Exhibit 9(b)
ADMINISTRATION AGREEMENT
This Agreement, dated as of the 27 th day September , 1985, made by and between
Xxxxxxxx Growth Fund, Inc., Inc. (the "Fund"), a corporation operating Ma an
open-era Investment company, duly organized and existing under the laws of the
State of Maryland and Fund/Plan Services, Inc. ("Fund/Plan"), a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania.
WITNESSETH THAT:
WHEREAS, Fund/Plan has agreed to act as Transfer Agent of the Fund, as its
Dividend Disbursing Agent, and as Administrator of the Plans of the Fund, and
Fund/Plan also has agreed to act for the Fund in other respects as thereafter
stated.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto, intending to be legally bound, do Hereby
agree as follows
THE TRANSFER AGENCY
Section 1. The Fund hereby appoints Fund/Plan as its Transfer Agent, and
Fund/Plan accepts such appointment and agrees to act in such capacity upon the
terms set forth in this Agreement.
Section 2. The Fund shall furnish to Fund/Plan as Transfer Agent a sufficient
supply or blank Share Certificates and trod time to time will renew such supply
upon the request of Fund/Plan. Such blank snare Certificates shall be signed
manually or by facsimile signatures of officers of the Fund authorized by law or
the by-laws at the Fund to sign Share Certificates and, lt required, shall boar
the corporate seal or facsimile thereof.
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Section 3. Fund/Plan, as Transfer Agent, shall make original issues of Shares
in accordance with Sections 4 and 5 below and with the Fund's Prospectus upon
the written request of the Fund and upon being furnished with (i) a certified
copy of a resolution or resolutions of the Board of Directors of the Fund
authorizing such issue (ii) an opinion of counsel as to the validity of such
additional Shares and (iii) necessary funds for the payment of any original
issue tax applicable to such additional Shares
Section 4. Prior to the dally determination of net asset value in accordance
with the Fund's Prospectus, Fund/Plan shall process all purchases~e orders
received since the last date ruination of the Fund 'a net asset value. Fund/Plan
shall calculate dally the amount available for investment in Shares at the not
asset value determined by the Fund as of the close of trading on the New York
Stock Exchange, the number of Shares and fractional Shares to be purchased and
the net asset value to be deposited with the Custodian. Fund/Plan, as agent for
the Shareholders and Plan holders, shall place a purchase order dally with the
Fund for the proper number of Shares and fractional Shares to be purchased and
confirm such number to the Fund in writing.
Section 5. Fund/Plan having made the calculations provided for in Section 4,
shall thereupon pay over the net asset value of Shares purchased to the
Custodian. She net asset value shall then bo deposited in the account maintained
under the Custodian Agreement. She proper number of Shares and fractional Shares
shall then be issued dally and credited by Fund/Plan to the Unissued Certificate
Account. She Shares and fractional Shares purchased for each Shareholder and
Plan holder will be credited by Fund/Plan to his separate account. Fund/Plan
shall mall to each Shareholder and
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Plan holder a confirmation of each purchase, with copies to the Fund if
requested. Such confirmations will show the prior Share balance, the new Share
balance, the Shares held under a Plan (if any), the Shares of which Stock
Certificates are outstanding (if any), the amount invested and the price paid
for the newly purchased Shares.
Section 6. Transfer of Shares shall be registered and new Share Certificates
issued by Fund/Plan upon surrender of outstanding Share Certificates (i) in form
deemed by Fund/Plan to be properly endorsed for transfer, (ii) with all
necessary endorsers' signatures guaranteed in such manner and form as Fund/Plan
may require by a guarantor reasonably believed by Fund/Plan to be responsible,
accompanied by (iii) such assurances as Fund/Plan shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement, and (iv) satisfactory evidence of compliance with all applicable
laws relating to the payment or collection of taxes.
Section 7. When mall is used for delivery of Share Certificates Fund/Plan
shall forward Share Certificates in "non-negotiable" form by first-class mail,
and Share Certificates in "negotiable" form by registered mail, all mail
deliveries to be covered while in transit to the addressee by insurance arranged
for by Fund/Plan.
Section 8. In registering transfers Fund/Plan as Transfer Agent may rely upon
the Uniform Commercial Code or any other statutes which in the opinion of
counsel protect Fund/Plan and the Fund in not requiring complete documentation,
in registering transfer without inquiry into adverse claims, in delaying
registration for purposes of such inquiry, or in refusing registration where in
its judgment an adverse claim requires such refusal.
