EXHIBIT h-3.
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of the 1st day of September,
2003, by and between Wasatch Funds, Inc., a Minnesota corporation (the
"Company"), and UMB Fund Services, Inc., a Wisconsin corporation, its successors
and assigns ("UMBFS").
R E C I T A L S:
WHEREAS, the Company is registered under the 1940 Act as an open-end
management investment company; and
WHEREAS, the Company desires to retain UMBFS to render certain transfer
agency and dividend disbursement services, and UMBFS is willing to render such
services, all in accordance with the terms of this Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this Agreement, the
following capitalized terms shall have the meanings set forth hereinafter
whenever they appear in this Agreement:
1.01 1940 ACT shall mean the Investment Company Act of 1940, as
amended from time to time.
1.02 ARTICLES OF INCORPORATION shall mean the Articles of
Incorporation or other similar operational document of the Company, as the case
may be, as the same may be amended from time to time.
1.03 AUTHORIZED PERSON shall mean any individual who is authorized
to provide UMBFS with Instructions and requests on behalf of the Company, whose
name shall be certified to UMBFS from time to time pursuant to Section 7.01 of
this Agreement.
1.04 BOARD OF DIRECTORS shall mean the Board of Directors of the
Company.
1.05 CUSTODIAN shall mean the financial institution appointed as
custodian under the terms and conditions of the custody agreement between the
financial institution and the Company, or its successor.
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1.06 EXCHANGE ACT shall mean the Securities Exchange Act of 1934,
as amended from time to time.
1.07 FUND shall mean each separate series of Shares offered by the
Company representing interests in a separate portfolio of securities and other
assets for which the Company has appointed UMBFS as transfer agent and dividend
disbursing agent under this Agreement.
1.08 FUND BUSINESS DAY shall mean each day on which the New York
Stock Exchange, Inc. is open for trading.
1.09 INSTRUCTIONS shall mean an oral communication from an
Authorized Person or a written communication signed by an Authorized Person and
actually received by UMBFS. Instructions shall include manually executed
originals, telefacsimile transmissions of manually executed originals or
electronic communications.
1.10 PROSPECTUS shall mean the last Prospectus with respect to a
Fund and any supplement actually received by UMBFS from the Company with respect
to which the Company has indicated a registration statement has become effective
under the Securities Act and the 1940 Act, including the Statement of Additional
Information, incorporated by reference herein.
1.11 SECURITIES ACT shall mean the Securities Act of 1933, as
amended from time to time.
1.12 SHARES shall mean such shares of capital stock, or class
thereof, of each respective Fund of the Company as may be issued from time to
time.
1.13 SHAREHOLDER shall mean a record owner of Shares of each
respective Fund of the Company.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 APPOINTMENT. The Company hereby appoints UMBFS as transfer
agent and dividend disbursing agent of all the Shares of the Company during the
term of this Agreement with respect to each Fund listed on Schedule A hereto,
and any additional Fund the Company and UMBFS may agree to include on any
amended Schedule A. UMBFS hereby accepts such appointment as transfer agent and
dividend disbursing agent and agrees to perform the duties thereof as
hereinafter set forth.
2.02 DUTIES.
A. UMBFS shall perform the transfer agent and dividend disbursement
services described on Schedule B hereto and such additional services as may be
agreed to by the parties
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from time to time and set forth in an amendment to Schedule B (collectively, the
"Services"). UMBFS shall have no duties or responsibilities other than those
specifically set forth in this Agreement, and no covenant or obligation to carry
out any other duties or responsibilities shall be implied in this Agreement
against UMBFS.
B. UMBFS may, in its discretion, appoint other parties to carry out
some or all of its responsibilities under this Agreement; provided, however,
that unless the Company shall enter into a written agreement with any such
party, the party shall be the agent of UMBFS and not the agent of the Company.
In such event, UMBFS shall be fully responsible for the acts or omissions of
such party and shall not be relieved of any of its responsibilities hereunder by
the appointment of such party.
2.03 DELIVERIES.
A. In connection with UMBFS's appointment as transfer agent
and dividend disbursing agent, the Company shall deliver or cause the following
documents to be delivered to UMBFS:
(1) A copy of the Articles of Incorporation and By-laws
of the Company and all amendments thereto, certified by the Secretary of the
Company;
(2) A certificate signed by the President and Secretary
of the Company specifying the number of authorized Shares and the number of such
authorized Shares issued and currently outstanding, if any;
(3) A certified copy of the resolutions of the Board of
Directors of the Company appointing UMBFS as transfer agent and dividend
disbursing agent and authorizing the execution of this Transfer Agency Agreement
on behalf of the Company;
(4) Copies of the Company's Registration Statement, as
amended to date, and the most recently filed Post-Effective Amendment thereto,
filed by the Company with the Securities and Exchange Commission under the
Securities Act and the 1940 Act, together with any applications filed in
connection therewith;
(5) An opinion of counsel for the Company with respect to
the Company's organization and existence under the laws of its state of
organization, the validity of the authorized and outstanding Shares, whether
such Shares are fully paid and non-assessable and the status of such Shares
under the Securities Act and any other applicable federal law or regulation
(i.e., if subject to registration, that they have been registered and that the
Registration Statement has become effective, or if exempt, the specific grounds
therefor); and
(6) The certificate required by Section 7.01 of this
Agreement, signed by an officer of the Company and designating the names of the
Company's initial Authorized Persons.
