EXHIBIT 9(a)
FORM OF
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this day of
, 1996 between the INSIGHT PREMIER FUNDS (the "Fund"), a
Massachusetts business trust having its principal place of
business at Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx,
00000-0000 and FIRST DATA INVESTOR SERVICES GROUP, INC.
("FDISG"), a Massachusetts corporation with principal
offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate
series, with each such series representing interests in a
separate portfolio of securities and other assets;
WHEREAS, the Fund initially intends to offer Shares in those
Portfolios identified in the attached Exhibit 1, each such
Portfolio, together with all other Portfolios subsequently
established by the Fund shall be subject to this Agreement
in accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to
appoint FDISG as its transfer agent, dividend disbursing
agent and agent in connection with certain other activities
and FDISG desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, the Fund and FDISG agree as
follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar
organizational document as the case may be, of the Fund as
the same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether
or not such person is an officer or employee of the Fund,
duly authorized to give Oral Instructions or Written
Instructions on behalf of the Fund as indicated in writing
to FDISG from time to time.
(c) "Board of Directors" shall mean the Board of Directors
or Board of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time
to time deposit, or cause to be deposited or held under the
name or account of such a custodian pursuant to a Custodian
Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of
1934 and the rules and regulations promulgated
thereunder, all as amended from time to time.
(g) "1940 Act" shall mean the Investment Company Act of
1940 and the rules and regulations promulgated thereunder,
all as amended from time to time.
(h) "Oral Instructions" shall mean instructions, other
than Written Instructions, actually received by FDISG from a
person reasonably believed by FDISG to be an Authorized
Person;
(i) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interests in a separate
portfolio of securities and other assets;
(j) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information,
including any supplements thereto, if any, which has become
effective under the Securities Act of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class
thereof, of each respective Portfolio of the Fund as may be
issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of
each respective Portfolio of the Fund.
(m) "Written Instructions" shall mean a written
communication signed by a person reasonably believed by
FDISG to be an Authorized Person and actually received by
FDISG. Written Instructions shall include manually executed
originals and authorized electronic transmissions, including
telefacsimile of a manually executed original or other
process.
Article 2 Appointment of FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and
constitutes FDISG as transfer agent and dividend disbursing
agent for Shares of each respective Portfolio of the Fund
and as shareholder servicing agent for the Fund and FDISG
hereby accepts such appointments and agrees to perform the
duties hereinafter set forth.
Article 3 Duties of FDISG.
3.1 FDISG shall be responsible for:
(a) Administering and/or performing the customary services
of a transfer agent; acting as service agent in connection
with dividend and distribution functions; and performing
shareholder account and administrative agent functions in
connection with the issuance, transfer and redemption or
repurchase (including coordination with the Custodian) of
Shares of each Portfolio, as more fully described in the
written schedule of Duties of FDISG annexed hereto as
Schedule A and incorporated herein, and in accordance with
the terms of the Prospectus of the Fund on behalf of the
applicable Portfolio, applicable law and the procedures
established from time to time between FDISG and the Fund.
(b) Recording the issuance of Shares and maintaining
pursuant to Rule 17Ad-10(e) of the 1934 Act a record of the
total number of Shares of each Portfolio which are
authorized, based upon data provided to it by the Fund, and
issued and outstanding. FDISG shall provide the Fund on a
regular basis with the total number of Shares of each
Portfolio which are authorized and issued and outstanding
and shall have no obligation, when recording the issuance of
Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of
the Fund.
(c) Notwithstanding any of the foregoing provisions of
this Agreement, FDISG shall be under no duty or obligation
to inquire into, and shall not be liable for: (i) the
legality of the issuance or sale of any Shares or the
sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety
of the amount to be paid therefor; (iii) the legality of the
declaration of any dividend by the Board of Directors, or
the legality of the issuance of any Shares in payment of any
dividend; or (iv) the legality of any recapitalization or
readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to FDISG in
writing those transactions and assets to be treated as
exempt from blue sky reporting for each State and (ii)
verify the establishment of transactions for each State on
the system prior to activation and thereafter monitor the
daily activity for each State. The responsibility of FDISG
for the Fund's blue sky State registration status is solely
limited to the initial establishment of transactions subject
to blue sky compliance by the Fund and the reporting of such
transactions to the Fund as provided above.
