EXHIBIT 99(h)(iii)
FORM OF
TRANSFER AGENCY AGREEMENT
Made as of the 21st day of January, 2003
by and between
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SERIES TRUST
and
DST SYSTEMS, INC.
TABLE OF CONTENTS
Documents to be Filed with Appointment................................................1
Certain Representations and Warranties of DST.........................................2
Certain Representations and Warranties of the Trust...................................2
Scope of Appointment..................................................................3
Limit of Authority....................................................................6
Compensation and Expenses.............................................................7
Operation of DST System..............................................................10
Indemnification......................................................................11
Certain Covenants of DST and the Trust...............................................15
Recapitalization or Readjustment.....................................................17
Stock Certificates...................................................................18
Death, Resignation or Removal of Signing Officer.....................................18
Future Amendments of Declaration of Trust and Bylaws.................................18
Instructions, Opinion of Counsel and Signatures or JPM...............................18
Force Majeure and Disaster Recovery Plans............................................19
Certification of Documents...........................................................20
Records..............................................................................20
Disposition of Books, Records and Canceled Certificates..............................20
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Provisions Relating to DST as Transfer Agent.........................................21
Provisions Relating to Dividend Disbursing Agency....................................23
Assumption of Duties By the Trust or Agents Designated By the Trust..................24
Termination of Agreement.............................................................25
Confidentiality......................................................................26
Changes and Modifications............................................................28
Assignment and Subcontractors........................................................29
Limitations on Liability.............................................................29
Miscellaneous........................................................................30
Exhibit A - Fee Schedule.............................................................33
Exhibit B - Authorized Personnel.....................................................39
Exhibit C - Transfer Agency Services and Systems Features............................40
Exhibit D - Confidentiality Agreement for Auditors...................................42
Appendix I...........................................................................46
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TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made as of the 21st day of January, 2003, by and between
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SERIES TRUST, a business trust existing under the laws of
the Commonwealth of Massachusetts, having its principal place of business at ▇▇▇
▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and acting on its own behalf and on behalf of each
of the portfolios listed in Appendix I (collectively, the "Fund" or "Funds), and
DST SYSTEMS, INC., a corporation existing under the laws of the State of
Delaware, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("DST"):
WITNESSETH:
WHEREAS, the Trust (as used hereinafter, the term "Trust" shall refer to
the ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Series Trust and each Fund) is a Massachusetts business
trust registered with the Securities and Exchange Commission as an investment
company pursuant to the Investment Company Act of 1940, as amended, which
currently consists of the Funds listed on Appendix I; and
WHEREAS, the Trust desires to appoint DST as Transfer Agent and Dividend
Disbursing Agent for all shares of each Fund of the Trust (the "Shares"), and
DST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of DST as Transfer Agent and Dividend
Disbursing Agent for the Trust, there will be filed with DST the following
documents:
A. A certified copy of the votes of the Board of Trustees of the Trust
appointing DST as Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating certain persons
to sign Certificates, if any, and give written instructions and
requests on behalf of the Trust;
B. A certified copy of the Declaration of Trust of the Trust and all
amendments thereto;
C. A certified copy of the Bylaws of the Trust;
D. Copies of Registration Statements and amendments thereto, filed with
the Securities and Exchange Commission;
E. Specimens of all forms of outstanding Certificates;
F. Specimens of the signatures of the officers of the Trust authorized to
sign Certificates and individuals authorized to sign written
instructions and requests;
G. An opinion of counsel for the Trust with respect to:
(1) The Trust's organization and existence under the laws of its
state of organization,
(2) The status of all Shares, whether unissued or evidenced by
Certificates of the Trust, covered by the appointment under the
Securities Act of 1933, as amended, (the "'33 Act") and any other
applicable federal or state statute, and
(3) That all issued Shares are, and all unissued Shares will be when
issued, validly issued, fully paid and non-assessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF DST.
DST represents and warrants to the Trust that:
A. It is a corporation duly organized and existing and in good standing
under the laws of Delaware.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934, as amended, (the "'34 Act") and it
will remain so registered for the duration of this Agreement. It will
promptly notify the Trust in the event of any material change in its
status as a registered transfer agent. Should DST fail to be
registered with the appropriate federal agency as a transfer agent at
any time during this Agreement, the Trust may, on written notice to
DST, immediately terminate this Agreement.
E. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to DST that:
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A. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is an open-end, non-diversified management investment company
registered under the Investment Company Act of 1940, as amended.
C. A registration statement under the '33 Act has been filed and will be
effective with respect to all Shares offered for sale.
