TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made on this 23rd day of November, 1993,
by and between XXXXXXXX EQUITY INCOME FUND, INC. (the "Fund") and
FIRSTAR TRUST COMPANY, a corporation organized under the laws of
the State of Wisconsin (the "Agent").
W I T N E S S E T H:
WHEREAS, the Fund is an open-ended management investment
company which is registered under the Investment Company Act of
1940, as amended; and
WHEREAS, the Agent is a trust company and, among other
things, is in the business of administering transfer and dividend
disbursing agent functions for the benefit of its customers;
NOW, THEREFORE, the Fund and the Agent do mutually promise
and agree as follows:
1. Terms of Appointment; Duties of the Agent
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Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Agent to act
as transfer agent and dividend disbursing agent.
The Agent shall perform all of the customary services of a
transfer agent and dividend disbursing agent, 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 the following:
A. Receive orders for the purchase of shares, with
prompt delivery, where appropriate, of payment and
supporting documentation to the Fund's custodian;
B. Process purchase orders and issue the appropriate
number of certificated or uncertificated shares with
such uncertificated shares being held in the
appropriate shareholder account;
C. Process redemption requests received in good order
and, where relevant, deliver appropriate documentation
to the Fund's custodian;
D. Pay monies (upon receipt from the Fund's
custodian, where relevant) in accordance with the
instructions of redeeming shareholders;
E. Process transfers of shares in accordance with the
shareowner's instructions;
F. Process exchanges between funds within the same
family of funds;
G. Issue and/or cancel certificates as instructed,
and replace lost, stolen or destroyed certificates upon
receipt of satisfactory indemnification or surety bond;
H. Prepare and transmit payments for dividends and
distributions declared by the Fund;
I. Make changes to shareholder records, including,
without limitation, address changes and changes in
plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and
maintain, pursuant to Rule 17ad-10(e), a record of the
total number of shares of the Fund which are
authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if
applicable, mail, receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to
current shareholders;
M. Prepare and file U.S. Treasury Department Forms
1099 and other appropriate information returns required
with respect to dividends and distributions for all
shareholders;
N. Provide shareholder account information upon
request and prepare and mail confirmations and
statements of account to shareholders for all
purchases, redemptions and other confirmable
transactions as agreed upon with the Fund;
O. Provide a Blue Sky System which will enable the
Fund to monitor the total number of shares sold in each
state. In addition, the Fund shall identify to the
Agent in writing those transactions and assets to be
treated as exempt from the Blue Sky reporting to the
Fund for each state. The responsibility of the Agent
for the Fund's Blue Sky state registration status is
solely limited to the initial compliance by the Fund
and the reporting of such transactions to the Fund; and
P. Provide periodic reports to the Fund, as the Fund
may from time to time request.
2. Compensation to Agent
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The Fund agrees to pay the Agent for performance of the
duties listed in this Agreement as may from time to time be
agreed upon in writing between the two parties. The Fund will
reimburse the Agent for all out-of-pocket expenses including
printing, postage, forms, stationery, record retention, mailing,
insertion, programming, labels, shareholder lists and proxy
expenses. These fees and reimbursable expenses may be changed
from time to time subject to mutual written agreement between the
Fund and the Agent.
3. Representations of Agent
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The Agent represents and warrants to the Fund that:
A. It is a trust company duly organized, existing and
in good standing under the laws of Wisconsin;
B. It is duly qualified to carry on its business in
the state of Wisconsin;
C. It is empowered under applicable laws and by its
charter and bylaws to enter into and perform this
Agreement;
D. All requisite corporate proceedings have been
taken to authorize it to enter and perform this
Agreement; and
E. It has and will continue to have access to the
necessary facilities, equipment and personnel to
perform its duties and obligations under this
Agreement.
4. Representations of the Fund
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The Fund represents and warrants to the Agent that:
A. The Fund is an open-ended diversified investment
company under the Investment Company Act of 1940, as
amended;
B. The Fund is a corporation organized, existing and
in good standing under the laws of Maryland;
C. The Fund is empowered under applicable laws and by
its Articles of Incorporation and Bylaws to enter into
and perform this Agreement;
D. The Fund will comply with all applicable
requirements of the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended,
the Investment Company Act of 1940, as amended, and any
laws, rules and regulation of governmental authorities
having jurisdiction; and
E. A registration statement under the Securities Act
of 1933 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.
5. Covenants of Fund and Agent
---------------------------
The Fund shall furnish the Agent a certified copy of the
resolution of the Board of Directors of the Fund authorizing the
appointment of the Agent and the execution of this Agreement.
The Fund shall provide to the Agent a copy of the Articles of
Incorporation and Bylaws of the Fund, and all amendments relating
thereto.
