EXHIBIT 9(a)
1838 INVESTMENT ADVISORS FUNDS
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of the 8th day of February,
1995, between 1838 Investment Advisors Funds, a Delaware business trust (the
"Trust"), having its principal place of business in Radnor, Pennsylvania and
▇▇▇▇▇▇ Square Management Corporation, a corporation organized under the laws of
the State of Delaware ("▇▇▇▇▇▇ Square"), having its principal place of business
in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and offers for public sale one or more distinct series of shares of beneficial
interest ("Series"), par value $0.001 per share, each corresponding to a
distinct portfolio;
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series and each Series has
a separate investment objective and policies;
WHEREAS, at the present time, the Trust is in the process of
establishing two Series, 1838 International Equity Fund and 1838 Small Cap
Equity Fund, and anticipates it will establish additional Series in the future;
WHEREAS, the Trust desires to employ the services of ▇▇▇▇▇▇ Square to
serve as the Trust's transfer agent;
WHEREAS, ▇▇▇▇▇▇ Square is willing to furnish such services to the Trust
with respect to each Series listed in Schedule A to this Agreement (each a
"Fund" and two or more together, "Funds") on the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Trust and ▇▇▇▇▇▇ Square agree as follows:
1. Appointment. The Trust hereby appoints ▇▇▇▇▇▇ Square as transfer
agent, registrar and dividend disbursing agent for the shares of beneficial
interest of the Trust (the "Shares") and as servicing agent in connection with
the disbursements of dividends and distributions and as shareholders' servicing
agent for the Trust, each such appointment to take effect as of the date first
written above, and ▇▇▇▇▇▇ Square shall act as such and perform its obligations
thereof upon the terms and conditions hereafter set forth and in accordance with
the principles of principal and agent enunciated by the common law.
2. Documents. The Trust has furnished ▇▇▇▇▇▇ Square with copies
properly certified or authenticated of each of the following:
a. The Trust's Certificate of Trust filed with the Secretary of the
State of Delaware on December 12, 1994, and all amendments thereto and
restatements thereof;
b. The Trust's Agreement and Declaration of Trust and all amendments
thereto and restatements thereof.
c. The Trust's By-laws and all amendments thereto and restatements
thereof (such By-laws, as presently in effect and as they shall from time to
time be amended or restated, are herein called "By-laws");
d. Resolutions of the Trust's Board of Trustees authorizing the
appointment of ▇▇▇▇▇▇ Square to provide certain transfer agency services to the
Trust and approving this Agreement;
e. The Trust's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act as filed with the Securities and Exchange
Commission ("SEC") on December 13, 1994;
f. The Trust's most recent Registration Statement on Form N-1A under
the Securities Act of 1933 (the "1933 Act") (File No. 33-87298) and under the
1940 Act (File No. 811-8902), as filed with the SEC relating to shares of
beneficial interest of the Trust, and all amendments thereto;
g. The Trust's most current Prospectus(es) and Statement(s) of
Additional Information relating to the Fund(s);
h. The Trust's Agreements listed on Schedule B attached to this
Agreement; and
i. If required, a copy of either (i) a filed notice of eligibility
to claim the exclusion from the definition of "commodity pool operator"
contained in Section 2(a)(1)(A) of the Commodity Exchange Act ("CEA") that is
provided in Rule 4.5 under the CEA, together with all supplements as are
required by the Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Trust by the CFTC which states that the Trust will
not be treated as a "pool" as defined in Section 4.10(d) of the CFTC's General
Regulations, or (iii) a letter which has been granted the Trust by the CFTC
which states that CFTC will not take any enforcement action if the Trust does
not register as a "commodity pool operator."
The Trust will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Square from time to time with copies,
properly certified or authenticated, of all additions, amendments or supplements
to the foregoing, if any.
3. Instructions Consistent with Declaration of Trust.
a. Unless otherwise provided in this Agreement, ▇▇▇▇▇▇ Square shall
act only upon Oral and Written Instructions. ("Oral Instructions" used in this
Agreement shall mean oral instructions actually received by ▇▇▇▇▇▇ Square from
an Authorized Person or from a person reasonably believed by ▇▇▇▇▇▇ Square to be
an Authorized Person. "Written Instructions" used in this Agreement shall mean
written instructions signed by two Authorized Persons delivered by hand, mail,
telegram, cable, telex or facsimile, and received by ▇▇▇▇▇▇ Square. "Authorized
Person" used in this Agreement means any officer of the Trust and any other
person, whether or not any such person is an officer of the Trust, duly
authorized by the Board of Trustees of the Trust to give Oral and Written
Instructions on behalf of the Fund(s) and certified by the Secretary or an
Assistant Secretary of the Trust or any amendment thereto as may be received by
▇▇▇▇▇▇ Square from time to time.) ▇▇▇▇▇▇ Square in its capacity under this
Agreement may assume that any Oral or Written Instructions received hereunder
are not in any way inconsistent with any provisions of such Declaration of Trust
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or By-laws or any vote, resolution or proceeding of the shareholders, or of the
Board of Trustees, or of any committee thereof.
