EXHIBIT 99.9
ADMINISTRATION AGREEMENT
Agreement dated as of January 11, 1994 between State Street Bank and Trust
Company, a Massachusetts trust company (the "Bank") and X.X. Xxxxxxx & Co.
Growth Fund, Inc., a Maryland corporation (the "Fund").
WHEREAS, the Bank provides certain administrative and other services to
investment companies and others; and
WHEREAS, the Fund desires to retain the Bank to render certain
administrative and other services with respect to the Fund and the Bank is
willing to render such services on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of Bank
The Fund hereby appoints the Bank to act as administrator with respect to
the Fund for purposes of providing certain administrative services for the
period and on the terms set forth in this Agreement. The Bank accepts such
appointment and agrees to render the services stated herein and to provide the
office facilities and the personnel required by it to perform such services. In
connection with such appointment, the Fund will deliver to the Bank copies of
each of the following documents and will deliver to it all future amendments and
supplements, if any:
A. Certified copies of the Articles of Incorporation and By-Laws of the
Fund as presently in effect and as amended from time to time;
B. The Fund's most recent registration statement on Form N-1A as filed
with, and declared effective by, the U.S. Securities and Exchange Commission,
and all amendments thereto;
C. Each resolution of the Board of Directors of the Fund authorizing the
original issue of its shares;
D. Certified copies of the resolutions of the Fund's Board of Directors
authorizing: (1) this Agreement, (2) certain officers of the Fund to give
instructions to the Bank pursuant to this Agreement and (3) certain officers and
employees of the Fund to sign checks and pay expenses on behalf of the Fund,
respectively;
E. A copy of the Investment Advisor Agreement between the Fund and the
Advisor;
F. A copy of the Custodian Contract between the Fund and its custodian;
G. A copy of the Transfer Agency and Service Agreement between the Fund and
its transfer agent; and
H. Such other certificates, documents or opinions which the Bank may, in
its reasonable discretion, deem necessary or appropriate in the proper
performance of its duties.
2. Representation and Warranties of the Bank
The Bank represents and warrants to the Fund that:
A. It is a Massachusetts trust company, duly organized and existing in good
standing under the laws of the Commonwealth of Massachusetts;
B. It is duly qualified to carry on its business in the Commonwealth of
Massachusetts;
C. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement; and
D. It has and will continue to have and maintain the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
3. Authorized Shares
The Fund certifies to the Bank that, as of the close of business on the
date of this Agreement, the Fund is authorized to issue shares of common stock,
and that it would initially offer shares in the authorized amounts as set forth
in Schedule A attached hereto.
4. Administration Services
The Bank shall discharge the responsibilities set forth in Schedule B and
Schedule B-2 hereof subject to the control of the Fund in accordance with
procedures established from time to time between the Fund and the Bank.
It is the responsibility of the Fund and/or its legal counsel and
accountants to notify the Bank in a timely manner of any change to any rule,
regulation, law or statute that will affect
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the services to be provided hereunder. The Bank and the Fund agree that all
services provided hereunder are subject to review and correction by the Fund's
accountants and/or legal counsel and the services provided by Bank shall not
constitute the practice of public accountancy or law.
5. Services to be Obtained by the Fund
The Fund shall provide for any of its own:
A. Organizational expenses;
B. Services of an independent accountant;
C. Services of outside legal and tax counsel (including such counsel's
review of the Fund's registration statement, proxy materials, federal and state
tax qualification as a regulated investment company, and other reports and
materials prepared by the Bank under this Agreement);
D. Any services contracted for by the Fund directly from parties other than
the Bank;
E. Trading operations and brokerage fees, commissions and transfer taxes in
connection with the purchase and sale of securities for the Fund;
F. Investment advisory services;
G. Taxes, insurance premiums and other fees and expenses applicable to its
operation;
H. Costs incidental to any meetings of shareholders including, but not
limited to, legal and accounting fees, proxy filing fees and the preparation,
printing and mailing of any proxy materials;
I. Administration of and costs incidental to Directors' meetings, including
fees and expenses of Directors;
J. The salary and expenses of any officer or employee of the Fund;
K. Costs incidental to the preparation, printing and distribution of the
Fund's registration statements and any amendments thereto, and shareholder
reports;
L. All applicable registration fees and filing fees required under the
securities laws of the United States and state regulatory authorities;
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M. Preparation and filing of the Fund's tax returns, Form N-1A, Annual
