Exhibit (9)(c)
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 1st day of June, 1997 between GALAXY FUND
II (the "Fund"), a Massachusetts business trust, FIRST DATA INVESTOR SERVICES
GROUP, INC. ("FDISG"), a Massachusetts corporation and FLEET NATIONAL BANK
(The "Administrator").
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate classes and
series, with each such classes representing interests in a separate portfolio of
securities or other assets.
WHEREAS, the Fund initially intends to offer Shares in those Portfolios
identified in the attached Exhibit 1, which such Portfolios, together with all
other Portfolios subsequently established by the Fund, shall be subject to this
Agreement in accordance with Article 14;
WEEREAS, the Fund, on behalf of the Portfolios, desires to appoint FDISG as
its transfer agent, dividend disbursing agent and agent in connection with
certain other activities and FDISG desires to accept such appointment;
WHEREAS, the Administrator and the Fund have agreed that the
Administrator shall provide certain administrative services to the Fund and
shall bear certain expenses of the Fund's operations, including all amounts
payable to FDISG under this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and FDISG 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 Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any authorized
officer of the Fund; or (ii) any person, whether or not such person is an
officer or employee of the Fund, duly authorized to give Oral Instructions
or Written Instructions on behalf of the Fund as indicated in writing to
FDISG from time to time.
(c) "Board of Directors" shall mean the Board of Directors or Board
of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange Commission.
(e) "Custodian" refers to any custodian or subcustodian of securities
and other property which the Fund may from time to time deposit, or cause
to be deposited or held under its name or account, with such a custodian or
subcustodian pursuant to a Custodian or Subcustodian Agreement.
(f) "1933 Act" shall mean the Securities Act of 1933 and the rules
and regulations promulgated thereunder, all as amended from time to time.
(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 FDISG from an Authorized Person or from
a person reasonably believed by FDISG to be an Authorized Person.
(j) "Portfolio" shall mean each separate class of shares offered by
the Fund representing interests in a separate portfolio of securities and
other assets.
(k) "Prospectus" shall mean the most recently dated Fund Prospectuses
and Statements of Additional Information, including any supplements thereto
if any, which have become effective under the 1933 Act and the 1940 Act.
(l) "Shares" refers collectively to such shares of capital stock or
beneficial interest, as the case may be, or class or series thereof, of
each respective Portfolio of the Fund as may be issued from time to time.
(m) "Shareholder" shall mean a record owner of at least one Share or
any fraction thereof of each respective Portfolio of the Fund.
(n) "Written Instructions" shall mean a written communication signed
by an Authorized Person or by a person reasonably believed by FDISG to be
an Authorized Person and actually received by FDISG. Written Instructions
shall include manually executed originals and authorized electronic
transmissions, including telefacsimile of a manually executed original or
other process.
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Article 2 APPOINTMENT OF FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes
FDISG as transfer agent and dividend disbursing agent for Shares of each
respective Portfolio of the Fund and as shareholder servicing agent for the Fund
for the period and on the terms set forth in this Agreement. The Fund may from
time to time issue separate classes or series of Shares or classify or
reclassify Shares of each class or series. FDISG shall identify to each such
class or series property belonging to such class or series and in such reports,
confirmations and notices to the Fund called for under this Agreement shall
identify the class or series to which such report, confirmation or notice
pertains. FDISG accepts such appointment and agrees to furnish the services
herein set forth and in accordance with the written procedures which may be
agreed to in writing from time to time by the Fund and FDISG, in return for the
compensation as provided in Section 6 of this Agreement, subject, however, to
the performance standards set forth in Appendix I to this Agreement.
Article 3 DUTIES OF FDISG.
3.1 FDISG 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 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 FDISG annexed hereto as Schedule A and incorporated herein,
and in accordance with the terms of the Prospectus of the Fund on behalf of
the applicable Portfolio, applicable law and the procedures agreed to in
writing from time to time by FDISG and the Fund.
(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 Fund,
and issued and outstanding. FDISG shall provide the Fund 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 Fund.