b. Rodney Square shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by ▇▇▇▇▇▇ Square
pursuant to this Agreement. The Trust agrees to forward to ▇▇▇▇▇▇ Square Written
Instructions confirming Oral Instructions in such manner that the Written
Instructions are received by ▇▇▇▇▇▇ Square, whether by hand delivery, telex,
facsimile or otherwise, by the close of business of the same day that such Oral
Instructions are given to ▇▇▇▇▇▇ Square. The Trust agrees that the fact that
such confirming Written Instructions are not received by ▇▇▇▇▇▇ Square shall in
no way affect the validity of the transactions or enforceability of the
transactions authorized by the Trust by giving Oral Instructions. The Trust
agrees that ▇▇▇▇▇▇ Square shall incur no liability to the Trust in acting upon
Oral Instructions given to ▇▇▇▇▇▇ Square hereunder concerning such transactions
provided such instructions reasonably appear to have been received from an
Authorized Person.
4. Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, ▇▇▇▇▇▇ Square is authorized to take the following
actions:
a. Issuance of Shares. Upon receipt of a purchase order from the
Distributor, as defined in the Distribution Agreement between the Trust and the
Distributor or a prospective shareholder for the purchase of Shares and
sufficient information to enable ▇▇▇▇▇▇ Square to establish a shareholder
account or to issue Shares to an existing shareholder account, and after
confirmation of receipt or crediting of Federal funds for such order from ▇▇▇▇▇▇
Square's designated bank, ▇▇▇▇▇▇ Square shall issue and credit the account of
the investor or other record holder with Shares in the manner described in the
Prospectus. ▇▇▇▇▇▇ Square shall deposit all checks received from prospective
shareholders into an account on behalf of the Trust, and shall promptly transfer
all Federal funds received from such checks to the Custodian, as defined in the
Custodian Agreement between the Trust and the Custodian. (References herein to
"Custodian" shall also be construed to refer to a "Sub-Custodian" if such
appointment has been made.) If so directed by the Distributor, the confirmation
supplied to the shareholder to ▇▇▇▇ such issuance will be accompanied by a
Prospectus.
b. Transfer of Shares; Uncertificated Securities. Where a
shareholder does not hold a certificate representing the number of Shares in its
account and does provide ▇▇▇▇▇▇ Square with instructions for the transfer of
such Shares which include a signature guaranteed by a commercial bank, trust
company or member firm of a national securities exchange and such other
appropriate documentation to permit a transfer, then ▇▇▇▇▇▇ Square shall
register such Shares and shall deliver them pursuant to instructions received
from the transferor, pursuant to the rules and regulations of the SEC, and the
laws of the State of Delaware relating to the transfer of shares of beneficial
interest.
c. Share Certificates. If at any time the Fund issues share
certificates, the following provisions will apply:
(1) The Trust will supply ▇▇▇▇▇▇ Square with a sufficient supply
of share certificates representing Shares, in the form approved
from time to time by the Trustees of the Trust, and, from time to
time, shall replenish such supply upon request of ▇▇▇▇▇▇ Square.
Such share certificate shall be properly signed, manually or by
facsimile signature, by the duly authorized officers of the
Trust, and shall bear the corporate seal or facsimile thereof of
the Trust, and notwithstanding the death, resignation or removal
of any officer of the Trust, such executed certificates bearing
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the manual or facsimile signature of such officer shall remain
valid and may be issued to shareholders until ▇▇▇▇▇▇ Square is
otherwise directed by Written Instructions.
(2) In the case of the loss or destruction of any certificate
representing Shares, no new certificate shall be issued in lieu
thereof, unless there shall first have been furnished an
appropriate bond of indemnity issued by a surety company approved
by ▇▇▇▇▇▇ Square.
(3) Upon receipt of signed share certificates, which shall be in
proper form for transfer, and upon cancellation or destruction
thereof, ▇▇▇▇▇▇ Square shall countersign, register and issue new
certificates for the same number of Shares and shall deliver them
pursuant to instructions received from the transferor, the rules
and regulations of the SEC, and the laws of the State of Delaware
relating to the transfer of shares of beneficial interest.
(4) Upon receipt of the share certificates, which shall be in
proper form for transfer, together with the shareholder's
instructions to hold such share certificates for safekeeping,
▇▇▇▇▇▇ Square shall reduce such Shares to uncertificated status,
while retaining the appropriate registration in the name of the
shareholder upon the transfer books.
