EXHIBIT 9(a)
TRANSFER AGENCY AGREEMENT
AGREEMENT made as of the 21st day of October, 1997 by and between
XXXXXXX XXXXX VARIABLE INSURANCE TRUST (the "Trust"), a Delaware business trust,
and XXXXXXX, SACHS & CO. ("Xxxxxxx Xxxxx"), a New York limited partnership.
W I T N E S S E T H:
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WHEREAS, the Trust is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Trust is empowered to issue shares of beneficial interest
("Shares") in separate series with each such series representing the interests
in a separate portfolio of securities and other assets (a "Fund" or collectively
the "Funds");
WHEREAS, the Trust presently offers Shares in nine funds: Xxxxxxx
Sachs Growth and Income Fund, Xxxxxxx Xxxxx CORE U.S. Equity Fund, Xxxxxxx Sachs
CORE Large Cap Growth Fund, Xxxxxxx Xxxxx CORE Small Cap Equity Fund, Xxxxxxx
Sachs Capital Growth Fund, Xxxxxxx Xxxxx Mid Cap Equity Fund, Xxxxxxx Sachs
International Equity Fund, Xxxxxxx Xxxxx Global Income Fund and Xxxxxxx Sachs
High Yield Fund; and
WHEREAS, the Trust desires to appoint Xxxxxxx Xxxxx as Transfer Agent
and Dividend Disbursing Agent and to perform the other services contemplated
hereby with respect to the Trust and each Fund thereof; and
WHEREAS, Xxxxxxx Sachs is a registered transfer agent and is
authorized to enter into this agreement and desires to accept appointment as
Transfer Agent and Dividend Disbursing Agent; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. APPOINTMENT
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1.01. Subject to the terms set forth in this Agreement, the Trust
hereby appoints Xxxxxxx Xxxxx as Transfer Agent and Dividend Disbursing Agent
and to perform the other services contemplated hereby with respect to the Trust
and each Fund thereof.
1.02. Xxxxxxx Sachs hereby accepts such appointment and agrees that
it will act as Transfer Agent and Dividend Disbursing Agent and perform the
other services described herein with respect to the Trust and each Fund thereof.
1.03. Xxxxxxx Xxxxx agrees to provide the necessary facilities,
equipment and executive, administrative and clerical personnel to perform its
duties and obligations hereunder in accordance with the terms hereof.
2. TRANSFER AGENT
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2.01. Xxxxxxx Sachs shall, subject to any Instructions (as
defined in Section 5 hereof), record
the issuance, transfer and redemptions of Shares in accordance with the
following provisions of this Section 2.
2.02. After being notified by the Trust's custodian (the "Custodian")
or, if applicable, the Custodian's sub-custodian (the "Sub-Custodian") that the
purchase price in respect of orders to purchase Shares has been received in the
form of Federal funds, Xxxxxxx Xxxxx shall compute in accordance with the
Trust's Prospectus (the term "Prospectus," as used herein, shall be deemed to
mean the Trust's then current Prospectus, all supplements thereto, the Trust's
then current Statement of Additional Information and all supplements thereto
unless the context otherwise requires) the number of Shares to be purchased at
the net asset value of such Shares applicable to such order and shall (i) credit
the account of the purchaser with the number of Shares so purchased as of the
time contemplated by the Trust's Prospectus and (ii) subject to paragraph 2.05,
mail to the purchaser a confirmation of such purchase and notice of such credit.
2.03. Upon receipt of requests for transfer in proper form, Xxxxxxx
Sachs shall make appropriate entries to reflect the transfer of Shares on the
records of the Trust maintained by it.
2.04. Xxxxxxx Xxxxx shall make an adequate and accurate record of the
date and time of receipt of all requests for redemption of Shares transmitted or
delivered to it, and shall process such requests in accordance with the
following provisions. If such redemption requests comply with the standards for
redemption approved by the Trust (as evidenced by the Trust's Prospectus or by
Instructions), Xxxxxxx Sachs shall compute in accordance with the Trust's
Prospectus the amount of redemption proceeds payable to each Shareholder
requesting redemption. If any such request for redemption does not comply with
the standards for redemption approved by the Trust, Xxxxxxx Xxxxx shall take
such actions as it reasonably deems appropriate under the circumstances and
shall effect such redemption at the price applicable to the date and time of
receipt of a redemption request (including any necessary documents) complying
with such standards. At such times as may be agreed upon by Xxxxxxx Sachs and
the Custodian so as to provide for the timely payment of redemptions in
accordance with the Trust's Prospectus, Xxxxxxx Xxxxx shall advise the Custodian
of aggregate redemption requests for which the Custodian is authorized to effect
payment and shall advise the Custodian of the amount required to pay any portion
of such redemptions which is payable by wire and, if redemptions by check are
instituted in the future, the amount required to pay any portion of such
redemptions which is payable by check. Xxxxxxx Sachs shall, as applicable,
instruct the Custodian to wire transfer such redemptions to the Sub-Custodian or
to the Trust's checking account established and maintained at The Northern Trust
Company ("Northern") in accordance with Section 17(f) of the 1940 Act. At such
times as may be agreed upon by Xxxxxxx Xxxxx and the Sub-Custodian so as to
provide for the timely payment of redemptions in accordance with the provisions
of the Trust's Prospectus, Xxxxxxx Sachs shall give wiring instructions to the
Sub-Custodian so as to effect payment for redemptions to all Shareholders,
except for Shareholders who request redemption by check if such redemptions are
instituted in the future.
