FORM OF
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TRANSFER AGENCY AGREEMENT
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Agreement made as of the ____ day of _____, 1998, between e~navigator
Fund, which has its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (the "Fund"), and Xxxxx & Xxxx Services
L.P., a Delaware limited partnership, having its principal office and place of
business at Three Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as the "Transfer Agent").
W I T N E S S E T H
That for and in consideration of the mutual promises hereinafter set forth,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
1. "Approved Institution" shall mean an entity so named in a
Certificate. From time to time the Find may amend a previously delivered
Certificate by delivering to the Transfer Agent a Certificate naming an
additional entity or deleting any entity named in a previously delivered
Certificate.
2. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Transfer Agent by the Fund which is signed by an Officer, as hereinafter
defined, and actually received by the Transfer Agent.
3. "Custodian" shall mean Investors Fiduciary Trust Company, as
custodian under the terms and conditions of the Custody Agreement between
Investors Fiduciary Trust Company and the Fund, or its successors(s).
4. "Fund Business Day" shall be deemed to be each day on which the
New York Stock Exchange, Inc. is open for trading.
5. "Officer" shall be deemed to be the Fund's Chairman of the Board,
the Fund's President, any Vice President of the Fund, the Fund's Secretary, the
Fund's Treasurer, the Fund's Controller, any Assistant Controller of the Fund,
any Assistant to the Board of Directors of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the
Fund and named in the Certificate annexed hereto as Appendix A, as such
Certificate may be amended from time to time, and any person reasonably believed
by the Transfer Agent to be such a person.
6. "Series" shall mean the various portfolios of the Fund as
described from time to time in the current and effective Prospectus.
7. "Shares: shall mean all or any part of each class of the shares
of beneficial interest in the Fund and of any Series of the Fund listed in the
Certificate annexed hereto as Appendix B, as may be amended from time to time,
which from time to time are authorized and/or issued by the Fund.
8. "Prospectus" shall mean the last Fund prospectus actually
received by the Transfer Agent from the Fund with respect to which the Fund has
indicated a registration statement under the Securities Act of 1933 has become
effective, including the Statement of Additional Information incorporated by
reference therein.
9. "Transfer Agent" shall mean Xxxxx & Tang Services L.P., as
transfer agent and dividend disbursing agent under the terms and conditions of
this Agreement, its successor(s) or assign(s).
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Fund hereby constitutes and appoints the Transfer Agent as
transfer agent of all the Shares of the Fund and as dividend disbursing agent
during the period of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent
and dividend disbursing agent and agrees to perform the duties thereof as
hereinafter set forth.
3. In connection with such appointment, the Fund shall deliver the
following documents to the Transfer Agent:
(a) A certified copy of the Agreement and Declaration of Trust of the
Fund and all amendments thereto;
(b) A certified copy of the By-Laws of the Fund;
(c) A certified copy of a resolution of the Board of Trustees of the
Fund appointing the Transfer Agent and authorizing the execution of this
Transfer Agency Agreement;
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(d) A Certificate signed by the Secretary of the Fund specifying with
respect to each Series: the number of authorized Shares, the number of
authorized Shares issued, and the number of such authorized Shares issued and
currently outstanding, the names and specimen signatures of the Officers of the
Fund, and the name and address of the legal counsel for the Fund;
(e) Copies of the Fund's Registration Statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the Fund
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and under the Investment Company Act of 1940, as amended, together with
any applications filed in connection therewith; and
(f) Opinion of counsel for the Fund with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective or, if exempt, the specific grounds therefor).
4. To the extent that the Fund issues certificates to its
shareholders pursuant to its current prospectus, the Fund shall furnish the
Transfer Agent with a sufficient supply of blank Share certificates and from
time to time will renew such supply upon request of the Transfer Agent. Such
blank Share certificates shall be properly signed, by facsimile or otherwise, by
Officers of the Fund authorized by law or by the by-laws to sign Share
certificates, and, if required, shall bear the corporate seal or facsimile
thereof.
