TRANSFER AGENCY AND SERVICE AGREEMENT
between
EQUITY MANAGERS TRUST
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
-----------------
1. Terms of Appointment; Duties of the Bank . . . . . . . . . . 1
2. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . 3
3. Representations and Warranties of the Bank . . . . . . . . . 4
4. Representations and Warranties of the Fund . . . . . . . . . 4
5. Data Access and Proprietary Information . . . . . . . . . . 4
6. Indemnification . . . . . . . . . . . . . . . . . . . . . . 6
7. Covenants of the Fund and the Bank . . . . . . . . . . . . . 8
8. Termination of Agreement . . . . . . . . . . . . . . . . . . 9
9. Additional Portfolios . . . . . . . . . . . . . . . . . . . 9
10. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 9
11. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. Massachusetts Law to Apply . . . . . . . . . . . . . . . . . 10
13. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . 10
14. Consequential Damages . . . . . . . . . . . . . . . . . . . 10
15. Merger of Agreement . . . . . . . . . . . . . . . . . . . . 10
16. Limitations of Liability of the Trustees and
Shareholders, Officers, Employees and Agent . . . . . . . . 11
17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 11
18. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 2nd day of August, 1993, by and between EQUITY
MANAGERS TRUST, a New York common law trust, having its principal office
and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (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 is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund intends to initially offer shares in five series,
Xxxxxxxxx & Xxxxxx Genesis Portfolio, Xxxxxxxxx & Xxxxxx Guardian
Portfolio, Xxxxxxxxx & Xxxxxx Partners Portfolio, Xxxxxxxxx & Xxxxxx
Manhattan Portfolio and Xxxxxxxxx & Xxxxxx Selected Sectors Portfolio (such
series, together with all other series subsequently established by the Fund
and made subject to this Agreement in accordance with Article 9, being
herein referred to as a "Portfolio", and collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios 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:
1. Terms of Appointment; Duties of the Bank
----------------------------------------
1.1 Subject to the terms and conditions set forth in this
Agreement, the Fund, on behalf of the Portfolios, hereby
employs and appoints the Bank to act as, and the Bank
agrees to act as its transfer agent for each Portfolio's
beneficial interests ("Shares").
1.2 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 on
behalf of each of the Portfolios, as applicable,
and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the
initial purchase of or increase in,
Shares, and promptly deliver payment and
appropriate documentation thereof to the
Custodian of the Fund authorized pursuant
to the Declaration of Trust of the Fund
(the "Custodian");
(ii) Pursuant to orders to increase Shares,
record the appropriate number of Shares
in the name of the holder ("Shareholder")
and hold such Shares in the appropriate
Shareholder account;
(iii) Receive for acceptance requests and
directions to withdraw (in whole or in
part) Shares and deliver the appropriate
documentation thereof to the Custodian;
(iv) At the appropriate time and as and when
it receives monies paid to it by the
Custodian with respect to any withdrawal,
pay over or cause to be paid over in the
appropriate manner such monies as
instructed by the withdrawing
Shareholder(s);
(v) Maintain records of account for and
advise for each Portfolio and its
Shareholders as to the foregoing; and
(vi) Record the issuance of shares of each
Portfolio and maintain pursuant to SEC
Rule 17Ad-10(e) a record of the total
number of shares of the Fund and each
Portfolio which are authorized, based
upon data provided to it by the Fund, on
behalf of each Portfolio, and issued and
outstanding. The Bank shall also
provide the Fund and each Portfolio 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 on
behalf of each Portfolio.
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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 perform the
customary services of a transfer agent.
(c) Procedures as to who shall provide certain of
these services in Section 1 may be established
from time to time by agreement between the Fund
on behalf of each Portfolio 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.
(d) 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.
2. Fees and Expenses
-----------------
2.1 For the performance by the Bank pursuant to this
Agreement, the Fund, on behalf of each Portfolio agrees to
pay the Bank an annual maintenance fee for each
Shareholder account as set out in the initial fee schedule
attached hereto. Such fees and out-of-pocket expenses and
advances identified under Section 2.2 below may be changed
from time to time subject to mutual written agreement
between the Fund and the Bank.
2.2 In addition to the fee paid under Section 2.1 above, the
Fund, on behalf of the applicable Portfolio, 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 on behalf of the applicable
Portfolio.
2.3 The Fund, on behalf of the applicable Portfolio, agrees to
pay all fees and reimbursable expenses within five days
following the mailing 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.
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3. Representations and Warranties of the Bank
------------------------------------------
The Bank represents and warrants to the Fund that:
3.1 It is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of
Massachusetts.
3.2 It is duly qualified to carry on its business in the
Commonwealth of Massachusetts.
3.3 It is empowered under applicable laws and by its Charter
and By-Laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.5 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 and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Bank that:
4.1 It is a business trust duly organized and existing and in
good standing under the laws of New York.
4.2 It is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and
perform this Agreement.
4.3 All corporate proceedings required by said Declaration of
Trust and By-Laws have been taken to authorize it to enter
into and perform this Agreement.
4.4 It is an open-end management investment company registered
under the Investment Company Act of 1940, as amended.
5. Data Access and Proprietary Information
---------------------------------------
5.1 The Fund acknowledges that the computer programs, screen
formats, report formats (except such screen formats and
report formats as may be necessary to respond to
shareholder problems or inquiries), 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
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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:
(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 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 Section 5. The obligations
of this Section shall survive any earlier termination of this
Agreement.
5.2 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, AS
AVAILABLE BASIS. THE BANK
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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.
5.3 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 (such transactions constituting a "COEFI"),
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.
