EXHIBIT 9
TRANSFER AGENCY AGREEMENT
AGREEMENT, dated as of October 15, 1993, between The Xxxxx Defined
Contribution Trust (the "Trust"), a Massachusetts business trust, having its
principal office and place of business at 00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, and Xxxxx Shareholder Services, Inc. (the "Transfer Agent"), a Delaware
corporation with principal offices at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000.
W I T N E S S E T H:
In consideration of the promises and mutual covenants set forth in this
Agreement, the Trust and the Transfer Agent agree as follows:
1. APPOINTMENT OF THE TRANSFER AGENT. The Trust appoints the Transfer Agent
as transfer agent for the shares of beneficial interest (the "Shares") of each
Portfolio of the Trust and as shareholder servicing agent for the Trust. The
Transfer Agent accepts the appointment and agrees to furnish these services in
accordance with the provisions set forth in this Agreement. As used in this
Agreement, "Portfolio" refers to each of the Xxxxx Defined Contribution Small
Capitalization Portfolio, the Xxxxx Defined Contribution MidCap Growth
Portfolio, the Xxxxx Defined Contribution Growth Portfolio, or any other
Portfolio that may be created and designated by the Trust in accordance with the
provisions of the Master Trust Agreement of the Trust dated July 14, 1993 (the
"Declaration of Trust"). When the Trust creates and designates a new Portfolio,
the Trustees of the Trust shall notify the Transfer Agent in writing to the
effect that the Trust has established a new Portfolio and that it appoints the
Transfer Agent as transfer agent and shareholder servicing agent for the new
Portfolio. The notice must be received by the Transfer Agent within a reasonable
period of time prior to the commencement of operations of the new Portfolio in
order to allow the Transfer
Agent, in the ordinary course of its business, to prepare to perform its duties
for the new Portfolio
2. DELIVERY OF DOCUMENTS. The Trust agrees, on or before the date this
Agreement becomes effective, but in any case, within a reasonable period of time
prior to the commencement of operations of the Trust for the Transfer Agent to
prepare to perform its duties under this Agreement, to deliver to the Transfer
Agent the following documents:
(a) A certified copy of the Declaration of Trust, as may be amended
from time to time;
(b) A certified copy of the By-laws of the Trust, as may be amended
from time to time;
(c) A copy of the resolution of the Board of Trustees authorizing the
execution and delivery of this Agreement;
(d) A specimen of the certificate for Shares of each Portfolio of the
Trust in the form approved by the Trustees, with a certificate of the
Secretary of the Trust as to such approval;
(e) All account application forms and other documents relating to
Shareholder accounts;
(f) A certified list of Shareholders of the existing Portfolios with
the name, address and taxpayer identification number of each Shareholder,
the number of Shares of the existing Portfolios held by each, the
certificate numbers and denominations (if any certificates have been
issued), lists of any accounts against which stop transfers have been
placed, together with the reasons for placing the stop transfers, and the
number of Shares redeemed by the Portfolios;
(g) A copy of the Distribution Agreement in effect between the Trust
and Xxxx Xxxxx & Company, Incorporated, the distributor of the Shares of
the Trust;
(h) A copy of the Custodian Agreement in effect between the Trust and
National Westminster Bank NJ, the custodian of the assets of the Trust;
(i) An opinion of counsel for the Trust with respect to the validity of
the Shares and the status of the Shares under the Securities Act of 1933,
as amended (the "1933
-2-
Act"); and
(j) A certified list of the authorized officers or any other authorized
person (an "Authorized Person") of the Trust, in the form set forth in
Exhibit 1 to this Agreement, authorized to execute any certificate,
instruction, notice or other instrument ("Written Instructions"), or to
give oral instructions ("Oral Instructions") on behalf of the Trust.
