TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this _____ day of October,
1999, by and between the Xxxxxxxx Funds, Inc., a corporation organized under the
laws of the State of Maryland (hereinafter referred to as the "Company") and
Firstar Mutual Fund Services, LLC, a limited liability company organized under
the laws of the State of Wisconsin (hereinafter referred to as the "FMFS").
WHEREAS, the Company is a registered investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Company is authorized to create separate series, each with
its own separate investment portfolio;
WHEREAS, FMFS is in the business of providing, among other things,
transfer agent and dividend disbursing agent services to investment companies;
and
WHEREAS, the Company desires to retain FMFS to provide transfer agent
services to each series of the Company, (each a "Fund") and each additional
series of the Company listed on Exhibit A attached hereto, as it may be amended
from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and FMFS agree as follows:
1. Appointment of Transfer Agent
The Company hereby appoints FMFS as Transfer Agent of the Company on
the terms and conditions set forth in this Agreement, and FMFS hereby accepts
such appointment and agrees to perform the services and duties set forth in this
Agreement in consideration of the compensation provided for herein.
2. Duties and Responsibilities of FMFS
FMFS shall perform all of the customary services of a transfer agent and
dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to:
A. Receive orders for the purchase of shares;
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B. Process purchase orders with prompt delivery, where appropriate,
of payment and supporting documentation to the Company's
custodian, and issue the appropriate number of certificated or
uncertificated shares with such uncertificated shares being held
in the appropriate shareholder account;
C. Arrange for issuance of Fund shares obtained through transfers of
funds from shareholders' accounts at financial institutions and
arrange for the exchange of Fund shares for shares of other
eligible investment companies, when permitted by the prospectus;
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Company's
custodian;
E. Pay monies upon receipt from the Company's custodian, where
relevant, in accordance with the instructions of redeeming
shareholders;
F. Process transfers of shares in accordance with the shareholder's
instructions;
G. Process exchanges between Funds and/or classes of shares of
Funds;
H. Prepare and transmit payments for dividends and distributions
declared by the Company with respect to each Fund, after
deducting any amount required to be withheld by any applicable
laws, rules and regulations and in accordance with shareholder
instructions;
I. Make changes to shareholder records, including, but not limited
to, address changes in plans (i.e., systematic withdrawal,
automatic investment, dividend reinvestment, etc.);
J. Record the issuance of shares of each Fund and maintain, pursuant
to Rule 17ad-10(e) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), a record of the total
number of shares of each Fund which are authorized, issued and
outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current
shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all shareholders;
N. Provide shareholder account information upon request and prepare
and mail confirmations and statements of account to shareholders
for all purchases, redemptions and other confirmable transactions
as agreed upon with the Company;
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O. Mail requests for shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate Federal
authorities any taxes to be withheld on dividends and
distributions paid by the Company, all as required by applicable
Federal tax laws and regulations;
P. Provide a Blue Sky System, which will enable the Company to
monitor the total number of shares of each Fund, sold in each
state. In addition, the Company, shall identify to FMFS in
writing those transactions and assets to be treated as exempt
from the Blue Sky reporting for each state. The responsibility of
FMFS for the Company's Blue Sky state registration status is
solely limited to the initial compliance by the Company and the
reporting of such transactions to the Company;
Q. Answer correspondence from shareholders, securities brokers and
others relating to FMFS's duties hereunder and such other
correspondence as may from time to time be mutually agreed upon
between FMFS and the Company; and
R. Reimburse the Fund each month for all material losses resulting
from "as of" processing errors for which FMFS is responsible in
accordance with the "as of" processing guidelines set forth in
the attached Exhibit B.
3. Compensation
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the Fee Schedule attached hereto as Exhibit A and
as mutually agreed upon and amended from time to time. The Company agrees to pay
all fees and reimbursable expenses within ten (10) business days following the
receipt of the billing notice.
4. Representations of FMFS
FMFS represents and warrants to the Company that:
A. It is a limited liability company duly organized, existing and in
good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize
it to enter and perform this Agreement;
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F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
G. It will comply with all applicable requirements of the Securities
Act of 1933, as amended, and the Exchange Act, the 1940 Act, and
any laws, rules, and regulations of governmental authorities
having jurisdiction.