(5) Upon receipt of written instructions from a shareholder of
uncertificated securities for a certificate in the number of
shares in its account, ▇▇▇▇▇▇ Square will issue such share
certificates and deliver them to the shareholder.
d. Redemption of Shares. Upon receipt of a redemption order from the
Distributor or a shareholder, ▇▇▇▇▇▇ Square shall redeem the number of Shares
indicated thereon from the redeeming shareholder's account and receive from the
Trust's Custodian and disburse pursuant to the instructions of a redeeming
shareholder or his or her agent the redemption proceeds therefor, or arrange for
direct payment of redemption proceeds by the Custodian to the redeeming
shareholder or as instructed by the shareholder or his or her agent, in
accordance with such procedures and controls as are mutually agreed upon from
time to time by and among the Trust, ▇▇▇▇▇▇ Square and the Trust's Custodian.
5. Authorized Issued and Outstanding Shares. The Trust agrees to notify
▇▇▇▇▇▇ Square promptly of any change in the number of authorized Shares and of
any change in the number of Shares registered under the 1933 Act, as amended or
termination of the Trust's declaration under Rule 24f-2 of the 1940 Act. The
Trust has advised ▇▇▇▇▇▇ Square, as of the date hereof, of the number of Shares
(i) held in any redemption or repurchase account, and (ii) registered under the
1933 Act, as amended, which are unsold. In the event that the Trust shall
declare a stock dividend, a stock split or a reverse stock split, the Trust
shall deliver to ▇▇▇▇▇▇ Square a certificate, upon which ▇▇▇▇▇▇ Square shall be
entitled to rely for all purposes, certifying (i) the number of Shares involved,
(ii) that all appropriate corporate action has been taken, and (iii) that any
amendment to the Trust's Declaration of Trust which may be required has been
filed and is effective. Such certificate shall be accompanied by an opinion of
counsel to the Trust relating to the legal adequacy and effect of the
transaction.
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6. Dividends and Distributions.
a. The Trust shall ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Square with appropriate evidence
of action by the Trust's Trustees authorizing the declaration and payment of
dividends and distributions as described in the Prospectus. After deducting any
amount required to be withheld by any applicable tax laws, rules and regulations
or other applicable laws, rules and regulations, ▇▇▇▇▇▇ Square shall in
accordance with the instructions in proper form from a shareholder and the
provisions of the Trust's Declaration of Trust and Prospectus, issue and credit
the account of the shareholder with Shares, or, if the shareholder so elects,
pay such dividends or distributions in cash to the shareholder in the manner
described in the Prospectus. In lieu of receiving from the Trust's Custodian and
paying to shareholders cash dividends or distributions, ▇▇▇▇▇▇ Square may
arrange for the direct payment of cash dividends and distributions to
shareholders by the Custodian, in accordance with such procedures and controls
as are mutually agreed upon from time to time by and among the Trust, ▇▇▇▇▇▇
Square and the Trust's Custodian.
b. Rodney Square shall prepare, file with the Internal Revenue
Service and other appropriate taxing authorities, and address and mail to
shareholders such returns and information relating to dividends and
distributions paid by the Trust as are required to be so prepared, filed and
mailed by applicable laws, rules and regulations, or such substitute form of
notice as may from time to time be permitted or required by the Internal Revenue
Service. On behalf of the Trust, ▇▇▇▇▇▇ Square shall mail certain requests for
shareholders' certifications under penalties of perjury and pay on a timely
basis to the appropriate Federal authorities any taxes to be withheld on
dividends and distributions paid by the Trust, all as required by applicable
Federal tax laws and regulation.
c. In accordance with the Prospectus, resolutions of the Trust's
Trustees that are not inconsistent with this Agreement and are provided to
▇▇▇▇▇▇ Square from time to time, and such procedures and controls as are
mutually agreed upon from time to time by and among the Trust, ▇▇▇▇▇▇ Square and
the Trust's Custodian, ▇▇▇▇▇▇ Square shall arrange for issuance of Shares
obtained through transfers of funds from shareholders' accounts at financial
institutions.
7. Communications with Shareholders.
a. Communications to Shareholders. ▇▇▇▇▇▇ Square will address and
mail all communications by the Trust to its shareholders, including reports to
shareholders, confirmations of purchases and sales of Shares, monthly
statements, dividend and distribution notices and proxy material for its
meetings of shareholders. ▇▇▇▇▇▇ Square will receive and tabulate the proxy
cards for shareholder meetings.
b. Correspondence. ▇▇▇▇▇▇ Square will answer such correspondence
from shareholders, securities brokers and others relating to its duties
hereunder and such other correspondence as may from time to time be mutually
agreed upon between ▇▇▇▇▇▇ Square and the Trust.
8. Services to be Performed. ▇▇▇▇▇▇ Square shall be responsible for
administering and/or performing transfer agent functions, for acting as service
agent in connection with dividend and distribution functions and for performing
shareholder account functions in connection with the issuance, transfer and
redemption or repurchase (including coordination with the Trust's custodian bank
in connection with shareholder redemption by check) of the Trust's Shares as set
forth in Schedule C to this Agreement. The details of the operating standards
and procedures to be followed shall be determined from time to time by agreement
between ▇▇▇▇▇▇ Square and the Trust and may be expressed in written schedules
which shall constitute attachments to this Agreement.