3.3 FDISG agrees to provide the services set forth herein
in accordance with the Performance Standards annexed hereto
as Exhibit 1 of Schedule A and incorporated herein (the
"Performance Standards"). Such Performance Standards may be
amended from time to time upon written agreement by the
parties.
3.4 In addition to the duties set forth herein, FDISG
shall perform such other duties and functions, and shall be
paid such amounts therefor, as may from time to time be
agreed upon in writing between the Fund and FDISG.
Article 4 Recordkeeping and Other Information.
4.1 FDISG shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in
Schedule A in accordance with all applicable laws, rules and
regulations, including records required by Section 31(a) of
the 1940 Act. Where applicable, such records shall be
maintained by FDISG for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act,
FDISG agrees that all such records prepared or maintained by
FDISG relating to the services to be performed by FDISG
hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with
such section, and will be surrendered promptly to the Fund
on and in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection
of Shareholder records of the Fund, FDISG will endeavor to
notify the Fund of such request and secure Written
Instructions as to the handling of such request. FDISG
reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel
that it may be held liable for the failure to comply with
such request.
Article 5 Fund Instructions.
5.1 FDISG will have no liability when acting upon Written
or Oral 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 receipt of a Written Instruction thereof from
the Fund. FDISG will also have no liability when processing
Share certificates which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the
Fund and the proper countersignature of FDISG.
5.2 At any time, FDISG may request Written Instructions
from the Fund and may seek advice from legal counsel for the
Fund, or its own legal counsel, with respect to any matter
arising in connection with this Agreement, and it shall not
be liable for any action taken or not taken or suffered by
it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel
for the Fund or for FDISG. Written Instructions requested
by FDISG will be provided by the Fund within a reasonable
period of time.
5.3 FDISG, its officers, agents or employees, shall accept
Oral Instructions or Written Instructions given to them by
any person representing or acting on behalf of the Fund only
if said representative is an Authorized Person. The Fund
agrees that all Oral Instructions shall be followed within
one business day by confirming Written Instructions, and
that the Fund's failure to so confirm shall not impair in
any respect FDISG's right to rely on Oral Instructions.
Article 6 Compensation.
6.1 The Fund on behalf of each of the Portfolios will
compensate FDISG for the performance of its obligations
hereunder in accordance with the fees set forth in the
written Fee Schedule annexed hereto as Schedule B and
incorporated herein.
6.2 In addition to those fees set forth in Section 6.1
above, the Fund on behalf of each of the Portfolios agrees
to pay, and will be billed separately for, out-of-pocket
expenses incurred by FDISG in the performance of its duties
hereunder. Out-of-pocket expenses shall include, but shall
not be limited to, the items specified in the written
schedule of out-of-pocket charges annexed hereto as Schedule
C and incorporated herein. Schedule C may be modified by
written agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those
out-of-pocket expenses reasonably incurred by FDISG in the
performance of its obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to
pay all fees and out-of-pocket expenses within fifteen (15)
days following the receipt of the respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted
from time to time by attaching to Schedule B, a revised Fee
Schedule executed and dated by the parties hereto.
6.5 The Fund acknowledges that the fees that FDISG charges
the Fund under this Agreement reflect the allocation of risk
between the parties, including the disclaimer of warranties
in Section 9.3 and the limitations on liability and
exclusion of remedies in Section 11.2 and Article 12.
Modifying the allocation of risk from what is stated here
would affect the fees that FDISG charges, and in
consideration of those fees, the Fund agrees to the stated
allocation of risk.
Article 7 Documents.
In connection with the appointment of FDISG, the Fund shall,
on or before the date this Agreement goes into effect, but
in any case within a reasonable period of time for FDISG to
prepare to perform its duties hereunder, deliver or caused
to be delivered to FDISG the documents set forth in the
written schedule of Fund Documents annexed hereto as
Schedule D.
Article 8 Transfer Agent System.