5. Representations of the Company
The Company represents and warrants to FMFS that:
A. The Company is an open-end investment company under the 1940 Act;
B. The Company is organized, existing, and in good standing under
the laws of Maryland;
C. The Company is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into and perform
this Agreement;
D. All necessary proceedings required by the Articles of
Incorporation have been taken to authorize it to enter into and
perform this Agreement;
E. The Company will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws,
rules and regulations of governmental authorities having
jurisdiction; and
F. A registration statement under the Securities Act will be made
effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be
made, with respect to all shares of the Company being offered for
sale.
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6. Indemnification; Remedies Upon Breach
The Agent agrees to use reasonable care and act in good faith in
performing its duties hereunder.
Notwithstanding the foregoing, FMFS shall not be liable or responsible
for delays or errors occurring by reason of circumstances beyond its control,
including acts of civil or military authority, national or state emergencies,
fire, mechanical or equipment failure, flood or catastrophe, acts of God,
insurrection or war. In the event of a mechanical breakdown beyond its control,
FMFS shall take all reasonable steps to minimize service interruptions for any
period that such interruption continues beyond FMFS's control. FMFS will make
every reasonable effort to restore any lost or damaged data, and the correcting
of any errors resulting from such a breakdown will be at FMFS's expense. FMFS
agrees that it shall, at all times, have reasonable contingency plans with
appropriate parties, making reasonable provision for emergency use of electrical
data processing equipment to the extent appropriate equipment is available.
Representatives of the Company shall be entitled to inspect FMFS's premises and
operating capabilities at any time during regular business hours of FMFS, upon
reasonable notice to FMFS.
The Company will indemnify and hold FMFS harmless against any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim, demand, action or suit not
resulting from FMFS's bad faith or negligence, and arising out of or in
connection with FMFS's duties on behalf of the Company hereunder.
Further, the Company will indemnify and hold FMFS harmless against any
and all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit as a
result of the negligence of the Company (unless contributed to by FMFS's own
negligence or bad faith); or as a result of FMFS acting upon telephone
instructions relating to the exchange or redemption of shares received by FMFS
and reasonable believed by FMFS to have originated from the record owner of the
subject shares; or as a result of FMFS acting upon any instructions executed or
orally communicated by a duly authorized officer or employee of the Company,
according to such lists of authorized officers and employees furnished to FMFS
and as amended from time to time in writing by a resolution of the Board of
Directors of the Company; or as a result of acting in reliance upon any genuine
instrument or stock certificate signed, countersigned or executed by any person
or persons authorized to sign, countersign or execute the same.
In order for this section to apply, it is understood that if in any
case the Company may be asked to indemnify or hold harmless FMFS, the Company
shall be advised of all pertinent facts concerning the situation in question,
and it is further understood that FMFS will use reasonable care to notify the
Company promptly concerning any situation which presents or appears likely to
present a claim for indemnification against the Company. The Company shall have
the option to defend FMFS against any claim which may be the subject of this
indemnification and, in the event that the Company so elects, FMFS will so
notify the Company, and thereupon the Company shall take over complete defense
of the claim and FMFS shall sustain no further legal or other expenses in such
situation for which FMFS shall seek indemnification under this section. FMFS
will in no case confess any claim or make any compromise in any case in which
the Company will be asked to indemnify FMFS, except with the Company's prior
written consent.
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7. Proprietary and Confidential Information
FMFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Company
all records and other information relative to the Company and prior, present, or
potential shareholders (and clients of said shareholders) and not to use such
records and information for any purpose other than the performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Company, which approval shall not be unreasonably
withheld and may not be withheld where FMFS may be exposed to civil or criminal
contempt proceedings for failure to comply after being requested to divulge such
information by duly constituted authorities, or when so requested by the
Company.
