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.03 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.
ARTICLE 22. Notices
----------- -------
22. 01 Any notice or other instrument in writing authorized or required by
this Agreement to be given to either party hereto will be sufficiently given if
addressed to such party and mailed or delivered to it at its office at the
address set forth below:
For the Fund(s): M Fund, Inc.
River Park Center
000 X. X. Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: President
For the Bank: Investors Bank & Trust Company
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Counsel
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and the year first above written.
M Fund, Inc.
_____________________________________
Name:
Title:
ATTEST:
________________________
Investors Bank & Trust Company
_____________________________________
Name:
Title:
ATTEST:
_______________________
DATE: _________________
15