In accordance with the provisions of the resolutions of the Trust's
Board of Trustees and the Trust's Prospectus and with the terms of this
Agreement and if redemptions by check are instituted, Xxxxxxx Xxxxx shall
prepare and mail checks for redemptions to holders of Shares ("Shareholders")
who requested that redemption proceeds be remitted by check. Xxxxxxx Sachs
shall mail to the redeeming Shareholder a confirmation of the redemption.
2.05. In lieu of mailing the confirmation and notice to purchasers as
provided in paragraph 2.02
and the confirmation of redeeming Shareholders as provided in paragraph 2.04,
Xxxxxxx Xxxxx may instead, if the Trust's Prospectus so provides, provide a
monthly statement to Shareholders, provided such statement complies with the
requirements of paragraph (c) of Rule 10b-10 under the Securities Exchange Act
of 1934 (the "1934 Act").
3. DIVIDENDS AND DISTRIBUTIONS
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3.01. With respect to those Shareholders which have elected
reinvestment of dividends and distributions in additional Shares, Xxxxxxx Sachs
shall credit the account of such Shareholders with the requisite number of
additional Shares relative to each such dividend or distribution. With respect
to those Shareholders which have elected to receive such dividends and
distributions in cash, at such times as may be agreed upon by Xxxxxxx Xxxxx and
the Custodian so as to provide for the timely payment of dividends or
distributions to Shareholders in accordance with the provisions of the Trust's
Prospectus, Xxxxxxx Sachs shall advise the Custodian orally of and confirm to it
in writing, the aggregate amount of dividends or distributions payable to
Shareholders and shall advise the Custodian orally of and confirm to it in
writing, the amount required to pay any portion of any such dividend or
distribution which is payable by wire and, if dividends or distributions by
check are instituted in the future, the amount required to pay any portion of
any such dividend or distribution which is payable by check. Xxxxxxx Xxxxx
shall, as applicable, instruct the Custodian to wire transfer dividends or
distributions to the Sub-Custodian or to the Trust's checking account
established and maintained at Northern in accordance with Section 17(f) of the
1940 Act. At such times as may be agreed upon by Xxxxxxx Sachs and the Sub-
Custodian so as to provide for the timely payment of dividends and distributions
in accordance with the provisions of the Trust's Prospectus, Xxxxxxx Xxxxx shall
give wiring instructions to the Sub-Custodian so as to effect payment for
dividends and distributions to Shareholders who requested such payment by wire.
In accordance with the provisions of the resolutions of the Trust's Board of
Trustees and the Trust's Prospectus and with the terms of this Agreement and if
dividends or distributions by check are instituted, Xxxxxxx Sachs shall prepare
and mail checks for dividends or distributions to Shareholders who requested
payment thereof by check.