ARTICLE III
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or
other capital adjustment requiring a change in the form of Share certificates,
the Transfer Agent will record as issued Share certificates in the new form in
exchange for, or upon transfer of, outstanding Share certificates in the old
form, upon receiving:
(a) A Certificate authorizing the issuance of Share certificates in
the new form; and
(b) An opinion of counsel for the Fund with respect to the validity
of the Shares in the new form and the status of such Shares under the Securities
Act of 1933, as amended, and any other applicable federal law or regulation
(i.e., if subject to registration, that the Shares have been registered and that
the Registration Statement has become effective or, if exempt, the specific
grounds therefor).
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2. To the extent that the Fund issues certificates to its
shareholders pursuant to its current prospectus, the Fund shall furnish the
Transfer Agent with a sufficient supply of blank Share certificates in the new
form, and from time to time will replenish such supply upon the request of the
Transfer Agent. Such blank Share certificates shall be properly signed by
Officers of the Fund authorized by law or by the by-laws to sign Share
certificates and, if required, shall bear the corporate seal or facsimile
thereof. The Fund agrees to indemnify and exonerate, save and hold the Transfer
Agent harmless, from and against any and all claims or demands that may be
asserted against the Transfer Agent with respect to the genuineness of any Share
certificate supplied to the Transfer Agent pursuant to this section.
ARTICLE IV
ISSUANCE, REDEMPTION, EXCHANGE AND TRANSFER OF SHARES
1. (a) Except as otherwise instructed in writing by the Fund, the
Transfer Agent shall accept with respect to each Fund Business Day, at such
times as are agreed upon from time to time by the Transfer Agent and the Fund,
each (i) purchase order received from a purchaser, or shareholder, whether or
not an Approved Institution, (ii) exchange request involving shares of other
investment companies, if any, listed in the Fund's prospectus, and (iii)
redemption request either received from a shareholder, whether or not an
Approved Institution, or contained in a Certificate, provided, that such
purchase order, exchange request or redemption request, as the case may be, is
reasonably believed by the Transfer Agent to be in conformity with the Fund's
purchase, exchange and redemption procedures as described in the Prospectus.
(b) Except as otherwise instructed in writing by the Fund, the
Transfer Agent shall also accept with respect to each Fund Business Day, at such
times as are agreed upon from time to time by the Transfer Agent and the Fund,
purchase orders, exchange requests and redemption requests contained on a
computer tape consistent in all respects with the Transfer Agent's tape layout
package, as amended from time to time, which is reasonably believed by the
Transfer Agent to be furnished by or on behalf of any Approved Institution.
2. On each Fund Business Day, the Transfer Agent shall, as of the
time at which the Fund computes the net asset value of each Series, record as
issued to, and redeem from, the accounts specified in a purchase order, exchange
request or redemption request which in accordance with the Prospectus is
effective on such Fund Business Day the appropriate number of full and
fractional Shares based on the net asset value per Share of such Series
specified in an advice received on such Fund Business Day from the Fund.
Notwithstanding the foregoing, if a redemption request is for a dollar value of
Shares in excess of the dollar value of uncertificated Shares in the specified
account, the Transfer Agent shall not effect such redemption in whole or in
part, and shall orally advise both the Fund and, if the redemption request was
received on a computer tape, the Approved Institution which supplied such tape,
of such discrepancy.
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3. The Transfer Agent shall, as of each Fund Business Day specified
in a Certificate or resolution described in paragraph 1 of succeeding Article
VI, effect the reinvestment of a dividend or distribution on Shares of a Series
in Shares of such series, based on the net asset value per Share of such Series
specified in an advice received from the Fund on such Fund Business Day, except
with respect to shareholders as to which the Transfer Agent shall have received
instructions that dividends or distributions are to be paid in cash.
4. On each Fund Business Day, the Transfer Agent shall, as of the
time at which the Fund computes the net asset value of each series, record as
issued to, and redeem from, each account such Shares as may be necessary to
affect the "Rebalancing Transactions" described in the Prospectus.