B. The Company agrees to deliver or to cause to be delivered
to UMBFS in Milwaukee, Wisconsin, at the Company's expense, all of its
Shareholder account records in a
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format acceptable to UMBFS, as well as all other documents, records and
information that UMBFS may reasonably request in order for UMBFS to perform the
Services hereunder.
ARTICLE III
COMPENSATION & EXPENSES
3.01 COMPENSATION. As compensation for the performance of the
Services, the Company agrees to pay UMBFS the fees set forth on Schedule C
attached hereto. The parties may amend Schedule C to include fees for any
additional services requested by the Company, or to add Funds for which UMBFS
has been retained. The Company agrees to pay UMBFS's then current rate for any
Services added to Schedule C after the execution of this Agreement.
3.02 EXPENSES. The Company also agrees to promptly reimburse UMBFS
for all out-of-pocket expenses or disbursements incurred by UMBFS in connection
with the performance of Services under this Agreement. Out-of-pocket expense
shall include, but not be limited to, those items specified on Schedule C
hereto. If requested by UMBFS, out-of-pocket expenses are payable in advance.
Payment of postage expenses, if prepayment is requested, is due at least seven
days prior to the anticipated mail date. In the event UMBFS requests advance
payment, UMBFS shall not be obligated to incur such expenses or perform the
related Service(s) until payment is received.
3.03 PAYMENT PROCEDURES.
A. The Company agrees to pay all amounts due hereunder within
fifteen days of the date reflected on the statement for such Services (the "Due
Date"). UMBFS shall xxxx Service fees monthly, and out-of-pocket expenses as
incurred (unless prepayment is requested by UMBFS). UMBFS may, at its option,
arrange to have various service providers submit invoices directly to the
Company for payment of reimbursable out-of-pocket expenses.
B. The Company is aware that its failure to remit to UMBFS all
amounts due on or before the Due Date will cause UMBFS to incur costs not
contemplated by this Agreement, including, but not limited to carrying,
processing and accounting charges. Accordingly, in the event that UMBFS does not
receive any amounts due hereunder by the Due Date, the Company agrees to pay a
late charge on the overdue amount equal to one and one-half percent (1.5%) per
month or the maximum amount permitted by law, whichever is less. In addition,
the Company shall pay UMBFS's reasonable attorney's fees and court costs if any
amounts due UMBFS are collected by or through an attorney. The parties hereby
agree that such late charge represents a fair and reasonable computation of the
costs incurred by reason of the Company's late payment. Acceptance of such late
charge shall in no event constitute a waiver by UMBFS of the Company's default
or prevent UMBFS from exercising any other rights and remedies available to it.
3.04 ALLOCATION OF RISK. The Company acknowledges that the fees
charged by UMBFS under this Agreement reflect the allocation of risk between the
parties, including the
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exclusion of remedies and limitations on liability in Article VIII. Modifying
the allocation of risk from what is stated herein would affect the fees that
UMBFS charges. Accordingly, in consideration of those fees, the Company agrees
to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
A. UMBFS agrees to accept purchase orders and redemption
requests with respect to the Shares of each Fund on each Fund Business Day in
accordance with such Fund's Prospectus; provided, however, that UMBFS shall only
accept purchase orders from states in which the Shares are registered, as
indicated from time to time by the Company. UMBFS shall, as of the time at which
the net asset value of each Fund is computed on each Fund Business Day, issue to
and redeem from the accounts specified in a purchase order or redemption request
in proper form and accepted by the Fund the appropriate number of full and
fractional Shares based on the net asset value per Share of the respective Fund
specified in an advice received on such Fund Business Day from or on behalf of
the Fund. UMBFS shall not be responsible for the payment of any original issue
or other taxes required to be paid by the Company in connection with the
issuance of any Shares in accordance with this Agreement. UMBFS shall not be
required to issue any Shares after it has received from an Authorized Person or
from an appropriate federal or state authority written notification that the
sale of Shares has been suspended or discontinued, and UMBFS shall be entitled
to rely upon such written notification.
B. Upon receipt of a redemption request and monies paid to it
by the Custodian in connection with a redemption of Shares, UMBFS shall cancel
the redeemed Shares and after making appropriate deduction for any withholding
of taxes required of it by applicable federal law, make payment in accordance
with the Fund's redemption and payment procedures described in the Prospectus.
C. Except as otherwise provided in this paragraph, UMBFS will
transfer or redeem Shares upon presentation to UMBFS of instructions endorsed
for exchange, transfer or redemption, accompanied by such documents as UMBFS
deems necessary to evidence the authority of the person making such transfer or
redemption. UMBFS reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement or instructions are valid and
genuine. For that purpose, it will require, unless otherwise instructed by an
Authorized Person or except as otherwise provided in this paragraph, a guarantee
of signature by an "Eligible Guarantor Institution" as that term is defined by
SEC Rule 17Ad-15. UMBFS also reserves the right to refuse to transfer or redeem
Shares until it is satisfied that the requested transfer or redemption is
legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or redemptions which UMBFS, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no reasonable
basis to any claims adverse to such transfer or redemption. UMBFS may, in
effecting transfers and redemptions of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers (or such
other statutes which protect it and the Company in not requiring complete
fiduciary
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documentation) and shall not be responsible for any act done or omitted by it in
good faith in reliance upon such laws. Notwithstanding the foregoing or any
other provision contained in this Agreement to the contrary, UMBFS shall be
fully protected by each Fund in not requiring any instruments, documents,
assurances, endorsements or guarantees, including, without limitation, any
signature guarantees, in connection with a redemption, exchange or transfer of
Shares whenever UMBFS reasonably believes that requiring the same would be
inconsistent with the transfer and redemption procedures described in the
Prospectus.