(c) In addition to providing the foregoing services, the Fund hereby
engages FDISG to provide the print/mail
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services as set forth in Schedule B annexed hereto and incorporated herein,
for the fees also identified in Schedule B. FDISG agrees to perform such
print/mail services subject to the terms and conditions of this Agreement.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, FDISG 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 Fund shall (i) identify to FDISG 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 FDISG for the Fund's blue sky State registration
status is solely limited to the initial establishment of transactions subject to
blue sky compliance by the Fund and the reporting of such transactions to the
Fund as provided above.
3.3 In addition to the duties set forth herein, FDISG 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 by the Fund and FDISG.
Article 4 RECORDKEEPING AND OTHER INFORMATION.
4.1 FDISG 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. Where applicable, such records shall be maintained by
FDISG 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, FDISG agrees
that all such records prepared or maintained by FDISG relating to the services
to be performed by FDISG hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such Section and
other applicable securities laws and rules and regulations. The Fund, or the
Fund's authorized representatives, shall have access to such records at all
times during FDISG's normal business hours and such records will be surrendered
promptly to the Fund on and in accordance with the Fund's request. Upon the
reasonable
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request of the Fund, copies of any such records shall be provided by FDISG to
the Fund or the Fund's authorized representative at the Fund's expense.
4.3 In case of any requests or demands for the inspection of Shareholder
records of the Fund, FDISG will endeavor to notify the Fund of such request and
secure Written Instructions as to the handling of such request. FDISG 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 FUND INSTRUCTIONS.
5.1 Subject to FDISG meeting the standard of care set forth in Article 11,
FDISG 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
Fund. FDISG 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 Fund and the proper countersignature of FDISG.
5.2 At any time, FDISG may request Written Instructions from the Fund and
may seek advice from legal counsel for the Fund, or its own legal counsel, at
its own expense, with respect to any matter arising in connection with this
Agreement, and subject to FDISG meeting the standard of care set forth in
Article 11, it shall not be liable for any action taken or not taken by it in
good faith in accordance with such Written Instructions or in accordance with
the advice of counsel for the Fund or for FDISG. Written Instructions requested
by FDISG pursuant to this Section 5.2 will be provided by the Fund within a
reasonable period of time.
5.3 Unless otherwise provided in this Agreement, FDISG, its officers,
agents or employees, shall act only upon Oral Instructions or Written
Instructions and shall be entitled to rely upon only Oral Instructions and any
Written Instructions actually received by them pursuant to this Agreement,
provided that such Oral Instructions and Written Instructions reasonably appear
to have been given by an Authorized Person. The Fund agrees that all Oral
Instructions shall be followed within one business day by confirming Written
Instructions, and that the Fund's failure to so confirm shall not impair in any
respect FDISGs right to rely on Oral Instructions.
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Article 6 COMPENSATION.
6.1 The Administrator on behalf of each of the Portfolios will
compensate FDISG 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, subject, however, to the performance
standards set forth in Appendix I to this Agreement.
6.2 The Administrator on behalf of each of the Portfolios agrees to pay
all fees within thirty (30) days following the receipt of the respective
invoice.
6.3 Any compensation payable to FDISG hereunder pursuant to Schedule B
hereof may be adjusted from time to time by attaching hereto a revised
Schedule B, executed and dated by the parties hereto.
6.4 The Fund acknowledges that the fees that FDISG charges the Fund under
this Agreement reflect the allocation of risk between the parties, including the
disclaimer of warranties in Section 9.3 and the limitations on liability in
Article 12. Modifying the allocation of risk from what is stated here would
affect the fees that FDISG charges, and in consideration of those fees, the Fund
agrees to the stated allocation of risk.
Article 7 DOCUMENTS.
In connection with the appointment of FDISG, the Fund shall, on or before
the date this Agreement goes into effect, but in any case within a reasonable
period of time for FDISG to prepare to perform its duties hereunder, deliver or
cause to be delivered to FDISG the documents set forth in the written schedule
of Fund Documents annexed hereto as Schedule C.
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Article 8 TRANSFER AGENT SYSTEM.
8.1 FDISG 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 FDISG in connection with the services
provided by FDISG to the Fund herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to the FDISG System
for the sole and limited purpose of having FDISG 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 Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the FDISG System for either account inquiry or to transit transaction
information, including but not limited to maintenance, exchanges, purchases and
redemptions, such direct access capability shall be limited to direct entry to
the FDISG 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 FDISG System is strictly prohibited without
the prior written consent of FDISG.
