TRANSFER AGENCY AGREEMENT
Agreement made as of the 28th day of December, 1994, between Xxxxxx Xxxxxxxx
Investment Trust, (the "Trust") a Delaware business trust, having its principal
office and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
Supervised Service Company Inc., ("SSC") a Delaware corporation having its
principal office and place of business at 000 Xxxxx XxXxxxx, Xxxxxxx It 60603
(hereinafter referred to as the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. Approved Institution" shall mean an entity so named in a
Certificate. From time to time the Trust may amend a previously delivered
Certificate by delivering to the Transfer Agent a Certificate naming an
additional entity or deleting any entity named in a previously delivered
Certificate.
2. The "Board of Trustees" shall mean the Board of Trustees of the
Trust.
3. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Transfer Agent by the Trust which is signed by any Officer, as hereinafter
defined, and actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Trust, or its successor(s).
5. "Trust Business Day" shall be deemed to be each day on which the
New York Stock Exchange, Inc. is open for trading.
6. "Officer" shall be deemed to be the Trust's President, any Vice
President of the Trust, the Trust's Secretary, the Trust's Treasurer, the
Trust's Controller, any Assistant Controller of the Trust, any Assistant
Treasurer of the Trust and any Assistant Secretary of the Trust, and any other
person duly authorized by the Board of Trustees to execute any Certificate,
instruction, notice or other instrument on behalf of the Trust and named in the
Certificate annexed hereto as Appendix A, as such Certificate may be amended
from time to time, and any person reasonably believed by the Transfer Agent to
be such a person.
7. "Out-of-Pocket Expenses" means amounts reasonably necessary and
actually incurred by Transfer Agent in the provision
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of Transfer Agent services or pursuant to this Agreement for the following
purposes: postage (and first class mail insurance in connection with mailing
share certificates), envelopes, check forms, continuous forms, forms for reports
and statements, stationery, and other similar items, telephone and telegraph
charges incurred in answering inquiries from dealers or shareholders, microfilm
used to record transactions in shareholder accounts and computer tapes used for
permanent storage of records and cost of insertion of materials in mailing
envelopes by outside firms. Transfer Agent may, at its option, arrange to have
various service providers submit invoices directly to the Trust for payment of
out-of-pocket expenses reimbursable hereunder; and such other expenses paid or
incurred by Transfer Agent at the request of the Trust. Any charges associated
with special or exception processing shall also be considered Out-of-Pocket
Expenses.
8. "Prospectus" shall mean the most recent Trust prospectus actually
received by the Transfer Agent from the Trust with respect to which the Trust
has indicated a registration statement under the federal Securities Act of 1933
has becomes effective, including the Statement of Additional Information,
incorporated by reference therein.
9. "Shares" shall mean all or any part of each class of the shares of
beneficial interest of the Trust or any series thereof listed in the Certificate
as to which the Transfer Agent acts as
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transfer agent hereunder, as may be amended from time to time, which are
authorized and/or issued by the Trust.
10. "Transfer Agent" shall mean Supervised Service Company, Inc.,
("SSC"), as transfer agent and dividend disbursing agent under the terms and
conditions of this Agreement, its successor(s) or assign(s).
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Trust hereby constitutes and appoints the Transfer Agent as
transfer agent of the Trust and as dividend disbursing agent during the period
of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as hereinafter
set forth.
3. In connection with such appointment, the Trust upon the request of
the Transfer Agent, shall deliver the following documents to the Transfer Agent:
(i) A copy of the Agreement and Declaration of Trust of the Trust
and all amendments thereto (the "Declaration") certified by the Secretary of the
Trust;
(ii) A copy of the By-Laws of the Trust certified by the Secretary
of the Trust;
(iii) A copy of a resolution of the Board of Trustees of the Trust
certified by the Secretary of the Trust appointing the
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Transfer Agent and authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Trust
specifying: the number of authorized Shares or, if applicable, the fact that the
number of authorized Shares is unlimited, the number of such authorized Shares
issued, the number of such authorized Shares issued and currently outstanding;
the names and specimen signatures of the Officers of the Trust; and the name and
address of the legal counsel for the Trust;
(v) Specimen Share certificates, if any, for each series or class
of Shares in the form approved by the Board of Trustees of the Trust (and in a
format compatible with the Transfer Agent's system), together with a Certificate
signed by the Secretary of the Trust as to such approval;
(vi) Copies of the Trust's Registration Statement, as amended to
date, and the most recently filed Post-Effective Amendment thereto, filed by
the Trust with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and under the Investment Company Act of 1940, as amended,
together with any applications filed in connection therewith; and
(vii) Opinion of counsel for the Trust with respect to the
validity of the authorized and outstanding Shares, whether such Shares are fully
paid and non-assessable and the status of such Shares under the Securities Act
of 1933, as amended, and any other applicable federal law or regulation (i.e.,
if subject to
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registration, that they have been registered and that the Registration Statement
has become effective or, if exempt, the specific grounds therefor.)