Report and Semi-Annual Report on Form N-SAR, and all notices, registrations and
amendments associated with applicable tax and securities laws of the United
States and state regulatory authorities; and
N. Fidelity bond and directors' and officers' liability insurance.
6. Fees
The Bank shall receive from the Fund such compensation for the Bank's
services provided pursuant to this Agreement as may be agreed to from time to
time in a written fee schedule approved by the parties hereto and initially set
forth herein in Schedule C attached hereto. In addition, the Bank shall be
reimbursed by the Fund for the out-of-pocket costs incurred in connection with
this Agreement.
7. Instructions
At any time the Bank may apply to any officer of the Fund for instructions
and my consult with legal counsel for the Fund, or the outside counsel for the
Fund or the auditors for the Fund at the expense of the Fund, with respect to
any matter arising in connection with the services to be performed by the Bank
under this Agreement. The Bank shall not be liable and shall be indemnified by
the Fund for any action taken or omitted by it in good faith in reliance upon
such instructions or upon any paper or document reasonably believed by it to be
genuine and to have been signed by the proper person or persons. The Bank shall
not be held to have notice of any change of authority of any person until
receipt of written notice thereof from the Fund.
8. Limitation of Liability and Indemnification
a. The Bank shall be responsible for the performance of only such duties as
are set forth herein and shall have no responsibility for the actions or
activities of any other party including other service providers. The Bank shall
have no liability for any loss or damage resulting from the performance or
nonperformance of its duties hereunder unless caused by or resulting from the
negligence or willful misconduct of the Bank, its officers or employees. In any
event, the Bank's liability shall be limited to its total annual compensation to
be earned or earned and fees paid hereunder during the preceding twelve months
or, in the absence of a twelve months history under this Agreement, the Bank's
scheduled compensation to be earned in a twelve month period for any liability
or loss suffered by Fund including,
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but not limited to, any liability relating to qualification of the Fund as a
regulated investment company or any liability relating to the Fund's compliance
with any federal or state tax or securities statute, regulation or ruling.
b. The Fund shall indemnify and hold the Bank harmless from all loss, cost,
damage and expense, including reasonable expenses for counsel, incurred by the
Bank resulting from any claim, demand, action or suit in connection with the
Bank's acceptance of this Agreement, any action or omission by it in the
performance of its duties hereunder, or as a result of acting upon any
instructions reasonably believed by it to have been executed by a duly
authorized officer of the Manager or of the Fund, provided that this
indemnification shall not apply to actions or omissions of the Bank, its
officers or employees in cases of its or their own negligence or willful
misconduct.
c. The Fund will be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any liability subject to the indemnification provided above. In the
event the Fund elects to assume the defense of any such suit and retain such
counsel, the Bank or any of its affiliated persons, named as defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless the Fund shall have specifically authorized
the retaining of such counsel.
d. The indemnification contained herein shall survive the termination of
this Agreement.
e. This Section 8 shall not apply with respect to services covered by the
Custodian Contract or the Transfer Agency and Service Agreement.
9. Confidentiality
The Bank agrees that, except as otherwise required by law, it will keep
confidential the terms of this Agreement, all records and information in its
possession relating to the Fund or its shareholders or shareholder accounts and
will not disclose the same to any person except at the request or with the
written consent of the Fund.
10. Compliance with Governmental Rules and Regulations
The Fund assumes full responsibility for complying with all applicable
requirements of the Investment Company Act, the Securities Act of 1933, the
Securities Exchange Act of 1934, and the Internal Revenue Code of 1986, all as
amended, and any laws, rules and regulations issued thereunder.
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The Bank shall maintain and preserve for the periods prescribed such
records relating to the services to be performed by the Bank under this
Agreement as are required pursuant to the Investment Company Act. All such
records shall at all times remain the property of the Fund, shall be readily
accessible during normal business hours, and shall be promptly surrendered upon
the termination of the agreement or otherwise on written request. Records shall
be surrendered in usable machine-readable form.