3. FURTHER DOCUMENTATION. The Trust agrees to also furnish from time to
time the following documents:
(a) Each vote of the Trustees authorizing the establishment and
designation of any new Portfolio and the original issuance of Shares;
(b) Each instrument establishing and designating a new Portfolio of the
Trust;
(c) Each Registration Statement of the Trust filed with the Securities
and Exchange Commission (the "Commission"), and each amendment with respect
to the Registration Statement;
(d) A certified copy of each amendment to the Declaration of Trust and
the By-laws of the Trust;
(e) Certified copies of each vote of the Trustees designating
Authorized Persons to give Written or Oral Instructions to the Transfer
Agent;
(f) Certificates as to any change in any officer or Trustee of the
Trust;
(g) Such other documents, certificates or opinions reasonably required
by the Transfer Agent as necessary or appropriate for the proper
performance of its duties under this Agreement.
4. REPRESENTATIONS OF THE TRUST
(a) The Trust represents to the Transfer Agent that all outstanding
Shares are validly issued, fully paid and non-assessable, the Trust further
represents that when Shares are issued by the Trust after the date of this
Agreement in accordance with the terms of the Declaration of Trust and the
current prospectus describing those shares, the Shares shall be validly
issued, fully paid and non-assessable.
-3-
(b) In the event that any Portfolio of the Trust shall declare a
distribution payable in Shares, the Trust shall deliver to the Transfer
Agent written notice of such declaration signed on behalf of the Trust by
an authorized officer of the Trust, certifying (i) the number of Shares
involved, (ii) that all appropriate corporate action has been taken, and
(iii) that any amendment to the Declaration of Trust which may be required
to be filed has been filed and is effective. The notice shall be
accompanied by an opinion of counsel to the Trust relating to the legal
adequacy and effect of the transaction. The Transfer Agent shall be
entitled to rely upon the notice for all purposes.
5. POWERS AND DUTIES OF THE TRANSFER AGENT. Agent shall have the following
powers and duties:
(a) SHAREHOLDER INFORMATION. The Transfer Agent shall maintain a record
of the number of Shares held by each holder of record, which shall include
the holder's name or names, address and taxpayer identification numbers and
whether the Shares are held in certificated or uncertificated form.
(b) SHAREHOLDER SERVICES. The Transfer Agent will investigate all
Shareholder inquiries relating to Shareholder accounts and will answer all
correspondence from Shareholders and others relating to the Transfer
Agent's duties under this Agreement as well as such other correspondence as
may from time to time be mutually agreed upon between the Transfer Agent
and the Trust. The Transfer Agent shall keep records of Shareholder
correspondence and replies thereto, and of the lapse of time between the
receipt of the Shareholder correspondence and the mailing of such replies.
(c) SHARE CERTIFICATES. The Trust shall supply the Transfer Agent with
sufficient blank Share certificates for each Portfolio to meet the Transfer
Agent's requirements for the certificates. The Share certificates shall be
properly executed manually or, if authorized by the Trust, by facsimile.
The Trust agrees that, notwithstanding the death, resignation, or removal
of any officer of the Trust whose signature appears on the Share
certificates, the Transfer Agent may continue to countersign certificates
bearing such signature until otherwise directed by the Trust.
(d) LOST CERTIFICATES. The Transfer Agent shall issue replacement share
certificates in lieu of certificates which have been reported lost, stolen
or destroyed without any further action by the Board of Trustees or any
officer of the Trust, upon receipt by the Transfer Agent of properly ex-
-4-
ecuted affidavits and lost certificate bonds, satisfactory to the Transfer
Agent, naming the Trust and the Transfer Agent as obligees under the bond.
(e) MAILING COMMUNICATIONS OF THE TRUST TO SHAREHOLDERS; PROXY
MATERIALS. The Transfer Agent will address and mail to the Shareholders all
reports of the Trust, dividend and distribution notices and proxy material
for meetings of Shareholders. In connection with meetings of Shareholders,
the Transfer Agent 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 at meetings.