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. Unless the Trust has authorized an unlimited number of Shares, the
Trust shall deliver to the Transfer Agent the following documents on or before
the effective date of any increase or decrease in the total number of Shares
authorized to be issued:
(a) A certified copy of any amendment to the Declaration giving
effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for the Trust
with respect to the validity of the Shares of the Trust and the status of such
Shares under the Securities Act of 1933, as amended, and any other applicable
federal law or regulation (i.e., if subject to registration, that they have been
registered and that the Registration Statement has become effective or, if
exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the Transfer
Agent was theretofore expressly limited, a certified copy of a resolution of the
Board of Trustees of the Trust increasing the authority of the Transfer Agent.
2. Unless the Trust has authorized an unlimited number of Shares,
prior to the issuance of any additional Shares of the
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Trust pursuant to share dividends or share splits, etc., and prior to any
reduction in the number of shares outstanding, the Trust shall deliver the
following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the Board
of Trustees and/or the shareholders of the Trust authorizing such issuance of
additional Shares of the Trust or such reduction, as the case may be, and
(b) An opinion of counsel for the Trust with respect to the
validity of the Shares of the Trust and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable federal law or
regulation (i.e., if subject to registration, that they have been registered
and that the Registration Statement has become effective, or, if exempt, the
specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative share split, recapitalization or other
capital adjustment requiring a change in the form of any Share certificates of
the Trust, the Transfer Agent will issue Share certificates in the new form in
exchange for, or upon transfer of, outstanding Share certificates in the old
form, upon receiving:
(a) A Certificate authorizing the issuance of the Share
certificates in the new form;
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(b) A certified copy of any amendment to the Declaration with
respect to the change;
(c) Specimen Share certificates for each class of Shares in the
new form approved by the Board of Trustees of the Trust, with a Certificate
signed by the Secretary of the Trust as to such approval; and
(d) An opinion of counsel for the Trust with respect to the
validity of the Shares in the new form and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable federal law or
regulation (i.e., if subject to registration, that the Shares have been
registered and that the Registration Statement has become effective or, if
exempt, the specific grounds therefor.)
2. The Trust at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time to
time will replenish such supply upon the request of the Transfer Agent. Such
blank Share certificates shall be compatible with the Transfer Agent's system
and shall be properly signed by facsimile or otherwise by Officers of the Trust
authorized by law or by the By-Laws to sign Share certificates and, if required
shall bear the corporate Seal or facsimile thereof. The Trust agrees to
indemnify and exonerate, save and hold the Transfer Agent harmless, from and
against any and all claims or demands that may be asserted against the Transfer
Agent
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with respect to the genuineness of any Share certificate supplied to the
Transfer Agent pursuant to this section.
ARTICLE V
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of
the Trust's prospectus and statement of additional information, which prospectus
and statement of additional information describe how sales and redemption of
Shares of the Trust shall be made, and the Transfer Agent agrees to accept
purchase orders and redemption requests with respect to Shares of the Trust on
each Trust Business Day in accordance with such prospectus and statement of
additional information. The Trust agrees to provide the Transfer Agent with
sufficient advance notice to enable the Transfer Agent to effect any changes in
the procedures set forth in the prospectus and statement of additional
information regarding such purchase and redemption procedure; provided, however,
that in no event will such advance notice be less than 30 days.
(b) The Transfer Agent shall also accept with respect to each
Trust Business Day, at such times as are agreed upon from time to time by the
Transfer Agent and the Trust, a computer tape or electronic data transmission
consistent in all respects with the Transfer Agent's tape layout package, as
amended from time to time, which is believed by the Transfer Agent to be
furnished by
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or on behalf of any Approved Institution. The Transfer Agent shall not be liable
for any losses or damages to the Trust or its shareholders in the event that a
computer tape or electronic data transmission from an Approved Institution is
unable to be processed for any reason beyond the control of the Transfer Agent,
or if any of the information on such tape or transmission is found to be
incorrect.
2. On each Trust Business Day the Transfer Agent shall, as of the time
at which the Trust computes the net asset value of each series of the Trust,
issue to and redeem from the accounts specified in a purchase order, redemption
request, or computer tape or electronic data transmission, which in accordance
with the Prospectus is effective on such Trust Business Day, the appropriate
number of full and fractional Shares based on the net asset value per Share of
each series of the Trust specified in an advice received on such Trust Business
Day from the Trust. The Transfer Agent shall be responsible for verifying that
the amounts provided to the Transfer Agent by or on behalf of the Trust are
consistent with the number of shares issued or redeemed, based upon the
applicable per share net asset value. Notwithstanding the foregoing, if a
redemption specified in a computer tape or electronic data transmission is for a
dollar value of Shares in excess of the dollar value of uncertificated Shares in
the specified account, the Transfer Agent shall not effect such redemption in
whole or in part and shall within twenty-four hours
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orally advise the Approved Institution which supplied such tape of the
discrepancy.
3. In connection with a reinvestment of a dividend or distribution of
Shares of a series of the Trust, the Transfer Agent shall as of each Trust
Business Day, as specified in a Certificate or resolution described in paragraph
1 of succeeding Article VI, issue Shares of such series based on the net asset
value per Share of such series specified in an advice received from the Trust on
such Trust Business Day.
