Exhibit 9(a)
FORM OF
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this day of November, 1998 (the "Effective Date")
between SAGE ADVISORS, INC. (the "Company"), a Delaware corporation having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx and
FIRST DATA INVESTOR SERVICES GROUP, INC. ("Investor Services Group"), a
Massachusetts corporation with principal offices at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, Sage Life Investment Trust (the "Trust") and the Company have
entered into a management agreement pursuant to which the Company has agreed to
provide certain services for the Trust.
WHEREAS, the Trust is authorized to issue Shares in separate series,
with each such series representing interests in a separate portfolio of
securities or other assets.
WHEREAS, the Trust initially intends to offer Shares in those
Portfolios identified in the attached Exhibit 1, each such Portfolio, together
with all other Portfolios subsequently established by the Trust shall be subject
to this Agreement in accordance with Article 14;
WHEREAS, the Company desires to appoint Investor Services Group as the
Trust's transfer agent, dividend disbursing agent and agent in connection with
certain other activities and Investor Services Group desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Company and Investor Services Group agree as follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Trust as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Company; or (ii) any person, whether or not
such person is an officer or employee of the Company, duly authorized
to give Oral Instructions or Written Instructions on behalf of the
Company as indicated in writing to Investor Services Group from time to
time.
(c) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Trust, as the case may be.
(d) "Commencement Date" shall mean the date on which Investor
Services Group commences providing services to the Trust under this
Agreement.
(e) "Commission" shall mean the Securities and Exchange
Commission.
(f) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Trust may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
(g) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(i) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by Investor Services Group from
a person reasonably believed by Investor Services Group to be an
Authorized Person;
(j) "Portfolio" shall mean each separate series of shares
offered by the Trust representing interests in a separate portfolio of
securities and other assets;
(k) "Prospectus" shall mean the most recently dated Trust
Prospectus and Statement of Additional Information, including any
amendments and supplements thereto if any, which has become effective
under the Securities Act of 1933 and the 1940 Act.
(l) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class thereof, of
each respective Portfolio of the Trust as may be issued from time to
time.
(m) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Trust.
(n) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by Investor Services Group to be
an Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of Investor Services Group.
The Company, on behalf of the Trust and its Portfolios, hereby appoints
and constitutes Investor Services Group as the sole and exclusive transfer agent
and dividend disbursing agent for Shares of each respective Portfolio of the
Trust and as shareholder servicing agent for the Trust and Investor Services
Group hereby accepts such appointments and agrees to perform the duties
hereinafter set forth. The terms of this Agreement and the appointment shall be
effective as of the Effective Date.
Article 3 Duties of Investor Services Group.
3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of
a transfer agent; acting as service agent in connection with dividend
and distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance,
transfer and redemption or repurchase (including coordination with the
Custodian) of Shares of each Portfolio, as more fully described in the
written schedule of Duties of Investor Services Group annexed hereto as
Schedule A and incorporated herein, and in accordance with the terms of
the Prospectus of the Trust on behalf of the applicable Portfolio,
applicable law and the procedures established from time to time between
Investor Services Group and the Company.
(b) Recording the issuance of Shares and maintaining pursuant
to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Portfolio which are authorized, based upon data provided
to it by the Company, and issued and outstanding. Investor Services
Group shall provide the Company on a regular basis with the total
number of Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Company.
(c) In addition to providing the foregoing services, the
Company hereby engages Investor Services Group as its exclusive service
provider with respect to the Print/Mail Services as set forth in
Schedule B for the fees also identified in Schedule B. Investor
Services Group agrees to perform the services and its obligations
subject to the terms and conditions of this Agreement.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, Investor Services Group shall be under no duty or obligation
to inquire into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares,
or the propriety of the amount to be paid therefor; (iii) the legality
of the declaration of any dividend by the Board of Directors, or the
legality of the issuance of any Shares in payment of any dividend; or
(iv) the legality of any recapitalization or readjustment of the
Shares.