5. (a) On each Fund Business Day, the Transfer Agent shall supply
the Fund with a statement specifying with respect to the immediately preceding
Fund Business Day: the total number of Shares of each Series (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of each Series, if any, sold on such day
pursuant to preceding paragraph 2 of this Article; the total number of Shares of
each Series, if any, redeemed on such day; the total number of Shares of each
Series, if any, sold on such day pursuant to preceding paragraph 3 of this
Article; and the total number of Shares of each Series issued and outstanding.
On the same day such statement is received by the Fund, the Fund shall confirm
the information contained therein by delivering to the Transfer Agent a
Certificate with respect to the same.
(b) On each Fund Business Day, the Transfer Agent shall forward to
the Custodian on behalf of the Fund, the amounts, if any, received by the
Transfer Agent in respect of Shares sold on such day pursuant to preceding
paragraph 2 of this Article.
6. In connection with each purchase, each exchange and each
redemption of Shares, the Transfer Agent shall send such statements as are
described in the Prospectus. If the Prospectus indicates that certificates for
Shares are available, and if specifically requested in writing by any
shareholder, or if otherwise required hereunder, the Transfer Agent will
countersign, issue and mail by not less than first class insured mail, to such
shareholder at the address set forth in the records of the Transfer Agent, a
Share certificate for any full Shares requested.
7. As of each Fund Business Day, the Transfer Agent shall furnish
the Custodian with an advice setting forth the number and dollar amount of
Shares to be redeemed on such Fund Business Day in accordance with paragraph 2
of this Article.
8. Upon receipt of moneys paid to it by the Custodian in connection
with a redemption of Shares, the Transfer Agent shall cancel the redeemed Shares
and after making appropriate deduction for any withholding of taxes required of
it by applicable law (a) in the case of a redemption of Shares pursuant to a
redemption described in preceding paragraph 1(a) of this
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Article, make payment in accordance with the Fund's redemption and payment
procedures described in the Prospectus, and (b) in the case of a redemption of
Shares pursuant to a computer tape described in preceding paragraph 1(b) of the
Article, make payment by directing a federal funds wire order to the account
previously designated by the Approved Institution specified in said computer
tape.
9. The Transfer Agent shall not accept any purchase order for Shares
after it has received from an Officer of the Fund or from an appropriate federal
or state authority written notification that the sales of the Shares has been
suspended or discontinued, and the Transfer Agent shall be entitled to rely upon
such written notification.
10. Upon the issuance of any Shares in accordance with this Agreement
the Transfer Agent shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Fund in connection with such
issuance of any Shares.
11. Shares which are subject to restriction on transfer or redemption
(including, without limitation, Shares acquired pursuant to a restrictive
investment representation, Shares held by controlling persons, Shares subject to
shareholder's agreements, etc.), other than the general restrictions on the
transferability of the shares described in the Prospectus, must be certificated
(in Share certificate form) and must be stamped on the face thereof with a
legend describing the extent and conditions of the restriction or referring to
the source of such restriction, and shall be so certificated and so legended by
the Transfer Agent only if the Fund so directs in a Certificate. Legended
Shares may not be transferred or redeemed except upon receipt by the Transfer
Agent of an opinion of counsel for the Fund stating that such transfer or
redemption is in accordance with applicable law, and may be properly effected.
The Transfer Agent shall be entitled to rely upon such opinion and shall be
indemnified by the Fund for any transfer or redemption made in reliance upon any
such opinion.