D. All requisite steps have been and will continue to be taken to
register the Shares for sale in all applicable states and such
registration will be effective at all times Shares are offered for
sale in such state.
E. The Trust is empowered under applicable laws and by its Declaration of
Trust and Bylaws to enter into and perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions and termination of provisions set forth in
this Agreement, the Trust hereby appoints DST as Transfer Agent and
Dividend Disbursing Agent for the Shares and for the Shares of future
portfolios of the Trust (Annex A shall be revised to include such
future portfolio(s)).
B. DST hereby accepts such appointment and agrees that it will act as the
Trust's Transfer Agent and Dividend Disbursing Agent. DST agrees that
it will also act as agent in connection with the Trust's periodic
withdrawal payment accounts and other open accounts or similar plans
for shareholders, if any.
C. The Trust agrees to use its best efforts to deliver to DST in Kansas
City, Missouri, as soon as they are available, all of its shareholder
account records for any new Fund of the Trust.
D. DST, utilizing TA2000(TM), DST's computerized data processing system
for securityholder accounting (the "TA2000(TM) System"), will perform
the following services as transfer and dividend disbursing agent for
the Trust, and as agent of the Trust for shareholder accounts thereof,
in a timely manner: issuing (including countersigning), transferring
and canceling share certificates; maintaining all shareholder
accounts; providing transaction journals; once annually preparing
shareholder meeting lists for use in connection with the annual
meeting and certifying the shareholder votes of the Trust; mailing
shareholder reports and
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prospectuses; withholding, as required by federal law, taxes on
shareholder accounts, disbursing income dividends and capital gains
distributions to shareholders, preparing, filing and mailing U.S.
Treasury Department Forms 1099, 1042, and 1042S and performing and
paying backup withholding as required for all shareholders; preparing
and mailing confirmation forms to shareholders and dealers, as
instructed, for all purchases and liquidations of shares of the Trust
and other transactions in shareholders' accounts requiring
confirmation under applicable law; recording reinvestment of dividends
and distributions in Shares; providing or making available on-line
daily and monthly reports as both are regularly provided by the
TA2000(TM) System and as requested by the Trust or its management
company; maintaining those records necessary to carry out DST's duties
hereunder, including all information reasonably required by the Trust
to account for all transactions in the Shares, calculating the
appropriate sales charge with respect to each purchase of the Shares
as set forth in the prospectus for the Trust, determining the portion
of each sales charge payable to the dealer participating in a sale in
accordance with schedules delivered to DST by the Trust's principal
underwriter or distributor (hereinafter "principal underwriter") from
time to time, disbursing dealer commissions collected to such dealers,
determining the portion of each sales charge payable to such principal
underwriter and disbursing such commissions to the principal
underwriter; receiving correspondence pertaining to any former,
existing or new shareholder account, processing such correspondence
for proper recordkeeping, and responding promptly to shareholder
correspondence; mailing to dealers confirmations of wire order trades;
mailing copies of shareholder statements to shareholders and dealers
in accordance with the Trust's instructions; processing, generally on
the date of receipt, purchases or redemptions or instructions to
settle any mail or wire order purchases or redemptions received in
proper order as set forth in the prospectus, rejecting promptly any
requests not received in proper order (as defined by the Trust, the
Trust's agents or prospectus, or the Procedures, as hereinafter
defined), and causing exchanges of shares to be executed in accordance
with the Trust's instructions and prospectus, the Procedures and the
general exchange privilege applicable; operating the order desk on
behalf of the Trust for
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the purpose of taking trade orders from broker-dealers and
institutions, confirming orders on "T+1" (Trade Date Plus One),
monitoring the settlement of such orders and advising the Trust once
such orders become delinquent based upon the Trust's guidelines;
monitoring "as of's" and advising broker-dealers of the necessity to
reimburse the Trust when the as of loss from a transaction exceeds the
thresholds established by the Trust; and monitoring, administering and
updating (but not verifying the accuracy of) the MENTAP/Market Advisor
database.
E. At the request of Trust, DST shall use reasonable efforts to provide
the services set forth in Section 4.D. other than through DST's usual
methods and procedures to utilize the TA2000 System, that is by
performing services requiring more manual intervention by DST, either
in the entry of data or in the modification or amendment of reports
generated by the TA2000 System, or where information is provided to
DST after the commencement of the nightly processing cycle of the
TA2000 System, thereby decreasing the effective time for performance
by DST (the "Exception Services").