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Section 9. Fund/Plan as Transfer Agent may issue new Share Certificates in
place of Share Certificates represented to have been lost, destroyed or stolen,
upon receiving indemnity satisfactory to Fund/Plan and may issue new Share
Certificates in exchange for, and upon surrender of mutilated Share
Certificates.
Section 10. In case any officer of the Food 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 the issuance of such Share
Certificates, Fund/Plan as Transfer Agent may issue or register such Share
Certificates as the Share Certificates of the Fund notwithstanding such death,
resignation or removal; and the Fund shall file promptly with Fund/Plan such
approval, adoption or ratification as may be required by law.
Section 11. Fund/Plan will maintain stock registry records in the usual fore
in which it will note the issuance, transfer and redemption of Shares and the
issuance and transfer of share Certificates, and is also authorized to maintain
an account entitled Unissued Certificate Account in which it will record the
Shares and fractions issued and outstanding from time to time for which issuance
of Share Certificates is deferred. Fund/Plan is authorized to keep records,
which will be part of the stock transfer records, as well as its records of the
Plans, in which it will note the names and registered addresses of Shareholders
and Plan holder~, and the number of Shares and fractions from time to time owned
by them for which no Share Certificates are outstanding. Each Shareholder or
Plan holder will be assigned a single account number even though Shares held
under each Plan and Shares for which Certificates have been issued will be
accounted for separately.
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Section 12. Fund/Plan will issue Share Certificates for Shares of the Fund,
only upon receipt of a written request from a Shareholder. In all other cases,
the Fund authorizes Fund/Plan to dispense with the issuance and countersignature
of Share Certificates whenever Shares are purchased. In such case Fund/Plan, as
Transfer Agent, shall merely note on its stock registry records the issuance of
the Shares and fractions (if any), shall credit the Unissued Certificate Account
with the Shares and fractions issued and shall credit the proper number of
Shares and fractions to the respective Shareholders. Likewise, whenever
Fund/Plan has occasion to surrender for redemption Shares and fractions owned by
Shareholders, it shall be unnecessary to issue Share Certificates for redemption
purposes. The Fund authorizes Fund/Plan in such cases to process the
transactions by appropriate entries in its stock transfer records, and debiting
of the Unissued Certificate Account and the record of issued Shares outstanding.
Section 13. Fund/Plan in its capacity as Transfer Agent will, in addition to
the duties and functions above-mentioned, perform the usual duties and functions
of a stock Transfer Agent for a corporation. It will countersign for issuance or
reissuance Share Certificates representing original issue or reissued treasury
shares as directed by the Written Instructions of the Fund, and will transfer
Share Certificates registered in the name of Shareholders from one Shareholder
to another in the usual manner. Fund/Plan may rely conclusively and act without
further investigation upon any list, instruction, certification, authorization,
Share Certificate or other instrument or paper believed by it in good faith and
without negligence to be genuine and unaltered, and to have been signed,
countersigned, or executed by duly authorized person or persons, or upon the
instructions of any officer of the Fund, or upon the advice of counsel for the
Fund or for Fund/Plan. Fund/Plan may record any transfer of Share
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Certificates which is believed by it in good faith and without negligence to
have been duly authorized or may refuse to record any transfer of Share
Certificates if in good faith and without negligence Fund/Plan in its capacity
as Transfer Agent deems such refusal necessary in order to avoid any liability
either to the Fund or to Fund/Plan. The Fund agrees to indemnify and hold
harmless Fund/Plan from and against Any and all losses, costs, claims, and
liability which it may suffer or incur by Lesson of so relying at acting or
refusing to act.
Section 14. In ease of any request or demand for the inspection of the share
records of the Fund, Fund/Plan, as Transfer Agent, shall endeavor to notify the
Fund and to secure instructions as to permitting or refusing such inspection.
However, Fund/Plan may exhibit such records to any person in any case where it
is advised by its counsel that it may be held liable for failure so to do.
THE DIVIDEND DISBURSEMENT AGENCY
Section 15. Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund, the Fund shall notify
Fund/Plan of the date of such declaration, the amount payable per share, the
record date for determining the Shareholders entitled to payment, the payment
and the reinvestment date price.
Section 16. On or before each payment date the Fund will transfer, or cause
the Custodian to transfer, to Fund/Plan in its capacity as Dividend Disbursing
Agent, the total amount of the dividend or distribution currently payable and
Fund/Plan in such capacity will on the designated payment date mail distribution
checks to the Shareholders for the proper amounts payable to them except as
follows:
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(a) Dividends and capital gains distributions directed to be
reinvested under Plans will be transferred to Fund/Plan in its capacity as
Administrator for application as provided in Section 21.