11. Status of the Bank
The services of the Bank to the Fund are not to be deemed exclusive, and
the Bank shall be free to render similar services to others. The Bank shall be
deemed to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized by the Fund from time to time, have no authority
to act or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
12. Printed Matter
Neither party shall publish or circulate any printed matter which contains
any reference to the other party without such party's prior written approval.
The Fund may circulate such printed matter as refers in accurate terms to the
Bank's appointment hereunder provided that the Bank is given a copy of such
material prior to its first use.
13. Term, Amendment and Termination
This Agreement may be modified or amended from time to time by mutual
agreement between the parties hereto. The Agreement shall remain in effect for a
period of one year from the date the Fund first accepts money for investment,
and shall automatically continue in effect thereafter with respect to the Fund
unless terminated by a party at the end of such period or otherwise on thirty
(30) days' prior written notice. Upon termination of this Agreement, the Fund
shall pay to the Bank such compensation as may be due under the terms hereof as
of the date of such termination including reasonable out-of-pocket expenses
associated with such termination.
14. Notices
Any notice or other communication authorized or required by this Agreement
to be given to any party mentioned herein shall be sufficiently given if
addressed to such party and mailed postage prepaid or delivered to its principal
office.
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15. Non-Assignability
This Agreement shall not be assigned by any of the parties hereto without
the prior consent in writing of the other parties.
16. Successors
This Agreement shall be binding on and shall inure to the benefit of the
Fund and the Bank and their respective successors.
17. Entire Agreement
This Agreement (and any Compliance Manual and Fund Profile as may be
prepared by the Bank and approved in writing by the Fund) contains the entire
understanding between the parties hereto and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing. This Agreement cannot be
modified or terminated except in accordance with its terms or by a writing
signed by all parties.
18. Governing Law
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the Commonwealth of Massachusetts.
X.X. XXXXXXX & CO. GROWTH FUND, INC.
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
STATE STREET BANK AND TRUST COMPANY
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
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SCHEDULE A
TO
ADMINSTRATION AGREEMENT
Fund Authorized Shares
---- -----------------
X.X. Xxxxxxx & Co. Growth Fund, Inc. 100,000,000
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SCHEDULE B
TO
ADMINISTRATION AGREEMENT
Services Provided by the Bank:
(a) Oversee the determination and publication of the Fund's net asset
value in accordance with the Fund's policy as adopted from time to
time by the Board of Directors;
(b) Oversee the maintenance of certain books and records of the Fund as
required under Rule 31a-I(b) (4) of the Investment Company Act of
1940;
(c) Prepare the Fund's federal, state and local income tax returns for
review by the Fund's independent accountants and filing by the Fund
treasurer;
(d) Review the appropriateness of and arrange for payment of the Fund's
expenses;
(e) Prepare for review and approval by officers of the Fund financial
information for the Fund's semi-annual and annual reports, proxy
statements and other communications with shareholders required or
otherwise to be sent to Fund shareholders, and arrange for the
printing and dissemination of such reports and communications to
shareholders;
(f) Prepare for review by an officer of and counsel for the Fund the
Fund's periodic financial report required to be filed with the
Securities and Exchange Commission ("SEC") on Form N-SAR and Form N-1A
and such other reports, forms or filings, as may be mutually agreed
upon;
(g) Prepare reports relating to the business and affairs of the Fund as
may be mutually agreed upon and not otherwise appropriately prepared
by the Fund's investment adviser, custodian, counsel or auditors;
(h) Make such reports and recommendations to the Board concerning the
performance of the independent accountants as the Board may reasonably
request or deems appropriate;
(i) Make such reports and recommendations to the Board concerning the
performance and fees of the Fund's custodian and transfer and dividend
disbursing agent as the Board may reasonably request or deems
appropriate;
(j) Oversee and review calculations of fees paid to the
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Manager, the investment adviser, the custodian, and the transfer
agent;
(k) Consult with the Fund's officers, independent accountants, legal
counsel, custodian and transfer and dividend disbursing agent in
establishing the accounting policies of the Fund;
(l) Review implementation of any dividend reinvestment programs authorized
by the Board of Directors;
(m) Respond to or refer to the Fund's officers or transfer agent,
shareholder inquiries relating to the Fund.