D. Notwithstanding any provision contained in this Agreement
to the contrary, UMBFS shall not be required or expected to require, as a
condition to any transfer or redemption of any Shares pursuant to a computer
tape or electronic data transmission, any documents to evidence the authority of
the person requesting the transfer or redemption and/or the payment of any stock
transfer taxes, and shall be fully protected in acting in accordance with the
applicable provisions of this Article.
E. In connection with each purchase and each redemption of
Shares, UMBFS shall send such statements as are prescribed by the Federal
securities laws applicable to transfer agents or as described in the Prospectus.
It is understood that certificates for Shares have not been and will not be
offered by the Company or available to investors.
F. UMBFS and the Company shall establish procedures for
effecting purchase, redemption or transfer transactions accepted from investors
by telephone or other methods consistent with the terms of the Prospectus. UMBFS
may establish such additional procedures, rules and regulations governing the
purchase, redemption or transfer of Shares, as it may deem advisable and
consistent with the Prospectus and industry practice. UMBFS shall not be liable,
and shall be held harmless by the Company, for its actions or omissions which
are consistent with the foregoing procedures.
G. The Company agrees to provide UMBFS with prior notice of
any increase or decrease in the total number of Shares authorized to be issued,
or the issuance of any additional Shares of a Fund pursuant to stock dividends,
stock splits, recapitalizations, capital adjustments or similar transactions,
and to deliver to UMBFS such documents, certificates, reports and legal opinions
as UMBFS may reasonably request.
4.02 DIVIDENDS AND DISTRIBUTIONS.
A. The Company shall give or cause to be given to UMBFS a copy
of a resolution of its Board of Directors, that either:
(i) sets forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, thereof, the
record date as of which Shareholders entitled to payment or accrual, as the case
may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to UMBFS on such
payment date, or
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(ii) authorizes the declaration of dividends and distributions
on a daily or other periodic basis and further authorizes UMBFS to rely on a
certificate of an Authorized Person setting forth the information described in
subsection (i) of this paragraph.
B. In connection with a reinvestment of a dividend or
distribution of Shares of a Fund, UMBFS shall as of each Fund Business Day, as
specified in a certificate or resolution described in paragraph A, issue Shares
of the Fund based on the net asset value per Share of such Fund specified in an
advice received from or on behalf of the Fund on such Fund Business Day.
C. Upon the mail date specified in such certificate or
resolution, as the case may be, the Company shall, in the case of a cash
dividend or distribution, cause the Custodian to deposit in an account in the
name of UMBFS on behalf of a Fund, an amount of cash sufficient for UMBFS to
make the payment, as of the mail date specified in such certificate or
resolution, as the case may be, to the Shareholders who were of record on the
record date. UMBFS will, upon receipt of any such cash, make payment of such
cash dividends or distributions to the Shareholders as of the record date. UMBFS
shall not be liable for any improper payments made in accordance with a
certificate or resolution described in the preceding paragraph. If UMBFS shall
not receive from the Custodian sufficient cash to make payments of any cash
dividend or distribution to all Shareholders of a Fund as of the record date,
UMBFS shall, upon notifying the Company, withhold payment to such Shareholders
until sufficient cash is provided to UMBFS.
D. It is understood that UMBFS in its capacity as transfer
agent and dividend disbursing agent shall in no way be responsible for the
determination of the rate or form of dividends or capital gain distributions due
to the Shareholders pursuant to the terms of this Agreement. It is further
understood that UMBFS shall file with the Internal Revenue Service and
Shareholders such appropriate federal tax forms concerning the payment of
dividend and capital gain distributions but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent, required by applicable
federal law.
4.03 RECORDS.
A. UMBFS shall keep those records specified in Schedule D
hereto in the form and manner, and for such period, as it may deem advisable but
not inconsistent with the rules and regulations of appropriate government
authorities, in particular Rules 31a-2 and 31a-3 under the 1940 Act. UMBFS may
deliver to the Company from time to time at UMBFS's discretion, for safekeeping
or disposition by the Company in accordance with law, such records, papers and
documents accumulated in the execution of its duties as transfer agent, as UMBFS
may deem expedient, other than those which UMBFS is itself required to maintain
pursuant to applicable laws and regulations. The Company shall assume all
responsibility for any failure thereafter to produce any record, paper, or other
document so returned, if and when required. To the extent required by Section 31
of the 1940 Act and the rules and regulations thereunder, the records specified
in Schedule D hereto maintained by UMBFS, which have not been previously
delivered to the Company pursuant to the foregoing provisions of this paragraph,
shall be considered to be the property of the Company, shall be made available
upon request for inspection by the officers, employees, and auditors of the
Company, and shall be delivered to the Company promptly upon
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request and in any event upon the date of termination of this Agreement, in the
form and manner kept by UMBFS on such date of termination or such earlier date
as may be requested by the Company. Notwithstanding anything contained herein to
the contrary, UMBFS shall be permitted to maintain copies of any such records,
papers and documents to the extent necessary to comply with the recordkeeping
requirements of federal and state securities laws, tax laws and other applicable
laws.
