Exhibit (h)(17)
FORM OF TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
PHOENIX INSIGHT FUNDS TRUST
AND
PHOENIX EQUITY PLANNING CORPORATION
TABLE OF CONTENTS
PAGE
Article 1. Terms of Appointment; Duties of Transfer Agent...............3
Article 2. Fees and Expenses............................................5
Article 3. Representations and Warranties of Transfer Agent.............5
Article 4. Representations and Warranties of the Trust..................6
Article 5. Data Access and Proprietary Information......................6
Article 6. Indemnification..............................................7
Article 7. Standard of Care.............................................9
Article 8. Covenants....................................................9
Article 9. Termination.................................................10
Article 10. Assignment..................................................10
Article 11. Amendment...................................................10
Article 12. Connecticut Law to Apply....................................10
Article 13. Force Majeure...............................................11
Article 14. Consequential Damages.......................................11
Article 15. Merger of Agreement.........................................11
Article 16. Limitations of Liability of the Trustees and Shareholders...11
Article 17. Counterparts................................................11
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the _____ day of _______________, by and between
Phoenix Insight Funds Trust (the "Trust") and PHOENIX EQUITY PLANNING
CORPORATION (hereinafter referred to as the "Transfer Agent").
W I T N E S S E T H:
WHEREAS, the Trust desires to appoint Transfer Agent as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities, and Transfer Agent desires to accept such appointment; and
WHEREAS, the parties wish to set forth herein their mutual
understandings and agreements.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency whereof being hereby acknowledged and affirmed, the parties hereto
agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT; DUTIES OF TRANSFER AGENT
1.01 Subject to the terms and conditions set forth in this Agreement,
the Trust hereby employs and appoints Transfer Agent to act as, and Transfer
Agent agrees to act as, transfer agent for the authorized and issued shares of
beneficial interest of each of the series of the Trust (hereinafter collectively
and singularly referred to as "Shares"), dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans provided to the
shareholders of the Trust ("Shareholders") and as set out in the currently
effective registration statement of the Trust (the prospectus and statement of
additional information portions of such registration statement being referred to
as the "Prospectus"), including, without limitation, any periodic investment
plan or periodic withdrawal program.
1.02 Transfer Agent agrees that it will perform the following services
pursuant to this Agreement:
(a) In accordance with procedures established from time to time by
agreement between the Trust and Transfer Agent, Transfer Agent shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian appointed
from time to time by the Trustees of the Trust (which
entity or entities, as the case may be, shall be
referred to as the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the each
appropriate Shareholder account;
(iii) Receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Transfer Agent shall execute
transactions directly with broker-dealers authorized
by the Trust who shall thereby be deemed to be acting
on behalf of the Trust;
(v) At the appropriate time as and when it receives
monies paid to it by any Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by
the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Trust, if any;
(viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Transfer Agent of indemnification
satisfactory to the Transfer Agent and the Trust, and
the Transfer Agent at its option, may issue
replacement certificates in place of mutilated stock
certificates upon presentation thereof and without
such indemnity;
(ix) Maintain records of account for and advise the Trust
and its respective Shareholders as to the foregoing;
and
(x) Record the issuance of Shares and maintain pursuant
to Rule 17Ad-10(e) under the Exchange Act of 1934, a
record of the total number of Shares which are
authorized, issued and outstanding based upon data
provided to it by the Trust. The Transfer Agent shall
also provide on a regular basis to the Trust the
total number of Shares which are authorized, issued
and outstanding 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 Trust.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a), Transfer Agent shall: (i) perform all of the customary
services of a transfer agent, 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, maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, receiving and tabulating proxies,
mailing Shareholder reports and Prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts, preparing
and filing U.S. Treasury Department Forms 1099 and other appropriate forms
required with respect to dividends and distributions by federal authorities for
all Shareholders, preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing
Shareholder account information; and (ii) provide a system which will enable the
Trust to monitor the total number of Shares sold in each State.
(c) In addition, the Trust shall (i) identify to Transfer Agent in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State, and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of Transfer Agent for the Trust's
blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Trust and
the reporting of such transactions to the Trust as provided above.
(d) Procedures as to who shall provide certain of the services in
Article 1 may be established from time to time by agreement between the Trust
and Transfer Agent per the attached service responsibility schedule, if any. The
Transfer Agent may at times perform only a portion of these services and the
Trust or its agent may perform these services on behalf of the Trust.
(e) The Transfer Agent shall provide additional services on behalf of
the Trust (i.e., escheatment services) which may be agreed upon in writing
between the Trust and the Transfer Agent.