4. ADDITIONAL DUTIES
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4.01. Xxxxxxx Xxxxx shall establish and maintain a separate account
with respect to each Shareholder. Xxxxxxx Sachs shall perform such "master" and
"subaccounting" services, if any, as are described in the Trust's Prospectus,
provided that the Trust shall not change the description of such services in the
Prospectus without obtaining the advance consent of Xxxxxxx Xxxxx. Xxxxxxx
Xxxxx shall maintain records showing for each Shareholder's account the
following: (a) name, address, tax identifying number and number of Shares held;
historical information regarding the account, including dividends and
distributions paid and date and price for all transactions; (c) any stop or
restraining order placed against the account; (d) information with respect to
withholdings; (e) any dividend or distribution reinvestment order, dividend or
distribution address and correspondence relating to the current maintenance of
the account; and (f) any information required in order for Xxxxxxx Sachs to
perform the calculations and make the determinations contemplated or required by
this Agreement. Xxxxxxx Xxxxx shall maintain all records relating to its
activities and obligations under this Agreement in such manner as will enable
the Trust and Xxxxxxx Sachs to meet their respective obligations under: (i) the
Trust's Prospectus; (ii) the required recordkeeping and reporting provisions of
the 1934 Act, particularly Section 17A thereof, and of the 1940 Act,
particularly Sections 30 and 31 thereof, and state securities or Blue Sky laws,
and the rules and regulations thereunder; and (iii) applicable Federal and State
tax laws and regulations thereunder. All records maintained by Xxxxxxx Xxxxx in
connection with the performance of
its duties under this Agreement will remain the property of the Trust, shall be
returned to the Trust promptly upon request and, in the event of termination of
this Agreement, will be promptly returned to or delivered as directed by the
Trust. Such records may be inspected by the Trust at reasonable times. In the
event such records are returned to or delivered as directed by the Trust,
Xxxxxxx Sachs may at its option retain copies of such records.
4.02. Xxxxxxx Xxxxx shall furnish to the Trust: (a) information as to
the Shares distributed or to be distributed in each State for "Blue Sky"
purposes at such times and in such degree of detail as is necessary for the
Trust to verify the satisfaction of or to satisfy its obligations to register
such Shares under applicable "Blue Sky" laws, and copies of Shareholder lists
and such other information and statistical data as may reasonably be requested
in Instructions.
4.03. Xxxxxxx Sachs shall prepare and file with the Internal Revenue
Service and with the appropriate State agencies, and, if required, mail to
Shareholders such returns for reporting (i) dividends and distributions paid,
credited or withheld as are required by the Trust's Prospectus or applicable law
or regulation to be so filed and mailed and (ii) expenses incurred by the Trust
as are required by applicable Federal law.
4.04. Xxxxxxx Xxxxx shall prepare and mail an individual monthly
statement for each Shareholder showing all activity in such Shareholder's
account for the month. Upon request from a Shareholder, Xxxxxxx Sachs shall
prepare and mail a year-to-date statement showing all activity in such
Shareholder's account on a year-to-date basis.
4.05. Xxxxxxx Xxxxx shall mail such Shareholder reports and such
proxy material, proxy cards and other material supplied to it by the Trust in
connection with Shareholder meetings of the Trust and shall receive, examine and
tabulate returned proxies and certify the vote to the Trust, all as and to the
extent requested by the Trust.
4.06. Xxxxxxx Sachs shall cooperate with the Trust and the Trust's
independent public accountants in connection with: (a) the preparation of
reports to Shareholders, to the Securities and Exchange Commission (including
all required periodic and other reports), to State securities commissioners, and
to others, annual and other audits of the books and records of the Trust, and
(c) other matters of a like nature.
4.07. Xxxxxxx Xxxxx shall maintain adequate procedures and systems to
safeguard from loss or damage attributable to fire, theft, misuse or any other
cause the Trust's records and other data and Xxxxxxx Sachs' records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder.
4.08. Xxxxxxx Xxxxx shall comply with the provisions of Investment
Company Act Release No. 6863 dated December 8, 1971 entitled AGuidelines
Relating to Checking Accounts Established Pursuant to Section 17(f) of The
Investment Company Act of 1940, as Amended, by Investment Companies Having Bank
Custodians@ (the ARelease@) with regard to the establishment and maintenance of
any checking account for the Fund. Xxxxxxx Sachs shall establish and maintain
procedures reasonably designed to assure the safekeeping of checks delivered to
Xxxxxxx Xxxxx for signature by employees of Xxxxxxx Sachs and the security and
integrity of the signing of such checks. Xxxxxxx Xxxxx= employees are not
permitted to sign any such checks which are made payable to ACash@ or to the
order of the Fund or to
any named xxxxx cashier of the Fund or which are not made payable to the order
of designated payee.
4.09. Xxxxxxx Xxxxx shall maintain expedited redemption and dividend
instructions from Shareholders in the form of such records as are necessary to
honor telephone, telegraph or other redemption requests from Shareholders
without signature guarantee and to effect the payment of dividends and
distributions in accordance with the provisions of the Trust's Prospectus.
Xxxxxxx Sachs shall apply such instructions as necessary to effect dividends,
distributions, redemptions and other transactions in accordance with the
provisions of the Trust's Prospectus. Xxxxxxx Xxxxx shall establish and
maintain procedures reasonably designed to assure the accuracy, safekeeping and
proper application of records of expedited redemption and dividend instructions.