3.2 In addition, the Company shall (i) identify to Investor Services
Group 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 Investor Services Group 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 Company as provided above.
3.3 In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the Company
and Investor Services Group.
Article 4 Recordkeeping and Other Information.
4.1 Investor Services Group shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule A
in accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Such records shall be maintained by
Investor Services Group for the periods and in the places required by Rule 31a-2
under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Trust and will be preserved, maintained
and made available in accordance with Section 31 and rules promulgated by the
SEC thereunder, and will be surrendered promptly to the Trust on and in
accordance with the Company's request.
4.3 In case of any requests or demands for the inspection of Shareholder records
of the Trust, Investor Services Group will endeavor to notify the Company of
such request and secure Written Instructions as to the handling of such request.
Investor Services Group 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 comply with such request.
Article 5 Instructions.
5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions reasonably believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Company. Investor Services Group will also have no liability
when processing Share certificates which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the Trust and the
proper countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may request Written
Instructions from the Company and may seek advice from legal counsel for the
Trust, or its own legal counsel, with respect to any matter arising in
connection with this Agreement; provided, however, that Investor Services Group
shall not incur any legal expenses on behalf of the Trust without the Company's
consent. Investor Services Group shall not be liable for any action taken or not
taken or suffered by it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Trust or for
Investor Services Group. Written Instructions requested by Investor Services
Group will be provided by the Company within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Company only if said representative is
an Authorized Person. The Company agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and that
the Company's failure to so confirm shall not impair in any respect Investor
Services Group's right to rely on Oral Instructions.
Article 6 Compensation.
6.1 The Company will compensate Investor Services Group for the
performance of its obligations hereunder in accordance with the fees set forth
in the written Fee Schedule annexed hereto as Schedule B and incorporated
herein.
6.2 In addition to those fees set forth in Section 6.1 above, the
Company agrees to pay, and will be billed separately for, out-of-pocket expenses
incurred by Investor Services Group in the performance of its duties hereunder.
Out-of-pocket expenses shall include, but shall not be limited to, the items
specified in the written schedule of out-of-pocket charges annexed hereto as
Schedule C and incorporated herein. Schedule C may be modified by written
agreement between the parties. Unspecified out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred by Investor Services
Group in the performance of its obligations hereunder.
6.3 The Company agrees to pay all fees and out-of-pocket expenses to
Investor Services Group by Federal Funds Wire or such other method of payment as
the parties shall mutually agree upon within fifteen (15) business days
following the receipt of the respective invoice. In addition, with respect to
all fees under this Agreement, Investor Services Group may charge a service fee
equal to the lesser of (i) one and one half percent (1 1/2%) per month or (ii)
the highest interest rate legally permitted on any past due invoiced amounts.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule executed and dated by
the parties hereto.
6.5 The Company acknowledges that the fees that Investor Services Group
charges the Company under this Agreement reflect the allocation of risk between
the parties, including the limitations on liability and exclusion of remedies in
Section 11.2 and Article 12. Modifying the allocation of risk from what is
stated here would affect the fees that Investor Services Group charges, and in
consideration of those fees, the Company agrees to the stated allocation of
risk.
Article 7 Documents.
In connection with the appointment of Investor Services Group, the
Company shall, on or before the date this Agreement goes into effect, but in any
case within a reasonable period of time for Investor Services Group to prepare
to perform its duties hereunder, deliver or caused to be delivered to Investor
Services Group the documents set forth in the written schedule of Trust
Documents annexed hereto as Schedule D.
Article 8 Transfer Agent System.
8.1 Investor Services Group shall retain title to and ownership of any
and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by Investor Services
Group in connection with the services provided by Investor Services Group to the
Company herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to the Company a limited
license to the Investor Services Group System for the sole and limited purpose
of having Investor Services Group provide the services contemplated hereunder
and nothing contained in this Agreement shall be construed or interpreted
otherwise and such license shall immediately terminate with the termination of
this Agreement.