8.1 FDISG shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report
formats, interactive design techniques, derivative works,
inventions, discoveries, patentable or copyrightable
matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by FDISG in
connection with the services provided by FDISG to the Fund
herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to
the FDISG System for the sole and limited purpose of having
FDISG provide the services contemplated hereunder and
nothing contained in this Agreement shall be construed or
interpreted otherwise and such license shall immediately
terminate with the termination of this Agreement.
Article 9 Representations and Warranties.
9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in
good standing under the laws of the Commonwealth of
Massachusetts;
(b) it is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and
perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain
in effect for the duration of this Agreement; and
(e) it has and will continue to have access to the
necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement.
9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized, existing and in good standing
under the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into this
Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken
to authorize it to enter into this Agreement;
(d) a registration statement under the Securities Act of
1933, as amended, and the 1940 Act on behalf of each of the
Portfolios is currently effective and will remain effective,
and all appropriate state securities law filings have been
made and will continue to be made, with respect to all
Shares of the Fund being offered for sale; and
(e) all outstanding Shares are validly issued, fully paid
and non-assessable and when Shares are hereafter issued in
accordance with the terms of the Fund's Articles of
Incorporation and its Prospectus with respect to each
Portfolio, such Shares shall be validly issued, fully paid
and non-assessable.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, FDISG DISCLAIMS ALL OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO
THE FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR
USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED
INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. FDISG
DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT
AS OTHERWISE SET FORTH IN THIS AGREEMENT.
Article 10 Indemnification.
10.1 FDISG shall not be responsible for and the Fund on
behalf of each Portfolio shall indemnify and hold FDISG
harmless from and against any and all claims, costs,
expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or
kind which may be asserted against FDISG or for which FDISG
may be held to be liable (a "Claim") arising out of or
attributable to any of the following:
(a) any actions of FDISG required to be taken pursuant to
this Agreement unless such Claim resulted from a negligent
act or omission to act or bad faith by FDISG in the
performance of its duties hereunder;
(b) FDISG's reasonable reliance on, or reasonable use of
information, data, records and documents (including but not
limited to magnetic tapes, computer printouts, hard copies
and microfilm copies) received by FDISG from the Fund, or
any authorized third party acting on behalf of the Fund,
including but not limited to the prior transfer agent for
the Fund, in the performance of FDISG's duties and
obligations hereunder;
(c) the reliance on, or the implementation of, any Written
or Oral Instructions or any other instructions or requests
of the Fund on behalf of the applicable Portfolio;
(d) the offer or sales of shares in violation of any
requirement under the securities laws or regulations of any
state that such shares be registered in such state or in
violation of any stop order or other determination or ruling
by any state with respect to the offer or sale of such
shares in such state; and
(e) the Fund's refusal or failure to comply with the terms
of this Agreement, or any Claim which arises out of the
Fund's negligence or misconduct or the breach of any
representation or warranty of the Fund made herein.
10.2 The Fund and each Portfolio shall not be responsible
for, and FDISG shall indemnify and hold the Fund and each
Portfolio harmless from and against, any and all Claims
arising out of or attributable to (a) FDISG's refusal or
failure to comply with the terms of this Agreement or (b)
FDISG's negligence, willful misconduct or breach of any
representation or warranty made of FDISG. herein or
10.3 In any case in which a party (the "Indemnified Party")
may be asked to indemnify or hold the other party (the
"Indemnifying Party") harmless, the Indemnified Party will
notify the Indemnifying Party promptly after identifying any
situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying
Party although the failure to do so shall not prevent
recovery by the Indemnified Party and shall keep the
Indemnifying Party advised with respect to all developments
concerning such situation. The Indemnifying Party shall
have the option to defend the Indemnified Party against any
Claim which may be the subject of this indemnification, and,
in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified
Party, and thereupon the Indemnifying Party shall take over
complete defense of the Claim and the Indemnified Party
shall sustain no further legal or other expenses in respect
of such Claim. The Indemnified Party will not confess any
Claim or make any compromise in any case in which the
Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent.