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9. Recordkeeping and Other Information.
a. Rodney Square shall maintain records of the accounts for each
Shareholder showing the items listed in Schedule D to this Agreement.
b. Rodney Square shall create and maintain all necessary records in
accordance with all applicable laws, rules and regulations, including but not
limited to records required by Section 31(a) of the 1940 Act and the rules
thereunder and any applicable regulations of the Federal Deposit Insurance
Corporation ("FDIC") or any successor regulatory authority, as the same may be
amended from time to time, and those records pertaining to the various functions
performed by it hereunder. All records shall be the property of the Trust at all
times and shall be available for inspection and use by the Trust or the Trust's
authorized representatives. Upon reasonable request of the Trust, copies of such
records shall be provided by ▇▇▇▇▇▇ Square to the Trust or the Trust's
authorized representatives at the Trust's expense. Where applicable, such
records shall be maintained by ▇▇▇▇▇▇ Square for the periods and in the places
required by Rule 31a-2 under the 1940 Act and any applicable regulations of the
FDIC or any successor regulatory authority.
10. Audit, Inspection and Visitation. ▇▇▇▇▇▇ Square shall 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
Trust or any person retained by the Trust. Upon reasonable notice by the Trust,
▇▇▇▇▇▇ Square 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 Trust, or any person retained by the Trust.
11. Right to Receive Advice.
a. Advice of Trust. If ▇▇▇▇▇▇ Square shall be in doubt as to any
action to be taken or omitted by it, it may request, and shall receive, from the
Trust directions or advice, including Oral or Written Instructions where
appropriate.
b. Advice of Counsel. If ▇▇▇▇▇▇ Square shall be in doubt as to any
question of law involved in any action to be taken or omitted by ▇▇▇▇▇▇ Square
in connection with ▇▇▇▇▇▇ Square's performance of its responsibilities under
this agreement, it may request advice from the regularly retained counsel for
the Trust at the Trust's expense.
c. Conflicting Advice. In case of conflict between directions,
advice or Oral or Written Instructions received by ▇▇▇▇▇▇ Square pursuant to
subsection a. of this Section and advice received by ▇▇▇▇▇▇ Square pursuant to
subsection b. of this Section, ▇▇▇▇▇▇ Square shall be entitled to rely on and
follow the advice received pursuant to the latter provision alone.
d. Protection of ▇▇▇▇▇▇ Square. ▇▇▇▇▇▇ Square shall be protected in
any action or inaction which it takes in reliance on any directions, advice or
Oral or Written Instructions received pursuant to subsections a. or b. of this
Section which ▇▇▇▇▇▇ Square, after receipt of any such directions, advice or
Oral or Written Instructions, in good faith believes to be consistent with such
directions, advice or Oral or Written Instructions, as the case may be. However,
nothing in this Section shall be construed as imposing upon ▇▇▇▇▇▇ Square any
obligation (i) to seek such direction, advice or Oral or Written Instructions,
or (ii) to act in accordance with such directions, advice or Oral or Written
Instructions when received, unless, under the terms of another provision of this
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Agreement, the same is a condition to ▇▇▇▇▇▇ Square's properly taking or
omitting to take such action. Nothing in this subsection shall excuse ▇▇▇▇▇▇
Square when an action or omission on the part of ▇▇▇▇▇▇ Square constitutes
willful misfeasance, bad faith, negligence or reckless disregard by ▇▇▇▇▇▇
Square of its duties under this Agreement.
12. Compliance with Governmental Rules and Regulations. Except as
otherwise provided herein, the Advisor and/or the Trust assumes full
responsibility for ensuring that the Trust complies with all applicable
requirements of the 1933 Act, the Securities Exchange Act of 1934 (the "1934
Act"), the 1940 Act, the CEA and any laws, rules and regulations of governmental
authorities having jurisdiction.
13. Compensation.
a. Compensation for services and duties performed pursuant to this
Agreement is provided in Schedule A hereto. Certain other fees due and expenses
incurred pursuant to this Agreement are payable by the Trust or the shareholder
on whose behalf the service is performed and are also listed in Schedule A.
b. The Trust shall reimburse ▇▇▇▇▇▇ Square for all reasonable
out-of-pocket expenses incurred by ▇▇▇▇▇▇ Square or its agents in the
performance of its obligations hereunder. Such reimbursement for expenses
incurred in any calendar month shall be made on or before the tenth day of the
next succeeding month.
c. The term "out-of-pocket expenses" shall mean the following
expenses incurred by ▇▇▇▇▇▇ Square in the performance of its obligations
hereunder: the cost of stationery and forms (including but not limited to
checks, proxy cards, and envelopes), the cost of postage, the cost of insertion
of non-standard size materials in mailing envelopes and other special mailing
preparation by outside firms, the cost of first-class mailing insurance, the
cost of external electronic communications as approved by the Trustees (to
include telephone and telegraph equipment and an allocable portion of the cost
of personnel responsible for the maintenance of such equipment), toll charges,
data communications equipment and line charges and the cost of microfilming of
shareholder records (including both the cost of storage as well as charges for
access to such records). If ▇▇▇▇▇▇ Square shall undertake the responsibility for
microfilming shareholder records, it may be separately compensated therefor in
an amount agreed upon by the principal financial officer of the Trust and ▇▇▇▇▇▇
Square, such amount not to exceed the amount which would be paid to an outside
firm for providing such microfilming services.