4.10. Xxxxxxx Sachs, in the performance of its duties hereunder:
(a) shall use the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims;
shall act in conformity with the Trust's Declaration of Trust dated
September 16, 1997 (such Declaration of Trust, as presently in effect and as
amended from time to time, is herein called the "Trust Agreement"), the Trust's
By-Laws (such By-laws, as presently in effect and as amended from time to time,
are herein called the "By-laws"), the Trust's Prospectus and any Instruction,
and will, subject to the standard set forth in paragraph 4.10(a) above, comply
with and conform to the requirements of the 1940 Act, the 1934 Act, particularly
Section 17A thereof, and all other applicable federal and state laws,
regulations and rulings; and
(c) shall not be liable for any damages, including those resulting
from its failure to perform its obligations under the terms of this Agreement,
provided such damages or failure are due to an act of God, equipment or
transmission failure, strike or other cause reasonably beyond its control.
5. INSTRUCTIONS
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5.01. Xxxxxxx Xxxxx shall be deemed to have received Instructions (as
that term is used herein) upon receipt of written instructions (including
receipt by telecopier, telegram, cable or Telex), which may be continuing
instructions, signed by a majority of the Board of Trustees of the Trust or by a
person that the Trustees shall have from time to time authorized to give the
particular class of Instructions in question. Different persons may be
authorized to give Instructions for different purposes, and Instructions may be
general or specific in terms. A certified copy of a By-law, resolution or
action of the Board of Trustees of the Trust may be received and accepted by
Xxxxxxx Sachs as conclusive evidence of the authority of any such persons to act
and may be considered to be in full force and effect until receipt by Xxxxxxx
Xxxxx of written notice to the contrary.
5.02. The Trust may also authorize one or more designated persons to
issue oral (such term as used herein including, without limitation, telephoned)
instructions, specifying the type or types of instructions that may be so
issued, in which case the Trust shall deliver to Xxxxxxx Sachs resolutions of
the Board of Trustees to such effect. One or more of the persons designated by
the Board of Trustees to give oral instructions shall promptly confirm such oral
instructions in writing to Xxxxxxx Xxxxx. Such instructions when given in
accordance with the provisions hereof and with such resolutions shall be
deemed Instructions hereunder. In case of conflict between oral Instructions
given by a person designated in the resolution of the Board of Trustees referred
to in the first sentence of this paragraph 5.02 and any written Instructions
given by a person designated in the resolution of the Board of Trustees referred
to in the first sentence of this paragraph 5.01 and any written Instructions,
the Instructions most recently received by Xxxxxxx Sachs shall prevail, and in
case of conflict between oral Instructions given by a person designated in such
resolution and any written confirmation or purported confirmation of oral
Instructions, such written confirmation shall prevail; provided that any
transaction initiated by Xxxxxxx Xxxxx pursuant to such oral Instructions may,
but need not, be completed by Xxxxxxx Sachs notwithstanding Xxxxxxx Xxxxx'
receipt of conflicting written Instructions hereunder or written confirmation or
purported confirmation of oral Instructions hereunder subsequent to Xxxxxxx
Sachs' initiation of such transaction.
5.03. At any time Xxxxxxx Xxxxx may apply to any Trustee or officer
of the Trust or any person authorized to give instructions, and may consult with
legal counsel to the Trust with respect to any matter arising in connection with
the services to be performed by Xxxxxxx Sachs under this Agreement, and Xxxxxxx
Xxxxx and its agents or subcontractors shall not be liable and shall be
indemnified by the Trust for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such counsel.
6. COMPENSATION
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6.01. For the services provided and the expenses assumed by Xxxxxxx
Sachs pursuant to this Agreement, the Trust will pay to Xxxxxxx Xxxxx as full
compensation therefor the compensation set forth in the schedule of even date
herewith delivered by Xxxxxxx Sachs to the Trust until a different compensation
schedule shall be agreed upon in writing between the parties which schedule
shall be preceded by approval of a majority of the Trustees, including the
Trustees who are not interested persons of the Trust or Xxxxxxx Xxxxx.
6.02. Xxxxxxx Sachs shall be responsible for the cost of any and all
forms (excluding the cost of developing the format of such forms) prepared for
use in connection with its actions hereunder, as well as the cost of postage,
telephone and telegraph used in communicating with Shareholders of the Trust to
the extent such communications are required under the terms of this Agreement.
Xxxxxxx Xxxxx shall be entitled to all property rights to the format of all
forms it has prepared for use in connection with its actions hereunder. Xxxxxxx
Sachs hereby grants the Trust a perpetual, nonexclusive, royalty-free,
assignable license to use forms of identical or similar format to such forms.