Section 17. Fund/Plan shall, prior to the daily determination of net asset
value in accordance with the Fund's Prospectus, process all requests from
Shareholders to redeem Shares and determine the number of Shares requited to be
redeemed to make monthly payments, automatic payments or the like. Thereupon,
Fund/Plan shall advise the Fund of the total number of Shares available for
redemption and the number of Shares and fractional Shares requested to be
redeemed. The Fund shall then quote to Fund/Plan the applicable net asset value,
whereupon Fund/Plan shall furnish the Fund with an appropriate confirmation of
the redemption and process the redemption by filing with the Custodian an
appropriate statement and making the proper distribution and application of the
redemption processed in accordance with the Fund's Prospectus. The stock
registry books recording outstanding Shares, the Unissued Certificate Account
and the individual account of the Shareholder or Plan holder shall be properly
debited.
Section 18. The proceeds of redemption shall be remitted by Fund/Plan in
accordance with the Fund's Prospectus by check mailed to the Shareholder or Plan
holder at his registered address. If stock certificates have been issued for
Shares being redeemed, then such certificates and a stack power with a signature
guarantee of a commercial bank or trust company or a member firm of a recognized
securities exchange shall accompany the redemption request. If certificates have
not been issued to the redeeming shareholder, the signature of the shareholder
on the redemption request must be similarly guaranteed. The Fund may authorize
Fund/Plan to waive the signature guarantee in certain cases by written
Instructions.
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ADMINISTRATION OF THE PLANS
Section 19. The Fund hereby appoints Fund/Plan as Administrator of the Plans,
and Fund/Plan accepts such appointment and agrees to act in such capacity upon
the terms set forth in this Agreement. As provided in Section 11, Fund/Plan will
maintain records, which will be part of the stock registry records as well as
its records of the administration of the Plans, in which it will note the
transactions effected for the respective Plan holders and the number of Shares
and fractions from time to time owned by them for which no Share Certificates
are outstanding.
Section 20. It will be the practice of Fund/Plan, upon receipt of the
applicable net asset value per share, to process payments by Plan holders
resolved in acceptable form until the time of the closing of the New York Stock
Exchange on each day on which said exchange is open since the same time on the
prior business day in which said exchange we open. Fund/Plan will proceed to
calculate the amount available for investment in Shares at the net asset value
determined as of the close of the New York Stock Exchange that day and the
number of Shares and fractions to be purchased. Fund/Plan, as agent for sundry
Plan holders, will place an order with the Fund for the proper number of Shares
and fractions. The proper number of Shares and fractions will then be issued and
credited to the Unissued Certificate Account, and the Shares and fractions
purchased for each Plan holder will be credited to his separate account.
Fund/Plan will thereupon mail to each Plan holder a confirmation of the purchase
with copies to the Fund. Such confirmations will show the prior and new share
balance, the Shares held under the Plans and Xxxxxx (if any) for which Stock
Certificates are outstanding, the amount invested, the price paid and other
data.
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Section 21. As and when the Fund declares dividends or capital gains
distributions, it will promptly quote to Fund/Plan the net asset value per share
at the close of business on the record date, whereupon as soon as it can
calculate the total of such dividends or distributions it will receive for
reinvestment, Fund/Plan will advise the Fund of the amount which will be
available for reinvestment on the payment date and the number of Shares and
fractions to be issued. Upon receipt of the amount of the dividends or
distributions to be reinvested under Plans, Fund/Plan will pay over such amount
to the Custodian for deposit in the Fund's principal account, whereupon the
Shares and fractions purchased for the Plans will be issued and will be credited
to the Unissued Certificate Account. Fund/Plan will credit the Shares and
fractions so purchased to the separate accounts maintained for the respective
Plan holders, and will promptly mail to each Plan holder a confirmation of the
purchase, with a copy to the Fund, showing the prior and new share balance.
Section 22. Whenever a Shareholder shall deposit Shares represented by Share
Certificates in an investment plan or systematic withdrawal plan or other plan
permitting deposit of Shares thereunder, Fund/Plan as Transfer Agent is
authorized upon receipt of Share Certificates registered in the name of the
Shareholder, or if not so registered in due time for transfer, to cancel such
Share Certificates, to debit the individual stock accounts and to credit the
Shares to the Unissued Certificate Account. Fund/Plan as Administrator of Plans
will credit the Shares so deposited to the proper plan accounts. In the event
that a Plan holder shall desire to deposit under a systematic withdrawal plan
Shared held in an investment plan or other like plan, Fund/Plan will accomplish
such deposit by proper debiting and crediting of plan accounts.