The obligations of the parties hereto under this Article 10
shall survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement
must be made prior to the earlier of:
(a) one year after the Indemnified Party becomes aware of
the event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter
of law (and injunctive or provisional relief), the
provisions of this Article 10 shall be each party's sole and
exclusive remedy for claims or other actions or proceedings
to which the indemnification obligations pursuant to this
Article 10 may apply.
Article 11 Standard of Care.
11.1 FDISG shall at all times act in good faith and agrees
to use its best efforts within commercially reasonable
limits to ensure the accuracy of all services performed
under this Agreement, but assumes no responsibility for loss
or damage to the Fund unless said errors are caused by
FDISG's own negligence, bad faith or willful misconduct or
that of its employees.
11.2 Notwithstanding any provision in this Agreement to the
contrary, FDISG's cumulative liability (to the Fund) for all
losses, claims, suits, controversies, breaches, or damages
for any cause whatsoever (including but not limited to those
arising out of or related to this Agreement) and regardless
of the form of action or legal theory shall not exceed the
greater of (i) $500,000 or (ii) the fees received by FDISG
for services provided under this Agreement during the twelve
months immediately prior to the date of such loss or damage.
Fund understands the limitation on FDISG's damages to be a
reasonable allocation of risk and Fund expressly consents
with respect to such allocation of risk. In allocating risk
under the Agreement, the parties agree that the damage
limitation set forth above shall apply to any alternative
remedy ordered by a court in the event such court determines
that sole and exclusive remedy provided for in the Agreement
fails of its essential purpose.
11.3 Neither party may assert any cause of action against
the other party under this Agreement that accrued more than
two (2) years prior to the filing of the suit (or
commencement of arbitration proceedings) alleging such cause
of action.
11.4 Each party shall have the duty to mitigate damages for
which the other party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
IN NO EVENT SHALL FDISG, ITS AFFILIATES OR ANY OF ITS OR
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST
PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED
BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY
ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first
written above and shall continue for a period of five (5)
years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this
Agreement shall automatically renew for successive terms of
three (3) years ("Renewal Terms") each, unless the Fund or
FDISG provides written notice to the other of its intent not
to renew. Such notice must be received not less than ninety
(90) days and not more than one-hundred eighty (180) days
prior to the expiration of the Initial Term or the then
current Renewal Term.
13.3 Notwithstanding the forgoing, the Fund shall have the
ability to terminate this Agreement (i) upon sixty (60) days
prior written notice to FDISG in the event that Fund should
dissolve and discontinue to do business; or (ii) upon the
termination of the Administration Agreement dated
, 1996 between the Fund and FDISG.
13.4 In the event that FDISG has failed to meet a specific
performance standard category, as set forth in Exhibit 1 of
Schedule A, in four months of any rolling six month period,
the Fund may terminate this Agreement. The Fund will
provide FDISG with sixty (60) days notice in writing if the
Fund intends to exercise its option under this Section 8(d).
Notwithstanding the foregoing, the Fund's right under this
Section 8(d), shall not become effective until ninety (90)
days after FDISG has begun providing services under this
Agreement.
13.5 In the event a termination notice is given by the
Fund, all expenses associated with movement of records and
materials and conversion thereof to a successor transfer
agent will be borne by the Fund.
13.6 If a party hereto is guilty of a material failure to
perform its duties and obligations hereunder (a "Defaulting
Party") the other party (the "Non-Defaulting Party") may
give written notice thereof to the Defaulting Party, and if
such material breach shall not have been remedied within
thirty (30) days after such written notice is given, then
the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination
to the Defaulting Party. If FDISG is the Non-Defaulting
Party, its termination of this Agreement shall not
constitute a waiver of any other rights or remedies of FDISG
with respect to services performed prior to such termination
or rights of FDISG to be reimbursed for out-of-pocket
expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting
Party of any other rights it might have under this Agreement
or otherwise against the Defaulting Party.
Article 14 Additional Portfolios.
In the event that the Fund establishes one or more
Portfolios in addition to those identified in Exhibit 1,
with respect to which the Fund desires to have FDISG render
services as transfer agent under the terms hereof, the Fund
shall so notify FDISG in writing, and if FDISG agrees in
writing to provide such services, Exhibit 1 shall be amended
to include such additional Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information
(defined below) and the contents of this Agreement
(collectively "Confidential Information") are confidential
information of the parties and their respective licensors.
