Exhibit 9h
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 16th day of December, 1996 by and among Xxxxxx
Xxxxxxxx & Xxxxxxxx, LLP a Pennsylvania limited liability partnership ("MAS"),
ACCESS INVESTOR SERVICES, INC., a Delaware corporation ("ACCESS") and Xxxxxx
Xxxxxxx Fund, Inc., a Maryland corporation, on behalf of its Xxxxxx Xxxxxxx
Value Fund and Xxxxxx Xxxxxxx Mid Cap Growth Fund series (collectively, the
"Funds", and individually, a "Fund").
RECITAL
WHEREAS, the Xxxxxx Xxxxxxx Fund, Inc. is registered as an open-end,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act") which has issued shares of several series including the
Funds; and
WHEREAS, MAS is responsible for the provision of certain transfer agent,
fixed accounting and administration services to the Fund pursuant to the
Agreement between MAS and the Funds as of September 9, 1996, (the "MAS
Administration Agreement"); and
WHEREAS, MAS wishes to retain ACCESS to provide transfer agent services
with respect to the Funds, and ACCESS is willing to furnish such services;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT: DUTIES OF ACCESS
1.01 Subject to the terms and conditions set forth in this Agreement,
MAS hereby employs and appoints ACCESS as transfer agent, dividend disbursing
agent and shareholder services agent for each of the Funds.
1.02 ACCESS hereby accepts such employment and appointments and agrees
that on and after the effective date of this Agreement it will act as the
transfer agent, dividend disbursing agent and shareholder services agent for
each of the Funds on the terms and conditions set forth herein.
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1.03 ACCESS agrees that its duties and obligations hereunder will be
performed in a competent, efficient and workmanlike manner with due diligence in
accordance with reasonable industry practices, and that the necessary
facilities, equipment and personnel for such performance will be provided.
1.04 In order to assure compliance with section 1.03 and to implement
a cooperative effort to improve quality of sub-transfer agency and shareholder
services received by each of the Funds and its shareholders, ACCESS agrees to
provide and maintain qualitative performance objectives, including maximum
target turn-around times and maximum target error rates, for the various
services provided hereunder. ACCESS also agrees to provide a reporting system
designed to provide MAS and the Board of Directors of the Funds (the "Board") on
a quarterly basis with quantitative data comparing actual performance for the
period with the performance objectives. The foregoing procedures are designed
to provide a basis for continuing monitoring by MAS and the Board of the quality
of services provided hereunder.
ARTICLE 2. FEES AND EXPENSES
2.01 For the services to be performed by ACCESS pursuant to this
Agreement, MAS agrees to pay ACCESS the fees provided in the fee schedule agreed
upon from time to time by MAS and ACCESS.
2.02 In addition to the amounts paid under section 2.01, each of the
Funds agree to reimburse ACCESS promptly for reasonable out-of-pocket expenses
or advances paid on the Fund's behalf by ACCESS in connection with its
performance under this Agreement for postage, freight, envelopes, checks,
drafts, continuous forms, reports and statements, telephone, telegraph, costs of
outside mailing firms, necessary outside record storage costs, media for storage
of records (e.g., microfilm, microfiche and computer tapes) and printing costs
incurred due to special requirements of such Fund. In addition, any other
special out-of-pocket expenses paid by ACCESS at the specific request of any of
the Funds will be promptly reimbursed by the requesting Fund. Postage for
mailings of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to ACCESS by the respective Fund three
business days prior to the mailing date of such materials.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF ACCESS
ACCESS represents and warrants to MAS and the Funds that:
3.10 It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
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3.02 It is duly registered as a transfer agent under the Securities
Exchange Act of 1934.
3.03 It is duly qualified to carry on its business in the states of
Texas and Missouri.
3.04 It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this agreement.
3.05 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this agreement.
3.06 It has and will continue to have during the term of this
Agreement access to the necessary facilities, equipment and personnel to perform
its duties and obligations hereunder.
3.07 It will maintain a system regarding "as of" transactions as
follows:
(a) Each "as of" transaction effected at a price other than that
in effect of the day of processing for which an estimate has not been given
to any of the affected Funds and which is necessitated by ACCESS' error, or
delay for which ACCESS is responsible or which could have been avoided
through the exercise of reasonable care, will be identified, and the net
effect of such transactions determined, on a daily basis for each such Fund.