(n) Provide periodic testing of portfolios to assist the Fund's advisor in
complying with Internal Revenue Code mandatory qualification
requirements, the requirements of the Investment Company Act and Fund
prospectus limitations as may be mutually agreed upon.
Certain details of the scope of the Bank services hereunder may be
documented in the Compliance Manual and Fund Profile as amended from time to
time.
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SCHEDULE B-2
REGISTRATION OF FUND SHARES
WITH STATE SECURITIES ADMINISTRATORS
If requested by the Fund, the Bank will prepare required documentation and
register Fund shares in accordance with the securities laws of each state or
jurisdiction in which Fund shares are offered or sold as determined by the Fund.
The registration services shall consist of the following:
1. Filing of Fund initial registration statements and amendments thereto
(N-1A);
2. Amending state registration statements as required;
3. Filing on behalf of the Fund, Fund sales reports and advertising
literature where applicable;
4. Payment at the expense of the Fund of all Fund state registration and
filing fees;
5. Filing post effective amendments to the prospectuses and statements of
additional information (SAI);
6. Filing of annual reports, supplements and stickers, and proxy
statements; and
7. The performance of additional services which the Bank and the Manager
may agree upon in writing.
Unless otherwise noted in writing by the Bank, registration services by the Bank
shall not include determining the availability of institutional exemptions under
a state's blue sky law. Any such determination shall be made by the Manager or
its legal counsel. In connection with the services describe herein, the Manager
shall cause the Fund to issue in favor of the Bank a power of attorney to
register Fund shares on behalf of the Fund, which power of attorney shall be
substantially in the form of Exhibit I attached hereto.
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EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of _________________________ , 1994 that X.X.
Xxxxxxx & Co. Growth Fund, Inc. (the "Fund") makes, constitutes, and appoints
STATE STREET BANK AND TRUST COMPANY (the "Bank") with principal offices at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do
as if it were itself acting, the following:
1. REGISTRATION OF FUND SHARES. The power to register shares of the Fund in
each jurisdiction in which Fund shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and file
any and all Fund applications, including without limitation, applications
to register shares, to register agents, consents, including consents to
service of process, reports, including without limitation, all periodic
reports, claims for exemption, or other documents and instruments now or
hereafter required or appropriate in the judgement of the Bank in
connection with the registration of Fund shares.
2. CHECKS. The power to draw, endorse, and deposit checks in the name of the
Fund in connection with the registration of Fund shares with state
Securities administrators.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by Bank of such termination of
authority. Nothing herein shall be construed to constitute the appointment of
the Bank as or otherwise authorize the Bank to act as an officer, director, or
employee of the Fund.
IN WITNESS WHEREOF, the Fund has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
X.X. Xxxxxxx & Co. Growth Fund, Inc.
By:__________________________________
Name:________________________________
Title:_______________________________
00
XXXXX XXXXXX BANK AND TRUST COMPANY
FUND ADMINISTRATION
--------------------------------------------------------------------------------
I. Fund Administration Services
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Annual Fee
Average Assets Expressed in Basis Points: 1/100 of 1%
-------------- --------------------------------------
Sub-Administration
First $125 Million/Fund 8
Next $125 Million/Fund 6
Thereafter 4
Minimum/Fund $65,000
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II. Multiple Classes of Shares
--------------------------------------------------------------------------------
An additional $10,000 annual fee will be applied for each class of shares,
excluding the initial class of shares, if more than one class of share is
operational in a fund.
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III. Blue Sky Administration Services
--------------------------------------------------------------------------------
A fee of $5,000 for each portfolio of a series and $4,000 for each class of
shares, excluding the initial class of shares, if more than one class of
shares is operational in a fund plus $50 per state per portfolio
registered.
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IV. Out-Of-Pocket Expenses - Include, But May Not Be Limited To:
--------------------------------------------------------------------------------
- Printing for shareholder reports and SEC filings
- Legal fees, audit fees and other professional fees
- Portage, telephone, fax, and photocopying
- Supplies related to Fund records
- Travel and lodging for Board and Operations meetings
- Advertised Yields and Total Returns $300 per Fund, per month
- Preparation of financials other than Annual, Semi-Annual and Quarterly
Board Report - $3,000 per financial report.