The Fund and FDISG shall exercise at least the same degree
of care, but not less than reasonable care, to safeguard the
confidentiality of the Confidential Information of the other
as it would exercise to protect its own confidential
information of a similar nature. The Fund and FDISG shall
not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the
prior written permission of the other party. The Fund and
FDISG may, however, disclose Confidential Information to
their respective parent corporation, their respective
affiliates, their subsidiaries and affiliated companies and
employees, provided that each shall use reasonable efforts
to ensure that the Confidential Information is not
duplicated or disclosed in breach of this Agreement. The
Fund and FDISG may also disclose the Confidential
Information to regulatory or judicial authorities,
independent contractors, auditors, and professional
advisors, provided they first agree in writing to be bound
by the confidentiality obligations substantially similar to
this Section 15.1. Notwithstanding the previous sentence,
in no event shall either the Fund or FDISG disclose the
Confidential Information to any competitor of the other
without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively
sensitive material, and not generally known to the public,
including, but not limited to, information about product
plans, marketing strategies, finance, operations, customer
relationships, customer profiles, sales estimates, business
plans, and internal performance results relating to the
past, present or future business activities of the Fund or
FDISG, their respective subsidiaries and affiliated com-
panies and the customers, clients and suppliers of any of
them;
(b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commer-
cially valuable and secret in the sense that its confiden-
tiality affords the Fund or FDISG a competitive advantage
over its competitors; and
(c) all confidential or proprietary concepts, documen-
tation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inven-
tions, know-how, show-how and trade secrets, whether or not
patentable or copyrightable.
15.3 Confidential Information includes, without limitation,
all documents, inventions, substances, engineering and
laboratory notebooks, drawings, diagrams, specifications,
bills of material, equipment, prototypes and models, and any
other tangible manifestation of the foregoing of either
party which now exist or come into the control or possession
of the other.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and
to the extent such default or delay is caused, directly or
indirectly, by (i) fire, flood, elements of nature or other
acts of God; (ii) any outbreak or escalation of hostilities,
war, riots or civil disorders in any country, (iii) any act
or omission of the other party or any governmental
authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's
power to satisfy); or (v) nonperformance by a third party or
any similar cause beyond the reasonable control of such
party, including without limitation, failures or
fluctuations in telecommunications or other equipment. In
any such event, the non-performing party shall be excused
from any further performance and observance of the
obligations so affected only for as long as such
circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or
observance as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be
binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This
Agreement may not be assigned or otherwise transferred by
either party hereto, without the prior written consent of
the other party, which consent shall not be unreasonably
withheld; provided, however, that FDISG may, in its sole
discretion, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary. FDISG may,
in its sole discretion, engage subcontractors to perform any
of the obligations contained in this Agreement to be
performed by FDISG, but such engagement will not relieve
FDISG of such obligations.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating to
this Agreement, or breach hereof, shall be settled by
arbitration administered by the American Arbitration
Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence
and the Federal Rules of Civil Procedure with respect to the
discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court
having jurisdiction.
18.3 The parties acknowledge and agree that the performance
of the obligations under this Agreement necessitates the use
of instrumentalities of interstate commerce and,
notwithstanding other general choice of law provisions in
this Agreement, the parties agree that the Federal
Arbitration Act shall govern and control with respect to the
provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Fund or FDISG,
shall be sufficiently given if addressed to that party and
received by it at its office set forth below or at such
other place as it may from time to time designate in
writing. A written notice or instrument may be in the form
of a facsimile transmission, electronic mail, a telegram or
a telex provided that it is actually received by the
addressee.
To the Fund:
Attention: __________________
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the
laws on conflicts of laws, shall govern the interpretation,
validity, and enforcement of this agreement. All actions
arising from or related to this Agreement shall be brought
in the state and federal courts sitting in the City of
Boston, and FDISG and Client hereby submit themselves to the
exclusive jurisdiction of those courts.