6. Indemnification
---------------
6.1 The Bank shall not be responsible for, and the Fund shall
on behalf of the applicable Portfolio indemnify and hold
the Bank harmless from and against, 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 agents 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 reasonable reliance on, or the carrying out
by the Bank or its agents or subcontractors of
any instructions or requests of the Fund on
behalf of the applicable Portfolio.
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(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.
6.2 The Bank shall indemnify and hold the Fund and each
Portfolio thereof harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributed to any
action or failure or omission to act by the Bank as a
result of the Bank's lack of good faith, negligence or
willful misconduct.
6.3 At any time the Bank may apply to any officer of the Fund
for instructions, and may consult with legal counsel 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 on behalf of
the applicable Portfolio for any action taken or omitted
by it in reasonable 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
countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
6.4 In order that the indemnification provisions contained in
this Section 6 shall apply, upon the assertion of a claim
for which either party may be required to indemnify the
other, the party seeking indemnification shall promptly
notify the Fund 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
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indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim
or to defend against said claim in its own name or in the
name of the other party. 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.
7. Covenants of the Fund and the Bank
----------------------------------
7.1 The Fund shall on behalf of each Portfolio promptly
furnish to the Bank the following:
(a) A certified copy of the resolution of the
Trustees of the Fund authorizing the appointment
of the Bank and the execution and delivery of
this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of
the Fund and all amendments thereto.
7.2 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 use, and for keeping account of,
such certificates, forms and devices.
7.3 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.
7.4 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.
7.5 In case of any requests or demands for the inspection of
the Shareholder records of the Fund, the Bank will
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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.
7.6 Notwithstanding any other provision of this Agreement, the
parties agree that the assets and liabilities of each
Portfolio of the Fund are separate and distinct from the
assets and liabilities of each other Portfolio and that no
Portfolio shall be liable or shall be charged for any
debt, obligation or liability of any other Portfolio,
whether arising under this Agreement or otherwise.
8. Termination of Agreement
------------------------
8.1 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
8.2 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 on behalf
of the applicable Portfolio(s). Additionally, the Bank
reserves the right to charge for any other reasonable
expenses associated with such termination and/or a charge
equivalent to the average of three (3) months' fees.
9. Additional Portfolios
---------------------
In the event that the Fund establishes one or more series of
Shares in addition to Xxxxxxxxx & Xxxxxx Genesis Portfolio,
Xxxxxxxxx & Xxxxxx Guardian Portfolio, Xxxxxxxxx & Xxxxxx Partners
Portfolio, Xxxxxxxxx & Xxxxxx Manhattan Portfolio and Xxxxxxxxx &
Xxxxxx Selected Sectors Portfolio with respect to which it desires
to have the Bank render services as transfer agent under the terms
hereof, it shall so notify the Bank in writing, and if the Bank
agrees in writing to provide such services, such series of Shares
shall become a Portfolio hereunder.
10. Assignment
----------
10.1 Except as provided in Section 10.3 below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of
the other party.
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10.2 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted
successors and assigns.
10.3 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.
11. Amendment
---------
This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a
resolution of the Trustees of the Fund.
12. Massachusetts Law to Apply
--------------------------
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the
Commonwealth of Massachusetts.
13. Force Majeure
-------------
In the event either 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 reasonably beyond its
control, 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.
14. Consequential Damages
---------------------
Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
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15. Merger of Agreement
-------------------
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.
16. Limitations of Liability of the Trustees, Shareholders, Officers,
Employees and Agent
-----------------------------------------------------------------
The parties agree that neither the Shareholders, Trustees,
officers, employees nor any agent of the Fund shall be liable
hereunder and that the parties to this Agreement other than the
Fund shall look solely to the Fund property for the performance of
this Agreement or payment of any claim under this Agreement.
17. Counterparts
------------
This Agreement may be executed by the parties hereto on any number
of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
18. Notices
-------
All notices, requests, consents and other communications hereunder
(collectively "communications") shall be in writing and shall be
personally delivered or mailed, first class postage prepaid,
(a) if to the Fund, to
Equity Managers Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx
Vice President
(b) if to the Bank, to
Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxxxxx & Xxxxxx Fund Group
or such other address as either party shall have furnished to the
other in writing; provided that any communication may be sent by
"tested" telex or any other form of electronic transmission
capable of producing a permanent record and agreed upon by the
parties in writing.
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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.
EQUITY MANAGERS TRUST
BY: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
ATTEST:
/s/ Xxxxxx X. Xxxxx
----------------------
Xxxxxx X. Xxxxx
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XXXXX XXXXXX XXXX & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES
Responsibility
--------------
Service Performed Bank Fund
----------------- ---- ----
1. Receive orders for the purchase X
of Shares.
2. Hold Shares in Shareholders X
accounts.
3. Receive withdrawal requests. X
4. Pay over monies to withdrawing X
Shareholders.
5. Maintain records of account. X
6. Maintain and keep a current and X
accurate control book for each
issue of securities.
EQUITY MANAGERS TRUST STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------ -----------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Attest: /s/ Xxxxxxx X. Xxxxxxx Attest: /s/ Xxxxxx X. Xxxxx
---------------------- --------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
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FEE SCHEDULE
FOR
TRANSFER AGENCY AGREEMENT
BETWEEN
STATE STREET BANK AND TRUST COMPANY
AND
EQUITY MANAGERS TRUST
In reference to Section 2 of the Transfer Agency Agreement, there
shall be no additional fees or out-of-pocket expenses charged to any
Portfolio under this Agreement. Any compensation to be provided to the Bank
for the services provided hereunder is set forth in the Custody Agreement
between the Fund and the Bank dated as of August 2, 1993.
Dated As Of August 2, 1993.
EQUITY MANAGERS TRUST
BY: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
Executive Vice President
ATTEST:
/s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
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