B. UMBFS agrees to keep all records and other information
relative to the Company's Shareholders confidential, except when requested to
divulge such information by duly-constituted authorities or court process, or
when requested by a Shareholder or Shareholder's agent with respect to
information concerning an account as to which such Shareholder has either a
legal or beneficial interest, or when requested by the Company, the Shareholder,
the Shareholder's agent or the dealer of record with respect to such account. In
case of any requests or demands for the inspection of the Shareholder records of
the Company, UMBFS will endeavor to notify the Company promptly and to secure
instructions from an Authorized Person as to such inspection. UMBFS reserves the
right, however, to exhibit the Shareholder records to any person whenever it
believes there is a reasonable likelihood that UMBFS will be held liable for the
failure to exhibit the Shareholder records to such person; provided, however,
that in connection with any such disclosure UMBFS shall promptly notify the
Company that such disclosure has been made or is to be made. Records and
information which have become known to the public through no wrongful act of
UMBFS or any of its employees, agents or representatives, and information which
was already in the possession of UMBFS prior to receipt thereof, shall not be
subject to this paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
5.01 REPRESENTATIONS OF COMPANY. The Company represents and
warrants to UMBFS that:
A. It is a corporation duly organized and existing under the
laws of the State of Minnesota; it is empowered under applicable laws and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
and all requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
B. Any officer of the Company has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
previously designated Authorized Person, and to certify to UMBFS the names of
such Authorized Persons.
C. It is duly registered as an investment company under the
1940 Act.
D. A registration statement under the Securities Act is
currently effective and will remain effective, and appropriate state securities
laws filings have been made and will continue to be made, with respect to Shares
of the Company being offered for sale.
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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 Company's Articles of Incorporation and its Prospectus with respect to
each Fund, such Shares shall be validly issued, fully paid and non-assessable.
5.02 REPRESENTATIONS OF UMBFS. UMBFS represents and warrants to the
Company that:
A. It is a corporation duly organized and existing under the
laws of the State of Wisconsin; it is empowered under applicable law and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
and all requisite proceedings have been taken to authorize it to enter into and
perform this Agreement.
B. It is duly registered as a transfer agent under Section 17A
of the 1934 Act to the extent required.
C. It has received a copy of each Fund's Prospectus which
describes how sales and redemptions of Shares shall be made.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 INFORMATION UPDATES. During the term of this Agreement the
Company shall have the ongoing obligation to provide UMBFS with the following
documents as soon as they become effective: (i) certified copies of all
amendments to its Articles of Incorporation and By-laws made after the date of
this Agreement; and (ii) a copy of each Fund's currently effective Prospectus.
For purposes of this Agreement, UMBFS shall not be deemed to have notice of any
information contained in any such Prospectus until a reasonable time after it is
actually received by UMBFS.
6.02 SHARE REGISTRATION. The Company agrees to take or cause to be
taken all requisite steps to register the Shares for sale in all states in which
the Shares shall at the time be offered for sale and require registration. If
the Company receives notice of any stop order or other proceeding in any such
state affecting such registration or the sale of Shares, or of any stop order or
other proceeding under the federal securities laws affecting the sale of Shares,
the Company will give prompt notice thereof to UMBFS.
6.03 COMPLIANCE WITH LAWS. The Company will comply with all
applicable requirements of the Securities Act, the Exchange Act, the 1940 Act,
blue sky laws, and any other applicable laws, rules and regulations.
6.04 ADDITIONAL DUTIES. The Company agrees that it shall advise
UMBFS at least 30 days prior to effecting any change in the Prospectus which
would increase or alter the duties and
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obligations of UMBFS hereunder, and shall proceed with such change only if it
shall have received the written consent of UMBFS thereto.
6.05 TRANSFER AGENT SYSTEM.
A. UMBFS 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, trade secrets, trademarks and other
related legal rights utilized by UMBFS in connection with the Services provided
by UMBFS to the Company herein (the "UMBFS System").
B. UMBFS hereby grants the Company a limited license to use
the UMBFS System for the sole and limited purpose of having UMBFS provide the
Services contemplated hereunder. Nothing contained in this Agreement should be
construed or interpreted otherwise, and such license shall immediately terminate
upon the termination of this Agreement.
6.06 INTERNET SERVICES.
A. In the event Schedule B reflects any Services in the UMBFS
0.xxx(SM) category, the Company agrees to provide, at its cost, all computers,
telecommunications equipment and other equipment and software necessary to
develop and maintain its web site, to design and develop the web site
functionality necessary to facilitate and maintain hypertext links between its
web site and UMBFS's web site, and to provide UMBFS with such Instructions as it
may request from time to time in connection with the performance of UMBFS's
obligations hereunder.
B. UMBFS 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, trade secrets, trademarks and other
related legal rights utilized by UMBFS in connection with the UMBFS 0.xxx(SM)
services provided by UMBFS to the Company pursuant to this Agreement (the "UMBFS
0.xxx(SM) System"). The UMBFS 0.xxx(SM) System is licensed, not sold. UMBFS
hereby grants the Company a nonexclusive, limited license to use the UMBFS
0.xxx(SM) System for the sole and limited purpose of having UMBFS provide the
services to the Company. Such license shall immediately terminate upon the
termination of the Agreement. The Company agrees that it will not mask, delete
or otherwise alter any disclaimers, trademark or service xxxx notifications
embedded in or describing the UMBFS 0.xxx(SM) System.