(b) The cumulative net effect of the transactions included in
paragraph (a) above will be determined each day throughout each month. If,
on any day during the month, the cumulative net effect upon any Fund is
negative and exceeds an amount equivalent to 1/2 of 1 cent per share of
such Fund, ACCESS shall promptly make a payment to such Fund (in cash or
through use of a credit as described in paragraph (c) below) in such amount
as necessary to reduce the negative cumulative net effect to less than 1/2
of 1 cent per share of such Fund. If on the last business day of the month
the cumulative net effect (adjusted by the amount of any payments pursuant
to the preceding sentence) upon any Fund is negative, ACCESS shall promptly
make a payment to such Fund (in cash or through use of credit as described
in paragraph (c) below of an equivalent amount. If on the last business
day of the month the cumulative net effect (similarly adjusted) upon any
Fund is positive, ACCESS shall be entitled to recover certain past payments
and to a credit against all future payments made under this paragraph to
such Fund, as described in paragraph (c) below.
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(c) At the end of each month, any positive cumulative net effect
upon any Fund shall be deemed to be a credit to ACCESS which shall first be
applied to recover from that Fund any payments made by ACCESS to such Fund
under paragraph (b) above during the year. Any portion of a credit to
ACCESS not so used shall remain as a credit to be used as payment against
the amount of any future negative cumulative net effects that would
otherwise require a payment to such Fund pursuant to paragraph (b) above.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF MAS.
MAS hereby represents and warrants on behalf of itself and the
Funds that:
4.01 MAS is duly organized and in good standing under the laws of the
State of Pennsylvania.
4.02 The Funds are duly organized and existing and in good standing
under the laws of the State of Maryland.
4.03 The Funds are series of an open-end management investment company
registered under the Investment Company Act of 1940, as amended.
4.04 MAS is empowered under applicable laws and regulations and by its
partnership agreement to enter into and perform this Agreement.
4.05 All requisite proceedings have been taken by MAS's and the Funds'
Boards to authorize MAS to enter into and perform this Agreement.
4.06 A registration statement under the Securities Act of 1933, as
amended, is currently effective and will maintain effective, and appropriate
state securities laws filings have been made and will continue to be made with
respect to all Fund shares being offered for sale.
ARTICLE 5. INDEMNIFICATION
5.01 ACCESS shall not be responsible for and MAS shall indemnify and
hold ACCESS harmless from and against any and all losses, damages, suits,
charges, reasonable counsel fees, payments, expenses and liabilities arising
out of or attributable to:
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(a) All actions of ACCESS required to be taken by ACCESS for
the benefit of such Fund pursuant to this Agreement, provided ACCESS has
acted in good faith with due diligence and without negligence or willful
misconduct.
(b) The reasonable reliance by ACCESS on, or reasonable use by
ACCESS for the benefit of a Fund of, information, records and documents
which have been prepared or maintained by or on behalf of such Fund or have
been furnished to ACCESS by or on behalf of such Fund.
(c) The reasonable reliance by ACCESS on, or the carrying out by
ACCESS for the benefit of a Fund of, any instructions or requests of such
Fund.
(d) The offer or sale of such Fund's shares in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state is 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 unless such
violation results from any failure by ACCESS to comply with written
instructions of such Fund that no offers or sales of such Fund's shares be
made in general or to the residents of a particular state.
(e) Such Fund's refusal or failure to comply with the terms of
this Agreement, or such Fund's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of such Fund
hereunder.
5.02 ACCESS shall indemnify and hold each of MAS and the Funds
harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributable to ACCESS' refusal or failure to comply with the terms of this
Agreement, or ACCESS' lack of good faith, negligence or willful misconduct,
or the breach of any representation or warranty of ACCESS hereunder.
5.03 At any time ACCESS may apply to any authorized officer of any of
the Funds for instructions and may consult with any of the Funds' legal counsel,
at the expense of such concerned Fund, with respect to any matter arising in
connection with the services to be performed by ACCESS under this Agreement, and
ACCESS shall not be liable and shall be indemnified by such concerned Fund for
any action taken or omitted by it in good faith in reasonable reliance upon such
instructions or upon the opinion of such counsel. ACCESS shall be protected and
indemnified in acting upon any paper or document reasonably believed by ACCESS
to be genuine and to have been
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signed by the proper person or persons and shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the concerned Fund. ACCESS shall also be protected and indemnified in
recognizing stock certificates which ACCESS reasonably believes to bear the
proper manual or facsimile signatures of the officers of the concerned Fund,
and the proper countersignature of any former transfer agent or registrar, or
of a co-transfer agent or co-registrar.