Article 9 REPRESENTATIONS AND WARRANTIES.
9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform 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; and
(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.
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9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized, validly 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 1933 Act, as amended, and the
1940 Act on behalf of each of the Portfolios is currently effective and
will remain effective, and all appropriate state securities law filings
have been made and will continue to be made, with respect to all Shares of
the Fund 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 Fund's Articles of Incorporation and its Prospectus with
respect to each Portfolio, such Shares shall be validly issued, fully paid
and non-assessable.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, FDISG DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON.
Article 10 INDEMNIFICATION.
10.1 FDISG shall not be responsible for and the Fund on behalf of each
Portfolio shall indemnify and hold FDISG 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 FDISG or for which FDISG may be held to be liable (a "Claim") arising
out of or attributable to any of the following unless such Claim resulted from a
negligent act or omission to act or bad faith by FDISG in the performance of its
duties hereunder:
(a) any actions of FDISG required to be taken pursuant to this
Agreement;
(b) FDISG'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 FDISG
from the Fund, or any authorized third party acting on behalf of the
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Fund, including but not limited to the prior transfer agent for the Fund,
in the performance of FDISG'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 Fund 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 Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's negligence or
misconduct or the breach of any representation or warranty of the Fund made
herein.
10.2 In any case in which the Fund may be asked to indemnify or hold FDISG
harmless, FDISG will notify the Fund promptly after identifying any situation
which it believes presents or appears likely to present a claim for
indemnification ("Indemnification Claim") against the Fund although the failure
to do so shall not prevent recovery by FDISG and shall keep the Fund advised
with respect to all developments concerning such Indemnification Claim. The
Fund shall have the option to defend FDISG against any Indemnification Claim
which may be the subject of this indemnification, and, in the event that the
Fund so elects, such defense shall be conducted by counsel chosen by the Fund
and satisfactory to FDISG, and thereupon the Fund shall take over complete
defense of the Indemnification Claim and FDISG shall sustain no further legal or
other expenses in respect of such Indemnification Claim. FDISG will not confess
any Indemnification Claim or make any compromise in any case in which the Fund
will be asked to provide indemnification, except with the Fund's prior written
consent. Subject to Section 10.3 hereof, the obligations of the parties hereto
under this Article 10 shall survive the termination of this Agreement.
10.3 Any Indemnification Claim under this Agreement must be made prior to
the earlier of:
(a) one year after FDISG 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.
10.4 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
FDISG's sole and exclusive remedy for
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claims or other actions or proceedings to which the Fund's indemnification
obligations pursuant to this Article 10 may apply.
Article 11 STANDARD OF CARE.
11.1 In the performance of its duties hereunder, FDISG shall be obligated
to exercise care and diligence and to act in good faith and 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 Fund unless said loss or damages are caused by FDISGs own
negligence, bad faith or willful misconduct or that of its employees, agents or
representatives.
11.2 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 CONSEQUENTIAL DAMAGES.
Article 13 TERM AND TERMINATION.
13.1 This Agreement shall be effective on the date first written above and
shall continue for a period of one (1) year (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall continue
automatically for successive terms of one (1) year ("Renewal Terms") each,
unless the Fund or FDISG provides written notice to the other of its intent not
to renew. Such notice must be received not less than sixty (60) days prior to
the expiration of the Initial Term or the then current Renewal Term.
13.3 The Fund may terminate this Agreement in the event that the negligent
action or negligent omission to act on the part of FDISG causes damages to the
Fund in excess of one hundred thousand dollars ($100,000). "Damages to the
Fund" are defined as damages caused by a single event, or cumulative series of
events related to the same matter, which generates a monetary loss. The Fund's
right to terminate under this Section 13.3 shall remain effective in the event
FDISG has made the Fund whole with respect to the damages caused. Unless the
Fund provides FDISG with written notice of the Fund's intent to exercise its
option under this Section 13.3 within 30 days after the Fund becomes aware of
the occurrence, the Fund shall have waived its option to terminate under this
provision.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting
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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 FDISG is the
Non-Defaulting Party, its termination of this Agreement shall not constitute a
waiver of any other rights or remedies of FDISG with respect to services
performed prior to such termination or rights of FDISG 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 The Fund shall have the right to terminate this Agreement at any time
if the Fund reorganizes into another entity, liquidates or otherwise ceases to
exist. In the event the Fund terminates the Agreement pursuant to this Section
13.5, the Fund shall reimburse FDISG for all reasonable costs associated with
such termination.