C. UMBFS IS PROVIDING THE UMBFS 0.XXX(SM) SYSTEM TO THE
COMPANY ON AN "AS IS" BASIS, AND SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE UMBFS 0.XXX(SM) SYSTEM AND THE
SERVICES TO BE PROVIDED HEREUNDER RELATING THERETO, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE
OPERATION OF THE UMBFS 0.XXX(SM) SYSTEM WILL BE ERROR FREE OR WILL NOT BE
INTERRUPTED FROM TIME TO TIME BY REASON OF A DEFECT THEREIN. The parties
acknowledge that UMBFS's ability to provide the UMBFS 0.xxx(SM) services
described
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herein depends upon a number of factors beyond UMBFS's control, including, but
not limited to, the Internet and equipment, software, data and services provided
by telecommunications carriers and unrelated vendors and third parties. UMBFS
shall not be liable for its failure to perform any of the services or for the
delay or interruption of any such services, if the failure, delay or
interruption in caused by circumstances beyond UMBFS's reasonable control. The
terms and conditions of this Section shall supercede and control any conflicting
provisions in this Agreement.
ARTICLE VII
COMPANY INSTRUCTIONS
7.01 AUTHORIZED PERSONS. Upon the execution of this Agreement, the
Company shall provide UMBFS with a certificate containing the names of the
initial Authorized Persons in a form acceptable to UMBFS. Any officer of the
Company has the authority to appoint additional Authorized Persons, to limit or
revoke the authority of any previously designated Authorized Person, and to
certify to UMBFS the names of the Authorized Persons from time to time. The
Company shall provide UMBFS with an updated certificate evidencing the
appointment, removal or change of authority of any Authorized Person, it being
understood UMBFS shall not be held to have notice of any change in the authority
of any Authorized Person until receipt of written notice thereof from the
Company.
7.02 ACCEPTANCE OF INSTRUCTIONS. UMBFS, its officers, agents or
employees shall accept Instructions given to them by any person representing or
acting on behalf of the Company only if such representative is an Authorized
Person. The Company agrees that when oral Instructions are given, it shall, upon
the request of UMBFS, confirm such Instructions in writing.
7.03 REQUEST FOR INSTRUCTIONS. At any time, UMBFS may request
Instructions from the Company with respect to any matter arising in connection
with this Agreement. If such Instructions are not received within a reasonable
time, then UMBFS may seek advice from legal counsel for the Company, or its own
legal counsel at the expense of the Company, and it shall not be liable for any
action taken or not taken by it in good faith in accordance with such
Instructions or in accordance with advice of counsel.
7.04 RELIANCE ON INSTRUCTIONS. UMBFS shall not be liable for acting
upon any written Instructions reasonably believed by it to be genuine and to
have been signed or made by an Authorized Person or oral Instructions which the
individual receiving the instructions on behalf of UMBFS reasonably believes to
have been given by an Authorized Person.
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ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
8.01 LIMITATION OF LIABILITY. Notwithstanding anything contained in
this Agreement to the contrary, UMBFS shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Company or the Funds
in connection with the matters to which this Agreement relates, except for a
loss resulting from UMBFS's willful misfeasance, bad faith or negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Furthermore, UMBFS shall not be liable for any
action taken or omitted to be taken in accordance with instructions received by
it from an officer or representative of the Company.
8.02 INDEMNIFICATION. The Company agrees to indemnify and hold
harmless UMBFS, its employees, agents, officers, directors and nominees from and
against any and all claims, demands, actions and suits, whether groundless or
otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character which may be asserted against UMBFS or for which UMBFS may be held
liable (a "Claim") arising out of or in any way relating to any of the
following:
(a) any action of UMBFS required to be taken, or omitted to be
taken, pursuant to the Agreement, unless a Claim resulted from UMBFS's willful
misfeasance, bad faith, negligence in the performance of its duties or from
reckless disregard by it of its obligations and duties hereunder;
(b) UMBFS's reliance on, or use of information, data, records
and documents received by UMBFS from the Company, or any third party acting on
behalf of the Company, in the performance of UMBFS's duties and obligations
hereunder;
(c) the reliance on, or the implementation of, any
Instructions or any other requests of the Company on behalf of the applicable
Fund;
(d) UMBFS's acting upon telephone instructions relating to the
exchange or redemption of Shares received by UMBFS in accordance with procedures
established by UMBFS and the Company;
(e) the offer or sale 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
determination or ruling by any state with respect to the offer or sale of such
Shares in such state; or
(f) the Company's refusal or failure to comply with the terms
of the Agreement, or any Claim that arises out of the Company's negligence or
misconduct or breach of any representation or warranty of the Company made
herein.
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8.03 INDEMNIFICATION PROCEDURES. UMBFS will notify the Company
promptly after identifying any situation which it believes presents or appears
likely to present a Claim for which the Company may be required to indemnify or
hold UMBFS harmless hereunder. In such event, the Company shall have the option
to defend UMBFS against any Claim, and, in the event that the Company so elects,
such defense shall be conducted by counsel chosen by the Company and approved by
UMBFS in its reasonable discretion. UMBFS shall not confess any Claim or make
any compromise in any case in which the Company will be asked to provide
indemnification, except with the Company's prior written consent. The
obligations of the parties under the Sections 8.02 and 8.03 shall survive the
termination of this Agreement.