Article 21 Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an
original; but such counterparts shall, together, constitute
only one instrument.
Article 22 Captions.
The captions of this Agreement are included for convenience
of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
Article 23 Publicity.
Neither FDISG nor the Fund shall release or publish news
releases, public announcements, advertising or other
publicity relating to this Agreement or to the transactions
contemplated by it without the prior review and written
approval of the other party; provided, however, that either
party may make such disclosures as are required by legal,
accounting or regulatory requirements after making
reasonable efforts in the circumstances to consult in
advance with the other party.
Article 24 Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent
contractors and not partners or co-venturers and nothing
contained herein shall be interpreted or construed
otherwise.
24.2 Except as may be agreed upon by the parties, during
the term of this Agreement and for one (1) year afterward,
the Fund and FDISG agree not to recruit, solicit, employ or
engage, for themselves or others, the employees of the other
party.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and
Exhibits hereto, constitutes the entire Agreement between
the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings,
whether written or oral, between the parties with respect to
the subject matter hereof. No change, termination,
modification, or waiver of any term or condition of the
Agreement shall be valid unless in writing signed by each
party. No such writing shall be effective as against FDISG
unless said writing is executed by a Senior Vice President,
Executive Vice President, or President of FDISG. A party's
waiver of a breach of any term or condition in the Agreement
shall not be deemed a waiver of any subsequent breach of the
same or another term or condition.
25.2 The parties intend every provision of this Agreement
to be severable. If a court of competent jurisdiction
determines that any term or provision is illegal or invalid
for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In
such case, the parties shall in good faith modify or
substitute such provision consistent with the original
intent of the parties. Without limiting the generality of
this paragraph, if a court determines that any remedy stated
in this Agreement has failed of its essential purpose, then
all other provisions of this Agreement, including the
limitations on liability and exclusion of damages, shall
remain fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers,
as of the day and year first above written.
INSIGHT PREMIER FUNDS
By:
Title:
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:
Title:
Exhibit 1
LIST OF PORTFOLIOS
Insight Growth Fund
Insight Moderate Growth Fund
Insight Conservative Allocation Fund
Schedule A
DUTIES OF FDISG
1. Shareholder Information. FDISG shall maintain a
record of the number of Shares held by each Shareholder of
record which shall include name, address, taxpayer
identification and which shall indicate whether such Shares
are held in certificates or uncertificated form.
2. Shareholder Services. FDISG shall respond as
appropriate to all inquiries and communications from
Shareholders relating to Shareholder accounts with respect
to its duties hereunder and as may be from time to time
mutually agreed upon between FDISG and the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply
FDISG with an adequate supply of blank Share certificates to
meet FDISG requirements therefor. Such Share certificates
shall be properly signed by facsimile. The Fund agrees
that, notwithstanding the death, resignation, or removal of
any officer of the Fund whose signature appears on such
certificates, FDISG or its agent may continue to countersign
certificates which bear such signatures until otherwise
directed by Written Instructions.
(b) FDISG shall issue replacement Share certificates in
lieu of certificates which have been lost, stolen or
destroyed, upon receipt by FDISG of properly executed
affidavits and lost certificate bonds, in form satisfactory
to FDISG, with the Fund and FDISG as obligees under the
bond.
(c) FDISG shall also maintain a record of each certificate
issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open
accounts or uncertificated form (i.e., no certificate being
issued with respect thereto) FDISG shall maintain comparable
records of the Shareholders thereof, including their names,
addresses and taxpayer identification numbers. FDISG shall
further maintain a stop transfer record on lost and/or
replaced certificates.
4. Mailing Communications to Shareholders; Proxy
Materials. FDISG will address and mail to Shareholders of
the Fund, all reports to Shareholders, dividend and
distribution notices and proxy material for the Fund's
meetings of Shareholders. In connection with meetings of
Shareholders, FDISG will prepare Shareholder lists, mail and
certify as to the mailing of proxy materials, process and
tabulate returned proxy cards, report on proxies voted prior
to meetings, act as inspector of election at meetings and
certify Shares voted at meetings.