8.3 In the event that the Company, including any affiliate or agent of
the Company or any third party acting on behalf of the Company is provided with
direct access to the Investor Services Group System for either account inquiry
or to transmit transaction information, including but not limited to
maintenance, exchanges, purchases and redemptions, such direct access capability
shall be limited to direct entry to the Investor Services Group System by means
of on-line mainframe terminal entry or PC emulation of such mainframe terminal
entry and any other non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
Article 9 Representations and Warranties.
9.1 Investor Services Group represents and warrants to the Company
that:
(a) it is a corporation duly organized, existing and
in good standing under the laws of
the Commonwealth of Massachusetts;
(b) it is empowered, licensed and registered under all
applicable federal and state laws and is empowered by its Articles of
Incorporation and By-Laws to enter into and perform under this
Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain in effect
for the duration of this Agreement;
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement;
(f) all equipment and software provided or used by Investor
Services Group or any of its subsidiaries or divisions in connection
with rendering services to the Company under the terms of this
Agreement, include or shall include design and performance capabilities
so that prior to, during, and after December 31, 1999 (the "Millennium
Date Change") they will not malfunction, produce invalid or incorrect
results, cause an interruption in or diminish the quality of the
services provided to the Company, or abnormally cease to function due
to the Millennium Date Change. Such design and performance capabilities
shall include without limitation the ability to recognize and process
the year 2000 and thereafter and to manage and manipulate data
involving dates, including without limitation, (i) single century and
multi-century formulas and date values without resulting in the
generation of incorrect values involving such dates or causing an
abnormal ending, (ii) date data interfaces with functionalities and
data fields that indicate the century, and (iii) date-related functions
that indicate the century; and
(g) all equipment and software provided by Investor Services
Group in connection with the services rendered to the Company under the
terms of this Agreement, as amended include or shall include design and
performance capabilities so that prior to, during, and after the
calendar year 2000, they will not malfunction, produce invalid or
incorrect results, or abnormally cease to function due solely to the
year 2000 date change. Such design and performance capabilities shall
include without limitation the ability to recognize the century and to
manage ad manipulate data involving dates, including single century and
multi-century formulas and date values, without resulting in the
generation of incorrect values involving such dates or causing an
abnormal ending; date data interfaces with functionalities and data
fields that indicate the century; and date-related functions that
indicate the century.
9.2 The Company represents and warrants to Investor Services Group
that:
(a) it is duly organized, existing and in good standing
under the laws of the jurisdiction
in which it is organized;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize
it to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios will
be effective and remain effective when the Trust commences offering its
Shares to the public, and all appropriate state securities law filings
have been made and will continue to be made, with respect to all Shares
of the Trust being offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with
the terms of the Trust's Articles of Incorporation and its Prospectus
with respect to each Portfolio, such Shares shall be validly issued,
fully paid and non-assessable.
Article 10 Indemnification.
10.1 Investor Services Group shall not be responsible for and the
Company shall indemnify and hold Investor Services Group harmless from and
against any and all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any sort or kind
which may be asserted against Investor Services Group or for which Investor
Services Group may be held to be liable (a "Claim") arising out of or
attributable to any of the following:
(a) any actions of Investor Services Group required to be
taken pursuant to this Agreement unless such Claim resulted from a
negligent act or omission to act or bad faith by Investor Services
Group in the performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or
reasonable use of information, data, records and documents (including
but not limited to magnetic tapes, computer printouts, hard copies and
microfilm copies) received by Investor Services Group from the Company,
or any authorized third party acting on behalf of the Company,
including but not limited to the prior transfer agent for the Trust, in
the performance of Investor Services Group's duties and obligations
hereunder;
(c) the reliance on, or the implementation of, any Written or
Oral Instructions or any other instructions or requests of the Company
on behalf of the applicable Portfolio;
(d) the offer or sales of shares in violation of any
requirement under 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 state with respect to the
offer or sale of such shares in such state; and
(e) the Company's refusal or failure to comply with the terms
of this Agreement, or any Claim which arises out of the Company's
negligence or misconduct or the breach of any representation or
warranty of the Company made herein.