8.04 FORCE XXXXXX. UMBFS assumes no responsibility hereunder, and
shall not be liable, for any damage, loss of data, errors, delay or any other
loss whatsoever caused by events beyond its reasonable control. UMBFS will,
however, take all reasonable steps to minimize service interruptions for any
period that such interruption continues beyond UMBFS's control.
8.05 CONSEQUENTIAL DAMAGES. In no event and under no circumstances
shall UMBFS, its affiliates or any of its or their officers, directors, agents
or employees be liable to anyone, including, without limitation, the other
party, under any theory of tort, contract, strict liability or other legal or
equitable theory for lost profits, exemplary, punitive, special, indirect or
consequential damages for any act or failure to act under any provision of this
Agreement regardless of whether such damages were foreseeable and even if
advised of the possibility thereof.
8.06 ADDITIONAL LIMITATIONS AND EXCLUSIONS. Notwithstanding any
other provision of this Agreement, UMBFS shall have no duty or obligation under
this Agreement to inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor, or the authority of the
Company, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares or of a purchase or
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Company, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the
Company, or the legality of the issue of any Shares in payment of any stock
dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
13
ARTICLE IX
TERM AND TERMINATION
9.01 TERM. This Agreement shall remain in full force and effect
until September 1, 2004, and thereafter shall automatically extend for
additional, successive one-year terms unless earlier terminated as provided
below.
9.02 TERMINATION. Either party may terminate this Agreement at any
time by giving the other party a written notice specifying the date of such
termination (the "Termination Date"), which shall be not less than ninety (90)
days after the date notice is deemed given in accordance with Section 10.01. In
the event such notice is given by the Company, it shall be accompanied by a copy
of a resolution of the Board of Directors of the Company, certified by the
Secretary or any Assistant Secretary, electing to terminate this Agreement and
designating the successor transfer agent or transfer agents. In the event such
notice is given by UMBFS, the Company shall on or before the Termination Date,
deliver to UMBFS a copy of a resolution of its Board of Directors certified by
the Secretary or any Assistant Secretary designating a successor transfer agent
or transfer agents. In the absence of such designation by the Company, the
Company shall be deemed to be its own transfer agent as of the Termination Date
and UMBFS shall thereby be relieved of all duties and responsibilities pursuant
to this Agreement. Fees and out-of-pocket expenses incurred by UMBFS, but unpaid
by the Company upon such termination, shall be immediately due and payable upon
and notwithstanding such termination.
9.03 EFFECT OF TERMINATION. Upon the termination of the Agreement
as provided herein, UMBFS, upon the written request of the Company, shall
deliver the records of the Company to the Company or its successor transfer
agent in the form maintained by UMBFS at the expense of the Company. The Company
shall be responsible to UMBFS for all out-of-pocket expenses and for the costs
and expenses associated with the preparation and delivery of such media,
including, but not limited to: (a) any custom programming requested by Company
in connection with the preparation of such media and agreed upon by UMBFS; (b)
transportation of forms and other materials used in connection with the
processing of Company transactions by UMBFS; and (c) transportation of records
and files in the possession of UMBFS. In addition, UMBFS shall be entitled to
such compensation as the parties may mutually agree for any services requested
by the Company in connection with the termination of this Agreement or the
liquidation or merger of the Company. UMBFS shall not reduce the level of
service provided to the Company prior to termination following notice of
termination by the Company.
ARTICLE X
MISCELLANEOUS
10.01 NOTICES. Any notice required or permitted to be given by
either party to the other under this Agreement shall be in writing and shall be
deemed to have been given when sent by either an overnight delivery service or
by registered or certified mail, postage prepaid, return receipt requested, to
the addresses listed below, or to such other location as either party may from
time to time designate in writing:
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If to UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
If to the Company: Wasatch Funds, Inc.
000 Xxxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: President
10.02 AMENDMENTS/ASSIGNMENTS.
A. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the formality of
this Agreement.
B. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the other
party, except that UMBFS may assign this Agreement to an affiliate with advance
written notice to the Company.
10.03 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Wisconsin,
without regard to its conflict of law provisions.
10.04 SEVERABILITY. If any part, term or provision of this Agreement
is determined by the courts or any regulatory authority having jurisdiction over
the issue to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid.
10.05 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.
10.06 NON-EXCLUSIVITY; OTHER AGREEMENTS. The services of UMBFS
hereunder are not deemed exclusive and UMBFS shall be free to render similar and
other services to others. Except as specifically provided herein, this Agreement
does not in any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by any party hereunder shall not affect
any rights or obligations of any other party hereunder.
10.07 CAPTIONS. The captions in the 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.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
UMB FUND SERVICES, INC. WASATCH FUNDS, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxxxx
______________________________ _______________________________
(Signature) (Signature)
Xxxxx Xxxxxxx Xxxx Xxxxxx
______________________________ _______________________________
(Name) (Name)
Executive Vice President Vice President
______________________________ _______________________________
(Title) (Title)
October 6, 2003 September 17, 2003
______________________________ _______________________________
(Date Signed) (Date Signed)
16
SCHEDULE A
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
WASATCH FUNDS, INC.
AND
UMB FUND SERVICES, INC.