14. Use of ▇▇▇▇▇▇ Square's Name. The Trust shall not use the name of
▇▇▇▇▇▇ Square or any of its affiliates in any Prospectus, SAI, sales literature
or other material relating to the Trust in a manner not approved prior thereto
by ▇▇▇▇▇▇ Square, provided, however, that ▇▇▇▇▇▇ Square shall approve all uses
of its and its affiliates' names that merely refer in accurate terms to their
appointments hereunder or that are required by the SEC or a state securities
commission and, provided further, that in no event shall such approval be
unreasonably withheld.
15. Use of Trust's Name. ▇▇▇▇▇▇ Square shall not use the name of the
Trust or the Funds of the Trust or material relating to the Trust or the Funds
on any checks, bank drafts, bank statements or forms for other than internal use
in a manner not approved prior thereto, provided, however, that the Trust shall
approve all uses of its name which merely refer in accurate terms to the
appointment of ▇▇▇▇▇▇ Square hereunder or which are required by the FDIC, the
SEC or a state securities commission, and, provided, further, that in no event
shall such approval be unreasonably withheld.
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16. Liability of ▇▇▇▇▇▇ Square or Affiliates. ▇▇▇▇▇▇ Square and its
affiliates shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Trust in connection with the matters to which this
Agreement relates, except to the extent of a loss resulting from willful
misfeasance, bad faith, negligence or reckless disregard of their obligations
and duties under this Agreement. Any person, even though also an officer,
director, employee or agent of ▇▇▇▇▇▇ Square or any of its affiliates who may be
or become an officer or trustee of the Trust, shall be deemed, when rendering
services to the Trust as such officer or acting on any business of the Trust in
such capacity (other than services or business in connection with ▇▇▇▇▇▇
Square's duties under this Agreement), to be rendering such services to or
acting solely for the Trust and not as an officer, trustee, employee or agent or
one under the control or direction of ▇▇▇▇▇▇ Square or any of its affiliates,
even though paid by one of those entities. ▇▇▇▇▇▇ Square shall not be liable or
responsible for any acts or omissions of any predecessor administrator or any
other persons having responsibility for matters to which this Agreement relates
nor shall ▇▇▇▇▇▇ Square be responsible for reviewing any such act or omissions.
▇▇▇▇▇▇ Square shall, however, be liable for its own acts and omissions
subsequent to assuming responsibility under this Agreement as herein provided.
17. Security. ▇▇▇▇▇▇ Square represents and warrants that the various
procedures and systems which ▇▇▇▇▇▇ Square has implemented with regard to
safeguarding from loss or damage attributable to fire, theft or any other cause
(including provision for twenty-four hours a day restricted access) the Trust's
blank checks, records and other data and ▇▇▇▇▇▇ Square's records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as in its judgment are required for the secure performance of
its obligations hereunder. The parties shall review such systems and procedures
on a periodic basis.
18. Insurance. Upon request ▇▇▇▇▇▇ Square shall provide the Trust with
details regarding its insurance coverage, and ▇▇▇▇▇▇ Square shall notify the
Trust should any of its insurance coverage be materially changed. Such
notification shall include the date of change and the reason or reasons
therefor. ▇▇▇▇▇▇ Square shall notify the Trust of any material claims against
it, whether or not they may be covered by insurance and shall notify the Trust
from time to time as may be appropriate of the total outstanding claims made by
▇▇▇▇▇▇ Square under its insurance coverage.
19. Indemnification.
a. The Trust agrees to indemnify and hold harmless ▇▇▇▇▇▇ Square,
its directors, officers, employees, agents and representatives from all taxes,
charges, expenses, assessments, claims and liabilities including, without
limitation, liabilities arising under the 1940 Act, the 1933 Act, the 1934 Act
and any applicable state and foreign laws, and amendments thereto (the
"Securities Laws"), and expenses, including without limitation reasonable
attorneys' fees and disbursements arising directly or indirectly from any action
or omission to act which ▇▇▇▇▇▇ Square takes (i) at the request of or on the
direction of or in reliance on the advice of the Trust or (ii) upon Oral or
Written Instructions. Neither ▇▇▇▇▇▇ Square nor any of its nominees shall be
indemnified against any liability (or any expenses incident to such liability)
arising out of ▇▇▇▇▇▇ Square's or its directors', officers', employees', agents'
and representatives own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
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b. Rodney Square agrees to indemnify and hold harmless the Trust
from all taxes, charges, expenses, assessments, claims and liabilities arising
from ▇▇▇▇▇▇ Square's obligations pursuant to this Agreement (including, without
limitation, liabilities arising under the Securities Laws) and expenses,
including (without limitation) reasonable attorneys' fees and disbursements
arising directly or indirectly out of ▇▇▇▇▇▇ Square's or its directors',
officers', employees', agents' and representatives own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and obligations under this
Agreement.
c. In order that the indemnification provisions contained in this
Section 19 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking 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.