(f) PROCESSING OF INVESTMENT CHECKS OR OTHER INSTRUMENTS. Upon receipt
of any check or other instrument drawn or endorsed to the Transfer Agent,
or identified as being for the account of the Trust, or drawn or endorsed
to the distributor for the purchase of Shares, the Transfer Agent shall
stamp the check or other instrument with the date of receipt, shall
promptly process the same for collection and, shall record the number of
Shares sold, the trade date and price per Share, and the amount of money to
be delivered to the custodian of the Trust for the sale of the Shares.
(g) ISSUANCE OF SHARES. Upon receipt of notification that the custodian
has received payment for the purchase of Shares, the Transfer Agent shall
issue to and hold in the account of the Shareholder, or if no account is
specified in the notification, in a new account established in the name of
the specified purchaser, the amount of Shares that the purchaser is
entitled to receive, as determined in accordance with applicable Federal
law or regulation.
(h) CONFIRMATION. The Transfer Agent shall send to the Shareholder a
confirmation of each purchase which will show the new Share balance, the
amount invested and the price paid for the Shares, or such other form of
confirmation as the Trust and the Transfer Agent may agree upon from time
to time.
(i) SUSPENSION OF SALE OF SHARES. The Transfer Agent shall not be
required to issue any Shares of the Trust where it has received Written
Instructions from the Trust or a written notice from any appropriate
Federal authority that the sale of Shares of the Trust has been suspended
or discontinued and the Transfer Agent shall be entitled to rely upon such
Written Instructions or written notification.
(j) TAXES IN CONNECTION WITH ISSUANCE OF SHARES. The Transfer Agent
shall not be responsible for the payment of
-5-
any original issue or other taxes that may be required to be paid in
connection with the issuance of any Shares.
(k) RETURNED CHECKS. In the event that any check or other order for the
payment of money is returned unpaid for any reason, the Transfer Agent
will: (i) give prompt notice of such return to the Trust or its designee;
(ii) place a stop transfer order against all Shares issued in exchange for
such check or order; and (iii) take such other action as the Transfer Agent
may deem appropriate.
(1) REQUIREMENTS FOR TRANSFER OR REDEMPTION OF SHARES.
(i) The Transfer Agent shall process requests from Shareholders to
transfer or redeem Shares in accordance with the procedures described
in the Trust's prospectus.
(ii) The Transfer Agent will transfer or redeem Shares upon receipt
of Written Instructions properly endorsed for transfer or redemption,
accompanied by such documents as the Transfer Agent reasonably may deem
necessary to evidence the authority of the person requesting such
transfer or redemption and the payment of stock transfer taxes, if any.
(iii) The Transfer Agent reserves the right to refuse to transfer
or redeem Shares until it is satisfied that the endorsement on the
instructions is valid and genuine, and for that purpose it will require
a guarantee of signature by a member firm of a national securities
exchange, by any national bank or trust company or by any member bank
of the Federal Reserve system. The Trust may authorize the Transfer
Agent to waive the signature guarantee in certain cases by Written
Instructions. The Transfer Agent also reserves the right to refuse to
transfer or redeem Shares until it is satisfied that the requested
transfer or redemption is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers or
redemptions that the Transfer Agent deems improper or unauthorized, or
until it is reasonably satisfied that there is no basis to any claims
adverse to such transfer or redemption.
(iv) In the case of redemption of Shares which have been purchased
within 15 days of a redemption request, the Trust shall provide the
Transfer Agent with instructions concerning the time within which such
requests may be honored.
(m) NOTICE TO CUSTODIAN AND TRUST: When Shares are
-6-
redeemed, the Transfer Agent shall, upon receipt of the instructions and
documents in proper form, deliver to the custodian and the Trust a
notification setting forth the number of Shares of the applicable Portfolio
to be redeemed. Such redemptions shall be reflected on appropriate accounts
maintained by the Transfer Agent reflecting outstanding Shares of the Trust
and Shares attributed to individual accounts.
(n) PAYMENT OF REDEMPTION PROCEEDS. The Transfer Agent shall, upon
receipt of the moneys paid to it by the custodian for the redemption of
Shares, pay to the Shareholder, his authorized agent or legal
representative, such moneys as are received from the custodian, all in
accordance with the redemption procedures described in the Trust's
prospectus. The Transfer Agent shall not process or effect any redemptions
in accordance with any Shareholder request upon the receipt of the Transfer
Agent of notification of the suspension of the determination of the net
asset value of Shares of the Trust.