10.2 Investor Services Group shall indemnify and hold the Company
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against the Company or for which the
Company may be held to be liable in connection with the improper or unauthorized
use of the Investor Services Group System (a "Claim") unless such Claim resulted
from a negligent act or omission to act or bad faith by the Trust in the
performance of its duties hereunder.
10.3 In any case in which one party (the "Indemnifying Party") may be
asked to indemnify or hold the other party (the "Indemnified Party") harmless,
the Indemnified Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party although the
failure to do so shall not prevent recovery by the Indemnified Party and shall
keep the Indemnifying Party advised with respect to all developments concerning
such situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party, and thereupon the Indemnifying Party
shall take over complete defense of the Claim and the Indemnified Party shall
sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party will not confess any Claim or make any compromise in any case
in which the Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Article 10 shall survive the termination of this
Agreement.
10.4 Any claim for indemnification under this Agreement must be made
prior to the earlier of:
(a) one year after the Indemnifying Party
becomes
aware of the event for which
indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
the Indemnified Party's sole and exclusive remedy for claims or other actions or
proceedings to which the Indemnifying Party's indemnification obligations
pursuant to this Article 10 may apply.
Article 11 Standard of Care.
11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Company or the Trust unless said errors
are caused by Investor Services Group's own negligence, bad faith or willful
misconduct or that of its employees.
11.2 Notwithstanding any provision in this Agreement to the contrary,
each party's cumulative liability (to the other party) for all losses, claims,
suits, controversies, breaches, or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement) and
regardless of the form of action or legal theory shall not exceed the lesser of
(i) $500,000 or (ii) the fees received by Investor Services Group for services
provided under this Agreement during the twelve months immediately prior to the
date of such loss or damage, plus any amounts that are recovered from any
liability insurance on which such party makes a claim. Each party understands
the limitation on the other party's damages to be a reasonable allocation of
risk and each party expressly consents with respect to such allocation of risk.
In allocating risk under the Agreement, the parties agree that the damage
limitation set forth above shall apply to any alternative remedy ordered by a
court in the event such court determines that sole and exclusive remedy provided
for in the Agreement fails of its essential purpose.
11.3 Neither party may assert any cause of action against the other
party under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings) alleging such
cause of action.
11.4 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST PROFITS, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
Article 13 Term and Termination.
13.1 Subject to the provisions of Sections 13.4 and 13.5, this
Agreement shall be effective on the date first written above and shall continue
for a period of five (5) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Company or Investor Services Group provides written notice to
the other of its intent not to renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty (180) days prior to the
expiration of the Initial Term or the then current Renewal Term.
13.3 In the event a termination notice is given by the Company, all
expenses associated with movement of records and materials and conversion
thereof to a successor transfer agent will be borne by the Company.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the Defaulting
Party.
13.5 Notwithstanding anything contained in this Agreement to the
contrary, should the Company desire to move any of the services provided by
Investor Services Group hereunder to a successor service provider prior to the
expiration of the then current Initial or Renewal Term, or should the Company or
the Trust or any of its or their affiliates take any action which results in
Investor Services Group ceasing to provide administration services to the
Company or the Trust prior to the expiration of the then current Initial or
Renewal Term, Investor Services Group shall make a good faith effort to
facilitate the conversion on such prior date, however, there can be no guarantee
that Investor Services Group will be able to facilitate a conversion of services
on such prior date. In connection with the foregoing and except as provided in
Sections 13.4 and 13.5 of this Agreement, should services be converted to a
successor service provider, or should the Company or the Trust or any of its or
their affiliates take any action which results in Investor Services Group
ceasing to provide administration services to the Company or the Trust prior to
the expiration of the then current Initial or Renewal Term, the Trust shall be
required to pay to Investor Services Group an amount equal to three (3) months
fees due to Investor Services Group and calculated at the asset and/or
Shareholder account levels, as the case may be, on the date notice of
termination was given to Investor Services Group, plus any fee waivers granted
to the Trust by Investor Services Group.