4. On each Trust Business Day the Transfer Agent shall supply the
Trust with a statement specifying with respect to the immediately preceding
Trust Business Day: the total number of Shares of each series of the Trust
(including fractional Shares) issued and outstanding at the opening of business
on such day; the total number of Shares of each series of the Trust sold on
such day, pursuant to preceding paragraph 2 of this Article; the total number
of Shares of each series of the Trust redeemed from Shareholders by the Transfer
Agent on such day; the total number of Shares of each series of the Trust, if
any, sold on such day pursuant to preceding section 3 of this Article, and the
total number of Shares of each series of the Trust issued and outstanding.
5. In connection with each purchase and each redemption of Shares, the
Transfer Agent shall send such statements as are prescribed by the federal
Securities laws applicable to transfer
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agents or as described in the Prospectus. If the Prospectus indicates that
certificates for Shares are available and if specifically requested in writing
by any shareholder, or if otherwise required hereunder, the Transfer Agent will
countersign, issue and mail to such shareholder at the address set forth in the
records of the Transfer Agent a Share certificate for any full Share requested.
6. As of each Trust Business Day the Transfer Agent shall furnish the
Trust with an advice setting forth the number and dollar amount of Shares of
each series of the Trust to be redeemed on such Trust Business Day in accordance
with paragraph 2 of this Article.
7. Upon receipt of a proper redemption request and moneys paid to it
by the Custodian in connection with a redemption of Shares, the Transfer Agent
shall cancel the redeemed Shares and after making appropriate deduction for any
withholding of taxes required of it by applicable law (a) in the case of a
redemption of Shares pursuant to a redemption described in preceding paragraph
1(a) of this Article, make payment in accordance with the Trust's redemption and
payment procedures described in the Prospectus, and (b) in the case of a
redemption of Shares pursuant to a computer tape or electronic data transmission
described in preceding paragraph 1(b) of this Article, make payment by directing
a federal funds wire order to the account previously
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designated by the Approved Institution specified in said computer tape or
electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares after
it has received from an Officer of the Trust or from an appropriate federal or
state authority written notification that the sale of Shares has been suspended
or discontinued, and the Transfer Agent shall be entitled to rely upon such
written notification.
9. Upon the issuance of any Shares in accordance with this Agreement,
the Transfer Agent shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Trust in connection with such
issuance of any Shares.
10. The Transfer Agent shall accept a computer tape or electronic data
transmission consistent with the Transfer Agent's tape layout package, as
amended from time to time, which is reasonably believed by the Transfer Agent to
be furnished by or on behalf of any Approved Institution and is represented to
be instructions with respect to the transfer of Shares from one account of such
Approved Institution to another such account, and shall effect the transfers
specified in said computer tape or electronic data transmission. The Transfer
Agent shall not be liable for any losses to the Trust or its shareholders in the
event that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason
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beyond the control of the Transfer Agent, or if any of the information on such
tape or transmission is found to be incorrect.
11. (a) Except as otherwise provided in paragraph (b) of this Section
11 and in Section 13 of this Article, Shares will be transferred or redeemed
upon presentation to the Transfer Agent of Share certificates or instructions
properly endorsed for transfer or redemption, accompanied by such documents as
the Transfer Agent deems necessary to evidence the authority of the person
making such transfer or redemption, and bearing satisfactory evidence of the
payment of share transfer taxes. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond, and without further approval of the Trust, transfer or
redeem Shares registered in the name of a decedent where the current market
value of the Shares being transferred does not exceed such amount as may from
time to time be prescribed by various states. The Transfer Agent reserves the
right to refuse to transfer or redeem Shares until it is satisfied that the
endorsement on the share certificate or instructions is valid and genuine, and
for that purpose it will require, unless otherwise instructed by an authorized
officer of the Trust, a guarantee of signature by an "Eligible Guarantor
Institution" as that term is defined by SEC Rule 17Ad- 15. The Transfer Agent
also reserves the right to refuse to transfer or redeem Shares until it is
satisfied that the requested transfer or redemption is legally authorized, and
it
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shall incur no liability for the refusal, in good faith, to make transfers or
redemptions which the Transfer Agent, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis to any claims
adverse to such transfer or redemption. The Transfer Agent may, in effecting
transfers and redemptions of Shares, rely upon those provisions of the Uniform
Act for the Simplification of Fiduciary Security Transfers or the Uniform
Commercial Code, as the same may be amended from time to time, applicable to the
transfer of securities, and the Trust shall indemnify the Transfer Agent for any
act done or omitted by it in good faith in reliance upon such laws, except that
in no event will the Trust indemnify the Transfer Agent against any liability
arising directly or indirectly out of any willful misfeasance, bad faith or
negligence by the Transfer Agent or reckless disregard by the Transfer Agent of
its duties hereunder.