5.04 In the event any 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, or other causes reasonably beyond its control,
such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such causes.
5.05 In no event and under no circumstances shall any party to this
Agreement be liable to another party for consequential damages under any
provision 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 one party may be
required to indemnify another, the party seeking indemnification shall promptly
notify the other party of such assertion, and shall keep the other party advised
with respect to all developments concerning such claim. The party who may be
required to indemnify shall have the option to participate with the party
seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
ARTICLE 6. COVENANTS OF MAS AND ACCESS.
6.01 MAS shall promptly furnish to ACCESS the following:
(a) Certified copies of the resolution of the Funds' Board
authorizing the appointment of ACCESS and the execution and delivery of
this Agreement.
(b) Certified copies of the Funds' Articles of Incorporation and
by-laws and all amendments thereto.
6.02 ACCESS hereby agrees to maintain facilities and procedures
reasonably acceptable to MAS and the Funds for safekeeping of share
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.
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6.03 ACCESS shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable; provided,
however, that all accounts, books and other records of each of the Funds
(hereinafter referred to as "Funds Records") prepared or maintained by ACCESS
hereunder shall be maintained and kept current in compliance with Section 31 of
the Investment Company Act of 1940 and the Rules thereunder (such Section and
Rules being hereinafter referred to as the "1940 Act Requirements"). To the
extent required by the 1940 Act Requirements, ACCESS agrees that all Fund
Records prepared or maintained by ACCESS hereunder are the property of the
concerned Fund and shall be preserved and made available in accordance with the
1940 Act Requirements, and shall be surrendered promptly to the concerned Fund
on its request. ACCESS agrees at such reasonable time as may be requested by
the Board and at least quarterly to provide (i) written confirmation to the
Board that all Fund Records are maintained and kept current in accordance with
the 1940 Act Requirements, and (ii) such other reports regarding its performance
hereunder as may be reasonably requested by the Board.
6.04 ACCESS and each of the Funds 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.
6.05 In case of any requests or demands for the inspection of any of
the Fund Records, ACCESS will endeavor to notify each of the concerned Funds and
to secure instructions from an authorized officer of each of the concerned Funds
as to such inspection. ACCESS reserves the right, however, to exhibit such Fund
Records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit such Fund records to such person.
ARTICLE 7. TERM AND TERMINATION OF AGREEMENT.
7.01 This Agreement shall remain in effect until terminated by a party
with respect to that party for good and reasonable cause at any time by giving
written notice to the other party at least 120 days prior to the date on which
such termination is to be effective. Any unpaid fees or reimbursable expenses
payable to ACCESS shall be due on any such termination date. ACCESS agrees to
use its best efforts to cooperate with each of the Funds and the successor
transfer agent or agents in accomplishing an orderly transition.
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ARTICLE 8. MISCELLANEOUS.
8.01 Except as provided in section 8.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by any party without the
written consent of ACCESS or MAS, as the case may be; provided, however, that no
consent shall be required for any merger of any of the Funds with, or any sale
of all or substantially all the assets of any of the Funds to, another
investment company.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
8.03 ACCESS may, without further consent on the part of MAS or any of
the Funds, subcontract with DST, Inc., a Missouri corporation, or any other
qualified servicer, for the performance of data processing activities; provided,
however, that ACCESS shall be as fully responsible to MAS and each of the Funds
for the acts and omissions of DST, Inc., or other qualified servicer as it is
for its own acts and omissions.
8.04 ACCESS may, without further consent on the part of MAS or any of
the Funds, provide services to its affiliated companies. Such services
may be provided at cost.
8.05 This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supercedes any
prior agreement with respect thereto, whether oral or written, and this
Agreement may not be modified except by written instrument executed by the
affected parties.
8.06 In the event of a change in the business or regulatory
environment affecting all or any parties of this Agreement, the parties hereto
agree to renegotiate such affected parties in good faith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf and through their duly authorized
officers, as of the date first above written.
XXXXXX XXXXXXX ASSET MANAGEMENT INC.
BY:
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ATTEST:
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XXXXXX XXXXXXX FUND, INC.
BY:
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ATTEST:
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ACCESS INVESTOR SERVICES, INC.
BY:
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ATTEST:
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