Article 14 Additional Portfolios
14.1 In the event that the Trust establishes one or more Portfolios in
addition to those identified in Exhibit 1, with respect to which the Company
desires to have Investor Services Group render services as transfer agent under
the terms hereof, the Company shall so notify Investor Services Group in
writing, and if Investor Services Group agrees in writing to provide such
services, Exhibit 1 shall be amended to include such additional Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The
Company and Investor Services Group shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. The Company and Investor Services
Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party. The Company and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Company and Investor Services Group may also
disclose the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Company or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating to
the past, present or future business activities of the Company or
Investor Services Group, their respective subsidiaries and affiliated
companies and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Company or
Investor Services Group a competitive advantage over its competitors;
and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
15.4 The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through no fault
of such party; or
(b) Was lawfully received by the party from a third party free
of any obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted
including, but not limited to, giving the other party as much advance
notice of the possibility of such disclosure as practical so the other
party may attempt to stop such disclosure or obtain a protective order
concerning such disclosure; or
(f) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities, war, riots or
civil disorders in any country, (iii) any act or omission of the other party or
any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-performing
party shall be excused from any further performance and observance of the
obligations so affected only for as long as such circumstances prevail and such
party continues to use commercially reasonable efforts to recommence performance
or observance as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld. Investor Services Group may,
in its sole discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by Investor Services Group.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Company or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Company:
Sage Advisors, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: President
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this Agreement. The terms of this Agreement shall be subject to, and interpreted
in accordance with, the provisions of the 1940 Act to the extent applicable. All
actions arising from or related to this Agreement shall be brought in the state
and federal courts sitting in the City of Boston, and Investor Services Group
and Client hereby submit themselves to the exclusive jurisdiction of those
courts.
Article 21 Counterparts.
This Agreement may 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.
Article 22 Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23 Publicity.
Neither Investor Services Group nor the Company shall release or
publish news releases, public announcements, advertising or other publicity
relating to this Agreement or to the transactions contemplated by it without the
prior review and written approval of the other party; provided, however, that
either party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24 Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
24.2 During the term of this Agreement and for one (1) year afterward,
the Company shall not recruit, solicit, employ or engage, for the Company or
others, Investor Services Group's employees.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
SAGE ADVISORS, INC.
By:
Title: President
FIRST DATA INVESTOR SERVICES GROUP,
INC.
By:
Title:
Exhibit 1
LIST OF PORTFOLIOS
S & P 500 Equity Index Fund
EAFE Equity Index
Xxxxxxx 2000 Equity Index Fund
Money Market Fund
Schedule A
DUTIES OF INVESTOR SERVICES GROUP
1. Shareholder Information. Investor Services Group shall maintain a
record of the number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall indicate whether
such Shares are held in certificates or uncertificated form.
2. Shareholder Services. Investor Services Group shall respond as
appropriate to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as may be from
time to time mutually agreed upon between Investor Services Group and the
Company.
3. Share Certificates.
(a) At the expense of the Company, the Company shall supply
Investor Services Group with an adequate supply of blank share certificates to
meet Investor Services Group requirements therefor. Such Share certificates
shall be properly signed by facsimile. The Company agrees that, notwithstanding
the death, resignation, or removal of any officer of the Trust whose signature
appears on such certificates, Investor Services Group or its agent may continue
to countersign certificates which bear such signatures until otherwise directed
by Written Instructions.
(b) Investor Services Group shall issue replacement Share
certificates in lieu of certificates which have been lost, stolen or destroyed,
upon receipt by Investor Services Group of properly executed affidavits and lost
certificate bonds, in form satisfactory to Investor Services Group, with the
Company and Investor Services Group as obligees under the bond.