13.6 In the event that FDISG fails to be registered as a transfer agent
with the appropriate federal agency at any time during the term of this
Agreement, the Fund may, upon written notice to FDISG, immediately terminate
this Agreement.
13.7 In the event this Agreement is terminated by the Fund pursuant to
Sections 3.3, 3.4 or 3.6 hereof or pursuant to paragraph (d) of the Performance
Standards set forth in Appendix I hereto, all reasonable expenses associated
with movement of records and materials and conversion thereof to a successor
transfer agent will be borne by the FDISG and the Fund shall not be responsible
for FDISG's costs associated with such termination. In the event of termination
of this Agreement pursuant to any other Sections of this Agreement, all
reasonable expenses associated with conversion will be borne by the Fund.
Article 14 ADDITIONAL PORTFOLIOS
14.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1 with respect to which the Fund desires
to have FDISG render services as transfer agent under the terms hereof, the Fund
shall so notify FDISG in writing, and if FDISG agrees in writing to provide such
services, Exhibit 1 shall be amended to include such additional Portfolios.
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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
Fund and FDISG 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. The Fund and FDISG may use the Confidential Information only to
exercise their respective rights or perfom their respective duties under this
Agreement. Except as required by law and except as disclosed in the Fund's
registration statement or filed as an exhibit thereto, the Fund and FDISG 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 Fund and FDISG may, however, disclose Confidential Information to
their employees who have a need to know the Confidential Information to perform
work for the other, provided that the Fund and FDISG shall use reasonable
efforts to ensure that the Confidential Information is not duplicated or
disclosed by its employees in breach of this Agreement. The Fund and FDISG may
also disclose the Confidential Information to independent contractors, auditors,
and professional advisors, provided they first agree in writing to be bound by
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
FDISG 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 Fund or FDISG, 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 Fund or FDISG 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,
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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.
Article 16 FORCE MAJEURE.
16.1 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 circumstances beyond such party's
reasonable control. 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.
16.2 Notwithstanding Section 16.1, in the event of equipment failures
beyond FDISG's control, FDISG shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions but shall have no liability
with respect thereto. FDISG shall enter into and maintain in effect with
appropriate parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available.
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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; provided, however, that FDISG
may, in its sole discretion, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary, provided that, in the
reasonable judgment of the Board of Trustees of the Fund acting in its sole
discretion: (i) the financial capacity of such assignee is not materially less
than that of FDISG; (ii) the nature and quality of the services to be provided
hereunder, including the Performance Standards set forth in Appendix I, are not
materially adversely affected by such assignment; and (iii) the quality and
capability of the personnel and facilities of the assignee are not materially
less than those of FDISG. FDISG may, in its sole discretion, engage
subcontractors to perform any non-material or non-substantive obligations
contained in this Agreement that it is otherwise required to perform hereunder,
provided that FDISG shall be responsible for all compensation payable to such
subcontractors and shall remain responsible for the acts and omissions of such
subcontractors to the extent that it is hereunder.
Article 18 NOTICE.
Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or FDISG, 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 Fund:
Xxxx X. X'Xxxxx, President
Galaxy Fund II
c/o HASBRO, Inc.
000 Xxxxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx 00000
with a copy to:
W. Xxxxx XxXxxxxx, III
Drinker Xxxxxx & Xxxxx LLP
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 19 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. 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 FDISG
and the Fund hereby submit themselves to the exclusive jurisdiction of those
courts.
Article 20 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 21 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 22 PUBLICITY.
Neither FDISG nor the Fund 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 23 RELATIONSHIP OF PARTIES.
The parties agree that they are independent contractors and not partners or
co-venturers and nothing contained herein shall be interpreted or construed
otherwise.