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Section 23. Whenever Fund/Plan shall have received requests
from Plan holders to redeem Shares and remit proceeds, or whenever Fund/Plan is
required to redeem Shares to make withdrawal payments under systematic
withdrawal plans or the like, Fund/Plan will advise the Fund that it has Shares
for redemption, stating the number of Shares and fractions to be redeemed and
will furnish the Fund with an appropriate confirmation of the redemption. The
Custodian shall be authorized to pay over to Fund/Plan as Administrator the
total redemption price for proper distribution and application. She stock
registry books recording outstanding Shares, the Unissued Certificate Account
and the individual accounts of the Shareholders shall be properly debited.
In lieu of redemption Fund/Plan is authorized at the request of the Fund to sell
Shares to it for treasury stock, provided that in each such case the sale price
shall be not less than the applicable redemption price above mentioned. In such
cases the procedure shall be appropriately modified.
Section 24. The practices and procedures of Fund/Plan and the Fund above
outlined in Sections 19 to 23, inclusive, may be altered or modified from time
to time as may be mutually agreed by the parties to this Agreement, so long as
the intent and purposes of the Plans, as stated from time to time in the
prospectus of the Fund, are observed, For special cases the parties hereto may
adopt such procedures as may be appropriate or practical under the
circumstances, and Fund/Plan may conclusively assume that any special procedure
which has been approved by the Fund, coos not conflict with or violate any
requirements of its Articles of Incorporation, By-Laws or prospectus, or any
rule, regulation or requirement of any regulatory body.
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MISCELLANEOUS
Section 25. Fund/Plan agrees to make available upon request and to preserve
for the periods prescribed In Rule 31a-2 any records relating to services
provided under this Agreement which are required to be maintained by Rule 31a-1.
Section 26. The Fund shall indemnify Fund/Plan and save it harmless from
any and against any and all Actions, suits and claims, whether groundless or
otherwise, arising directly or indirectly out of or in connection with its
performance under this Agreement as Transfer Agent, Dividend Disbursing Agent
and Administrator of Plans and from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities incurred by
Fund/Plan in connection with any such action, suit, or claim. Fund/Plan shall
not be under any obligation to prosecute or to defend any action, suit or claim
arising out of or in connection with its performance under this Agreement as
Transfer Agent, Dividend Disbursing Agent and Administrator of Plans, which, n
the opinion of its counsel, may Involve it in expense or liability, and the Fund
shall, so often as reasonably requested, furnish Fund/Plan with satisfactory
indemnity against such expense or liability, and upon request of Fund/Plan the
Fund shall assume the entire defense of any action, Salt, or claim subject to
the foregoing Indemnity. Provided, however, that Fund/Plan shall give the Fund
notice, and reasonable opportunity to defend, any such action, suit, or claim,
in the name of the Fund or Fund/Plan or both.
Without limitation of the foregoing:
(a) Fund/Plan may rely upon the advice of the Fund, or of counsel, who
may be counsel for the Fund or counsel for Fund/Plan and upon statements of
accountants, brokers and other persons believed by it in good faith to be expert
in the matters upon which they are consulted and for any actions taken in good
faith upon such statements, Fund/Plan shall not be liable to anyone.
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(b) Fund/Plan shall not be liable for any action taken in good faith
reliance upon any Written Instruction or certified copy of any resolution of the
Board of Directors of the Fund, and Fund/Plan may rely upon the genuineness of
any such document or copy thereof believed in good faith by the Custodian to
have been validly executed.
(c) Fund/Plan may rely and shall be protected in acting upon any
signature, instruction, request, letter' of transmittal, certificate, opinion of
counsel, statement, instrument, report, notice, consent, order, or other paper
or document believed by it to be genuine and to have been signed or presented by
tho purchaser, Fund or other proper party or parties.
Notwithstanding any statement to the contrary elsewhere in this
Agreement, Fund/Plan shall be liable for its negligent acts or omissions in
connection with the performance of its duties under this Agreement.
Section 27. A request to redeem Shares must be accompanied by a
Signature guaranteed by a commercial bank or a member firm of a recognized stock
exchange.
Fund/Plan is authorized, upon receipt of written Instructions from the
Fund, to make payment upon redemption of Shares without a signature guarantee.
The Fund hereby agrees to indemnify and hold Fund/Plan, its successors and
assigns, harmless of and from any and all expenses, damages, claims, suits,
liabilities, actions, demand losses whatsoever arising out of or in connection
with a non-negligent payment by Fund/Plan upon redemption of Shares without a
signature guarantee and upon the request of Fund/Plan, the Fund shall assume the
entire defense of any action, suit or claims subject to the foregoing indemnity.
