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EXHIBIT 9(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
IMPACT MANAGEMENT INVESTMENT TRUST
AND
IMPACT MANAGEMENT SERVICES, INC.
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INDEX
1. Terms of Appointment; Duties of IMSI.....................................................................1
2. Fees and Expenses........................................................................................3
3. Representations and Warranties of IMSI...................................................................3
4. Representations and Warranties of the Trust..............................................................4
5. Indemnification..........................................................................................4
6. Covenants of the Trust and IMSI..........................................................................6
7. Termination of Agreement.................................................................................7
8. Assignment...............................................................................................7
9. Amendment................................................................................................7
10. Colorado Laws to Apply...................................................................................7
11. Merger of Agreement......................................................................................7
12. Notices..................................................................................................8
Fee Schedule......................................................................................................9
(a) Account Maintenance Charge...............................................................................9
(b) XXX Plan Fees...........................................................................................10
Fee Increases...........................................................................................10
(c) Expenses................................................................................................10
(d) Special Reports.........................................................................................10
(e) Security Deposit........................................................................................11
(f) Conversion Charge.......................................................................................11
Schedule A.......................................................................................................12
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made the 7th day of January, 1997, by and between IMPACT
MANAGEMENT INVESTMENT TRUST having its principal office and place of business
at 1875 Ski Time Square Drive, Suite One, Steamboat Springs, Colorado 80487(the
"Trust"), and IMPACT MANAGEMENT SERVICES, INC., a Pennsylvania corporation
having its principal office and place of business at Arrott Building, Third
Floor, 401 Wood Street, Pittsburgh, Pennsylvania 15219("IMSI").
WHEREAS, the Trust desires to appoint IMSI as its transfer agent,
dividend disbursing agent and agent in connection with certain other
activities, and IMSI desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF IMSI
1.01 Subject to the terms and conditions set forth in this agreement,
the Trust hereby employs and appoints IMSI to act as, and IMSI agrees to act as
its transfer agent for the Trust's authorized and issued shares of beneficial
interest, ("Shares"), dividend disbursing agent and agent in connection with
any accumulation, open-account or similar plans provided to the shareholders of
the Trust ("Shareholders") set out in the currently effective prospectus and
statement of additional information ("prospectus") of the Trust.
1.02 IMSI agrees that it will perform the following services:
(a) In accordance with procedures established from time to
time by agreement between the Trust and IMSI, IMSI shall:
(i) Receive for acceptance, orders for the purchase of Shares, and promptly
deliver payment and appropriate documentation therefore to the Custodian of the
Trust authorized by the Board of Trustees of the Trust (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of Shares and
hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption directions and
deliver the appropriate documentation therefore to the Custodian;
(iv) At the appropriate time as and when it receives moneys paid to it by the
Custodian with respect to any redemption, pay over or cause to be paid over in
the appropriate manner such moneys 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 Trust;
(vii) Maintain records of account for and advise the Trust and its Shareholders
as to the foregoing; and
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(viii) Record the issuance of shares of the Trust and maintain pursuant to SEC
Rule 7Ad-10(e) a record of the total number of shares of the Trust which are
authorized, based upon data provided to it by the Trust, and issued and
outstanding. IMSI shall also provide the Trust 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
Trust.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a), IMSI shall:
(i) Perform all of the customary services of a transfer agent, dividend
disbursing agent, 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, withholding taxes on US resident and non-resident alien accounts,
preparing and filing US Treasury Department Forms 1099 and other appropriate
forms required with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases redemption's of Shares
and other confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing Shareholder account
information and (ii) provide a system and reports which will enable the Trust
to monitor the total number of shares sold in each State.
(c) In addition, the Trust shall (i) identify to IMSI in
writing those transactions and shares to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of such transactions
for each state on the system prior to activation and thereafter monitor the
daily activity for each State as provided by IMSI. The responsibility of IMSI
for the Trust's blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky compliance by the
Trust and the reporting of such transactions to the Trust as provided above.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Trust and IMSI.
2. FEES AND EXPENSES
2.01 For performance by IMSI pursuant to this Agreement, the Trust
agrees to pay IMSI an annual maintenance fee for each Shareholder account and
transaction fees for each portfolio or class of shares serviced under this
Agreement (See Schedule A) as set out in the fee schedule attached hereto. Such
fees and out-of-pocket expenses and advances identified under Section 2.02
below may be changed from time to time subject to mutual written agreement
between the Trust and IMSI.
2.02 In addition to the fee paid under Section 2.01 above, the Trust
agrees to reimburse IMSI for out-of-pocket expenses or advances incurred by
IMSI for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by IMSI at the request or with the consent of the
Trust, will be reimbursed by the Trust.
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2.03 The Trust agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Trust reports and other mailings to all
shareholder accounts shall be advanced to IMSI by the Trust at least seven (7)
days prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF IMSI
IMSI represents and warrants to the Trust that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Pennsylvania.
3.02 It is duly qualified to carry on its business in the Commonwealth
of Pennsylvania.
3.03 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
3.06 IMSI is duly registered as a transfer agent under the Securities
Act of 1934 and shall continue to be registered throughout the remainder of
this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to IMSI that:
4.01 It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts.
4.02 It is empowered under applicable laws and by its Declaration of
Trust and by-laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration of Trust
and by-laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is
currently or will become effective and will remain effective, and appropriate
state securities law filings as required, have been or will be made and will
continue to be made, with respect to all Shares of the Trust being offered for
sale.
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5. INDEMNIFICATION
5.01 IMSI shall not be responsible for, and the Trust shall indemnify
and hold IMSI harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All action of IMSI or its agents or subcontractors required to be taken
pursuant to this Agreement, provided that such actions are taken in good faith
and without gross negligence or willful misconduct.