5. Sales of Shares
(a) FDISG shall not be required to issue any Shares of the
Fund if it has received a Written Instruction from the Fund
or official notice from any appropriate authority that the
sale of the Shares of the Fund has been suspended or
discontinued. The existence of such Written Instructions or
such official notice shall be conclusive evidence of the
right of FDISG to rely on such Written Instructions or
official notice.
(b) In the event that any check or other order for the
payment of money is returned unpaid for any reason, FDISG
will endeavor to: (i) give prompt notice of such return to
the Fund or its designee; (ii) place a stop transfer order
against all Shares issued as a result of such check or
order; and (iii) take such actions as FDISG may from time to
time deem appropriate.
6. Transfer and Repurchase
(a) FDISG shall process all requests to transfer or redeem
Shares in accordance with the transfer or repurchase
procedures set forth in the Fund's Prospectus.
(b) FDISG will transfer or repurchase Shares upon receipt
of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed
for transfer or redemption, accompanied by such documents as
FDISG reasonably may deem necessary.
(c) FDISG reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the endorsement
on the instructions is valid and genuine. FDISG also
reserves the right to refuse to transfer or repurchase
Shares until it is satisfied that the requested transfer or
repurchase is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers
or repurchases which FDISG, in its good judgement, deems
improper or unauthorized, or until it is reasonably
satisfied that there is no basis to any claims adverse to
such transfer or repurchase.
(d) When Shares are redeemed, FDISG shall, upon receipt of
the instructions and documents in proper form, deliver to
the Custodian and the Fund or its designee a notification
setting forth the number of Shares to be redeemed. Such
redeemed shares shall be reflected on appropriate accounts
maintained by FDISG reflecting outstanding Shares of the
Fund and Shares attributed to individual accounts.
(e) FDISG, upon receipt of the monies provided to it by the
Custodian for the redemption of Shares, pay such monies as
are received from the Custodian, all in accordance with the
procedures described in the written instruction received by
FDISG from the Fund.
(f) FDISG shall not process or effect any redemption with
respect to Shares of the Fund after receipt by FDISG or its
agent of notification of the suspension of the determination
of the net asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each capital
gains distribution by the Board of Directors of the Fund
with respect to Shares of the Fund, the Fund shall furnish
or cause to be furnished to FDISG Written Instructions
setting forth the date of the declaration of such dividend
or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled
to payment shall be determined, the amount payable per Share
to the Shareholders of record as of that date, the total
amount payable on the payment date and whether such dividend
or distribution is to be paid in Shares at net asset value.
(b) On or before the payment date specified in such
resolution of the Board of Directors, the Fund will provide
FDISG with sufficient cash to make payment to the
Shareholders of record as of such payment date.
(c) If FDISG does not receive sufficient cash from the
Fund to make total dividend and/or distribution payments to
all Shareholders of the Fund as of the record date, FDISG
will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until
sufficient cash is provided to FDISG.
8. In addition to and neither in lieu nor in
contravention of the services set forth above, FDISG shall:
(i) perform all the customary services of a transfer agent,
registrar, dividend disbursing agent and agent of the
dividend reinvestment and cash purchase plan as described
herein consistent with those requirements in effect as at
the date of this Agreement. The detailed definition,
frequency, limitations and associated costs (if any) set out
in the attached fee schedule, include but are not limited
to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, tabulating
proxies, mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts where applicable, preparing and
filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders.
Exhibit 1 of Schedule A
PERFORMANCE STANDARDS
FDISG's obligation to meet the following Performance
Standards shall be measured in the aggregate with respect to
all Portfolios.
FDISG will report to Insight on a quarterly basis the
percent of items completed within standard as well as a
quality rating. A pass/fail determination for contractual
purposes will however be based on the categories listed
below based on monthly performance. For example, the
accuracy of purchases, redemptions, exchanges and
adjustments will be reported to the Fund on an individual
basis and as a collective group. FDISG will receive a
"fail" for the month if the collective score for all
financials falls below the contractual level. Note that
completion standards are measured in business days.