12. (a) Except as otherwise provided in sub-paragraph (b) of this
paragraph and in paragraph 13 of this Article, Shares will be transferred,
exchanged or redeemed upon presentation to the Transfer Agent of Share
certificates, upon receipt of telephone redemption requests where such requests
are authorized in the subscription order form or in a subsequent written
authorization or upon receipt of instructions [properly endorsed for transfer,
exchange or redemption, and bearing satisfactory evidence of the payment of
stock transfer taxes]. In the case of small estates, where no administration is
contemplated, the Transfer Agent may, when furnished with an appropriate surety
bond, and without further approval of the Fund, transfer, exchange or redeem
Shares registered in the name of a decedent where the current market value of
the Shares being transferred does not exceed such amount as may from time to
time be prescribed by various states. The Transfer Agent reserves the right to
refuse to transfer, exchange or redeem Shares until it is satisfied that the
endorsement on the stock certificate or instructions is valid and genuine, and
for that purpose it will require, unless otherwise instructed by an authorized
Officer of the Fund, a guarantee of signature by an eligible guarantor
institution (which includes a domestic bank, a domestic credit union, a member
bank of the Federal Reserve
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System or a member firm of a national securities exchange) pursuant to the
Transfer Agent's standards and procedures. The Transfer Agent also reserves the
right to refuse the transfer, exchange or redemption of 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,
exchanges or redemptions which the Transfer Agent, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no basis to any
claims adverse to such transfer, exchange or redemption. The Transfer Agent may,
in effecting transfers, exchanges and redemptions of Shares, rely upon those
provisions of the Uniform Act for the Simplification of Fiduciary Security
Transfers or the Uniform Commercial Code, as the same may be amended from time
to time, applicable to the transfer of securities, and the Fund shall indemnify
the Transfer Agent for any act done or omitted by it in good faith in reliance
upon such laws except where such laws conflict with the Securities Act of 1933,
the Securities Exchange Act of 1934 or the Investment Company Act of 1940.
(b) Notwithstanding the foregoing or any other provisions contained
in this Agreement to the contrary, the Transfer Agent shall be fully protected
by the Fund in not requiring any instruments, documents, assurances,
endorsements or guarantees, including, without limitation, any signature
guarantees, in connection with a redemption, or transfer, of Shares whenever the
Transfer Agent reasonably believes that requiring the same would be inconsistent
with the transfer and redemption procedures as described in the Prospectus.
13. Notwithstanding any provision contained in this Agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer, or any exchange or redemption of any Shares pursuant
to a computer tape described in this Article, any documents, including, without
limitation, any documents of the kind described in sub-paragraph (a) of
paragraph 12 of this Article, to evidence the authority of the person requesting
the transfer or redemption and/or the payment of any stock transfer taxes, and
shall be fully protected in acting in accordance with the applicable provisions
of this Article, provided the Transfer Agent acts in accordance with such
reasonable security procedures with respect to the acceptance of computer tapes
as the Fund and the Transfer Agent may from time to time jointly establish.
14. (a) As used in this Agreement, the terms "computer tape" and
"computer tape reasonably believed by the Transfer Agent to be furnished by an
Approved Institution", shall include any tapes generated by the Transfer Agent
to reflect information believed by the Transfer Agent to have been inputted by
an Approved Institution, via a remote terminal or other similar link, into a
data processing, storage, or collection system, or similar system (the
"System"), located on the Transfer Agent's premises. For purposes of paragraph
1 of this Article, such a computer tape shall be deemed to have been furnished
at such times as are agreed upon from time to time by the Transfer Agent and
Fund only at such times as are agreed upon from time to time by the Transfer
Agent and the Fund.
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(b) Nothing contained in this Agreement shall constitute any
agreement or representation by the Transfer Agent to permit, or to agree to
permit, any Approved Institution to input information into a System.
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a
resolution of its Board of Trustees, certified by the Secretary or any Assistant
Secretary, either (i) setting forth with respect to a Series the date of the
declaration of a dividend or distribution, the date of accrual or payment, as
the case may be, thereof, the record date as of which Shareholders entitled to
payment, or accrual, as the case may be, shall be determined, the amount per
Share of such dividend or distribution, the payment date on which all previously
accrued and unpaid dividends are to be paid, and the total amount, if any,
payable to the Transfer Agent on such payment date, or (ii) authorizing the
declaration of dividends and distributions on a daily or other periodic basis
and authorizing the Transfer Agent to rely on a Certificate setting forth the
information described in subsection (i) of this paragraph.