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Article 24 COOPERATION WITH ACCOUNTANTS
FDISG shall cooperate with the Fund's independent certified public
accountants and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion as such
may be required from time to time by the Fund.
Article 26 ENTIRE AGEEMENT; SEVERABILITY.
26.1 This Agreement, including the 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 the Fund unless said writing is executed by the President
of the Fund. No such writing shall be effective as against FDISG unless said
writing is executed by a Senior Vice President, Executive Vice President, or
President of FDISG. 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.
26.2 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.
-16-
26.3 The names "Galaxy Fund II" and "Trustees of Galaxy Fund II" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated February 22, 1990 which is hereby referred to and a copy of which is
on file at the office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of the Fund. The obligations of
"Galaxy Fund II" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, Shareholders, or
representatives of the Fund personally, but bind only the Trust Property, and
all persons dealing with any class of Shares of the Fund must look solely to the
Trust Property belonging to such class for the enforcement of any claims against
the Fund.
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.
GALAXY FUND II
By: /s/ Xxxx X. X'Xxxxx
-------------------------------
Title: President
----------------------------
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Executive Vice President
----------------------------
FLEET NATIONAL BANK
Only with respect to Article 6 of this Agreement
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Title: Senior Vice President
----------------------------
-17-
Exhibit 1
LIST OF PORTFOLIOS
Large Company Index Fund
Small Company Index Fund
U.S. Treasury Index Fund
Utility Index Fund
Municipal Bond Fund
-18-
Schedule A
DUTIES OF FDISG
1. SHAREHOLDER INFORMATION. (a) FDISG shall maintain a record of the
number of Shares held by each Shareholder of record which shall include name,
address, taxpayer identification numbers and which shall indicate whether such
Shares are held in certificated or uncertificated form and shall include
historical information regarding the account of each Shareholder, including
dividends and distributions paid and the date and price for all transactions in
a Shareholder's account; any stop or restraining order placed against a
Shareholder's account; information with respect to withholdings; any information
required for FDISG to perform any calculations contemplated or required by the
Agreement to which this is a Schedule (the "Agreement"); FDISG shall keep a
record of all redemption checks and dividend checks returned by the postal
authorities, and shall maintain such records as are required by law.
(b) FDISG shall keep subaccounts for each Shareholder requesting such
service in connection with Shares held by such Shareholder for separate
accounts, containing the same information for each subaccount as required by
subparagraph (a) above.
2. SHAREHOLDER SERVICES. FDISG shall respond as appropriate to all
inquiries and communications from Shareholders, securities brokers and others
relating to Shareholder accounts with respect to its duties hereunder and such
other information and communications as may be from time to time mutually agreed
upon in writing by FDISG and the Fund.
3. SHARE CERTIFICATES.
(a) At the expense of the Fund, the Fund shall supply FDISG with an
adequate supply of blank share certificates to meet FDISG requirements therefor.
Such Share certificates shall be properly signed by facsimile. The Fund agrees
that, notwithstanding the death, resignation, or removal of any officer of the
Fund whose signature appears on such certificates, FDISG or its agent may
continue to countersign certificates which bear such signatures until otherwise
directed by Written Instructions.
(b) FDISG shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon receipt by FDISG of
properly executed affidavits and lost certificate bonds, in form satisfactory to
FDISG, with the Fund and FDISG named as obligees under the bond.
(c) FDISG 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
-19-
issued with respect thereto), FDISG shall maintain comparable records of the
Shareholders thereof, including their names, addresses and taxpayer
identification numbers. FDISG shall further maintain a stop transfer record on
lost and/or replaced certificates.
4. MAILING COMMUNICATIONS TO SHAREHOLDERS; PROXY MATERIALS. FDISG will
address and mail all communications by then Fund to Shareholders or their
authorized representatives, including reports to Shareholders, dividend and
distribution notices and proxy material for the Fund's meetings of Shareholders.
In connection with meetings of Shareholders, FDISG 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) FDISG shall not be required to issue any Shares of the Fund where
it has received Written Instructions from the Fund or official notice from any
appropriate authority that the sale of the Shares of the Fund has been suspended
or discontinued. The existence of such Written Instructions or such official
notice shall be conclusive evidence of the right of FDISG 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, FDISG will endeavor to: (i) give
prompt notice of such return to the Fund 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 FDISG may from time to time deem appropriate.