Fund/Plan shall notify the Fund of any such action, suit or claim within 30 days
after receipt by Fund/Plan of notice thereof.
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Section 28. Fund/Plan in acting for Plan holders, or in any other capacity
set forth in this Agreement, shall not be personally liable for any taxes,
assessments, or governmental charge. which may be levied or assessed on any
bests whatsoever in connection with the administration of the Plans, excepting
only for taxes assessed against it in its corporate capacity arising out of its
compensation hereunder.
Section 29. In addition to the services as Transfer Agent, Dividend
Disbursing Agent and Administrator as above set forth, Fund/Plan will perform
other services for the Fund as agreed from time to time, including but not
limited to, preparation of and mailing Federal lO99 Fores, mailing semi-annual
reports of the Fund, preparation of one annual list of Shareholders, and mailing
notices of Shareholders' meetings, proxies and proxy statements.
Section 30. The Fund agrees to pay Fund/Plan compensation for its services
and to reimburse it for expenses, as set forth in Schedule A attached hereto, or
as shall be set forth in amendments to such Schedule approved by the Fund and
Fund/Plan.
Section 31. Nothing contained in this Agreement is intended to or shall
require Fund/Plan, in any capacity hereunder, to perform any functions or duties
on any holiday, day of special observance or any other day on which Fund/Plan or
the New York Stock Exchange are closed. Functions or duties normally scheduled
to be performed on such days shall be performed on, and as of, the next business
day on which both the New York Stock Exchange and Fund/Plan are open.
Section 32. The following terms as used in this Agreement shall have the
meaning set forth below unless the context otherwise requires:
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Custodian Agreement: The term Custodian Agreement shall mean the
agreement between the Fund and First Pennsylvania Bank N.A.
Custodian: The term Custodian shall mean First Pennsylvania Bank N.A.
in its capacity as custodian under the Custodian Agreement.
Plan: The term Plan shall include such investment plans, dividend
reinvestment plans, systematic$c withdrawal plans or other types of plans, in
fond acceptable to Fund/Plan, which the Fund may from time to time adopt and
make available to its Shareholders, including plans or accounts adopted for
pensions and profit sharing plans established by self-employed individuals or
partnerships.
Plan holder. The term Plan holder shall mean a Shareholder who at the
time of reference is participating in a Plan.
Share Certificates: The term Share Certificates shall mean the stock
certificates for the Shares of the Fund.
Shareholders: The term Shareholders shall mean the registered owners
from time to time of the Shares of the Fund in accordance with the stock
registry records of the Fund.
Shares: The term Shares shall mean the issued and outstanding shares
of common stock of the Fund.
Written Instructions: The term Written Instructions shall mean an
authorized, instruction, approval, item or set of data, or information of any
kind transmitted to Fund/Plan in original writing containing original Signatures
or a copy
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of such document transmitted by telecopy including transmission
of such signature, believed in good faith by Fund/Plan to be the signature of a
person authorized by a resolution of the Board of Directors of the Fund to give
Written Instructions on behalf of the Fund.
Section 33. Either the Fund or Fund/Plan may give 60 days's written
notice to the other of the termination of this Agreement, such terminator to
take effect at tie time specified in the notice.
Section 34. Any notice or other communication required by or permitted
to be given in connection with this Agreement shall be in writing, and shall be
delivered in person or sent by first class mail, postage prepaid, to the
respective parties as follows:
If to the Fund:
Xxxxxxxx Monthly Dividend Shares, Inc.
Axe Wood, Butler, Skippack Pike
Blue Xxxx, PA 19442
If to Fund/Plan:
Fund/Plan Services, Inc.
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: X. Xxxxxx
Section 35. The Fund represents and warrants to Fund/Plan that the
execution and delivery of this Administration Agreement by the undersigned
officers of the Fund has been duly and validly authorized by resolution of tho
Board of Directors of the Fund.
Section 36. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
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Section 37. 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 the Fund without the
written consent of Fund/Plan, or by Fund/Plan without the written consent of the
Fund, authorized or approved by a resolution of its Board of Directors.
Section 38. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their duly authorized officers and their corporate seals hereunto duly
affixed and attested, as of the day and year first above written.
ATTEST XXXXXXXX GROWTH FUND, INC.
(Corporate Seal)
/s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx Xxxxxxx
Corporate Secretary Title: President
ATTEST FUND/PLAN SERVICES, Inc.
(Corporate Seal)
/s/Xxx Xxxxxx By /s/ Xxxx X Xxxxxxx
Title: Vice President
(SEAL)
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