2. Upon the payment date specified in such Certificate or
resolution, as the case may be, the Fund shall, in the case of a dividend or
distribution payable in whole or in part in Shares, cause the Custodian to pay
to the Transfer Agent an amount of cash, if any, sufficient for the Transfer
Agent to make the payment, if any, specified in such Certificate or resolution,
as the case may be, to the Shareholders of record as of such payment date as to
which the Transfer Agent has received instructions that dividends or
distributions are to be paid in cash. The Transfer Agent will, upon receipt of
any such cash, make payment of such cash dividends or distributions to the
Shareholders of record as of the record date by: (i) mailing a check, payable to
the registered shareholder, to the address of record or dividend mailing
address, or (ii) wiring such amounts to the accounts previously designated by an
Approved Institution, as the case may be. All amounts paid to the Transfer Agent
by the Custodian pursuant to this paragraph shall be deposited in an interest-
bearing account at [Investors Fiduciary Trust Company] for the benefit of the
Fund pending the clearance of dividend checks or wire payments. Transfer Agent
shall cause the interest, if any, earned on such account to be paid to the
Custodian for the benefit of the Fund no less frequently than quarterly. The
Transfer Agent shall not be liable for any improper payments made in accordance
with a Certificate or resolution described in the preceding paragraph. If the
Transfer Agent shall not receive from the Custodian sufficient cash to make
payment of any cash dividend or distribution to all shareholders of the Fund as
of the record date, the Transfer Agent shall, upon notifying the Fund, withhold
payment to all shareholders of record as of the record date until sufficient
cash is provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be
responsible for the determination of the rate or form of dividends or capital
gain distributions due to the shareholders.
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4. It is understood that the Transfer Agent shall file such
appropriate information returns concerning the payment of dividends and capital
gain distributions with the proper federal, state and local authorities as are
required by law to be filed by the Fund but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent, required of it by applicable
law.
ARTICLE VI
CONCERNING THE FUND
1. The Fund shall promptly deliver to the Transfer Agent written
notice of any change in the Officers authorized to sign Share certificates,
Certificates, notifications or requests, together with a specimen signature of
each new Officer. In the event any Officer who shall have signed manually or
whose facsimile signature shall have been affixed to blank Share certificates
shall die, resign or be removed prior to issuance of such Share certificates,
the Transfer Agent may record as issued such Share certificates of the Fund
notwithstanding such death, resignation or removal, and the Fund shall promptly
deliver to the Transfer Agent such approval, adoption or ratification as may be
required by law.
2. Each copy of the Agreement and Declaration of Trust of the Fund
and copies of all amendments thereto shall be certified by the Secretary of
State (or other appropriate official) of the state of organization, and if such
Agreement and Declaration of Trust and/or amendments are required by law also to
be filed with a county or other officer or official body, a certificate of such
filing shall be filed with a certified copy submitted to the Transfer Agent.
Each copy of the By-Laws and copies of all amendments thereto, and copies of
resolutions of the Board of Trustees of the Fund, shall be certified by the
Secretary of the Fund under the corporate seal.
3. It shall be the sole responsibility of the Fund to deliver to the
Transfer Agent the Fund's currently effective Prospectus.
ARTICLE VII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent shall not be liable and shall be fully
protected in acting upon any computer tape, writing or document reasonably
believed by it to be genuine and to have been signed or made by the proper
person or persons and shall not be held to have any notice of any change or
authority of any person until receipt of written notice thereof from the Fund or
such person. It shall also be protected in processing Share certificates which
it reasonably believes to bear the proper manual or facsimile signatures of the
Officers of the Fund and the proper countersignature of the Transfer Agent.
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2. The Transfer Agent may establish such additional procedures,
rules and regulations governing the transfer or registration of certificates of
stock as it may deem advisable and consistent with such rules and regulations
generally adopted by bank transfer agents.