6. TRANSFER AND REPURCHASE.
(a) FDISG shall process all requests to transfer or redeem Shares in
accordance with the transfer or repurchase procedures set forth in the Fund's
Prospectus.
(b) FDISG 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 FDISG reasonably may deem necessary.
(c) FDISG reserves the right to refuse to transfer or repurchase
Shares until it is satisfied that the endorsement on the instructions is valid
and genuine. FDISG 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 FDISG, in its
-20-
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, FDISG shall, upon receipt of the
instructions and documents in proper form, deliver to the Custodian and the Fund
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 FDISG reflecting outstanding Shares of the Fund and Shares
attributed to individual accounts.
(e) FDISG, upon receipt of the monies provided to it by the Custodian
for the repurchase of Shares, shall disburse the redemption proceeds to the
person entitled to such proceeds, all in accordance with the procedures and
controls as are mutually agreed to in writing from time to time by the Fund,
FDISG and the Custodian.
(f) FDISG shall not process or effect any repurchase with respect to
Shares of the Fund after receipt by FDISG or its agent of notification of the
suspension of the determination of the net asset value of the Fund.
7. DIVIDENDS
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to Shares of the
Fund, the Fund shall furnish or cause to be furnished to FDISG 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 Fund will provide FDISG with sufficient cash to make
payment on the payment date to the Shareholders as of the record date.
(c) If FDISG does not receive sufficient cash from the Fund to make
total dividend and/or distribution payments on the date of payment to all
Shareholders of the Fund as of the record date, FDISG will notify the Fund. The
Fund hereby instructs FDISG to process dividend and/or distribution payments to
all Shareholders as of the record date regardless of whether sufficient cash is
available on the payment date. Subject to FDISG meeting the standard of care
set forth in Article 11 hereof, the Fund shall be responsible for and shall
indemnify and hold FDISG harmless from all claims asserted by others with
-21-
respect to the actions of FDISG in complying with the foregoing sentence.
(d) FDISG shall prepare and file with the Internal Revenue Service
and/or other appropriate taxing authorities, and address and mail to
Shareholders or their authorized representatives, such returns and information
relating to dividends and distributions paid by the Fund as are required to be
so prepared, filed and mailed by applicable laws, rules and regulations, or such
substitute form of notice as may from time to time be permitted or required by
the Internal Revenue Service and/or other appropriate taxing authorities. On
behalf of the Fund, FDISG shall pay on a timely basis to the appropriate federal
authorities any taxes required by applicable federal tax laws to be withheld by
the Fund on dividends and distributions paid by the Fund.
8. QNGOING FUNCTIONS. FDISG will perform the following functions on an
ongoing basis for each class or series of Shares of the Fund:
(a) furnish state-by-state registration reports to the Fund;
(b) calculate dealer commissions for the Fund, as applicable, if any;
(c) provide toll-free lines for direct Shareholder use, plus
customer liaison staff with on-line inquiry capacity;
(d) mail duplicate confirmations to dealers of their clients'
activity, whether executed through the dealer or directly with FDISG, if any;
(e) provide detail for underwriter or broker confirmations and other
participating dealer Shareholder accounting, in accordance with such procedures
as may be agreed upon from time to time by the Fund and FDISG;
(f) provide Shareholder lists and statistical information concerning
accounts to the Funds; and
(g) provide timely notification of Fund activity, and such other
information as may be agreed upon from time to time by FDISG and the Custodian,
to the Fund or the Custodian.
9. In addition to and neither in lieu nor in contravention of the
services set forth above, FDISG shall: (i) perform all the customary services of
a transfer agent, registrar, dividend disbursing agent and agent of the dividend
reinvestment and cash purchase plan 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
-22-
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.