NAMES OF FUNDS
Wasatch Micro Cap Value Fund
Wasatch Core Growth Fund
Wasatch Global Science & Technology Fund
Wasatch International Growth Fund
Wasatch Micro Cap Fund
Wasatch Small Cap Growth Fund
Wasatch Small Cap Value Fund
Wasatch Ultra Growth Fund
Wasatch-Xxxxxxxxxx U.S. Treasury Fund
17
SCHEDULE B
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
WASATCH FUNDS, INC.
AND
UMB FUND SERVICES, INC.
SERVICES
SERVICES
- Set up and maintain shareholder accounts and records, including IRAs and
other retirement accounts
- Store account documents electronically
- Receive and respond to investor account inquiries by telephone, mail, or
e-mail, if desired
- Process purchase and redemption orders, transfers, and exchanges, including
automatic purchases and redemptions
- Process dividend payments by check, wire or ACH, or reinvest dividends
- Issue daily transaction confirmations and monthly or quarterly statements
- Mail prospectus, annual and semiannual reports, and other shareholder
communications to existing shareholders
- File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders and/or the
IRS
- Handle load and multi-class processing, including rights of accumulation and
purchases by letters of intent
- Calculate 12b-1 plan fees
- Provide standards to structure forms and applications for efficient
processing
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OPTIONAL SERVICES
The Funds may contract with UMBFS to provide one or more of the following
optional services. Additional fees apply.
- Personal follow-up calls to prospects who return incomplete applications
- Comprehensive clerical confirmation statements for maintenance transactions
- 0.XXX SERVICES, UMBFS's array of Internet services, including Adviser
Services, RIA/Broker Services, Shareholder Services, NAV Services and email
services.
- 4.PROMPT SERVICES, UMBFS's telephone and voice response unit delivering
several tiers of optional services.
- Average cost calculations and cost basis statements
- Shareholder "welcome" packages with initial confirmation
- Access to UMBFS's Tax and Retirement Group to answer questions and
coordinate retirement plan options
- Follow up on IRAs, soliciting beneficiary and other information and sending
required minimum distribution reminder letters
- Money market funds for short-term investment or exchanges
- Dedicated service representatives
- Weekend shareholder services
- Customized reorder form tracking
- Give dealers access through NSCC's Fund/SERV and Networking
- Customized forms and applications
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SCHEDULE C
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
WASATCH FUNDS, INC.
AND
UMB FUND SERVICES, INC.
FEES
BASE FEES
- Open account fee (per year)
- No load equity and non-daily accrual fixed income funds $ 9.50
Additional for 12b-1 fee or Service Plan $ 0.75
Additional for redemption fee $ 0.75
- Additional for front-end load $ 1.50
- Additional for CDSC or back-end load $ 2.00
Monthly dividend payments $ 1.00
- Money market and daily accrual fixed income funds $12.00
Additional for 12b-1 fee or Service Plan $ 0.75
- Additional for front-end load $ 1.50
- Additional for CDSC or back-end load $ 2.00
Monthly dividend payments $ 1.00
- Closed account fee (per year) $ 3.00
- Monthly base (per fund)
- One to three funds in fund family $4,000
- Four to nine funds in fund family $3,500
- Ten or more funds in fund family $3,000
- Add for multi-class (per class) 25%
ACCOUNT MAINTENANCE FEES (PER OCCURRENCE)
- New account set up $ 3.00
- Financial transactions $ 1.50
- Online financial transactions $ 1.20
- Maintenance transactions $ 1.00
- Online maintenance transactions $ .80
- Research/correspondence $ 2.50
- Fund/SERV
- Annual fee per portfolio $ 500
- New account set-up $ 1.00
- Per transaction - no load fund $ 0.25
- Per transaction - load fund $ 0.35
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- Adjustments and rebills $ 2.50
- Fund/SERV direct charges at cost
- Commission/SERV (per check) $ 0.25
- ACH/AIP/SWP/automatic exchanges
- Set-up $ 1.00
- Per transaction $ 0.25
- Withholding per eligible account per year $ 0.25
- Account transcripts older than 2 years
(may be charged to shareholders) $ 5.00
- Locating lost shareholders $ 8.00
SHAREHOLDER SERVICING FEES
- Telephone calls (per call) $ 2.50
- Fax charges $ 2.50
- Annual maintenance per omnibus account $ 150
TAX AND RETIREMENT FEES
- Retirement accounts (XXX/Xxxx/others)
- Annual maintenance per account (may be charged to shareholders) $ 12.50
- Account distribution (may be charged to shareholders) $ 12.50
- XXX transfer/rollover $ 7.50
DOCUMENT SERVICES
- Per statement, confirmation and check processing $ 0.25
- Per tax form processing $ 0.25
- Per label printing for proxy or marketing purposes $ 0.10
- Bulk mailings/insert handling charge
- 1 insert $ 0.06
- 2 - 3 inserts $ 0.08
- 4 or more inserts as quoted
- Production of ad hoc reports starting at $ 100
REPROCESSING CHARGES
This charge applies when shareholder transactions are required to be reprocessed
as a result of NAV errors caused by the adviser or other entity unaffiliated
with UMBFS.
- Base fee (per occurrence, per day, per fund) $ 750
- Transaction fee $ 1.00
PROGRAMMING FEES
21
Additional fees at $150 per hour or quoted by project may apply for special
programming to meet your servicing requirements or to create custom reports.