3. The Transfer Agent shall keep such records as are specified in
Appendix C hereto in the form and manner, and for such period, as it may deem
advisable but not inconsistent with the rules and regulations of appropriate
government authorities, in particular Rules 31a-2 and 31a-3 under the federal
Investment Company Act of 1940 as amended from time to time. The Transfer Agent
may deliver to the Fund from time to time at its discretion, for safekeeping or
disposition by the Fund in accordance with law, such records, papers, Share
certificates which have been canceled in transfer, exchange or redemption, or
other documents accumulated in the execution of its duties as such Transfer
Agent, as the Transfer Agent may deem expedient, other than those which the
Transfer Agent is itself required to maintain pursuant to applicable laws and
regulations, and the Fund shall assume all responsibility for any failure
thereafter to produce any record, paper, canceled Share certificate, or other
document so returned, if and when required. The records specified in Appendix C
hereto maintained by the Transfer Agent pursuant to this paragraph 3 shall be
considered to be the property of the Fund, shall be made available upon request
for inspection by the officers, employees, and auditors of the Fund, and records
shall be delivered to the Fund upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX of this Agreement, in
the form and manner kept by the Transfer Agent on such date of termination or
such earlier date as may be requested by the Fund.
4. The Transfer Agent may employ agents or attorneys-in-fact at the
expense of the Fund, and shall not be liable for any loss or expense arising out
of, or in connection with, the actions or omissions to act of its agents or
attorneys-in-fact so long as the Transfer Agent acts in good faith and without
negligence or willful misconduct in connection with the selection of such agents
or attorneys-in-fact.
5. The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its own failure to act
in good faith, negligence or willful misconduct.
6. The Fund shall indemnify and exonerate, save and hold harmless
the Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including attorney's fees) and
liabilities of any and every nature which the Transfer Agent may sustain or
incur on which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be taken by the
Transfer Agent in good faith and without negligence or willful misconduct or in
reliance upon (i) any provision of this Agreement; (ii) the Prospectus; (iii)
any instruction or order including, without limitation, any computer tape
reasonably believed by the Transfer Agent to have been received from an Approved
Institution; (iv) any instrument, order or Share certificate reasonably believed
by it to be genuine and to be signed, countersigned or executed by any duly
authorized Officer of
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the Fund; (v) any Certificate or other instructions of an Officer; or (vi) any
opinion of legal counsel for the Fund or the Transfer Agent. The Fund shall
indemnify and exonerate, save and hold the Transfer Agent harmless from and
against any and all claims (whether with or without basis in fact or law),
demands, expenses (including attorney's fees) and liabilities of any and every
nature which the Transfer Agent may sustain or incur or which may be asserted
against the Transfer Agent by and person by reason of or as a result of any
action taken or omitted to be taken by the Transfer Agent in good faith and
without negligence or willful misconduct in connection with its appointment or
in reliance upon any law, act, regulation or any interpretation of the same even
though such law, act or regulation may thereafter have been altered, changed,
amended or repealed.
7. Specifically, but not by way of limitation, the Fund shall
indemnify and exonerate, save and hold the Transfer Agent harmless from and
against any and all claims (whether with or without basis in fact or law),
demands, expenses (including attorney's fees) and liabilities of any and every
nature which the Transfer Agent may sustain or incur or which may be asserted
against the Transfer Agent by any person in connection with the Transfer Agent's
capacity and authorization to record as issued Shares and the form and amount of
authorized Shares.