(b) Notwithstanding the foregoing or any other provision contained
in this Agreement to the contrary, the Transfer Agent shall be fully protected
by the Trust in not requiring any instruments, documents, assurances,
endorsements or guarantees, including, without limitation, any signature
guarantees, in connection with a redemption, or transfer, of Shares whenever the
Transfer Agent reasonably believes that requiring the same would be inconsistent
with the transfer and redemption procedures as described in the Prospectus.
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12. Notwithstanding any provision contained in this agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to Section 11 of this Article
or any redemption of any Shares pursuant to a computer tape or electronic data
transmission described in this Agreement, any documents, including, without
limitation, any documents of the kind described in paragraph (a) of Section 11
of this Article, to evidence the authority of the person requesting the transfer
or redemption and/or the payment of any stock transfer taxes, and shall be fully
protected in acting in accordance with the applicable provisions of this
Article.
13. (a) As used in this Agreement, the terms "computer tape" or
electronic data transmission and "computer tape believed by the Transfer Agent
to be furnished by an Approved Institution", shall include any tapes generated
by the Transfer Agent to reflect information believed by the Transfer Agent to
have been input by an Approved Institution, via a remote terminal or other
similar link, into a data processing, storage, or collection system, or similar
system (the "System"), located on the Transfer Agent's premises. For purposes of
Section 1 of this Article, such a computer tape or electronic data transmission
shall be deemed to have been furnished at such times as are agreed upon from
time to time by the Transfer Agent and the Trust only if the information
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reflected thereon was input to the System at such times as are agreed upon from
time to time by the Transfer Agent and the Trust.
(b) Nothing contained in this Agreement shall constitute any
agreement or representation by the Transfer Agent to permit, or to agree to
permit, any Approved Institution to input information to a System.
(c) The Transfer Agent reserves the right to approve, in advance,
any Approved Institution, such approval not to be unreasonably withheld. The
Transfer Agent also reserves the right to terminate any and all automated data
communications, at its discretion, upon a reasonable attempt to notify the Trust
when in the opinion of the Transfer Agent continuation of such communications
would jeopardize the accuracy and/or integrity of the Trust's records on the
System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Trust shall furnish to the Transfer Agent a copy of a
resolution of its Board of Trustees or of its Dividend committee, as the case
may be, certified by the Secretary or any Assistant Secretary of the Trust,
either (i) setting forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, thereof, the
record date as of which Shareholders entitled to payment, or accrual, as the
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case may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to the Transfer
Agent on such payment date, or (ii) authorizing the declaration of dividends and
distributions on a daily or other periodic basis and authorizing the Transfer
Agent to rely on a Certificate setting forth the information described in clause
(i) of this Section.
2. Upon the mail date specified in such Certificate or resolution, as
the case may be, the Trust shall, in the case of a cash dividend or
distribution, cause the Custodian to deposit in an account in the name of the
Transfer Agent on behalf of the applicable series of the Trust an amount of
cash, if any, sufficient for the Transfer Agent to make the payment, as of the
mail date, specified in such Certificate or resolution, as the case may be, to
the shareholders who were of record on the record date. The Transfer Agent will,
upon receipt of any such cash, make payment of such cash dividends or
distributions to the shareholders of record as of the record date by: (i)
mailing a check, payable to the registered shareholder, to the address of record
or dividend mailing address, or (ii) wiring such amounts to the accounts
previously designated by an Approved Institution, as the case may be. The
Transfer Agent shall not be liable for any improper payments made in good faith
and without negligence, in accordance with a Certificate or resolution described
in the
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preceding paragraph. If the Transfer Agent shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all
shareholders of the Trust or applicable series of the Trust as of the record
date, the Transfer Agent shall, upon notifying the Trust, withhold payment to
all shareholders of record as of the record date until sufficient cash is
provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be
responsible for the determination of the rate or form of dividends or capital
gain distributions due to the shareholders. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate that
is incorrect. The Trust agrees to pay the Transfer Agent for any and all costs,
both direct and out-of-pocket expenses, incurred in such corrective work as
necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such
appropriate information returns concerning the payment of dividend and capital
gain distributions with the proper federal, state and local authorities as are
required by law to be filed by the Trust but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent, required by applicable law.
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ARTICLE VII
CONCERNING THE TRUST
1. The Trust represents to the Transfer Agent that:
(a) It is a business trust duly organized and existing under the
laws of the State of Delaware.
(b) It is empowered under applicable laws and by its
Declaration and By-Laws to enter into and perform this Agreement.
(c) All requisite action has been taken to authorize
it to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933,
as amended, with respect to the Shares is effective. The Trust shall notify the
Transfer Agent if such registration statement or any state securities
registrations have been terminated or a stop order has been entered with respect
to the Shares.
2. The Trust shall promptly deliver to the Transfer Agent written
notice of any change in the Officers authorized to sign Share Certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Transfer Agent may issue such Share certificates of the Trust
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notwithstanding such death, resignation or removal, and the Trust shall promptly
deliver to the Transfer Agent such approval, adoption or ratification as may be
required by law.