ARTICLE 2. FEES AND EXPENSES
2.01 In consideration of the services provided by the Transfer Agent
pursuant to this Agreement, the Trust agrees to pay Transfer Agent an annual
maintenance fee, payable at least quarterly, for each Shareholder account as set
forth in Schedule A attached hereto and made a part hereof. Annual Maintenance
Fees and out-of-pocket expenses and advances identified under Section 2.02 below
may be changed from time to time subject to mutual written agreement between the
Trust and Transfer Agent. Nothing herein shall preclude the assignment of all or
any portion of the foregoing fees and expense reimbursements to any sub-agent
contracted by Transfer Agent.
2.02 In addition to the fee paid under Section 2.01 above, the Trust
agrees to reimburse Transfer Agent for out-of-pocket expenses or advances
incurred by Transfer Agent for the items set out in Schedule A attached hereto.
In addition, any other expenses incurred by Transfer Agent at the request or
with the consent of the Trust, will be reimbursed by the Trust.
2.03 The Trust agrees to pay all fees and reimbursable expenses within
five days following the mailing of the respective billing notice. The above fees
will be charged against the Trust's custodian checking account five (5) days
after the invoice is transmitted to the Trust. Postage for mailing of dividends,
proxies, Trust reports and other mailings to all Shareholder accounts shall be
advanced to Transfer Agent at least seven (7) days prior to the mailing date of
such materials.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT
The Transfer Agent represents and warrants to the Trust that:
3.01 It is a corporation organized and existing and in good standing
under the laws of the State of Connecticut.
3.02 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.03 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
3.05 It is and shall continue to be a duly registered transfer agent
pursuant to Section 17A(c)(2) of the Securities Exchange Act of 1934.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to Transfer Agent that:
4.01 All corporate or trust proceedings, as the case may be, required
to enter into and perform this Agreement have been undertaken and are in full
force and effect.
4.02 The Trust is an open-end, diversified management investment
companies registered under the Investment Company Act of 1940.
4.03 A registration statement under the Securities Act of 1933 is
currently effective for the Trust and such registration statement will remain
effective, and appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares being offered for sale.
ARTICLE 5. DATA ACCESS AND PROPRIETARY INFORMATION
5.01 The Trust acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals furnished to the Trust by the Transfer Agent as part of the Trust's
ability to access certain Trust-related data ("Customer Data") maintained by the
Transfer Agent on data bases under the control and ownership of the Transfer
Agent or other third party ("Data Access Services") constitute copyrighted,
trade secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third party.
In no event shall Proprietary Information be deemed Customer Data. The Trust
agrees to treat all Proprietary Information as proprietary to the Transfer Agent
and further agree that it shall not divulge any Proprietary Information to any
person or organization except as may be provided hereunder. Without limiting the
foregoing, the Trust agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be designated
in writing by the Transfer Agent and solely in accordance with the Transfer
Agent'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 Transfer Agent's instructions;
(d) to refrain from causing or allowing third-party data acquired
hereunder from being retransmitted to any other computer facility or other
location, except with the prior written consent of the Transfer Agent;
(e) that the Trust shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by the Transfer Agent
to protect at the Transfer Agent's expense the rights of the Transfer Agent 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 Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Trust notifies the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall endeavor
in a timely manner to correct such failure. Organizations from which the
Transfer Agent may obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Trust agrees to make no
claim against the Transfer Agent 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 TRANSFER AGENT
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.
5.03 If the transactions available to the Trust include the ability to
originate electronic instructions to the Transfer Agent 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 Transfer Agent 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 Transfer Agent from time to time.
ARTICLE 6. INDEMNIFICATION
6.01 The Transfer Agent shall not be responsible for, and the Trust
shall indemnify and hold Transfer Agent 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 Transfer Agent or its agent 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 lack of good faith, negligence or willful misconduct by the
Trust which arise out of the breach of any representation or warranty of the
Trust hereunder.
(c) The reliance on or use by the Transfer Agent or its agents or
subcontractors of information, records and documents which (i) are received by
Transfer Agent or its agents or subcontractors, and (ii) have been prepared,
maintained or performed by the Trust or any other person or firm on behalf of
the Trust including but not limited to any previous transfer agent or registrar.
(d) The reliance on, or the carrying out by Transfer Agent or its
agents or subcontractors of any instructions or requests of the Trust.
(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.
6.02 Transfer Agent shall indemnify and hold the Trust harmless from
and against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by Transfer Agent, or any sub-agent, as a result of Transfer
Agent's, or such sub-agent's, lack of good faith, negligence or willful
misconduct.
6.03 At any time the Transfer Agent may apply to any officer of the
Trust for instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by Transfer Agent
under this Agreement, and Transfer Agent 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. The Transfer Agent, its agents and subcontractors shall be protected
and indemnified in acting upon any paper or document furnished by or on behalf
of the Trust, 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 Transfer Agent or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means authorized by the
Trust, and shall not be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Trust. Transfer Agent,
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 Trust, and the proper
countersignature of any former transfer agent or registrar, or of a co-transfer
agent or co-registrar.