8. Notwithstanding the foregoing, the Transfer Agent shall be liable
to the Fund with respect to any redemption check which the Transfer Agent pays
on which the signature of the drawer is forged, but only to the extent of the
lesser of (a) the amount of such redemption check minus $2,500.00 and (b) the
amount of insurance proceeds received by the Transfer Agent with respect to such
redemption check, and only if, and for so long as each of the following
conditions is satisfied: (i) insurance with respect to Fund redemption checks is
maintained by the Transfer Agent, and (ii) the Fund pays to the Transfer Agent
monthly the amount which the Transfer Agent determines to be the Fund's pro rata
share of the cost of such insurance coverage. The Fund agrees that the insurance
may be discontinued or canceled without any prior notice, and that the Transfer
Agent shall at all times have the absolute right, without any prior notice to
the Fund, to cease to maintain such insurance, and the Transfer Agent agrees to
notify the Fund promptly upon canceling or discontinuing any such insurance or
upon learning of any such cancellation or discontinuance. In the event such
insurance is not maintained, or in the event the Fund does not pay monthly to
the Transfer Agent the amount which the Transfer Agent determines to be the
Fund's pro rata share of the cost of such insurance coverage, the Transfer Agent
shall not be liable for any loss or damage; including counsel fees, resulting
from its paying or not paying any redemption check, unless such loss or damage
arises out of the Transfer Agent's failure to use good faith, negligence or
willful misconduct.
9. At any time the Transfer Agent may apply to an Officer of the
Fund for written instructions with respect to any matter arising in connection
with the Transfer Agent's duties and obligations under this Agreement, and the
Transfer Agent shall not be liable for any action taken or permitted by it in
good faith in accordance with such written instructions. Such application by the
Transfer Agent for written instructions from an Officer of the Fund may, at the
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option of the Transfer Agent, set forth in writing any action proposed to be
taken or omitted by the Transfer Agent with respect to its duties or obligations
under this Agreement and the date on and/or after which such action shall be
taken, and the Transfer Agent shall not be liable for any action taken or
omitted in accordance with a proposal included in any such application on or
after the date specified therein unless, prior to taking or omitting any such
action, the Transfer Agent has received written instructions in response to such
application specifying the action to be taken or omitted. The Transfer Agent may
consult counsel to the Fund, or its own counsel, at the expense of the Fund and
shall be fully protected with respect to anything done or omitted by it in good
faith in accordance with the advice or opinion of counsel to the Fund or its own
counsel.
10. When mail is used for delivery of non-negotiable Share
certificates, the value of which does not exceed the limits of the Transfer
Agent's Blanket Bond, the Transfer Agent shall send such non-negotiable Share
certificates by first class mail, and such deliveries will be covered while in
transit by the Transfer Agent's Blanket Bond. Non-negotiable Share certificates,
the value of which exceed the limits of the Transfer Agent's Blanket Bond, will
be sent by insured registered mail. Negotiable Share certificates will be sent
by insured registered mail. The Transfer Agent shall advise the Fund of any
Share certificates returned as undelivered after being mailed as herein provided
for.
11. To the extent that the Fund issues certificates to its
shareholders pursuant to its current prospectus, the Transfer Agent may issue
new Share certificates in place of Share certificates represented to have been
lost, stolen, or destroyed upon receiving instructions in writing from an
Officer and indemnity satisfactory to the Transfer Agent. Such instructions from
the Fund shall be in such form as approved by the Board of Trustees of the Fund
in accordance with the provisions of law or of the By-Laws of the Fund governing
such matters. If the Transfer Agent receives written notification from the owner
of the lost, destroyed or stolen Share certificate within a reasonable time
after he has notice of it, the Transfer Agent shall promptly notify the Fund and
shall act pursuant to written instructions signed by an Officer. If the Fund
receives such written notification from the owner of the lost, destroyed or
stolen Share certificate within a reasonable time after he has notice of it, the
Fund shall promptly notify the Transfer Agent and the Transfer Agent shall
promptly notify the Transfer Agent and the Transfer Agent shall act pursuant to
written instructions any act done or omitted by it pursuant to the written
instructions described herein. The Transfer Agent may issue new Share
certificates in exchange for, and upon surrender of, mutilated Share
certificates.
12. The Transfer Agent will issue and mail subscription warrants for
Shares of capital stock, Shares representing stock dividends, exchange or
splits, or act as conversion agent upon receiving written instructions from an
Officer and such other documents as the Transfer Agent may deem necessary.