3. It shall be the sole responsibility of the Trust to deliver to the
Transfer Agent the Trust's currently effective Prospectus and, for purposes of
this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in such Prospectus until a reasonable time after it is
actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Trust that:
(a) It is a corporation duly organized and existing under the laws
of the State of Delaware.
(b) It is empowered under applicable law and by its Charter and
By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or made
by an Officer of the Trust
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or person designated by the Trust and shall not be held to have any notice of
any change of authority of any person until receipt of written notice thereof
from the Trust or such person. It shall also be protected in processing Share
certificates which bear the proper countersignature of the Transfer Agent and
which it reasonably believes to bear the proper manual or facsimile signature of
the Officers of the Trust.
3. The Transfer Agent upon notice to the Trust may establish such
additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in
Schedule II hereto 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 Rules 31a- 2
and 31a-3 under the Investment Company Act of 1940, as amended. The Transfer
Agent acknowledges that such records are the property of the Trust. The Transfer
Agent may deliver to the Trust from time to time at its discretion, for
safekeeping or disposition by the Trust in accordance with law, such records,
papers, documents accumulated in the execution of its duties as such Transfer
Agent, as the Transfer Agent may deem expedient, other than those which the
Transfer Agent is itself required to maintain pursuant to
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applicable laws and regulations. The Trust shall assume all responsibility for
any failure thereafter to produce any record, paper, cancelled Share
certificate, or other document so returned, if and when required. The records
specified in Schedule II hereto maintained by the Transfer Agent pursuant to
this Section 4, which have not been previously delivered to the Trust pursuant
to the foregoing provisions of this Section 4, shall be considered to be the
property of the Trust, shall be made available upon request for inspection by
the officers, employees, and auditors of the Trust, and records shall be
delivered to the Trust upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX of this Agreement, in
the form and manner kept by the Transfer Agent on such date of termination or
such earlier date as may be requested by the Trust.
5. The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its bad faith,
negligence, willful misfeasance, gross negligence or reckless disregard of its
duties under this Agreement.
6a. The Trust shall indemnify and exonerate, save and hold harmless the
Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorney's fees)
and liabilities of any and every nature which the Transfer Agent may sustain or
incur or
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which may be asserted against the Transfer Agent by any person by reason of or
as a result of any action taken or omitted to be taken by any prior transfer
agent of the Trust or as a result of any action taken or omitted to be taken by
the Transfer Agent, without negligence or willful misconduct, in good faith
reliance upon (i) any provision of this Agreement; (ii) the Prospectus; (iii)
any instruction or order including, without limitation, any computer tape or
electronic data transmission reasonably believed by the Transfer Agent to have
been received from an Approved Institution; (iv) any instrument, order or Share
certificate reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized Officer of the Trust; (v) any
Certificate or other instructions of an Officer; or (vi) any opinion of legal
counsel for the Trust or the Transfer Agent. The Trust shall indemnify and
exonerate, save and hold the Transfer Agent harmless from and against any and
all claims (whether with or without basis in fact or law), demands, expenses
(including reasonable attorney's fees) and liabilities of any and every nature
which the Transfer Agent may sustain or incur or which may be asserted against
the Transfer Agent by any person by reason of or as a result of any action taken
or omitted to be taken by the Transfer Agent in connection with its appointment
hereunder and in good faith reliance upon any law, act, regulation or any
interpretation of the same even though such law, act or
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regulation may thereafter be altered, changed, amended or repealed.
6b. The Transfer Agent shall not settle any claim, demand, expense or
liability for which it may seek indemnity pursuant to Section 6(a) above (each,
an "Indemnifiable Claim") without the express written consent of the President
of the Trust. The Transfer Agent shall notify the Trust within 15 days of
receipt of notification of an Indemnifiable Claim, provided that the failure by
the Transfer Agent to furnish such notification shall not impair its right to
seek indemnification from the Trust unless the Trust is unable to adequately
defend the Indemnifiable Claim as a result of such failure, and further
provided, that if as a result of the Transfer Agent's failure to provide the
Trust with timely notice of the institution of litigation a judgment by default
is entered, prior to seeking indemnification from the Trust the Transfer Agent,
at its own cost and expense, shall open such judgment. The Trust shall have the
right to defend any Indemnifiable Claim at its own expense, provided that such
defense shall be conducted by counsel selected by the Trust and reasonably
acceptable to the Transfer Agent. The Transfer Agent may join in such defense at
its own expense, but to the extent that it shall so desire the Trust shall
direct such defense. The Trust shall not settle any Indemnifiable Claim without
the express written consent of the Transfer Agent if the Transfer Agent
determines that such settlement would have an adverse effect on the Transfer
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Agent beyond the scope of this Agreement. In such event, each of the Trust and
the Transfer Agent shall be responsible for their own defense at their own cost
and expense, and such claim shall not be deemed an Indemnifiable Claim
hereunder. If the Trust shall fail or refuse to defend an Indemnifiable Claim,
the Transfer Agent may provide its own defense at the cost and expense of the
Trust. Anything in this Agreement to the contrary notwithstanding, the Trust
shall not indemnify the Transfer Agent against any liability or expense arising
out of the Transfer Agent's willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this Agreement. The
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 the Transfer Agent as a result of the Transfer Agent's willful
misfeasance, lack of good faith, negligence, gross negligence or reckless
disregard of its duties and obligations under this Agreement.