F. DST shall use reasonable efforts to provide, reasonably promptly under
the circumstances, the same services with respect to any new,
additional functions or features or any changes or improvements to
existing functions or features as provided for in the Trust's
instructions, prospectus or application as amended from time to time,
for the Trust; provided (i) DST is advised in advance by the Trust of
any changes therein and (ii) the TA2000(TM) System and the mode of
operations utilized by DST, as then constituted, supports such
additional functions and features. If any addition to, improvement of
or change in the features and functions currently provided by the
TA2000(TM) System or the operations as requested by the Trust requires
an enhancement or modification to the TA2000(TM) System or to
operations as presently conducted by DST, DST shall not be liable
therefore until such modification or enhancement is installed on the
TA2000(TM) System or new mode of operation is instituted. If any new,
additional function or feature or change or improvement to existing
functions or features or new service or mode of operation measurably
increases DST's cost of performing the services required hereunder at
the current level of service, DST shall advise the Trust of the amount
of such
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increase and if the Trust elects to utilize such function, feature or
service, DST shall be entitled to increase its fees by the amount of
the increase in costs. In no event shall DST be responsible for or
liable to provide any additional function, feature, improvement or
change in method of operation requested by the Trust until it has
consented thereto in writing.
G. The Trust shall have the right to add all new Funds of the Trust to
the TA2000(TM) System, provided that the Trust provides DST with at
least thirty (30) days' prior written notice and provided, further,
that the requirements of the new series are generally consistent with
services then being provided by DST under this Agreement. Rates or
charges for additional Funds shall be as set forth in Exhibit A, as
hereinafter defined, for the remainder of the contract term except as
such Fund uses functions, features or characteristics for which DST
has imposed an additional charge as part of its standard pricing
schedule. In the latter event, rates and charges shall be in
accordance with DST's then-standard pricing schedule. Notwithstanding
the foregoing, nothing herein is intended to, nor does it, prohibit
the Trust from offering Funds under a "private label" arrangement
whereby such Funds consist of omnibus accounts whose shareowner
detail, reflecting ownership of the shares of the omnibus account, are
maintained on another shareholder accounting and recordkeeping system
other than on the TA2000 System.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Trust, the appointment of DST as Transfer Agent
will be construed to cover the full amount of authorized stock of the class
or classes for which DST is appointed as the same will, from time to time,
be constituted, and any subsequent increases in such authorized amount.
In case of such increase the Trust will file with DST:
A. If the appointment of DST was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of the Trust
increasing the authority of DST;
B. A certified copy of the amendment to the Declaration of Trust of the
Trust authorizing the increase of stock;
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C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased stock, or an opinion of counsel that the order or consent of
no other governmental or regulatory authority is required;
D. Opinion of counsel for the Trust stating:
(1) The status of the additional shares of stock of the Trust under
the '33 Act and any other applicable federal or state statute;
and
(2) That the additional shares are, or when issued will be, validly
issued, fully paid and non-assessable.
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to DST, from time to
time, a reasonable compensation for all services rendered as Agent
and, also, all DST's reasonable billable expenses, charges, counsel
fees, and other disbursements ("Compensation and Expenses") incurred
in connection with the agency. "Expenses" are more fully described in
Section 6.B. of this Agreement. Such Compensation and Expenses are set
forth in a separate schedule previously agreed to by the Trust and
DST, a copy of which is attached hereto as Exhibit A. If the Trust has
not paid such Compensation and Expenses to DST within a reasonable
time, DST may charge against any monies held under this Agreement, the
amount of any Compensation and Expenses for which it shall be entitled
to reimbursement under this Agreement.
B. The Trust also agrees promptly to reimburse DST for all reasonable
billable expenses or disbursements incurred by DST in connection with
the performance of services under this Agreement including, but not
limited to: expenses for postage; express delivery services; freight
charges; envelopes, checks, drafts, forms (continuous or otherwise);
specially requested reports and statements; telephone calls;
telegraphs; stationery supplies; counsel fees incurred in connection
with the review of the legal sufficiency of documentation provided by
a shareholder or otherwise as to the advisability of complying with
the request or instruction of a shareholder or person purporting to
act on behalf of a shareholder; outside printing and mailing firms
(including Output Technologies, Inc. and its affiliates ["OTI"]);
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magnetic tapes, reels or cartridges (if sent to the Trust or to a
third party at the Trust's request) and magnetic tape handling
charges; off-site record storage and media for storage of records
(e.g., microfilm, microfiche, optical platters, computer tapes);
computer equipment installed at the Trust's request at the Trust's or
a third party's premises; telecommunications equipment and
telephone/telecommunication lines between the Trust and its agents, on
one hand, and DST on the other; proxy soliciting, processing and/or
tabulating costs; second-site backup computer facility; transmission
of statement data for remote printing or processing other than by OTI
(at a charge of .035/record); and National Securities Clearing
Corporation ("NSCC") transaction fees to the extent any of the
foregoing are paid or incurred by DST. The Trust agrees to pay postage
expenses at least one day in advance if so requested. In addition, any
other expenses incurred by DST at the request or with the consent of
the Trust will be promptly reimbursed by the Trust.