(o) NOTICE OF DIVIDENDS OR DISTRIBUTIONS. Upon the declaration of
dividends or distributions by the Board of Trustees of the Trust on behalf
of a Portfolio of the Trust, the Trust shall furnish to the Transfer Agent
a copy of the vote of its Board of Trustees certified by the Secretary of
the Trust setting forth the date as of which Shareholders entitled to
payment shall be determined, the ex-dividend date, the date of payment, the
amount payable per Share, the total amount payable to the Transfer Agent on
the payment date and whether such dividend or distribution is to be paid in
cash at net asset value. On or before the payment date specified in the
vote of the Board of Trustees, if the dividend or distribution is payable
in cash, the Trust will cause the custodian of the Trust to pay to the
Transfer Agent sufficient cash to make payment to the Shareholders of
record entitled to the dividend or distribution.
(p) PAYMENT OF DIVIDENDS BY THE TRANSFER AGENT. The Transfer Agent
will, on the designated payment date, automatically reinvest all dividends
in additional Shares at net asset value (as determined on the payment date)
and mail to each Shareholder at his address of record, or such other
address as the Shareholder may have designated, a statement showing the
number of full and fractional Shares (rounded to three decimal places) then
currently owned by the Shareholder and the net asset value of the Shares
credited to the Shareholder's account in payment of the dividend or
distribution.
(q) INSUFFICIENT FUNDS FOR DIVIDEND PAYMENTS. If the Transfer Agent
does not receive sufficient cash from the
-7-
custodian to make dividend or distribution payments payable in cash to all
Shareholders entitled to the dividend or distribution, the Transfer Agent
will, upon notifying the Trust, withhold payment to all Shareholders until
such time as sufficient cash is provided to the Transfer Agent.
(r) INFORMATION RETURNS. It is understood that the Transfer Agent shall
file such appropriate information returns concerning the payment of
dividends, return of capital and capital gain distributions with the proper
Federal, state and local authorities as are required by law to be filed and
shall be responsible for the withholding of taxes1 if any, due on such
dividends or distributions to Shareholders when the Transfer Agent is
required to withhold taxes under applicable law.
(s) RECORD KEEPING AND OTHER INFORMATION.
(i) The Transfer Agent shall create and maintain all necessary
records in accordance with all applicable laws, rules and regulations,
including but not limited to records required by Section 31(a) of the
Investment Company Act of 1940, as amended (the "1940 Act"), and those
records pertaining to the various functions performed by the Transfer
Agent under this Agreement. All records shall be available for
inspection and use by the Trust during regular business hours. Where
applicable, the records shall be maintained by the Transfer Agent for
the periods and in the places required by Rule 31a-2 under the 1940 Act.
(ii)Upon reasonable Notice by the Trust, the Transfer Agent shall
make available during regular business hours the facilities and premises
employed by the Transfer Agent in connection with the performance of its
duties under this Agreement for reasonable visitation by any person
authorized by the Trust.
(t) OTHER DUTIES. The Transfer Agent shall perform such other duties
and functions and be compensated by such other duties and functions as may
from time to time be agreed upon in writing between the Trust and the
Transfer Agent.
6. RELIANCE BY TRANSFER AGENT; INSTRUCTIONS.
(a) The Transfer Agent will be entitled to rely upon instructions
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 notified in writing by the Trust. The Transfer Agent
will also be entitled to process Share certificates which it
-8-
reasonably believes bear the proper manual or facsimile signatures of
officers of the Trust.