7. The Transfer Agent shall not be liable to the Trust with respect to
any redemption draft on which the signature of the drawer is forged and which
the Trust's Custodian or Cash Management bank has advised the Transfer Agent to
honor the redemption; nor shall Transfer Agent be liable for any material
alteration or absence or forgery of any endorsement, it being
-26-
understood that the Transfer Agent's sole responsibility with respect to
inspecting redemption drafts is to use reasonable care to verify the drawer's
signature against signatures on file.
8. There shall be excluded from the consideration of whether the
Transfer Agent has been negligent or has breached this Agreement, any period of
time, and only such period of time, during which the Transfer Agent's
performance is materially affected, by reason of circumstances beyond its
control including, without limitation (except as provided below), mechanical
breakdowns of equipment (including any alternative power supply and operating
systems software), flood or catastrophe, acts of God, failures of
transportation, communication or power supply, strikes, lockouts, work stoppages
or other similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of the Trust
for written instructions with respect to any matter arising in connection with
the Transfer Agent's duties and obligations under this Agreement, and the
Transfer Agent shall not be liable for any action taken or permitted by it in
good faith in accordance with such written instructions. Such application by the
Transfer Agent for written instructions from an Officer of the Trust may set
forth in writing any action proposed to be taken or omitted by the Transfer
Agent with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken. The Transfer Agent shall
not be liable for any action taken or omitted in accordance with a
-27-
proposal included in any such application on or after the date specified therein
unless, prior to taking or omitting any such action, the Transfer Agent has
received written instructions in response to such application specifying the
action to be taken or omitted. The Transfer Agent may consult counsel of the
Trust, or upon notice to the Trust, its own counsel, at the expense of the Trust
and shall be fully protected with respect to anything done or omitted by it in
good faith in accordance with the advice or opinion of counsel to the Trust or
its own counsel.
10. The Transfer Agent My issue new Share certificates in place of
certificates represented to have been lost, stolen, or destroyed upon receiving
written instructions from the shareholder accompanied by proof of an indemnity
or surety bond issued by a recognized insurance institution specified by the
Trust or the Transfer Agent. The Transfer Agent may also reissue certificates
which are represented as lost, stolen, or destroyed without requiring a surety
bond provided that the notification is in writing and accompanied by an
indemnification signed on behalf of a member firm of the New York Stock Exchange
and signed by an officer of said firm with the signature guaranteed.
Notwithstanding the foregoing, the Transfer Agent will reissue a certificate
upon written authorization from an Officer of the Trust.
11. In case of any requests or demands for the inspection of the
shareholder records of the Trust, the Transfer Agent will
-28-
endeavor to notify the Trust promptly and to secure instructions from an Officer
as to such inspection. The Transfer Agent reserves the right, however, to
exhibit the shareholder records to any person whenever it receives an opinion
from its counsel that there is a reasonable likelihood that the Transfer Agent
will be held liable for the failure to exhibit the shareholder records to such
person; provided, however, that in connection with any such disclosure the
Transfer Agent shall promptly notify the Trust that such disclosure has been
made or is to be made.
12. At the request of an Officer of the Trust the Transfer Agent will
address and mail such appropriate notices to shareholders as the Trust may
direct.
13. Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation to inquire into, and
shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor (provided, however, that
nothing contained in this paragraph (a) shall relieve the Transfer Agent of its
obligations set forth in Article V, Section 2), or the authority of the Approved
Institution or of the Trust, as the case may be, to request such sale or
issuance;
(b) The legality of a transfer of Shares, or of a redemption of
any Shares, the propriety of the amount to be paid therefor (provided, however,
that nothing contained in this
-29-
paragraph (b) shall relieve the Transfer Agent of its obligations set forth in
Article V, Section 2), or the authority of the Approved Institution or of the
Trust, as the case may be, to request such transfer or redemption;
(c) The legality of the declaration of any dividend by the Trust,
or the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
14. The Transfer Agent shall be entitled to receive and the Trust
hereby agrees to pay to the Transfer Agent for its performance hereunder,
including its performance of the duties and functions set forth in Schedule I
hereto, (i) its reasonable out- of-pocket expenses (including reasonable legal
expenses and attorney's fees) incurred in connection with its performance
hereunder and (ii) such compensation as may be agreed upon in writing from time
to time by the Transfer Agent and the Trust.
15. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Transfer Agent.
16. Purchase and Prices of Services.
(a) The Trust will compensate the Transfer Agent for, and Transfer
Agent will provide, beginning on the execution date
-30-
of this Agreement and continuing until the termination of this Agreement as
provided hereinafter, the Services set forth in Schedule I.
(b) The current unit prices for the Services are set forth in
Schedule III (the "Schedule III Fee Schedule"). The Schedule III Fees may be
amended by the mutual agreement of the Trust and the Transfer Agent.