13. The Transfer Agent will supply shareholder lists to the Fund from
time to time upon receiving a request therefore from an Officer of the Fund.
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14. In the case of any requests or demands for the inspection of
the shareholder records of the Fund, the Transfer Agent will endeavor to notify
the Fund and to secure instructions from an Officer as to such inspection. The
Transfer Agent reserves the right, however, to exhibit the Shareholder records
to any person whenever it receives an opinion from its counsel that there is a
reasonable likelihood that the Transfer Agent will be held liable for the
failure to exhibit the shareholder records to such person.
15. At the request of any Officer, the Transfer Agent will address
and mail such appropriate notices to shareholders as the Fund may direct.
16. Notwithstanding any of the foregoing provisions of this
Agreement, the Transfer Agent shall be under no duty or obligation to inquire
into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the sufficiency
of the amount to be received therefor, or the authority of the Approved
Institution or of the Fund, as the case may be, to request such sale or
issuance;
(b) The legality of a transfer of Shares or of a redemption of any
Shares, the propriety of the amount to be paid therefor, or the authority of the
Approved Institution or of the Fund, as the case may be, to request such
transfer or redemption;
(c) The legality of the declaration of any dividend by the Fund, or
the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of the
Shares.
17. The Transfer Agent shall be entitled to receive and the Fund
hereby agrees to pay to the Transfer Agent for its performance hereunder,
including its performance of the duties and functions set forth in Appendix C
hereto, (i) its reasonable out-of-pocket expenses (including legal expenses and
attorney's fees) incurred in connection with this Agreement and its performance
hereunder and (ii) such compensation as may be agreed upon in writing from time
to time by the Transfer Agent and the Fund.
18. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Transfer Agent.
ARTICLE VIII
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such termination,
which shall be not less than 90
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days after the date of receipt of such notice. In the event such notice is given
by the Fund, it shall be accompanied by a copy of a resolution of the Board of
Trustees of the Fund, certified by the Secretary or Assistant Secretary,
electing to terminate this Agreement and designating a successor transfer agent
or transfer agents. In the event such notice is given by the Transfer Agent, the
Fund shall, on or before the termination date, deliver to the Transfer Agent a
copy of a resolution of its Board of Trustees certified by the Secretary or any
Assistant Secretary designating a successor transfer agent. If the Fund fails to
designate a successor transfer agent, the Fund shall, upon the date specified in
the notice of termination of this Agreement and delivery of the records
maintained hereunder, be deemed to be its own transfer agent and the Transfer
Agent shall thereby be relieved of all duties and responsibilities pursuant to
this Agreement.
ARTICLE IX
MISCELLANEOUS
1. The Fund agrees that, prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations of the
Transfer Agent hereunder, it shall advise the Transfer Agent of such proposed
change at least 30 days prior to the intended date of the same, and shall
proceed with such change only if it shall have received the written consent of
the Transfer Agent thereto.
2. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its office at the address
first above written, or at such other place as the Fund may from time to time
designate in writing.
3. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Transfer Agent shall be sufficiently given
if addressed to the Transfer Agent and mailed or delivered to it at its office
as indicated on page 1 of this Agreement or at such other place as the Transfer
Agent may from time to time designate in writing.
4. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the formality of
this Agreement, and, except for an amendment to Appendix B or Appendix C hereto,
authorized or approved by a resolution of the Board of Trustees of the Fund.
5. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by either party without the written
consent of the other party.
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
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7. This Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original; but such counterparts shall,
together, constitute only one instrument.
8. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Fund, and no rights shall be granted to any other person
by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
Attest:
e~NAVIGATOR FUND
By:
----------------------------- -----------------------------
Attest: XXXXX & XXXX SERVICES L.P.
By Xxxxx & Tang Asset Management, Inc.
as General Partner
-----------------------------
By:
-----------------------------
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