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V. Special Arrangements
--------------------------------------------------------------------------------
Fees for activities of non-recurring nature such as fund consolidation or
reorganizations, and/or preparation of special reports will be subject to
negotiation.
--------------------------------------------------------------------------------
X.X. XXXXXXX & CO. GROWTH FUND, INC. STATE STREET BANK & TRUST COMPANY
By:__________________________________ By:__________________________________
Title:_______________________________ Title:_______________________________
Date:_______________________________ Date:________________________________
--------------------------------------------------------------------------------
TRANSFER AGENCY AND SERVICE AGREEMENT
between
X.X. XXXXXXX & CO. GROWTH FUND, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
----
Article 1 Terms of Appointment; Duties of the Bank ..................... 1
Article 2 Fees and Expenses ............................................ 5
Article 3 Representations and Warranties of the Bank ................... 6
Article 4 Representations and Warranties of the Fund ................... 6
Article 5 Data Access and Proprietary Information ...................... 7
Article 6 Indemnification .............................................. 9
Article 7 Standard of Care .............................................12
Article 8 Covenants of the Fund and the Bank ...........................12
Article 9 Termination of Agreement .....................................14
Article 10 Assignment ...................................................14
Article 11 Amendment ....................................................15
Article 12 Massachusetts Law to Apply ...................................15
Article 13 Force Majeure ................................................15
Article 14 Consequential Damages ........................................15
Article 15 Merger of Agreement ..........................................15
Article 16 Counterparts .................................................16
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 11th day of January, 1994, by and between X.X.
XXXXXXX & CO. GROWTH FUND, INC., a Maryland corporation, having its principal
office and place of business at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000-0000 (the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its transfer agent,
dividend disbursing agent, custodian of certain retirement plans and agent in
connection with certain other activities, and the Bank desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Bank to act as, and the Bank agrees to act
as its transfer agent for the Fund's authorized and issued shares of its common
stock, $0.001 par value, ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of the Fund
("Shareholders") and set out in the currently effective prospectus and statement
of additional information ("prospectus") of the Fund, including without
limitation any periodic investment plan or periodic withdrawal program.
1.02 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to
the Custodian of the Fund authorized pursuant to the Articles of
Incorporation of the Fund (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 thereof to
the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii) above,
the Bank shall execute transactions directly with broker-dealers
authorized by the Fund who shall thereby be deemed to be acting on
behalf of the Fund;
(v) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause
to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
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(vi) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and distributions
declared by the Fund;
(viii) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Bank of
indemnification satisfactory to the Bank and protecting the Bank
and the Fund, and the Bank, at its option, may issue replacement
certificates in place of mutilated stock certificates upon
presentation thereof and without such indemnity;
(ix) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(x) Record the issuance of shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of shares of the
Fund which are authorized, based upon data provided to it by the
Fund, and issued and outstanding. The Bank shall also provide the
Fund 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 Fund.
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(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: (i) perform the
customary services of a transfer agent, dividend disbursing agent, custodian of
certain retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to: maintaining all Shareholder accounts, preparing Shareholder meeting
lists, mailing proxies, mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident alien
accounts, preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions 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 which will
enable the Fund to monitor the total number of Shares sold in each State.
(c) In addition, the Fund shall (i) identify to the Bank in writing those
transactions and assets to be treated as exempt from blue sky reporting for each
State and (ii) verify the establishment of transactions for each State on the
system prior to activation and thereafter monitor the daily activity for each
State. The responsibility of the Bank for the Fund's blue sky
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State registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the reporting of
such transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these services in Article
I may be established from time to time by agreement between the Fund and the
Bank per the attached service responsibility schedule. The Bank may at times
perform only a portion of these services and the Fund or its agent may perform
these services on the Fund's behalf.
(e) The Bank shall provide additional services on behalf of the Fund (i.e.,
escheatment services) which may be agreed upon in writing between the Fund and
the Bank.