C. Amounts due hereunder shall be due and paid on or before the thirtieth
(30th) calendar day after receipt of the statement therefor by the
Trust (the "Due Date"). The Trust is aware that its failure to pay all
amounts in a timely fashion so that they will be received by DST on or
before the Due Date will give rise to costs to DST not contemplated by
this Agreement, including but not limited to carrying, processing and
accounting charges. Accordingly, subject to Section 6.D. hereof, in
the event that any amounts due hereunder are not received by DST by
the Due Date, the Trust shall pay a late charge equal to the lesser of
the maximum amount permitted by applicable law or the product of one
and one-half (1 1/2) percentage points per month times the amount
overdue, times the number of days from the Due Date up to and
including the day on which payment is received by DST. The parties
hereby agree that such late charge represents a fair and reasonable
computation of the costs incurred by reason of late payment or payment
of amounts not properly due. Acceptance of such late charge shall in
no event constitute a waiver of the Trust's or DST's default or
prevent the non-defaulting party from exercising any other rights and
remedies available to it.
D. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and
notify DST in writing of any
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disputed charges for billable expenses which it is disputing in good
faith. Payment for such disputed charges shall be due on or before the
close of the fifth (5th) business day after the day on which DST
provides to the Trust documentation which an objective observer would
agree reasonably supports the disputed charges (the "Revised Due
Date"). Late charges shall not begin to accrue as to charges disputed
in good faith until the first business day after the Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase or may be
increased as follows:
(1) On the first day of each anniversary of this Agreement, in
accordance with the "Fee Increases" provision in Exhibit A;
(2) DST may increase the fees and charges set forth on Exhibit A upon
at least ninety (90) days prior written notice, if changes in
existing laws, rules or regulations: (i) require substantial
system modifications or (ii) materially increase DST's cost of
performance hereunder;
(3) DST may charge for additional features of TA2000 used by the
Trust which features are not consistent with the Trust's current
processing requirements; and
(4) In the event DST, at the Trust's request or direction, performs
Exception Services, DST shall be entitled to increase the fees
and charges for such Exception Services from those set forth on
Exhibit A to the extent such Exception Services increase DST's
cost of performance.
If DST notifies the Trust of an increase in fees or charges pursuant
to subparagraph (2) of this Section 6.E., the parties shall confer,
diligently and in good faith and agree upon a new fee to cover the
amount necessary, but not more than such amount, to reimburse DST for
the Trust's aliquot portion of the cost of developing the new software
to comply with regulatory charges and for the increased cost of
operation.
If DST notifies the Trust of an increase in fees or charges under
subparagraphs (3) or (4) of this Section 6.E., the parties shall
confer, diligently and in good faith, and agree upon a new fee to
cover such new Trust feature.
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7. OPERATION OF DST SYSTEM.