20. Responsibility of ▇▇▇▇▇▇ Square. ▇▇▇▇▇▇ Square shall be under no
duty to take any action on behalf of the Trust except as specifically set forth
herein or as may be specifically agreed to by ▇▇▇▇▇▇ Square in writing. In the
performance of its duties hereunder, ▇▇▇▇▇▇ Square shall be obligated to
exercise care and diligence and to act in good faith and to use its best efforts
within reasonable limits in performing services provided for under this
Agreement. ▇▇▇▇▇▇ Square shall be responsible for its own negligent failure to
perform its duties under this Agreement, but to the extent that duties,
obligations and responsibilities are not expressly set forth in this Agreement,
▇▇▇▇▇▇ Square shall not be liable for any act or omission which does not
constitute willful misfeasance, bad faith or negligence on the part of ▇▇▇▇▇▇
Square or reckless disregard by ▇▇▇▇▇▇ Square of such duties, obligations and
responsibilities. Without limiting the generality of the foregoing or of any
other provision of this Agreement, ▇▇▇▇▇▇ Square, in connection with its duties
under this Agreement, shall not be under any duty or obligation to inquire into
and shall not be liable for or in respect of (i) the validity or invalidity or
authority or lack thereof of any Oral or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this Agreement, and
which ▇▇▇▇▇▇ Square reasonably believes to be genuine; or (ii) delays or errors
or loss of data occurring by reason of circumstances beyond ▇▇▇▇▇▇ Square's
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown (except as provided in Section
21), flood or catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply, which circumstances
▇▇▇▇▇▇ Square shall take minimal actions to minimize loss of data therefor.
21. Acts of God/Equipment Failure. ▇▇▇▇▇▇ Square shall not be liable
for delays or errors occurring by reason of circumstances beyond its control,
including but not limited to acts of civil or military authority, national
emergencies, labor difficulties, fire, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply. In the event of equipment breakdowns beyond its control, ▇▇▇▇▇▇
Square shall, at no additional expense to the Trust, take reasonable steps to
minimize service interruptions but shall have no liability with respect thereto.
▇▇▇▇▇▇ Square shall enter into and maintain in effect with appropriate parties
one or more agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
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22. Duration and Termination.
a. Neither this Agreement nor any provisions hereof may be changed,
waived, discharged or terminated orally, but only by written instrument which
shall make specific reference to this Agreement and which shall be signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
b. This Agreement shall become effective as of the date first
written above, and unless terminated as provided, shall continue in force for
three (3) years from the date of its execution and thereafter from year to year.
This Agreement may be terminated after the initial three (3) year period as of
any anniversary date on ninety (90) days' written notice given to ▇▇▇▇▇▇ Square
or by ▇▇▇▇▇▇ Square on ninety (90) days' written notice given to the Trust;
provided, however, that the foregoing provisions of this Agreement may be
terminated immediately at any time in the event of a breach of any provision
thereof either by the Trust or by ▇▇▇▇▇▇ Square in the event that such breach
shall have remained unremedied for ninety (90) days or more after receipt of
written specification of such breach.
c. Upon the termination of this Agreement, the Trust shall pay to
▇▇▇▇▇▇ Square such compensation as may be payable for the period prior to the
effective date of such termination, including reimbursement for any
out-of-pocket expenses reasonably incurred by ▇▇▇▇▇▇ Square to such date. In the
event that the Trust designates a successor to any of ▇▇▇▇▇▇ Square's
obligations hereunder, ▇▇▇▇▇▇ Square shall, at the expense and direction of the
Trust, transfer to such successor all relevant books, records and other data
established or maintained by ▇▇▇▇▇▇ Square under the foregoing provisions.
d. Upon the termination of this Agreement within the initial three
(3) year term by the Trust or the Trust's Board of Trustees, except if
terminated in accordance with Section 22(b) above, the Trust shall pay to ▇▇▇▇▇▇
Square such compensation in liquidated damages in accordance with the fee
arrangements described in Schedule A attached hereto, as such schedule may be
amended from time to time.
23. Registration as a Transfer Agent. ▇▇▇▇▇▇ Square represents that it
is currently registered with the appropriate Federal agency for the registration
of transfer agents, and that it will remain so registered for the duration of
this Agreement. ▇▇▇▇▇▇ Square agrees that it will promptly notify the Trust in
the event of any material change in its status as a registered transfer agent.