Notwithstanding the foregoing, the Transfer Agent may increase prices due to
changes in legal or regulatory requirements subject to the approval of the
Trust, which approval shall not be unreasonably withheld.
17. Billing and Payment.
(a) The Transfer Agent shall xxxx the Trust as follows: (i)
monthly in arrears for Accounts maintained and in arrears for any Out-of- Pocket
Expenses incurred by the Transfer Agent, provided, however, that with respect to
Out-of-Pocket Expenses the Transfer Agent shall provide the Trust monthly with
an amount to be advanced to the Transfer Agent for estimated postage expenses
for the following month. Documentation to support reconciliation of actual
postal charges will be provided to the Trust monthly. The Transfer Agent may
from time to time request the Trust to make additional advances when
appropriate.
(b) The Trust shall pay the Transfer Agent in immediately available
funds at United Missouri Bank in Kansas City, Missouri within thirty (30) days
of the date of the xxxx.
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ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such termination,
which shall be not less than ninety (90) days after the date of receipt of such
notice. In the event such notice is given by the Trust, it shall
be accompanied by a copy of a resolution of the Board of Trustees of the Trust,
certified by its Secretary or any Assistant Secretary, electing to terminate
this Agreement and designating the successor transfer agent or transfer agents.
In the event such notice is given by the Transfer Agent, the Trust, on or before
the termination date, shall deliver to the Transfer Agent a copy of a resolution
of its Board of Trustees certified by the Secretary or any Assistant Secretary
designating a successor transfer agent or transfer agents. In the absence of
such designation by the Trust, the Trust shall upon the date specified in the
notice of termination of this Agreement and delivery of the records maintained
hereunder, be deemed to be its own transfer agent and the Transfer Agent shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the Trust, shall deliver the records
of the Trust on electromagnetic media to the Trust or its successor transfer
agent. The Trust shall be
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responsible to the Transfer Agent for the reasonable costs and expenses
associated with the preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1. The Trust agrees that prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations of the
Transfer Agent hereunder, it shall advise the Transfer Agent of such proposed
change at least 30 days prior to the intended date of the same, and shall
proceed with such change only if it shall have received the written consent of
the Transfer Agent thereto, which shall not be unreasonably withheld.
2. Any notice required or permitted to be given hereunder shall be
deemed given either: (a) when sent by registered or certified mail, postage
prepaid, addressed to the party to whom notice is being given at such party's
address set forth below, or at the last address furnished in writing by such
party to the other party; or (b) upon receipt by the party to whom notice is
being given at such party's address set forth below, or at the last address
furnished in writing by such party to the other party via overnight delivery.
If to the Trust, at:
Xxxxxx Xxxxxxxx Investment Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
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With a copy to:
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Transfer Agent, at:
Supervised Service Company
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
With a copy to:
Supervised Service Company
000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
3. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the formality of this
Agreement.
4. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the
other party, except that the Transfer Agent may assign this Agreement to a
corporate affiliate with advance written notice to, and advance written consent
by, the Trust, which consent shall not be unreasonably withheld.
5. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.
6. This Agreement My be executed in any number of counterparts each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
-34-
7. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Trust, and no rights shall be granted to any other person
by virtue of this Agreement.
8. (a) The Transfer Agent will endeavor to assist in resolving
shareholder inquiries and errors relating to the period during which prior
transfer agents acted as such for the Trust. Any such inquiries or errors which
cannot be expediently resolved by the Transfer Agent will be referred to the
Trust.
(b) The Transfer Agent shall be responsible for the safekeeping and
maintenance of only those transfer agency records, cancelled certificates and
correspondence of the Trust created or produced prior to the time of conversion
which are under its control and acknowledged in a writing to the Trust to be in
its possession. Any expenses or liabilities incurred by the Transfer Agent as a
result of shareholder inquiries, regulatory compliance or audits related to
such records and not caused as a result of Transfer Agent's bad faith, willful
malfeasance or negligence shall be the responsibility of the Trust as provided
in Article VIII herein.
10. The Trust and the Transfer Agent agree that the obligations of the
Trust under this Agreement will not be binding upon any of the Trustees of the
Trust, shareholders of the Trust, nominees, officers, employees or agents,
whether past, present or future, of the Trust, individually, but are binding
only upon the assets and property of the Trust, as provided in the Declaration.
-35-
The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust, and this Agreement has been signed by an authorized
officer of the Trust, acting as such, and neither the authorization by the
Trustees nor the execution and delivery by the officer will be deemed to have
been made by them or any shareholder of the Trust personally, but will bind only
the property of the Trust as provided in the Declaration. No series of the Trust
will be liable for any claims against any other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as the day and year
first above written.
Supervised Service Company, Inc. Xxxxxx Xxxxxxxx Investment Trust
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------- --------------------
(Signature) (Signature)
/s/ Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
--------------------- --------------------
(Name) (Name)
SVP President
--------------------- --------------------
(Title) (Title)
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SCHEDULE I
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such
times as the Trust and Transfer Agent may agree, Transfer Agent will provide the
services set forth below:
Examine and Process New Accounts, Subsequent Payments, Liquidations,
Exchanges, Telephone Transactions, Check Redemptions, Automatic Withdrawals,
Certificate Issuance, Wire Order Trades, Dividends, Dividend Statements, Dealer
Statements.