6.04 In order that the indemnification provisions contained in this
Article 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 other party 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 indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim.
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.
6.05 Transfer Agent hereby expressly acknowledges that recourse against
the Trust, if any, shall be subject to those limitations provided by governing
law and the Declaration of Trust of the Trust, as applicable, and agrees that
obligations assumed by the Trust hereunder shall be limited in all cases to the
Trust and their respective assets. Transfer Agent shall not seek satisfaction of
any such obligation from the shareholders or any shareholder of the Trust, nor
shall the Transfer Agent seek satisfaction of any obligations from the
Trustees/Directors or any individual Trustee/Director of the Trust.
ARTICLE 7. STANDARD OF CARE
7.01 The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith, or willful misconduct of that of its employees.
ARTICLE 8. COVENANTS
8.01 The Trust shall promptly furnish to Transfer Agent the following:
(a) A certified copy of the resolution of its Trustees authorizing the
appointment of Transfer Agent and the execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws, and all amendments
thereto, of the Trust.
8.02 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Trust 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.
8.03 The Transfer 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, Transfer Agent agrees that all such records prepared
or maintained by Transfer Agent relating to the services to be performed by
Transfer 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 promptly to the Trust on and in accordance with its request.
8.04 The parties 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.
8.05 In case of any requests or demands for the inspection of the
Shareholder records, Transfer Agent will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. Transfer Agent 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.
ARTICLE 9. TERMINATION
9.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other. The parties mutually acknowledge
that the termination of this Agreement by one series of the Trust shall not
effect a termination of this Agreement as to any and all other series of the
Trust which have not terminated the Agreement.
9.02 Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Trust. Additionally, Transfer Agent reserves the right to charge
any other reasonable expenses associated with such termination and/or a charge
equivalent to the average of three (3) months' fees to the Trust.
ARTICLE 10. ASSIGNMENT
10.01 Except as provided in Section 10.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
10.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
10.03 The Transfer Agent may, without further consent on the part of
the Trust, subcontract for the performance hereof with one or more sub-agents;
provided, however, that Transfer Agent shall be as fully responsible to the
Trust for the acts and omissions of any subcontractor as it is for its own acts
and omissions.
ARTICLE 11. AMENDMENT
11.01 This Agreement may be amended or modified by a written agreement
executed by the parties and authorized or approved by a resolution of the
Trustees of the Trust.
ARTICLE 12. CONNECTICUT LAW TO APPLY
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Connecticut.
ARTICLE 13. FORCE MAJEURE
13.01 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.
ARTICLE 14. CONSEQUENTIAL DAMAGES
14.01 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
ARTICLE 15. MERGER OF AGREEMENT
15.01 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.
15.02 This Agreement shall not be merged with or construed in
conjunction with any other current or future agreement between the Trust and
Phoenix Equity Planning Corporation, each and all of which agreements shall at
all times remain separate and distinct.
ARTICLE 16. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
16.01 The Trust is a Massachusetts business trust, and notice is hereby
given that the Agreement and Declaration of the Trust is on file with the
Secretary of the Commonwealth of Massachusetts and was executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or Shareholders
individually but are binding only upon the assets and property of the Trust and
the respective series thereof.
ARTICLE 17. COUNTERPARTS
17.01 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
PHOENIX INSIGHT FUNDS TRUST
By:
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Name:
Title:
ATTEST:
By:
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Name:
Title:
PHOENIX EQUITY PLANNING CORPORATION
By:
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Name:
Title:
ATTEST:
By:
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Name:
Title:
SCHEDULE A
FEE SCHEDULE
Annual Maintenance Fees shall be based on the following formula:
AMFFund = BAMF x XXX
where, AMF Fund refers to the aggregate Annual Maintenance Fee levied
against each respective series of the Trust,
BAMF refers to the Base Annual Maintenance Fee levied against the Trust
for each shareholder account maintained by the Transfer Agent, as more
particularly described below, at the basic annual per account rate of 1.25bps
(.000125), and
XXX refers to the average aggregate daily net assets of the Trust
subject to the terms of this Agreement and any and all sub-transfer agent
agreements which presently or hereafter may be entered into by the Transfer
Agent. For the purpose of computing the foregoing, a minimum annual charge of
$27,440 shall apply to each class of shares of each Series of the Trust.
Other Fees
Omnibus Accounts, Per Transaction $2.50
Closed Accounts(1), per Account, per month $0.20
Check writing Fees:
Privilege set-up $5.00
Per Cleared Check $1.00
Out-of-Pocket Expenses
Out-of-pocket expenses include, but are not limited to: confirmation
production, postage, forms, telephone, microfilm, microfiche, stationary and
supplies billed as .1122% of postage costs per piece of mail and expenses
incurred at the specific direction of the Trust. Postage for mass mailings is
due seven days in advance of the mailing date.
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(1) A closed account remains on the system for approximately 18 months.