(b) The Transfer Agent may request Written Instructions from any
Authorized Person of the Trust and may seek advice from legal counsel for
the Trust or its own legal counsel, with respect to any matter arising in
connection with this Agreement. The Transfer Agent shall not be liable for
any action taken or not taken or suffered by it in good faith in accordance
with Written Instructions or in accordance with the opinion of counsel to
the Trust or counsel to the Transfer Agent. Written Instructions requested
by the Transfer Agent will be provided by the Trust within a reasonable
period of time. The Transfer Agent, its officers, agents or employees,
shall accept Oral or Written Instructions given to them by any person
representing or acting on behalf of the Trust only if said representative
is believed in good faith, by the Transfer Agent, its officers, agents or
employees, to be an Authorized Person. The Transfer Agent shall have no
duty or obligation to inquire into, or be responsible for, the legality of
any action taken in reliance upon Written or Oral instructions provided by
or on behalf of the Trust.
(c) Notwithstanding any provision of this Agreement, the Transfer Agent
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 for the Shares; (ii) the legality
of the redemption of any Shares or the sufficiency of the amount to be paid
for the Shares; (iii) the legality of the declaration of any dividend or
distribution by the Trust or the legality of the issuance of any Shares in
payment of any dividend or distribution; or (iv) the legality of any
recapitalization or readjustment of the Shares.
7. UNCONTROLLABLE EVENTS. The Transfer Agent will not be liable or
responsible for delays or errors by reason of circumstances beyond its control,
including acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown, flood or catastrophe, acts of God,
insurrection, war, riots or failure of transportation, communication or power
supply.
8. STANDARD OF CARE. The Transfer Agent shall exercise its best judgment
in rendering the services provided for in this Agreement and shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the
Trust or its shareholders in connection with the matters to which this Agreement
relates, except that the Transfer Agent shall be liable for its willful
misfeasance, bad faith or gross negligence in the
-9-
performance of its duties under this Agreement or by reason of the reckless
disregard of its obligations and duties under this Agreement.
9. INDEMNIFICATION. The Trust agrees to indemnify and hold harmless the
Transfer Agent and its officers and directors from any and all loss, liability
and expense resulting from the performance of its duties under this Agreement,
unless such loss, liability or expense is the result of the Transfer Agent's own
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of the reckless disregard of its obligations and duties
under this Agreement.
10. COMPENSATION.
(a) The Trust will compensate the Transfer Agent for the performance of
its obligations under this Agreement in accordance with the fees set forth
in the Fee Schedule annexed to this Agreement as Schedule A. The Transfer
Agent will xxxx the Trust as soon as practicable after the end of each
calendar month, and said xxxxxxxx will be detailed in accordance with the
Fee Schedule. The Trust agrees to pay to the Transfer Agent the amount
billed promptly after the xxxx is received by the Trust.
(b) The Trust will reimburse the Transfer Agent for out-of-pocket
expenses incurred by the Transfer Agent in the performance of its services
under this Agreement, including without limitation the items specified in
the schedule of Out-of-Pocket Expenses annexed to this Agreement as
Schedule B. The schedule of Out-of-Pocket Expenses may be modified by the
Transfer Agent upon not less than 30 days' prior written notice to the
Trust. Reimbursement by the Trust for out-of-pocket expenses incurred by
the Transfer Agent in any month shall be made as soon as practicable after
the receipt of an itemized xxxx from the Transfer Agent.
(c) Compensation payable to the Transfer Agent for the performance of
its obligations under this Agreement with respect to a new Portfolio of the
Trust will be agreed upon by the parties at the time that the new Portfolio
prepares to commence its operations. The compensation agreed upon shall be
reflected in a Fee Schedule for that Portfolio, dated and signed by an
authorized officer' of each party to this Agreement, which Fee Schedule
shall be attached to Schedule A of this Agreement.
(d) Any compensation agreed to by the parties under this Agreement may
be adjusted from time to time by attaching to Schedule A of this Agreement,
a revised Fee Schedule, dated, and signed by an authorized officer of each
party to this Agreement.