DAILY ACTIVITY
--------------
Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
Name and Address, including Zip Code
Balance of Uncertificated Shares
Balance of Certificated Shares
Certificate number, number of shares, issuance date of each certificate
outstanding and cancellation date for each certificate date for each
certificate no longer outstanding, if issued
Balance of dollars available for redemption
Dividend code (daily accrual, monthly reinvest, monthly cash
or quarterly cash)
Type of account code
Establishment date indicating the date an account was
opened, carrying forward pre-conversion data as available
Original establishment date for accounts opened by exchange
W-9 withholding status and periodic reporting
State of residence code
Social Security or taxpayer identification number, and
indication of certification
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Historical transactions on the account for the most recent 18 months,
or other period as mutually agreed to from time-to-time
Indication as to whether phone transactions can be accepted
for this account. Beneficial owner code, i.e. male,
female, joint tenant, etc.
An alternate or "secondary" account number issued by a
dealer (or bank, etc.) to a customer for use, inquiry and
transaction input by "remote accessors"
FUNCTIONS
---------
Answer investor and dealer telephone and/or written inquiries, except
those concerning Trust policy, or requests for investment advice which
will be referred to the Trust, or those which the Trust chooses to
answer
Deposit Trust share certificates into accounts upon receipt of
instructions from the investor or other authorized person, if issued
Examine and process transfers of shares insuring that all transfer
requirements and legal documents have been supplied
Process and confirm address changes
Process standard account record changes as required, i.e.
Dividend Codes, etc.
Microfilm source documents for transactions, such as account
applications and correspondence
Perform backup withholding for those accounts which federal
government regulations indicate is necessary
Perform withholdings on liquidations, if applicable, for
employee benefit plans. Prepare and mail 5498s and 1099R's
Solicit missing taxpayer identification numbers
Provide remote access inquiry to Trust records via Trust supplied
hardware (Trust responsible for connection line and monthly fee)
-38-
REPORTS PROVIDED
----------------
Daily Journals Reflecting all shares and
dollar activity for the
previous day
Blue Sky Report Supply information monthly
for Trust's preparation of
Blue Sky Reporting
N-SAR Report Supply monthly correspondence,
redemption and liquidation
information for use in Trust's
N-SAR Report
Additionally, monthly average daily balance reports will be provided at
the Trust's request to the Trust at no charge.
Prepare and mail copies of summary statements to dealers and
investment advisers
Generate and mail confirmation statements for financial
transactions
DIVIDEND ACTIVITY
-----------------
Reinvest or pay in cash including reinvesting in other funds within the
fund group serviced by the Transfer Agent as described in the Trust's
prospectus
Distribute capital gains simultaneously with income dividends
DEALER SERVICES
---------------
Prepare and mail confirmation statements to dealers daily
Prepare and mail copies of statements to dealers, same
frequency as investor statements
SHAREHOLDER MEETINGS
--------------------
Assist Trust in obtaining a qualified service to: address and mail
proxies and related material, tabulate returned proxies and supply
daily reports when sufficient proxies have been received Prepare
certified list of stockholders, hard copy or microform
-39-
PERIODIC ACTIVITIES
-------------------
Mail transaction confirmation statements daily to investors
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably
specified by the Transfer Agent)
Mail periodic statements to investors
Compute, prepare and furnish all necessary reports to
Governmental authorities: Forms 1099R, 1099DIV, 1099B, 1042
and 1042S
Enclose various marketing material as designated by the Trust in
statement mailings, i.e. monthly and quarterly statements (material
must be adaptable to mechanical equipment as reasonably specified by
the Transfer Agent)
-40-
SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
-- Account applications
-- Cancelled certificates plus stock powers and supporting documents
-- Checks including check registers, reconciliation records, any
adjustment records and tax withholding documentation
-- Indemnity bonds for replacement of lost or missing share
certificates and checks
-- Liquidation, redemption, withdrawal and transfer requests including
stock powers, signature guarantees and any supporting documentation
-41-
SCHEDULE III
FEE SCHEDULE
XXXXXX XXXXXXXX INVESTMENT TRUST
Annual Fee Minimum Annual
Per Account Fee per Series
Xxxxxx Xxxxxxxx Large Cap $25.00 $10,000
Growth Fund
Xxxxxx Xxxxxxxx Smaller $25.00 $10,000
Companies Fund
Xxxxxx Xxxxxxxx Fixed $25.00 $10,000
Income Fund
Xxxxxx Xxxxxxxx Short-Term $25.00 $10,000
Fixed Income Fund
Xxxxxx Xxxxxxxx Municipal $25.00 $10,000
Bond Fund
Xxxxxx Xxxxxxxx Short-Term $25.00 $10,000
Municipal Bond Fund
Xxxxxx Xxxxxxxx Microcap $25.00 $10,000
Fund
-42-