(c) Investor Services Group shall also maintain a record of
each certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with respect thereto)
Investor Services Group shall maintain comparable records of the Shareholders
thereof, including their names, addresses and taxpayer identification. Investor
Services Group shall further maintain a stop transfer record on lost and/or
replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials. Investor
Services Group will address and mail to Shareholders of the Trust, all reports
to Shareholders, dividend and distribution notices and proxy material for the
Trust's meetings of Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
5. Sales of Shares.
(a) Investor Services Group shall not be required to issue any
Shares of the Trust where it has received a Written Instruction from the Company
or official notice from any appropriate authority that the sale of the Shares of
the Trust has been suspended or discontinued. The existence of such Written
Instructions or such official notice shall be conclusive evidence of the right
of Investor Services Group to rely on such Written Instructions or official
notice.
(b) In the event that any check or other order for the payment
of money is returned unpaid for any reason, Investor Services Group will
endeavor to: (i) give prompt notice of such return to the Company or its
designee; (ii) place a stop transfer order against all Shares issued as a result
of such check or order; and (iii) take such actions as Investor Services Group
may from time to time deem appropriate.
6. Transfer and Repurchase.
(a) Investor Services Group shall process all requests to
transfer or redeem Shares in accordance with the transfer or repurchase
procedures set forth in the Trust's Prospectus.
(b) Investor Services Group will transfer or repurchase Shares
upon receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for transfer or
redemption, accompanied by such documents as Investor Services Group reasonably
may deem necessary.
(c) Investor Services Group reserves the right to refuse to
transfer or repurchase Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. Investor Services Group also reserves the
right to refuse to transfer or repurchase Shares until it is satisfied that the
requested transfer or repurchase is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers or repurchases which
Investor Services Group, in its good judgment, deems improper or unauthorized,
or until it is reasonably satisfied that there is no basis to any claims adverse
to such transfer or repurchase.
(d) When Shares are redeemed, Investor Services Group shall,
upon receipt of the instructions and documents in proper form, deliver to the
Custodian and the Company or its designee a notification setting forth the
number of Shares to be repurchased. Such repurchased shares shall be reflected
on appropriate accounts maintained by Investor Services Group reflecting
outstanding Shares of the Trust and Shares attributed to individual accounts.
(e) Investor Services Group shall upon receipt of the monies
provided to it by the Custodian for the repurchase of Shares, pay such monies as
are received from the Custodian, all in accordance with the procedures described
in the written instruction received by Investor Services Group from the Company.
(f) Investor Services Group shall not process or effect any
repurchase with respect to Shares of the Trust after receipt by Investor
Services Group or its agent of notification of the suspension of the
determination of the net asset value of the Trust.
7. Dividends.
(a) Upon the declaration of each dividend and each capital
gains distribution by the Board of Directors of the Trust with respect to Shares
of the Trust, the Company shall furnish or cause to be furnished to Investor
Services Group Written Instructions setting forth the date of the declaration of
such dividend or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall be
determined, the amount payable per Share to the Shareholders of record as of
that date, the total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net asset value.
(b) On or before the payment date specified in such resolution
of the Board of Directors, the Company will provide Investor Services Group with
sufficient cash to make payment to the Shareholders of record as of such payment
date.
(c) If Investor Services Group does not receive sufficient
cash from the Company to make total dividend and/or distribution payments to all
Shareholders of the Trust as of the record date, Investor Services Group will,
upon notifying the Company, withhold payment to all Shareholders of record as of
the record date until sufficient cash is provided to Investor Services Group.
8. In addition to and neither in lieu nor in contravention of the
services set forth above, Investor Services Group shall: (i) perform all the
customary services of a transfer agent, registrar and dividend disbursing agent
as described herein consistent with those requirements in effect as at the date
of this Agreement. The detailed definition, frequency, limitations and
associated costs (if any) set out in the attached fee schedule, include but are
not limited to: maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, tabulating proxies, mailing Shareholder reports
to current Shareholders, withholding taxes on U.S. resident and non-resident
alien accounts where applicable, 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.