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to: copying charges,
facsimile charges, inventory and record storage and re-processing, statement
paper, check stock, envelopes, tax forms, postage and direct delivery
charges, tape/disk storage, telephone and long distance charges, P.O. box
rental, toll-free number, bank account service fees and any other bank
charges, outgoing wire fee, non-sufficient funds fees, stopped check on
money market fund. Wasatch Funds shall also pay/reimburse the Transfer Agent
for its out-of-pocket and other related expenses incurred for travel to
Board meetings and otherwise on behalf of Wasatch Funds, including but not
limited to, travel, lodging and meals.
OPTIONAL SHAREHOLDER SERVICES
- Postal clean-up per account $ 3.00
- Average cost calculation per eligible account $ 0.25
- Use of UMB Distribution Services, LLC Fund/SERV membership (per fund/per year)
- First three funds in fund family $ 2,000
- 4 or more funds $ 1,000
- Weekend shareholder services (8 hours)
- Daily fee (minimum 3 phone representatives) $ 2,000
- Additional representatives (each) $ 400
- Additional hours more than 8 (per representative/hour) $ 75
- Customized reorder form tracking
- Base fee per project $ 300
- Per item $ 0.08
- Special projects fees (per representative/hour) $ 50.00
TAX AND RETIREMENT
- Required minimum distribution (age 70 1/2)
- Correspondence letters $ 2.50
- Per calculation $ 7.50
- Removal of excess contributions
- Correspondence letters $ 2.50
- Per calculation $ 7.50
- Other solicitation letters
- Beneficiary information $ 2.50
- Birthday information $ 2.50
- Retirement plan documents as quoted
- Transfer on Death documents as quoted
22
MONEY MARKET EXCHANGE VEHICLES
- One-time set up per money market fund used $ 2,000
- Monthly base fee per money market fund used $ 650
- Money market checkbooks at cost
- Signature verification of check writing $ 2.00
FORMS AND APPLICATIONS
- Standard applications and forms in electronic format no charge
- Customized forms as quoted
TECHNOLOGY SERVICES
4PROMPT(R) SERVICES (PER FUND GROUP)
- Tier I and II - Basic Service
- Monthly maintenance fee $ 125
- One time set up fee $ 750
- Tier III - Automated Account Information
- Monthly maintenance fee $ 500
- One time set up fee $ 3,500
- Tier IV - Automated Prospectus Service
- Monthly maintenance fee $ 200
- One time set up fee $ 350
- Tier V - Automated Account Information and Prospectus Service
- Monthly maintenance fee $ 350
- One time set up fee $ 3,750
- Tier VI - Adviser Services Line
- Monthly maintenance fee $ 450
- One time set up fee $ 500
- Customized services (per toll-free number)
- Each additional 10 second greeting $50.00 plus recording
- Each additional 10 second
Intra-menu announcement $40.00 plus recording
- Pricing script per market index $25.00 plus recording
- Customized performance script $50.00 plus recording
- Changes in announcements at cost
0.XXX(SM) SERVICES (PER FUND GROUP)
- 0.XXX(SM) TRANSACTIONS SUITE
(Normal transaction processing fees are discounted by 20% from standard
transactions when trades are placed online.)
- Opening New Accounts
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O(2) Set-up $12,500
Monthly maintenance $ 500
- QwikApp
Set-up $ 5,000
Monthly maintenance $ 300
- Transactions for Existing Accounts
Set-up $12,500
Monthly maintenance $ 500
- 0.XXX(SM) COMMUNICATIONS SUITE
- Fund Reporting
Set-up $ 7,500
Monthly maintenance
- Less than 5,000 total accounts $ 300
- 5,001 to 25,000 total accounts $ 400
- 25,001 to 50,000 total accounts $ 550
- over 50,000 total accounts $ 700
Undeliverable e-mail follow up (per occurrence) $ 5
Processing (per e-mail sent) $ 0.10
- Shareholder Statements
Set-up $ 7,500
Monthly maintenance
- Less than 5,000 total accounts $ 300
- 5,001 to 25,000 total accounts $ 400
- 25,001 to 50,000 total accounts $ 550
- over 50,000 total accounts $ 700
Undeliverable e-mail follow up (per occurrence) $ 5
Processing (per e-mail sent) $ 0.10
- 0.XXX(SM) ACCESS SUITE
- Shareholder access
Set-up $10,000
Monthly maintenance
- Less than 5,000 total shareholder accounts $ 400
- 5,001 to 25,000 total shareholder accounts $ 500
- 25,001 to 50,000 total shareholder accounts $ 650
- over 50,000 total shareholder accounts $ 800
- Adviser access
Set-up $ 7,500
Monthly maintenance
- Less than 5,000 total shareholder accounts $ 400
- 5,001 to 25,000 total shareholder accounts $ 500
- 25,001 to 50,000 total shareholder accounts $ 650
- over 50,000 total shareholder accounts $ 800
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- 4.QUERY(SM) SERVICES
- Set-up $ 3,000
- Daily shareholder data feed $ 500
- Daily prospect data feed $ 500
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SCHEDULE D
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
WASATCH FUNDS, INC.
AND
UMB FUND SERVICES, INC.
RECORDS MAINTAINED BY UMBFS
Account applications
Canceled certificates plus stock powers and supporting documents
Checks including check registers, reconciliation records, any adjustment records
and tax withholding documentation
Indemnity bonds for replacement of lost or missing stock certificates and checks
Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
Shareholder correspondence
Shareholder transaction records
Share transaction history of the Funds
26