In connection with the performance of its services under this Agreement,
DST is responsible for such items as:
A. That entries in DST's records, and in the Trust's records on the
TA2000(TM) System created by DST and DST's affiliates, accurately
reflect the orders, instructions, and other information received by
DST and such affiliates from the Trust, the Trust's distributor,
manager or principal underwriter, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management,
(USA) Inc. ("JPM") and its affiliates, entities from whom JPM or the
Trust have directed DST to accept orders, instructions or other
information, the Trust's investment adviser, banks or other entities
which DST has been advised by the Trust or JPM are affiliated with or
a correspondent of JPM, or the Trust's administrator (each an
"Authorized Person"), broker-dealers or shareholders (existing or
new). DST has currently been instructed, by way of example and not
limitation, to accept telephone instructions from any person
reasonably believed by DST to be a representative of an Authorized
Person, to accept third party checks initiated by or received from or
through a broker/dealer or a JPM-customer relationship, to accept
transactions and documentation by fax in accordance with the
guidelines established by an Authorized Person, to allow corporations,
partnerships, trusts and other accounts not registered in the name of
a single individual and individually owned accounts to have telephone
or "VOICE" transaction processing privileges (the "Privileges"), to
establish Privileges on all accounts unless the establishing
shareholder explicitly directs that telephone exchanges and
redemptions not be permitted and to accept and to effectuate
transmissions and trades entered on a remote basis by JPM and banks
affiliated with JPM (without verification of the contents of such
transmissions and trades);
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Trust's records on the TA2000(TM) System;
C. The accurate and timely issuance of dividend and distribution checks
in accordance with instructions received from the Trust and the data
in the Trust's records on the TA2000(TM) System;
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D. That redemption transactions and payments be effected timely, under
normal circumstances on the day of receipt, and accurately in
accordance with redemption instructions received by DST from
Authorized Persons, broker-dealers or shareholders and the data in the
Trust's records on the TA2000(TM) System;
E. The deposit daily in the Trust's appropriate special bank account of
all checks and payments received by DST from NSCC, broker-dealers or
shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to "as
of" adjustments, DST will not assume one hundred percent (100%)
responsibility for losses resulting from "as ofs" due to clerical
errors or misinterpretations of shareholder instructions, but DST will
discuss with the Trust DST's accepting liability for an "as of" on a
case-by-case basis and may accept financial responsibility for a
particular situation resulting in a financial loss to the Trust where
DST in its discretion deems that to be appropriate;
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with DST's
present procedures as set forth in its Legal Manual, Third Party Check
Procedures, Checkwriting Draft Procedures, and Signature Guarantee
Procedures (collectively the "Procedures") with such changes or
deviations therefrom as may be from time to time required or approved
by the Trust, its investment adviser or principal underwriter, or its
or DST's counsel and the rejection of orders or instructions not in
good order in accordance with the applicable prospectus or the
Procedures;
H. The maintenance of a current, duplicate set of the Trust's essential
records at a secure separate location, in a form available and usable
forthwith in the event of any breakdown or disaster disrupting its
main operation.
8. INDEMNIFICATION.
A. DST shall at all times use reasonable care, due diligence and act in
good faith in performing its duties under this Agreement. DST shall
provide its services hereunder in accordance with the '34 Act, and
other Federal laws, rules and
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regulations of governmental authorities having jurisdiction over DST.
In the absence of bad faith, willful misconduct, knowing violations of
applicable law pertaining to the manner in which transfer agency
services are to be performed by DST (excluding any violations arising
directly or indirectly out of the actions or omissions to act of third
parties unaffiliated with DST), reckless disregard of the performance
of its duties, or negligence on its part, DST shall not be liable for
any action taken, suffered, or omitted by it or for any error of
judgment made by it in the performance of its duties under this
Agreement. For those activities or actions delineated in the
Procedures, DST shall be presumed to have used reasonable care, due
diligence and acted in good faith if it has acted in accordance with
the Procedures, copies of which have been provided to the Trust and
reviewed and approved by the Trust's counsel, as amended from time to
time with approval of counsel, or for any deviation therefrom approved
by the Trust or DST counsel.
B. DST shall not be responsible for, and the Trust shall indemnify and
hold DST harmless from and against, any and all losses, damages,
reasonable costs, reasonable charges, reasonable counsel fees,
payments, reasonable expenses and liability (the "Adverse
Consequences") which may be asserted against DST or for which DST may
be held to be liable, arising out of or attributable to:
(1) All actions of DST required to be taken by DST pursuant to this
Agreement, provided that DST has acted in good faith and with due
diligence and reasonable care;
(2) The Trust's refusal or failure to comply with the terms of this
Agreement, the Trust's negligence or willful misconduct, or the
breach of any representation or warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any written
or oral instructions or requests of persons designated by the
Trust in writing (see Exhibit B) from time to time as authorized
to give instructions on its behalf or representatives of an
Authorized Person or DST's good faith reliance on, or use of,
information, data, records and documents received from, or which
have been prepared and/or maintained by the Trust, its investment
advisor, its sponsor or its principal underwriter;
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(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The offer or sale of Shares in violation of any requirement under
federal securities laws or regulations or the securities laws or
regulations of any state or in violation of any stop order or
other determination or ruling by any federal agency or state with
respect to the offer or sale of such shares in such state (unless
such violation results from DST's failure to comply with written
instructions of the Trust or of any officer of the Trust that no
offers or sales be input into the Trust's securityholder records
in or to residents of such state);
(6) Any error or mistake of the Trust, any Authorized Person, and any
agent designated by the Trust in the use of the TA2000(TM)
System, the data center, computer and related equipment used to
access the TA2000(TM) System (the "DST Facilities"), and control
procedures relating thereto in the verification of output and in
the remote input of data;
(7) Errors, inaccuracies, and omissions in, or errors, inaccuracies
or omissions of DST arising out of or resulting from such errors,
inaccuracies and omissions in, the Trust's records, shareholder
and other records, delivered to DST hereunder by the Trust or its
prior agent(s);
(8) Actions or omissions to act by the Trust or agents designated by
the Trust with respect to duties assumed thereby as provided for
in Section 21 hereof; and
(9) DST's performance of Exception Services except where DST acted or
omitted to act in bad faith, with reckless disregard of its
obligations or with gross negligence.