9. Cash Management Services. Funds received by Investor Services Group
in the course of performing its services hereunder will be held in bank or money
market fund accounts in the name of Investor Services Group as agent for the
benefit of its clients. Such accounts may include funds held by Investor
Services Group as agent for the benefit of clients other than the Fund. Investor
Services Group shall be entitled to retain any interest, dividends, balance
credits or fee reductions or other concessions or benefits earned or generated
by or associated with such accounts or made available by the institution with
which such accounts are maintained.
Schedule B
FEE SCHEDULE
1. Standard Fees
$4,000 per Portfolio per annum
After the one year anniversary of the effective date of this Agreement, Investor
Services Group may, subject to the approval of the Company, adjust the above
fees once per calendar year, upon thirty (30) days prior written notice in an
amount not to exceed the cumulative percentage increase in the Consumer Price
Index for All Urban Consumers (CPI-U) U.S. City Average, All items (unadjusted)
- (1982-84=100), published by the U.S. Department of Labor since the last such
adjustment in the Client's monthly fees (or the Effective Date absent a prior
such adjustment).
2. Programming Costs
(a) Dedicated Team:
Programmer $100,000 per annum
BSA $ 85,000 per annum
Tester $ 65,000 per annum
(b) System Enhancements (Non Dedicated Team):
Programmer $135.00 per hour
The above rates are subject to an annual 5% increase after the one year
anniversary of the effective date of this Agreement, subject to the approval of
the Company.
3. Print/Mail Fees.
Schedule C
OUT-OF-POCKET EXPENSES
The Company shall reimburse Investor Services Group monthly for
applicable out-of-pocket expenses, including, but not limited to the following
items:
Microfiche/microfilm production Magnetic media tapes and freight Printing costs,
including certificates, envelopes, checks and stationery Postage (bulk,
pre-sort, ZIP+4, barcoding, first class) direct pass through to the Trust Due
diligence mailings Telephone and telecommunication costs, including all lease,
maintenance and line costs Ad hoc reports Proxy solicitations, mailings and
tabulations Daily & Distribution advice mailings Shipping, Certified and
Overnight mail and insurance Year-end form production and mailings Terminals,
communication lines, printers and other equipment and any expenses incurred in
connection with such terminals and lines Duplicating services Courier services
Incoming and outgoing wire charges Federal Reserve charges for check clearance
Overtime, as approved by the Company Temporary staff, as approved by the Company
Travel and entertainment, as approved by the Company Record retention, retrieval
and destruction costs, including, but not limited to exit fees charged by third
party record keeping vendors Third party audit reviews Ad hoc SQL time Insurance
Such other miscellaneous expenses reasonably incurred by Investor Services Group
in performing its duties and responsibilities under this Agreement.
The Company agrees that postage and mailing expenses will be paid on
the day of or prior to mailing as agreed with Investor Services Group. In
addition, the Company will promptly reimburse Investor Services Group for any
other unscheduled expenses incurred by Investor Services Group whenever the
Company and Investor Services Group mutually agree that such expenses are not
otherwise properly borne by Investor Services Group as part of its duties and
obligations under the Agreement.
Schedule D
TRUST DOCUMENTS
Certified copy of the Declaration of Trust of the Trust
Certified copy of the By-laws of the Trust
Copy of the resolution of the Board of Directors authorizing the execution and
delivery of this Agreement
Specimens of the certificates for Shares of the Trust, if
applicable, in the form approved by the Board of Directors of the
Trust, with a certificate of the Secretary of the Trust as to such
approval
All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by
the Trust
Certified list of Shareholders of the Trust with the name,
address and taxpayer identification number of each Shareholder,
and the number of Shares of the Trust held by each, certificate
numbers and denominations (if any certificates have been issued),
lists of any accounts against which stop transfer orders have been
placed, together with the reasons therefore, and the number of
Shares redeemed by the Trust
All notices issued by the Trust with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Trust or as required by law and shall perform such
other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required
thereby.