Xxxxxxx Xxxxx shall be responsible for all microfiche, microfilm and other
mediums for the permanent storage of the Trust's records consumed by Xxxxxxx
Sachs in the performance of its obligations hereunder. Except as provided in
this paragraph 6.02, Xxxxxxx Xxxxx will pay all expenses incurred by it in
connection with the performance of its duties under this Agreement.
7. INDEMNIFICATION
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7.01. The Trust hereby agrees to indemnify and hold harmless Xxxxxxx
Sachs, its officers, partners and employees and each person, if any, who
controls Xxxxxxx Xxxxx (collectively, the "Indemnified Parties") against any and
all losses, claims, damages or liabilities, joint or several, to which any such
Indemnified Party may become subject under the 1934 Act, the 1940 Act or other
Federal or State statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon Xxxxxxx Sachs' actions
hereunder. The Trust will reimburse each Indemnified Party for any legal or
other expenses incurred by such Indemnified Party in connection with
investigating or defending any such loss, claim, damages, liability or action.
7.02. It is understood, however, that nothing in this Section 7
shall protect any Indemnified Party, or entitle any Indemnified Party to
indemnification against any liability to the Trust or its shareholders to which
such party would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence, in the performance of his duties, or by reason of
his reckless disregard of his obligations and duties under this Agreement.
8. TERM OF AGREEMENT
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8.01. This Agreement shall continue in full force and effect until
terminated as hereinafter provided, may be amended at any time by mutual
agreement of the parties hereto, which agreement shall be preceded by approval
of the Trustees, including the Trustees who are not interested persons of the
Trust or Xxxxxxx Xxxxx, and may be terminated (except as to the second and third
sentences of paragraph 6.02 and as to paragraphs 7.01 and 7.02) by either party
by an instrument in writing delivered or mailed, postage prepaid, to the other
party, such termination to take effect no sooner than 120 days after the date of
such delivery or mailing.
8.02. Xxxxxxx Sachs and the Trust may agree from time to time, by
written instrument signed by both parties, on such provisions interpretative of
or in addition to the provisions of this Agreement as may in their joint opinion
be consistent with the general tenor of this Agreement. No interpretative or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
9. MISCELLANEOUS
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9.01. Without limiting the other provisions hereof, notice and other
writings delivered or mailed postage prepaid to the Trust in care of Xxxxxxx
Xxxxx Variable Insurance Trust, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx Xxxxxxx, or to Xxxxxxx Xxxxx at 0000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx or to such other address as the Trust
or Xxxxxxx Xxxxx may hereafter specify by written notice to be the most recent
address specified by the party to whom such notice is addressed, shall be deemed
to have been properly delivered or given hereunder to the respective addressee.
9.02. This Agreement shall be binding on and shall inure to the
benefit of the Trust and Xxxxxxx Sachs and their respective successors, shall be
construed according to the laws of Illinois (except as to paragraph 9.03 hereof
which shall be construed in accordance with the laws of Delaware) and may be
executed in two or more counterparts, each of which shall be deemed an original.
This Agreement may not be assigned by Xxxxxxx Xxxxx nor may Xxxxxxx Sachs'
duties hereunder be performed by any other person without the prior written
consent of the Trust authorized and approved by a resolution of the Board of
Trustees. The term "assigned" shall be construed consistently with the term
"assignment" as defined in Section 2(a)(4) of the 1940 Act and Rule 2a-6
thereunder as if such Rule applied to transfer and dividend disbursing agents.
The headings in this Agreement have been inserted for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. Any provision in this Agreement
requiring compliance with any statute or regulation shall mean such statute or
regulation as amended and in effect from time to time.
9.03. This Agreement is executed by or on behalf of the Trust and the
obligations hereunder are not binding upon any of the Trustees, officers or
Shareholders of the Trust individually but are binding only upon the Trust and
its assets and property. The Trust's Trust Agreement is on file with the
Secretary of the State of Delaware.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
Attest:/s/ Xxxxxxx Xxxxxxx By:/s/ Xxxxxxx X. Grip
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Xxxxxxx Xxxxxxx Xxxxxxx X. Grip
Secretary President of the Trust
XXXXXXX, SACHS & CO.
Attest:/s/ Xxxxxxx Xxxxxxx By:/s/ Xxxxx X. Xxxx
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Xxxxxxx Xxxxxxx Xxxxx X. Xxxx
Counsel to the Funds Group Managing Director