C. Except where DST is entitled to indemnification under Section 8.B.
hereof and with respect to "as ofs" set forth in Section 7.F., DST
shall indemnify and hold the Trust harmless from and against any and
all Adverse Consequences arising out of DST's failure to comply with
the terms of this Agreement or arising out of or attributable to DST's
negligence, willful misconduct or reckless disregard of its
obligations under
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this Agreement or DST's breach of any of its representations or
warranties under this Agreement.
D. EXCEPT FOR VIOLATIONS OF SECTION 23, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO
ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR
CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY
THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a claim
in respect thereto is to be made against an indemnifying party
hereunder, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying
party will not relieve an indemnifying party from any liability that
it may have to any indemnified person for contribution or otherwise
under the indemnity agreement contained herein except to the extent it
is prejudiced as a proximate result of such failure to timely notify.
In case any such action is brought against any indemnified person and
such indemnified person seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, assume the
defense thereof (in its own name or in the name and on behalf of any
indemnified party or both with counsel reasonably satisfactory to such
indemnified person); provided, however, if the defendants in any such
action include both the indemnified person and an indemnifying party
and the indemnified person shall have reasonably concluded that there
may be a conflict between the positions of the indemnified person and
an indemnifying party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other
indemnified persons which are inconsistent with those available to an
indemnifying party, the indemnified person or indemnified persons
shall have the right to select one separate counsel (in addition to
local counsel) to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified
14
party's sole expense. Upon receipt of notice from an indemnifying
party to such indemnified person of its election so to assume the
defense of such action and approval by the indemnified person of
counsel, which approval shall not be unreasonably withheld (and any
disapproval shall be accompanied by a written statement of the reasons
therefor), the indemnifying party will not be liable to such
indemnified person hereunder for any legal or other expenses
subsequently incurred by such indemnified person in connection with
the defense thereof. An indemnifying party will not settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified persons are actual or potential parties to such
claim, action, suit or proceeding) unless such settlement, compromise
or consent includes an unconditional release of each indemnified
person from all liability arising out of such claim, action, suit or
proceeding. An indemnified party will not, without the prior written
consent of the indemnifying party, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder. If it does so, it waives its
right to indemnification therefor.
F. In any case an indemnifying person may be asked to indemnify or save
an indemnified person harmless, the indemnified person shall use
reasonable care to (i) fully and promptly advise the indemnifying
person of all pertinent facts concerning the situation in question,
and (ii) timely advise the indemnifying person of any matter as to
which the indemnified person is aware that a claim which may give rise
to Adverse Consequences has been asserted or is being threatened and
appears reasonably likely to be asserted.
9. CERTAIN COVENANTS OF DST AND THE TRUST.
A. All requisite steps will be taken by the Trust from time to time when
and as necessary to register the Shares for sale in all states in
which the Shares shall at the time be offered for sale and require
registration. If at any time the Trust receives notice of any stop
order or other proceeding in any such state affecting such
registration or the sale of the Shares, or of any stop order or other
proceeding under
15
the federal securities laws affecting the sale of the Shares, the
Trust will give prompt notice thereof to DST.
B. DST hereby agrees to perform such transfer agency functions as are set
forth in Section 4.D. above and Exhibit C, to establish and to
maintain facilities and procedures reasonably acceptable to the Trust
for safekeeping of Certificates, check forms, and facsimile signature
imprinting devices, if any, and for the preparation or use, and the
keeping account of, such Certificates, forms and devices, and to carry
such insurance as DST considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and Rules thereunder, DST agrees that all records
maintained by DST relating to the services to be performed by DST
under this Agreement are the property of the Trust and will be
preserved and will be surrendered promptly to the Trust on request.
D. DST agrees to furnish the Trust annual reports of (i) DST's financial
condition, consisting of a balance sheet, earnings statement and any
other financial information reasonably requested by the Trust, and
(ii) a report in accordance with Statements on Auditing Standards No.
70 (the "SAS 70 Report"). The annual financial statements will be
certified by DST's certified public accountants.