(b) The Trust's refusal or failure to comply with the terms of this Agreement,
or which arise out of the Trust's lack of good faith, gross negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Trust hereunder.
(c) The reliance on or use by IMSI or its agents or subcontractors of
information, records and documents which (i) are received by IMSI or its agents
or subcontractors and furnished to it by or on behalf of the Trust, and (ii)
have been prepared and/or maintained by the Trust or any other person or firm
on behalf of the Trust other than by IMSI.
(d) The reliance on, or the carrying out by IMSI or its agents or
subcontractors of any instructions or requests of the Trust.
(e) The offer or sale of Shares 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.
5.02 IMSI shall indemnify and hold the Trust 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 IMSI as a result of IMSI's lack of good faith, gross
negligence or willful misconduct.
5.03 At any time IMSI may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by IMSI under this
Agreement, and IMSI and its agents or subcontractors shall not be liable and
shall be indemnified by the Trust for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. IMSI, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Trust, 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 IMSI or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Trust, and shall not be held to have
notice of any change or authority of any person, until receipt of written
notice thereof from the Trust. IMSI, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officers of the Trust, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
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5.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to
the other for damages resulting from such failure to perform or otherwise from
such causes.
5.05 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provisions of this Agreement or for
any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in this
Article 5 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party of 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 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.
6. COVENANTS OF THE TRUST AND IMSI
6.01 The Trust shall promptly furnish to IMSI a certified copy of the
resolution of the Board of Trustees of the Trust authorizing the appointment of
IMSI and the execution and delivery of this Agreement.
6.02 IMSI hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust 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.
6.03 IMSI shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, IMSI agrees that all such records prepared or maintained
by IMSI relating to the services to be performed by IMSI hereunder are the
property of the Trust and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to the
Trust on and in accordance with its request.
6.04 IMSI and the Trust 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.
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6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, IMSI will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. IMSI 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, and
shall promptly notify the Trust of any unusual request to inspect or copy the
shareholder records of the Trust or the receipt of any other unusual request to
inspect, copy or produce the records of the Trust.
7. TERMINATION OF AGREEMENT
7.01 This Agreement shall become effective as of the date hereof and
shall remain in force for a period of three (3) years, provided, however, that
both parties to this Agreement have the option to terminate the Agreement,
without penalty, upon ninety (90) days prior written notice.
7.02 Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of record and material will
be borne by the Trust. Additionally, IMSI reserves the right to charge for any
other reasonable expenses associated with such termination.
8. ASSIGNMENT
8.01 Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
9. AMENDMENT
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the
Board of Trustees of the Trust.
10. COLORADO LAWS TO APPLY
10.01 The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Colorado as at the time
in effect and the applicable provisions of the 1940 Act. To the extent that the
applicable law of the State of Colorado, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
11. MERGER OF AGREEMENT
11.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
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12. NOTICES.
All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
TO THE ADMINISTRATOR: TO THE TRUST:
Impact Management Services, Inc. Impact Management Investment Trust
Arrott Building, Third Floor 1875 Ski Time Square Drive, Suite One
000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IMPACT MANAGEMENT INVESTMENT IMPACT MANAGEMENT SERVICES,
TRUST INC.
By: /s/XXXXXXX X. XXXXX By: /s/XXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxx, Chairman Xxxxxx X. Xxxxxxx, President
of the Board of Trustees
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FEE SCHEDULE
For the services rendered by IMSI in its capacity as transfer agent,
the Trust shall pay IMSI, within ten (10) days after receipt of an invoice from
IMSI at the beginning of each month, a fee, calculated as a combination of
account maintenance charges and transaction charges as follows:
(A) ACCOUNT MAINTENANCE CHARGE:
Based upon the total of all open/closed accounts in the Trust group
upon the following annual rates (billed monthly):**
Open Accounts . . . . . . . . . $165 per account/per year
Closed accounts . . . . . . . . $2.00 per account***
** All accounts closed during a calendar year will be considered as open
accounts for billing purposes until the end of that calendar year.
*** Closed accounts will remain in the shareholder files until all 1099's and
5498's have been sent to shareholders and reported (via magnetic media) to the
IRS.
TRANSACTION FEES:
(There shall be no transaction fees charged at this time.)
Trade Entry (purchase/liquidation) and
maintenance transactions.............................................$ 0 each
New account set-up.....................................................$ 0 each
Customer service calls.................................................$ 0 each
Correspondence/information requests....................................$ 0 each
Check preparation......................................................$ 0 each
Liquidation's paid by wire transfer....................................$ 0 each
Omnibus accounts....................................( per transaction)*$ 0
ACH charge.............................................................$ 0 each
SWP...................................................................*$ 0 each
*Not included as a Trade Entry
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FEE INCREASES
On each annual anniversary date of this Agreement, the fees enumerated above
will be increased by the change in the Customer Price Index for the Northeast
region (CPI) for the twelve month period ending with the month preceding such
annual anniversary date.
(b) EXPENSES:
The Trust shall reimburse IMSI for any out-of-pocket expenses,
exclusive of salaries, advanced by IMSI in connection with but not limited to
the printing of confirmation forms and statements, proxy expenses, travel
requested by the Trust, telephone, facsimile transmissions, stationery and
supplies (related to Trust records), record storage, postage (plus a $.015
service charge for all mailings, pro-rata portion of annual 17AD-13 audit
letter, telex and courier charges incurred in connection with the performance
of its duties hereunder. IMSI shall provide the Trust with a monthly invoice of
such expenses and the Trust shall reimburse IMSI within fifteen (15) days after
receipt thereof.
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SCHEDULE A
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
IMPACT MANAGEMENT GROWTH PORTFOLIO
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