Article 2 Fees and Expenses
2.01 For the performance by the Bank pursuant to this Agreement, the Fund
agrees to pay the Bank a monthly maintenance fee as set out in the initial 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 Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Fund agrees
to reimburse the Bank for out-of-pocket expenses, including but not limited to
confirmation production, postage, forms, telephone, microfilm, microfiche,
tabulating proxies, records storage, or advances incurred by the Bank for the
items set out in the fee schedule attached hereto. In addition, any other
expenses incurred by the Bank at the request or with the consent of the Fund,
will be reimbursed by the Fund.
-5-
2.03 The Fund agrees to pay all fees and reimburseable expenses within five
days following the receipt of the respective billing notice. Postage for mailing
of dividends, proxies, Fund reports and other mailings to all shareholder
accounts shall be advanced to the Bank by the Fund at least seven (7) days prior
to the mailing date of such materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.01 It is a trust company duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
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.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Bank that:
4.01 It is a corporation duly organized and existing and in good standing
under the laws of Maryland.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
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4.03 All corporate proceedings required by said Articles of Incorporation
and By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Fund being offered for sale.
Article 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Bank as part of the Fund's ability to
access certain Fund-related data ("Customer Data") maintained by the Bank on
data bases under the control and ownership of the Bank or other third party
("Data Access Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of substantial
value to the Bank or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Fund agrees to treat all Proprietary
Information as proprietary to the Bank and further agrees that it shall not
divulge any Proprietary Information to any person or organization except as may
be provided hereunder. Without limiting the foregoing, the Fund agrees for
itself and its employees and agents:
-7-
(a) to access Customer Data solely from locations as may be designated
in writing by the Bank and solely in accordance with the Bank's
applicable user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with the Bank's instructions;
(d) to refrain from causing or allowing third-party data acquired
hereunder from being retransmitted to any other computer facility
or other location, except with the prior written consent of the
Bank;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law, under federal copyright law
and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Article 5. The obligations of this Article shall
survive any earlier termination of this Agreement.
-8-
5.02 If the Fund notifies the Bank that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, the Bank Shall endeavor in a timely manner to
correct such failure. Organizations from which the Bank may obtain certain data
included in the Data Access Services are solely responsible for the contents of
such data and the Fund agrees to make no claim against the Bank arising out of
the contents of such third-party data, including, but not limited to, the
accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AVAILABLE
BASIS. THE BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED
HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Fund include the ability to
originate electronic instructions to the Bank in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder information
or other information, then in such event the Bank shall be entitled to rely on
the validity and authenticity of such instruction without undertaking any
further inquiry as long as such instruction is undertaken in conformity with
security procedures established by the Bank from time to time.
Article 6 Indemnification
6.01 The Bank shall not be responsible for, and the Fund shall indemnify
and hold the Bank harmless from and against,
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any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to:
(a) All actions of the Bank or its agent or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct.
(b) The Fund's lack of good faith, negligence or willful misconduct which
arise out of the breach of any representation or warranty of the Fund hereunder.
(c) The reliance on or use by the Bank or its agents or subcontractors of
information, records, documents or services which (i) are received by the Bank
or its agents or subcontractors, and (ii) have been prepared, maintained or
performed by the Fund or any other person or firm on behalf of the Fund
including but not limited to any previous transfer agent or registrar.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Fund.
(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.
-10-
6.02 At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with legal consul with respect to any matter
arising in connection with the services to be performed by the Bank under this
Agreement, and the Bank and its agents or subcontractors shall not be liable and
shall be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. The Bank,
its agents and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Fund, reasonably believed
to be genuine and to have been signed by the proper person or persons, or upon
any instruction, information, data, records or documents provided the Bank or
its agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund, and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Fund. The Bank, 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 Fund, and the proper manual or facsimile signatures of the officers of the
Fund, and the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions contained in this Article
6 shall apply, upon the assertion of a claim for which the Fund may be required
to indemnify the Bank, the Bank shall promptly notify the fund of such
assertion, and
-11-
shall keep the Fund advised with respect to all developments concerning such
claim. The fund shall have the option to participate with the Bank in the
defense of such claim or to defend against said claim in its own name or in the
name of the Bank. The Bank shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify the Bank
except with the Fund's proper written consent.