8. Term of Agreement
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue automatically in effect for
successive annual periods. The Agreement may be terminated by either party upon
giving ninety (90) days prior written notice to the other party or such shorter
period as is mutually agreed upon by the parties. However, this Agreement may be
amended by mutual written consent of the parties, such as to add new Funds to
this Agreement by amending Exhibit A.
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9. Records
FMFS shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Company but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 Act and the rules thereunder. FMFS agrees that all such records
prepared or maintained by FMFS relating to the services to be performed by FMFS
hereunder are the property of the Company and will be preserved, maintained, and
made available under such section and rules and will be promptly surrendered to
the Company on and in accordance with its request.
10. Governing Law
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of New York. However, nothing
herein shall be construed in a manner inconsistent with the 1940 Act or any rule
or regulation promulgated by the Securities and Exchange Commission thereunder.
11. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of FMFS's duties or responsibilities hereunder is designated by the Company by
written notice to FMFS, FMFS will promptly, upon such termination and at the
expense of the Company, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FMFS under this
Agreement in a form reasonably acceptable to the Company (if such form differs
from the form in which FMFS has maintained, the Company shall pay any expenses
associated with transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for assistance
from FMFS's personnel in the establishment of books, records, and other data by
such successor.
12. Notices
Notices of any kind to be given by either party to the other party
shall be in writing and shall be duly given if mailed or delivered as follows:
Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Company shall be sent to:
Xxxxxxxxx Xxxxxxxx
C/X Xxxxxxxx Capital Management, Inc.
000 Xxxxx Xxx., Xxxxx 0000
Xxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
The Xxxxxxxx Funds, Inc. FIRSTAR MUTUAL FUND SERVICES, LLC
By:______________________________ By: ________________________________
Attest:__________________________ Attest:_____________________________
EXHIBIT A
The investment portfolios covered by this Agreement are: Xxxxxxxx Growth Fund
and Xxxxxxxx Focus Fund
The transfer agent fee schedule applicable to these Funds is set forth below:
o $14.00 per shareholder account Service Charges to Investors
o Minimum annual fees of $22,500 for the first ----------------------------
fund and $10,000 for each additional fund o Qualified Plan Fees (Billed to Investors)
o Plus out-of-pocket expenses, including o Annual maintenance fee/account $12.50/acct
but not limited to: (Cap at $25.00 per SSN)
o Telephone - toll-free lines o Education XXX $5.00/acct
o Postage (Cap at $25.00 per SSN)
o Programming o Transfer to successor trustee $15.00/trans.
o Stationery/envelopes o Distribution to participant $15.00/trans.
o Mailing (Exclusive of SWP)
o Insurance o Refund of excess contribution $15.00/trans.
o Proxies
o Retention of records o Additional Shareholder Fees (Billed to Investors)
o Microfilm/fiche of records o Any outgoing wire transfer $12.00/wire
o Special reports o Telephone exchange $5.00/exch.
o ACH fees o Return check fee $25.00/item
o NSCC charges o Stop payment $25.00/stop
o All other out-of-pocket expenses (Liquidation, dividend, draft check)
o $1.00 per telephone call o Research fee $5.00/item
o ACH Shareholder Services (For requested items of the second calendar
-- $125.00 per month per fund group year [or previous] to the request) (Cap at $25.00)
o $.50 per account set-up and/or change
o $.50 per ACH item o Fees and out-of-pocket expenses are billed to the fund
o $3.50 per correction, reversal, return item monthly
o File Transfer - $160/month and $.01/record
EXHIBIT B
Firstar Mutual Fund Services, LLC As Of Processing Policy
Firstar Mutual Fund Services, LLC (FMFS) will reimburse the Fund(s) for any net
material loss that may exist on the Fund(s) books and for which FMFS is
responsible, at the end of each calendar month. "Net Material Loss" shall be
defined as any remaining loss, after netting losses against any gains, which
impacts a Fund's net asset value by more than 1/2 cent. Gains and losses will be
accumulated on a daily basis, will be reflected on the Fund's daily share sheet,
and will be settled on a monthly basis. FMFS will notify the Fund's adviser on
the daily share sheet of any losses for which the Fund's adviser may be held
accountable.