The Agent 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 Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed
by the Agent 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 to the Fund on and in
accordance with its request.
6. Indemnification; Remedies Upon Breach
-------------------------------------
The Agent agrees to use reasonable care and act in good
faith in performing its duties hereunder.
Notwithstanding the foregoing, the Agent shall not be liable
or responsible for delays or errors occurring by reason of
circumstances beyond its control, including acts of civil or
military authority, national or state emergencies, fire,
mechanical or equipment failure, flood or catastrophe, acts of
God, insurrection or war. In the event of a mechanical breakdown
beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such
interruption continues beyond the Agent's control. The Agent
will make every reasonable effort to restore any lost or damaged
data, and the correcting of any errors resulting from such a
breakdown will be at the Agent's expense. The Agent agrees that
it shall, at all times, have reasonable contingency plans with
appropriate parties, making reasonable provision for emergency
use of electrical data processing equipment to the extent
appropriate equipment is available. Representatives of the Fund
shall be entitled to inspect the Agent's premises and operating
capabilities at any time during regular business hours of the
Agent, upon reasonable notice to the Agent.
The Fund will indemnify and hold the Agent harmless against
any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from
any claim, demand, action or suit not resulting from the Agent's
bad faith or negligence, and arising out of or in connection with
the Agent's duties on behalf of the Fund hereunder.
Further, the Fund will indemnify and hold the Agent harmless
against any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action or suit as a result of
the negligence of the Fund (unless contributed to by the Agent's
own negligence or bad faith); or as a result of the Agent acting
upon telephone instructions relating to the exchange or
redemption of shares received by the Agent and reasonably
believed by the Agent to have originated from the record owner of
the subject shares; or as a result of the Agent acting upon any
instructions executed or orally communicated by a duly authorized
officer or employee of the Fund, according to such lists of
authorized officers and employees furnished to the Agent and as
amended from time to time in writing by a resolution of the Board
of the Fund; or as a result of acting in reliance upon any
genuine instrument or stock certificate signed, countersigned or
executed by any person or persons authorized to sign, countersign
or execute the same.
In order for this section to apply, it is understood that if
in any case the Fund may be asked to indemnify or hold harmless
the Agent, the Fund shall be advised of all pertinent facts
concerning the situation in question, and it is further
understood that the Agent will use reasonable care to notify the
Fund promptly concerning any situation which presents or appears
likely to present a claim for indemnification against the Fund.
The Fund shall have the option to defend the Agent against any
claim which may be the subject of this indemnification and, in
the event that the Fund so elects, the Agent will so notify the
Fund, and thereupon the Fund shall take over complete defense of
the claim and the Agent shall sustain no further legal or other
expenses in such situation for which the Agent shall seek
indemnification under this section. The Agent will in no case
confess any claim or make any compromise in any case in which the
Fund will be asked to indemnify the Agent, except with the Fund's
prior written consent.
7. Confidentiality
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The Agent agrees on behalf of itself and its employees to
treat confidentially all records and other information relative
to the Fund and its shareholders and shall not be disclosed to
any other party, except after prior notification to and approval
in writing by the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the Agent may be exposed
to civil or criminal contempt proceedings for failure to comply
after being requested to divulge such information by duly
constituted authorities.
8. Wisconsin Law to Apply
----------------------
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of
Wisconsin.
9. Amendment, Assignment, Termination and Notice
---------------------------------------------
A. This Agreement may be amended by the mutual
written consent of the parties.
B. After the first full year, this Agreement may be
terminated upon 90 days' written notice given by one
party to the other.
C. This Agreement and any right or obligation
hereunder may not be assigned by either party without
the signed, written consent of the other party.
D. Any notice required to be given by the parties to
each other under the terms of this Agreement shall be
in writing, addressed and delivered, or mailed to the
principal place of business of the other party.
E. In the event that the Fund gives to the Agent its
written intention to terminate and appoint a successor
transfer agent, the Agent agrees to cooperate in the
transfer of its duties and responsibilities to the
successor, including any and all relevant books,
records and other data established or maintained by the
Agent under this Agreement.
F. Should the Fund exercise its right to terminate,
all out-of-pocket expenses associated with the movement
of records and material will be paid by the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and their respective corporate seals to
be affixed hereto as of the date first above written by their
respective officers thereunto duly authorized.
Executed in several counterparts, each of which is an
original.
FIRSTAR TRUST COMPANY
By:
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Authorized Officer
Attest:
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XXXXXXXX EQUITY INCOME FUND, INC.
By:
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Xxxxxx X. Xxxxxxxx, President
Attest:
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Xxxxxx X. Xxxxxx, Executive
Vice President and Secretary