Article 7 Standard of Care
7.01 The Bank shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct of that of its employees.
Article 8 Convenants of the Fund and the Bank
8.01 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution to the Board of Directors of the
Fund authorizing the appointment of the Bank and the execution and delivery of
this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the Fund and all
amendments thereto.
8.02. The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or
-12-
use, and for keeping account of, such certificates, forms and devices.
8.03 The Bank 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, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
8.04 The Bank and the Fund 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.
8.05 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
-13-
Article 9 Termination of Agreement
9.01 This Agreement may be terminated by either party upon thirty (30) days
written notice to the other.
9.02 Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Fund. Additionally, the Bank reserves the right to charge for any other
reasonable expenses associated with such termination.
Article 10 Assignment.
10.01 Except as provided in Section 10.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party.
10.02 This Agreement shall Inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
10.03 The Bank may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data Services,
Inc., a Massachusetts corporation ("BFDS") which is duly registered as a
transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange Act of
1934, as amended ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly registered
as a transfer agent pursuant to Section 17A(c)(1) or (iii) a BFDS affiliate;
provided, however, that the Bank shall be as fully responsible to the Fund for
the acts and omissions of any subcontractor as it is for its own acts and
omissions.
-14-
Article 11 Amendment
11.01 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 Directors of the Fund.
Article 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
Article 13 Force Majeure.
13.01 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, requirement or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable to the other for
any damages resulting from such failure to perform or otherwise from such
causes.
Article 14 Consequential Damages
14.01 Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
Article 15 Merger of Agreement
15.01 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.
-15-
Article 16 Counterparts
16.01 This Agreement may be executed by the parties hereto in any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
X.X. XXXXXXX & CO. GROWTH FUND, INC.
BY: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Attorney-in-Fact
ATTEST:
/s/ Xxxxxx Xxxxxxx
------------------------------
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxx X. Xxxxx
-----------------------------
Executive Vice President
ATTEST:
/s/ Xxxxxxxxx Xxxxxxx
-------------------------------
-00-
XXXXX XXXXXX XXXX & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Responsibility
--------------------
Service Performed Bank Fund
----------------- ---- ----
1. Receives orders for the purchase of
Shares.
2. Issues Shares and hold Shares in
Shareholders accounts.
3. Receive redemption requests.
4. Effect transactions 1-3 above
directly with broker-dealers.
5. Pay over monies to redeeming
Shareholders.
6. Effect transfers of Shares.
7. Prepare and transmit dividends and
distributions.
8. Issue Replacement Certificates.
9. Reporting of abandoned property.
10. Maintain records of account.
11. Maintain and keep a current and
accurate control book for each
issue of securities.
12. Mail proxies.
13. Mail Shareholder reports.
14. Mail prospectuses to current
Shareholders.
15. Withhold taxes on U.S. resident and
non-resident alien accounts.
16. Prepare and file U.S. Treasury
Department forms.
17. Prepare and mail account and
confirmation statements for
Shareholders.
-17-
Responsibility
--------------------
Service Performed Bank Fund
----------------- ---- ----
18. Provide Shareholder account
information.
19. Blue sky reporting.
* Such services are more fully described in Article 1.02 (a), (b) and (c) of
the Agreement.
X.X XXXXXXX & CO. GROWTH FUND, INC.
BY:
----------------------------------
ATTEST:
------------------------------
STATE STREET BANK AND TRUST COMPANY
BY:
----------------------------------
Executive Vice President
ATTEST:
------------------------------
-18-
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STATE STREET BANK AND TRUST COMPANY
GLOBAL CLIENT SUPPORT - TRANSFER AGENT OPERATIONS
STANDARD FEE SCHEDULE
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ITEM DESCRIPTION: PRICE:
Trade Processing - Manual $4.80
(Per Trade) - Automated $2.00
Monthly Maintenance Fee $2,500.00
(Per Fund)
Wires - Incoming $6.25
(Per Wire) - Outgoing $6.00
Out of Pocket Expenses billed to client which include but is not limited to:
custom system enhancements, communication, and mailing costs.
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