Should ▇▇▇▇▇▇ Square fail to be registered with the FDIC or any successor
regulatory authority as a transfer agent at any time during this Agreement, the
Trust may, on written notice to ▇▇▇▇▇▇ Square, immediately terminate this
Agreement.
24. Appointment of Agents. Neither this Agreement nor any rights or
obligations hereunder may be assigned by ▇▇▇▇▇▇ Square without the written
consent of the Trust. ▇▇▇▇▇▇ Square may, however, at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust company,
which is itself qualified under the Securities Exchange Act of 1934 (the "1934
Act") to act as a transfer agent, as its agent to carry out such of the services
to be performed under this Agreement as ▇▇▇▇▇▇ Square may from time to time
direct; provided, however, that the appointment of any such agent shall not
relieve ▇▇▇▇▇▇ Square of any of its responsibilities or liabilities hereunder.
25. Delegation. On thirty (30) days' prior written notice to the Trust,
▇▇▇▇▇▇ Square may assign any part or all its rights and delegate its duties
hereunder to any affiliate provided that (i) the delegate agrees with ▇▇▇▇▇▇
Square to comply with all relevant provisions of the 1940 Act and applicable
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rules and regulations; (ii) ▇▇▇▇▇▇ Square shall remain responsible for the
performance of all of its duties under this Agreement; (iii) ▇▇▇▇▇▇ Square and
such delegate shall promptly provide such information as the Trust may request;
and (iv) ▇▇▇▇▇▇ Square shall respond to such questions as the Trust may ask,
relative to the delegation, including (without limitation) the capabilities for
the delegate.
26. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
▇▇▇▇▇▇ Square and the Trust shall regularly consult with each other
regarding ▇▇▇▇▇▇ Square's performance of its obligations and its compensation
hereunder. In connection therewith, the Trust shall submit to ▇▇▇▇▇▇ Square at a
reasonable time in advance of filing with the SEC copies of any amended or
supplemented registration statements (including exhibits) under the 1933 Act and
the 1940 Act, and a reasonable time in advance of their proposed use, copies of
any amended or supplemented forms relating to any plan, program or service
offered by the Trust. Any change in such material which would require any change
in ▇▇▇▇▇▇ Square's obligations hereunder shall be subject to ▇▇▇▇▇▇ Square's
approval, which shall not be unreasonably withheld. In the event that such
change materially increases the cost to ▇▇▇▇▇▇ Square of performing its
obligations hereunder, ▇▇▇▇▇▇ Square shall be entitled to receive reasonable
compensation therefor.
27. Notice. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to this
Agreement at its principal place of business.
28. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
29. Governing Law. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Delaware.
30. Shareholder Liability. ▇▇▇▇▇▇ Square acknowledges that it has
received notice of and accepts the limitations of liability set forth in the
Trust's Agreement and Declaration of Trust. ▇▇▇▇▇▇ Square agrees that the
Trust's obligations hereunder shall be limited to the Trust, and that ▇▇▇▇▇▇
Square shall have recourse solely against the assets of the Fund with respect to
which the Trust's obligations hereunder relate and shall have no recourse
against the assets of any other Fund or against any shareholder, trustee,
officer, employee, or agent of the Trust.
31. Miscellaneous. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the day and year first above written.
1838 INVESTMENT ADVISORS FUNDS
By: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
▇▇▇▇▇▇ SQUARE MANAGEMENT
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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TRANSFER AGENCY AGREEMENT
REVISED SCHEDULE A
1838 INVESTMENT ADVISORS FUNDS
FUND LISTING AND FEE SCHEDULE
For the services ▇▇▇▇▇▇ Square provides under the Transfer Agency Agreement
attached hereto, 1838 Investment Advisors Funds (the "Trust") agrees to pay
▇▇▇▇▇▇ Square a fee for transfer agency services as follows, subject to a
minimum of $18,000 with respect to each Fund listed below, beginning at each
Fund's commencement of operations, per annum, plus out-of-pocket expenses, all
payable monthly:
Fee per Annum
Type of Fund/Account per Account
-------------------- -------------
Annual Dividend $10.00
Semi-Annual Dividend $10.00
Quarterly Dividend $10.00
Monthly Dividend $15.00
Daily Dividend $18.00
Fund Listing:
-------------
1838 International Equity Fund
1838 Small Cap Equity Fund
1838 Fixed Income Fund
Out-of-Pocket Expenses:
-----------------------
Out-of-pocket expenses shall be reimbursed by the Trust to ▇▇▇▇▇▇ Square
or paid directly by the Trust. Such expenses include but are not limited
to the following:
a. Toll-free lines (if required)
b. Forms, envelopes, checks, checkbooks
c. Postage (bulk, pre-sort, first-class at current prevailing rates)
d. Hardware/phone lines for remote terminal(s) (if required)
e. Microfiche/Microfilm
f. Wire fees for receipt or disbursement
g. Mailing fees
h. Cost of proxy solicitation, mailing and tabulation (if required)
i. Certificates issuance
j. Record retention storage
k. Development/programming costs/special projects - time and material
l. ACH transaction charges
m. "B" notice mailings
n. Locating lost shareholders in anticipation of escheating
A-1
Additional Expenses (paid by shareholder):
Direct ▇▇▇/▇▇▇▇▇ processing annual account fee
new account set-up fee
distribution fee
transfer out fee
Payment
The above will be billed within the first five (5) business days of each
month and will be paid by wire within five (5) business days of receipt.