-10-
11. AFFILIATION BETWEEN TRUST AND TRANSFER AGENT. It is understood that the
Trustees, officers, employees, agents and shareholders of the Trust and the
officers, directors, employees, agents and shareholders of the Trust's
investment manager and distributor, are or may be interested in the Transfer
Agent as directors, officers, employees, agents, shareholders or otherwise, and
that the directors, officers, employees, agents or shareholders of the Transfer
Agent may be interested in the Trust as Trustees, officers, employees, agents,
shareholders or otherwise, or in the investment manager and distributor as
officers, directors, employees, agents, shareholders or otherwise.
12. TERM AND TERMINATION.
(a) This Agreement shall become effective on the date first set forth
above and thereafter shall continue in effect for successive annual
periods, provided such continuance is specifically approved at least
annually by the parties to this Agreement. Either party to this Agreement
may terminate this Agreement, without penalty, on 60 days' written notice
to the other party.
(b) In the event the notice of termination is given by the Trust, it
shall be accompanied by a vote of the Board of Trustees, certified by the
Secretary of the Trust, electing to terminate this Agreement and
designating a successor transfer agent or transfer agents. Upon such
termination and at the expense of the Trust, the Transfer Agent will
deliver to the designated successor a certified list of Shareholders of the
Trust (including the name, address and taxpayer identification number), an
historical record of the account of each Shareholder and the status of the
account, and all other relevant books, records, correspondence, and other
data established or maintained by the Transfer Agent under this Agreement
in the form reasonably. acceptable to the Trust. The Transfer Agent will
cooperate in the transfer of its duties and responsibilities under this
Agreement by providing, among other things, assistance from the Transfer
Agent's personnel in the establishment of books, records and other data by
the designated successor or successors.
13. AMENDMENT. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties or in the manner
expressly provided by this Agreement.
14. USE OF THE TRANSFER AGENT'S NAME. The Trust shall not use the name of
the Transfer Agent in any prospectus, statement of additional information,
Shareholders' report, sales literature or other material relating to the Trust
unless the proposed use
-11-
has previously been approved by the Transfer Agent. The Transfer Agent shall
approve all reasonable uses of its name in connection with its appointment under
this Agreement or as may be required by the Commission.
15. USE OF THE TRUST'S NAME. The Transfer Agent shall not use the name of
the Trust or material relating to the Trust on any documents or forms for other
than internal use unless the proposed use has previously been approved by the
Trust. The Trust shall approve all reasonable uses of its name in connection
with the appointment of the Transfer Agent under this Agreement or as may be
required by the Commission.
16. SECURITY. The Transfer Agent represents and warrants that, to the best
of its knowledge, the various procedures (including provisions for 24
hours-a-day restricted access) and systems, which the Transfer Agent has
implemented or will implement to safeguard from loss or damage attributable to
fire, theft, or any other cause the Trust's records and other data and the
Transfer Agent's records, data, equipment, facilities and other property used in
the performance of its obligations under this Agreement, are adequate and that
it will periodically review and make such changes in its procedures and systems
as in its judgment are required.
17. NOTICES. Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Trust or the Transfer Agent, shall be
sufficiently given if addressed to that party and receivable 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 Trust:
The Xxxxx Defined Contribution Trust
Attn: Xx. Xxxxxxx X. Xxxx
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
To the Transfer Agent:
Xxxxx Shareholder Services, Inc.
Attn: Xx. Xxxxxxx X. Xxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
18. ASSIGNMENT. This Agreement shall not be assignable
-12-
without the written consent of the other party.
19. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of New York.
20. LIABILITY. This Agreement has been executed on behalf of the Trust by
the undersigned officer of the Trust in his capacity as an officer of the Trust.
The obligations of this Agreement shall be binding upon the assets and property
of the Trust only and shall not be binding upon any Trustee, officer or
shareholder of the Trust individually.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their authorized officers as of this day and year
first above written.
THE XXXXX DEFINED CONTRIBUTION TRUST
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx, Treasurer
Attest:
/s/ Xxxxx Staple
-------------------------
XXXXX SHAREHOLDER SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx, Treasurer
Attest:
/s/ Xxxxx Staple
-------------------------
-13-