-23-
Schedule B
FEE SCHEDULE
For the services to be rendered, the facilities to be furnished and the
payments to be made by FDISG, as provided for in this Agreement, and the
services to be rendered by FDISG to the Administrator under the
Sub-Administrative Agreement dated March 31, 1995, by and between FDISG and
the Administrator, the Administrator will pay FDISG on the first business day
of each month a fee for the previous month at the annual rate of 0.15% of the
average daily net assets of the Fund. Upon any termination of this Agreement
before the end of any month, the fee for such part of a month shall be
prorated according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of termination of this
Agreement.
-24-
Schedule C
FUND DOCUMENTS
- Certified copy of the Articles of Incorporation of the Fund, as
amended
- Certified copy of the By-laws of the Fund, as amended,
- Copy of the resolutions of the Board of Directors authorizing the
execution and delivery of this Agreement
- Specimens of the certificates for Shares of the Fund, if applicable,
in the form approved by the Board of Directors of the Fund, with a
certificate of the Secretary of the Fund 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
Fund
- All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-Laws of the Fund or as required by law.
-25-
Appendix I
Pursuant to Section 2 of this Agreement, FDISG has agreed to perform the
services described in this Agreement in accordance with the Performance
Standards set forth in this Appendix I. The parties agree that such Performance
Standards, which are described below, may be revised from time to time upon the
mutual agreement of the parties.
Each of the performance standards will be monitored by a Quality Assurance
Team:
(a) In the event that FDISG fails to meet a particular Performance
Standard (except any failure due to circumstances beyond its control) in any
particular month, FDISG agrees to take appropriate corrective action within the
following thirty (30) day period.
(b) In the event that FDISG fails to meet a particular Performance
Standard (except for any failure due to circumstances beyond its control) in two
(2) consecutive months, the fee payable to FDISG hereunder for such service
shall be reduced by one percent (1%) for the second of those two months.
(c) In the event that FDISG fails to meet a particular Performance
Standard (except for any failure due to circumstances beyond its control) for
any three (3) consecutive months, the fee payable to FDISG hereunder for such
service shall be reduced by one and one-half percent (1.5%) for the third of
those three months.
(d) In the event that FDISG fails to meet a particular Performance
Standard (except for any failure due to circumstances beyond its control) for
any three (3) months within any six (6) month period, the Fund shall have the
right to terminate this Agreement upon forty-five (45) days' written notice to
FDISG.
(e) In the event that there is no specific fee for a particular service
set forth in Schedule A hereto, then any reduction in the fee payable to FDISG
as a result of a failure to meet a particular performance standard for that
service hereunder shall be taken as a reduction in the annual per account
maintenance fee.
-26-
(f) The Performance Standards shall be as follows:
--------------------------------------------------------------------------------
ITEM STANDARD
--------------------------------------------------------------------------------
GENERAL PROCESSING
--------------------------------------------------------------------------------
New Account Set-Up 100% processed same day
--------------------------------------------------------------------------------
Financial Quality Control 100% processed same day
--------------------------------------------------------------------------------
Non-Financial Correspondence 100% acknowledged by telephone within
24 hours of receipt; items less than
30 days old resolved within 3 business
days; items older than 30 days
resolved within 5 business day
--------------------------------------------------------------------------------
Maintenance Items 3 business days
--------------------------------------------------------------------------------
Not In Good Order Items 100% called on same day
--------------------------------------------------------------------------------
Research Received by Phone 100% called with status report within
48 hours of receipt; 100% resolved
within 3 business days
--------------------------------------------------------------------------------
Research Received by Mail 100% acknowledged by telephone within
24 hours of receipt; 100% resolved
within 4 business days
--------------------------------------------------------------------------------
PHONES
--------------------------------------------------------------------------------
Abandonment Rate 3% or less
--------------------------------------------------------------------------------
Average Speed of Answer 20 seconds or less
--------------------------------------------------------------------------------
Service Level 90% of calls will be answered in 20
seconds or less
--------------------------------------------------------------------------------
FULFILLMENT within 24 hours
--------------------------------------------------------------------------------
PRINT/MAIL
--------------------------------------------------------------------------------
Monthly Statements 5 business days
--------------------------------------------------------------------------------
Daily Confirmations T + 2
--------------------------------------------------------------------------------
Checks T + 1
--------------------------------------------------------------------------------
Ad hoc Projects 5 business days from receipt of
request
--------------------------------------------------------------------------------
-27-