LIQUIDATED DAMAGES:
Upon the termination of the attached Agreement within the initial three (3) year
term by the Trust or the Trust's Board of Trustees , the Trust shall pay to
▇▇▇▇▇▇ Square liquidated damages with respect to each Fund in an amount equal to
six (6) months of minumum base fees, as determined in the manner set forth
above.
A-2
TRANSFER AGENCY AGREEMENT
SCHEDULE B
1838 INVESTMENT ADVISORS FUNDS
TRUST AGREEMENTS SCHEDULE
1. The Investment Advisory Agreement between 1838 Investment
Advisors Funds, a Delaware business trust (the "Trust"), on behalf of 1838 Small
Cap Equity Fund (the "Small Cap Fund"), and 1838 Investment Advisors, L.P. (the
"Investment Advisor"), a Delaware limited partnership, dated March 28, 1995;
2. The Investment Advisory Agreement between 1838 Investment
Advisors Funds, a Delaware business trust (the "Trust"), on behalf of 1838
International Equity Fund (the "International Equity Fund"), and 1838 Investment
Advisors, L.P. (the "Investment Advisor"), a Delaware limited partnership, dated
March 28, 1995;
3. The Sub-Investment Advisory Agreement between the
Investment Advisor and MeesPierson 1838 Investment Advisors, a Delaware general
partnership, dated March 28, 1995;
4. The Accounting Services Agreement between the Trust and
▇▇▇▇▇▇ Square Management Corporation, a Delaware corporation ("▇▇▇▇▇▇ Square"),
dated February 8, 1995;
5. The Administration Agreement between the Trust and ▇▇▇▇▇▇
Square, dated February 8, 1995;
6. The Custodian Agreement between the Trust and Wilmington
Trust Company, a Delaware corporation, relating to the custody of the Small Cap
Equity Fund, dated Februrary 8, 1995;
7. The Custodian Agreement between the Trust and Bankers Trust
Company, relating to the custody of the International Equity Fund, dated March
17, 1995; and
8. The Distribution Agreement between the Trust and ▇▇▇▇▇▇
Square Distributors, Inc., a Delaware Corporation, dated February 8, 1995.
B-1
TRANSFER AGENCY AGREEMENT
SCHEDULE C
1838 INVESTMENT ADVISORS FUNDS
SERVICES TO BE PERFORMED
▇▇▇▇▇▇ Square will perform the following functions as transfer agent on an
ongoing basis with respect to each Fund:
a. furnish state-by-state registration reports;
b. provide toll-free lines for direct shareholder use, plus customer
liaison staff with on-line inquiry capacity;
c. mail duplicate confirmations to dealers and other financial
institutions ("Service Organization") of their clients' activity,
whether executed through the Service Organization or directly with
▇▇▇▇▇▇ Square;
d. provide detail for underwriter or Service Organization confirmations
and other Service Organization shareholder accounting, in accordance
with such procedures as may be agreed upon between the Corporation and
▇▇▇▇▇▇ Square;
e. provide shareholder lists and statistical information concerning
shareholder accounts to the Corporation;
f. provide timely notification of Fund activity and such other
information as may be agreed upon from time to time between ▇▇▇▇▇▇
Square and the Fund or the Custodian, to the Corporation or the
Custodian; and
g. with respect to dividends and distributions, prepare and file
required reports with the Internal Revenue Service ("IRS"), prepare and
mail reports to shareholders as required by the IRS and described in
the Prospectus and Statement of Additional Information.
C-1
TRANSFER AGENCY AGREEMENT
SCHEDULE D
THE 1838 INVESTMENT ADVISORS FUNDS
SHAREHOLDER RECORDS
▇▇▇▇▇▇ Square shall maintain records of the accounts for each shareholder
showing the following information:
a. name, address and United States Tax Identification or Social
Security number;
b. number of Shares held and number of Shares for which certificates,
if any, have been issued, including certificate numbers and
denominations;
c. historical information regarding the account of each shareholder,
including dividends and distributions paid and the date and price for
all transactions on a shareholder's account;
d. any stop or restraining order placed against a shareholder's
account;
e. any correspondence relating to the current maintenance of a
shareholder's account;
f. information with respect to withholding; and,
g. any information required in order for ▇▇▇▇▇▇ Square to perform any
calculations contemplated or required by this Agreement.
D-1
