EXHIBIT 9(a)
FORM OF TRANSFER AGENT AGREEMENT BETWEEN
THE XXX XXXXXXX TRUST AND FIRSTAR TRUST COMPANY
FORM OF
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this ____ day of _____________,
1996, by and between The Holland Trust (hereinafter referred to as the
"Trust") and Firstar Trust Company, a corporation organized under the laws
of the State of Wisconsin (hereinafter referred to as the "Agent").
WHEREAS, the Trust is a Delaware business trust organized as a series
company currently consisting of one series, the Growth Fund.
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 Trust and the Agent do mutually promise and agree as
follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT
Subject to the terms and conditions set forth in this Agreement, the
Trust 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:
A. Receive orders for the purchase of shares;
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;
D. Pay monies 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; 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 Trust;
I. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Trust and maintain, pursuant
to Section Rule 17ad-10(e), a record of the total number of shares
of the Trust 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 Trust; and
O. Provide a Blue Sky System which will enable the Trust to monitor
the total number of shares sold in each state. In addition, the
Trust shall identify to the Agent in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting to the
Trust for each state. The responsibility of the Agent for the
Trust's Blue Sky state registration status is solely limited to the
initial compliance by the Trust and the reporting of such
transactions to the Trust.
2. COMPENSATION
The Trust agrees to pay the Agent for performance of the duties listed
in this Agreement; the fees and out-of-pocket expenses include, but are not
limited to the following: 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 Trust and the Agent.
Notwithstanding the foregoing, if the Trust terminates this Agreement prior
to the second anniversary of this Agreement, the Trust agrees to reimburse
Firstar Trust Company for the difference between the standard fee schedule
and the discounted fee schedule agreed to between the parties.
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
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3. REPRESENTATIONS OF AGENT
The Agent represents and warrants to the Trust that:
A. It is a trust company duly organized, existing and in good standing
under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities Exchange Act
of 1934 as amended.
C. It is duly qualified to carry on its business in the state of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws
to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it
to enter and perform this Agreement; and
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
G. It will comply with all applicable requirements of the Securities
and Exchange Acts of 1933 and 1934, as amended, the Investment
Company Act of 1940, as amended, and any laws, rules and
regulations of governmental authorities having jurisdiction.
4. REPRESENTATIONS OF THE TRUST
The Trust represents and warrants to the Agent that:
A. The Trust is an open-ended diversified investment company under the
Investment Company Act of 1940;
B. The Trust is a corporation or business trust organized, existing,
and in good standing under the laws of Delaware;
C. The Trust is empowered under applicable laws and by its Declaration
of Trust and bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Declaration of Trust have
been taken to authorize them to enter into and perform this
Agreement;
E. The Trust will comply with all applicable requirements of the
Securities and Exchange Acts of 1933 and 1934, as amended, the
Investment Company Act of 1940, as amended, and any laws, rules and
regulations of governmental authorities having jurisdiction; and
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F. 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 Trust being offered for sale.
5. COVENANTS OF TRUST AND AGENT
The Trust shall furnish the Agent a certified copy of the resolution of
the Board of Trustees of the Trust authorizing the appointment of the Agent
and the execution of this Agreement. The Trust shall provide to the Agent a
copy of the Declaration of Trust, bylaws of the Trust, and all amendments.
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 Trust and will be preserved, maintained and
made available in accordance with such section and rules and will be
surrendered to the Trust on and in accordance with its request.
6. INDEMNIFICATION; REMEDIES UPON BREACH
The Agent shall exercise reasonable care in the performance of its
duties under this Agreement. The Agent shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Trust in
connection with matters to which this Agreement relates, including losses
resulting from mechanical breakdowns or the failure of communication or power
supplies beyond the Agent's control, except a loss resulting from the Agent's
refusal or failure to comply with the terms of this Agreement or from bad
faith, negligence, or willfull misconduct on its part in the performance of
its duties under this Agreement. Notwithstanding any other provision of this
Agreement, the Trust shall indemnify and hold harmless the Agent from and
against any and all claims, demands, losses, expenses, and liabilities
(whether with or without basis in fact or law) of any and every nature
(including reasonable attorneys' fees) which the Agent may sustain or incur
or which may be asserted against the Agent by any person arising out of any
action taken or omitted to be taken by it in performing the services
hereunder (i) in accordance with the foregoing standards, or (ii) in reliance
upon any written or oral instruction provided to the Agent by any duly
authorized officer of the Trust, such duly authorized officer to be included
in a list of authorized officers furnished to the Agent and as amended from
time to time in writing by resolution of the Board of Trustees of the Trust.
Further, the Trust 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 Trust or the principal
underwriter (unless contributed to by the Agent's breach of this Agreement or
other Agreements between the Trust and the Agent, or 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
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of shares received by the Agent and reasonably believed by the Agent under a
standard of care customarily used in the industry to have originated from the
record owner of the subject shares; 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 the event of a mechanical breakdown or failure of communication or
power supplies 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 correct any errors resulting
from such a breakdown at the expense of the Agent. 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 Trust 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.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Trust may be asked to
indemnify or hold the Agent harmless, the Trust shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it
is further understood that the Agent will use all reasonable care to notify
the Trust promptly concerning any situation which presents or appears likely
to present the probability of such a claim for indemnification against the
Trust. The Trust shall have the option to defend the Agent against any claim
which may be the subject of this indemnification. In the event that the Trust
so elects, it will so notify the Agent and thereupon the Trust shall take
over complete defense of the claim, and the Agent shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The Agent shall in no case confess any
claim or make any compromise in any case in which the Trust will be asked to
indemnify the Agent except with the Trust's prior written consent.
The Agent shall indemnify and hold the Trust harmless from and against
any and all claims, demands, losses, expenses, and liabilities (whether with
or without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which may be asserted against the Trust by any person
arising out of any action taken or omitted to be taken by the Agent as a
result of the Agent's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
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7. CONFIDENTIALITY
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Trust and
its shareholders and shall not be disclosed to any other party, except after
prior notification to and approval in writing by the Trust, 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.
ADDITIONAL SERIES. The Holland Trust is authorized to issue separate
classes of shares of beneficial interest representing interests in separate
investment portfolios. The parties intend that each portfolio established by
the trust, now or in the future, be covered by the terms and conditions of
this agreement.
8. RECORDS
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem
advisable and is agreeable to the Trust but not inconsistent with the rules
and regulations of appropriate government authorities, in particular, Section
31 of The Investment Company Act of 1940 as amended (the "Investment Company
Act"), 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 Trust and will be preserved,
maintained, and made available with such section and rules of the Investment
Company Act and will be promptly surrendered to the Trust on and in
accordance with its request.
9. 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.
10. AMENDMENT, ASSIGNMENT, TERMINATION AND NOTICE
A. This Agreement may be amended by the mutual written consent of the
parties.
B. This Agreement may be terminated upon ninety (90) day's 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.
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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. If to the agent, such notice should to be sent to
Firstar Trust Company, Mutual Fund Services, X.X. xxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000. If to the Trust, such notice should be
sent to ___________________________.
E. In the event that the Trust 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 Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will
be paid by the Trust.
THE HOLLAND TRUST FIRSTAR TRUST COMPANY
By: By:
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Attest: Attest:
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Assistant Secretary
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