Category Components (to be reported individually)
Financials: Purchases, Redemptions, Exchanges,
Adjustments (both financial
and non-financial adjustments)
Collective Quality Score: 98.25%
Minimum Acceptable Collective
Score by Category: Weighting:
Transaction Throughput - 99% 50%
Transaction Quality - 97.5% 50%
Shareholder Services: Telephones, Correspondence
Collective Quality Score: 98%
Minimum Acceptable Collective
Score by Category: Weighting:
Telephone Abandoned Rate - 3% 25%
Average Speed of Answer - 20 second 25%
Financial Correspondence - Receipt +2 25%
Non-financial Correspondence - Receipt + 4 25%
Schedule B
FEE SCHEDULE
1. ANNUAL FEES
A. Open Account Fees: $14.00 per open account
(subject to minimum fees set forth below)
B. Fund Minimums: $32,000 per
Portfolio per year, provided however, the Fund shall pay a
minimum of $64,000 per annum regardless of the number of
Portfolios
C. Out of Pocket Expenses As set forth in
Schedule C
GENERAL
After the completion of the third year of the Agreement,
First Data may adjust any annual or monthly fees once per
calendar year, upon thirty (30) days prior written notice in
an amount not to exceed the cumulative percentage increase
in the Consumer Price Index for All Urban Consumers (CPI-U)
U.S. City Average, All items (unadjusted) - (1982-84=100),
published by the U.S Department of Labor since the last such
adjustment in the Client's monthly fees (or the Effective
Date absent a prior such adjustment).
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable
out-of-pocket expenses, including, but not limited to the
following items:
Microfiche/microfilm production
Magnetic media tapes and freight
Printing costs, including certificates, envelopes,
checks and stationery
Postage (bulk, pre-sort, ZIP+4, barcoding, first
class) direct pass through to the Fund
Due diligence mailings
Telephone and telecommunication costs, including all
lease, maintenance and line costs
Ad hoc reports
Proxy solicitations, mailings and tabulations
Daily & Distribution advice mailings
Shipping, Certified and Overnight mail and insurance
Year-end form production and mailings
Terminals, communication lines, printers and other
equipment and any expenses incurred in connection with such
terminals and lines
Duplicating services
Courier services
Incoming and outgoing wire charges
Federal Reserve charges for check clearance
Overtime, as approved by the Fund
Temporary staff, as approved by the Fund
Travel and entertainment, as approved by the Fund
Record retention, retrieval and destruction costs,
including, but not limited to exit fees charged by third
party record keeping vendors
Third party audit reviews
Ad hoc SQL time
All Systems enhancements after the conversion at the
rate of $100.00 per hour
Insurance
Such other miscellaneous expenses reasonably incurred
by FDISG in performing its duties and responsibilities under
this Agreement.
The Fund agrees that postage and mailing expenses will be
paid on the day of or prior to mailing as agreed with FDISG.
In addition, the Fund will promptly reimburse FDISG for any
other unscheduled expenses incurred by FDISG whenever the
Fund and FDISG mutually agree that such expenses are not
otherwise properly borne by FDISG as part of its duties and
obligations under the Agreement.
Schedule D
FUND DOCUMENTS
Certified copy of the Articles of Incorporation of the
Fund, as amended
Certified copy of the By-laws of the Fund, as amended,
Copy of the resolution of the Board of Directors
authorizing the execution and delivery of this Agreement
Specimens of the certificates for Shares of the Fund,
if applicable, in the form approved by the Board of
Directors of the Fund, with a certificate of the Secretary
of the Fund as to such approval
All account application forms and other documents
relating to Shareholder accounts or to any plan, program or
service offered by the Fund
Certified list of Shareholders of the Fund with the
name, address and taxpayer identification number of each
Shareholder, and the number of Shares of the Fund held by
each, certificate numbers and denominations (if any
certificates have been issued), lists of any accounts
against which stop transfer orders have been placed,
together with the reasons therefore, and the number of
Shares redeemed by the Fund
All notices issued by the Fund with respect to the
Shares in accordance with and pursuant to the Articles of
Incorporation or By-laws of the Fund or as required by law
and shall perform such other specific duties as are set
forth in the Articles of Incorporation including the giving
of notice of any special or annual meetings of shareholders
and any other notices required thereby.
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