E. DST represents and agrees that it will use its best efforts to keep
current on the trends of the investment company industry relating to
shareholder services and will use its best efforts to continue to
modernize and improve. Notwithstanding the foregoing, (i) DST shall
not be liable for failing to make any modification or improvement as
to the necessity of which the Fund has not advised DST in writing and
(ii) for any delay in the implementation of such modification or
improvement where DST reasonably requires more time than was permitted
by circumstances or such regulations.
F. DST will permit the Trust and its authorized representatives to make
periodic inspections of its operations as such would involve the Trust
at reasonable times during business hours subject to such authorized
representatives' execution of DST's "Confidentiality and Limited Use
Agreement, a blank copy of which is attached hereto as Exhibit D.
16
G. DST agrees to use its best efforts to provide in Kansas City at the
Trust's expense two (2) man weeks of training for the Trust's
personnel in connection with use and operation of the TA2000(TM)
System. All travel and reimbursable expenses incurred by the Trust's
personnel in connection with and during training at DST's Facility
shall be borne by the Trust. At the Trust's option and expense, DST
also agrees to use its best efforts to provide an additional two (2)
man weeks of training at the Trust's facility for the Trust's
personnel in connection with the conversion to the TA2000(TM) System.
Reasonable travel, per diem and reimbursable expenses incurred by DST
personnel in connection with and during training at the Trust's
facility or in connection with the conversion shall be borne by the
Trust.
H. DST shall reasonably cooperate with the Trust's independent public
accountants and shall take all reasonable action in the performance of
its obligations under this Agreement to assure that all readily
necessary information is made available to such accountants for the
expression of their opinion as such may be required from time to time.
Special reports or information may be charged for. A report is
"Special" if it is not regularly produced by TA2000(TM) or requires
special programming.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of the Trust requiring a change in the form of
Certificates, DST will issue or register Certificates in the new form in
exchange for, or in transfer of, the outstanding Certificates in the old
form, upon receiving:
A. Written instructions from an officer of the Trust;
B. Certified copy of the amendment to the Declaration of Trust or other
document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock in
the new form, and an opinion of counsel that the order or consent of
no other government or regulatory authority is required;
D. Specimens of the new Certificates in the form approved by the Board of
Trustees of the Trust, with a certificate of the Secretary of the
Trust as to such approval;
E. Opinion of counsel for the Trust stating:
17
(1) The status of the shares of stock of the Trust in the new form
under the '33 Act, as amended and any other applicable federal or
state statute; and
(2) That the issued shares in the new form are, and all unissued
shares will be when registered, validly issued, fully paid and
nonassessable.
11. STOCK CERTIFICATES ("CERTIFICATES").
The Trust will furnish DST with a sufficient supply of blank Certificates
and from time to time will renew such supply upon the request of DST. Such
Certificates will be signed manually or by facsimile signatures of the
officers of the Trust authorized by law and by bylaws to sign Certificates,
and if required, will bear the corporate seal or facsimile thereof.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust will file promptly with DST written notice of any change in the
officers authorized to sign Certificates, written instructions or requests,
together with a revised Exhibit B. In case any officer of the Trust who
will have signed manually or whose facsimile signature will have been
affixed to blank Certificates will die, resign, or be removed prior to the
issuance of such certificates, DST may issue or register such Certificates
as the Certificates of the Trust notwithstanding such death, resignation,
or removal, until specifically directed to the contrary by the Trust in
writing. In the absence of such direction, the Trust will file promptly
with DST such approval, adoption, or ratification as may be required by
law.
13. FUTURE AMENDMENTS OF DECLARATION OF TRUST AND BYLAWS.
The Trust will promptly file with DST copies of all material amendments to
its Declaration of Trust or Bylaws made after the date of this Agreement.
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES OR JPM.
Any time DST shall be in doubt as to any proposed or requested action or
omission to be taken or omitted by it, DST may apply to any person
authorized by the Trust to give instructions to DST. DST may with the
approval of a Trust officer consult with legal counsel for the Trust or may
consult with DST's own legal counsel at DST's own expense, with respect to
any matter involving a question of law involved in any action to be taken
or omitted by DST in connection with the agency. DST will not be liable for
any action taken or omitted by it in good faith in reliance upon such
instructions or upon the opinion of such counsel. Notwithstanding the
foregoing, the Trust shall reimburse DST for outside counsel
18
fees incurred in connection with the review of the legal sufficiency of
documentation provided by a shareholder or otherwise as to the advisability
of complying with the request of a shareholder or person purporting to act
on behalf of a shareholder. DST will be protected in acting upon any paper
or document reasonably believed by it to be genuine and to have been signed
by the proper person or persons and will not be held to have notice of any
change of authority of any person, until receipt of written notice thereof
from the Trust. It will also be protected in recognizing Certificates which
it reasonably believes to bear the proper manual or facsimile signatures of
the officers of the Trust, and the proper countersignature of any former
Transfer Agent or Registrar, or of a co-Transfer Agent or co-Registrar.
15. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A. DST shall not be responsible or liable for its failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation: any interruption, loss or
malfunction or any utility, transportation, computer (hardware or
software) or communication service; inability to obtain labor,
material, equipment or transportation, or a delay in mails;
governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes,
freezes, floods, fires, tornadoes, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to DST's reasonable control which
prevents or hinders DST's performance hereunder.
B. DST currently maintains an agreement with a third party whereby DST is
to be permitted to use on a "shared use" basis a "hot site" (the
"Recovery Facility") maintained by such party in event of a disaster
rendering the DST Facilities inoperable. DST has developed and is
continually revising a business contingency plan (the "Business
Contingency Plan") detailing which, how, when, and by whom data
maintained by DST at the DST Facilities will be installed and operated
at the Recovery Facility. Provided the Trust is paying its pro rata
portion of the charge therefor, DST would, in event of a disaster
rendering the DST Facilities inoperable, use reasonable efforts to
convert the TA2000(TM) System containing the designated
19
Trust data to the computers at the Recovery Facility in accordance
with the then current Business Contingency Plan.
C. DST also currently maintains, separate from the area in which the
operations which provides the services to the Trust hereunder are
located, a Crisis Management Center consisting of phones, computers
and the other equipment necessary to operate a full service transfer
agency business in the event one of its operations areas is rendered
inoperable. The transfer of operations to other operating areas or to
the Crisis Management Center is also covered in DST's Business
Contingency Plan.
16. CERTIFICATION OF DOCUMENTS.
The required copy of the Declaration of Trust of the Trust and copies of
all amendments thereto will be certified by the Secretary of State (or
other appropriate official) of the State of Incorporation, and if such
Declaration of Trust and amendments are required by law to be also filed
with a county, city or other officer of official body, a certificate of
such filing will appear on the certified copy submitted to DST. A copy of
the order or consent of each governmental or regulatory authority required
by law to the issuance of the stock will be certified by the Secretary or
Clerk of such governmental or regulatory authority, under proper seal of
such authority. The copy of the Bylaws and copies of all amendments
thereto, and copies of resolutions of the Board of Trustees of the Trust,
will be certified by the Secretary or an Assistant Secretary of the Trust
under the Trust's seal.
17. RECORDS.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained pursuant
to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any.
18. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
DST may send periodically to the Trust, or to where designated by the
Secretary or an Assistant Secretary of the Trust, all books, documents, and
all records no longer deemed needed for current purposes and Certificates
which have been canceled in transfer or in exchange, upon the understanding
that such books, documents, records, and Certificates will be maintained by
the Trust under and in accordance with the requirements of Section 17Ad-7
adopted under the Securities Exchange Act of 1934. Such materials will not
be
20
destroyed by the Trust without the consent of DST (which consent will not
be unreasonably withheld), but will be safely stored for possible future
reference.
19. PROVISIONS RELATING TO DST AS TRANSFER AGENT.
A. DST will make original issues of Certificates upon written request of
an officer of the Trust and upon being furnished with a certified copy
of a resolution of the Board of Trustees authorizing such original
issue, an opinion of counsel as outlined in subparagraphs 1.G. and
5.D. of this Agreement, any documents required by Sections 5. or 10.
of this Agreement, and necessary funds for the payment of any original
issue tax.
B. Before making any original issue of Certificates of the Trust will
furnish DST with sufficient funds to pay all required taxes on the
original issue of the stock, if any. The Trust will furnish DST such
evidence as may be required by DST to show the actual value of the
stock. If no taxes are payable DST will be furnished with a certified
statement from an officer of the Trust to that effect.
C. Shares of stock represented by Certificates will be transferred and
new Certificates issued in transfer, or Shares of stock accepted for
redemption and funds remitted therefor, or book entry transfer be
effected, upon surrender of the old Certificates in form or receipt by
DST of instructions deemed by DST properly endorsed for transfer or
redemption accompanied by such documents as DST may deem necessary to
evidence the authority of the person making the transfer or
redemption. DST reserves the right to refuse to transfer or redeem
Shares until it is satisfied that the endorsement or signature on the
Certificate or any other document is valid and genuine, and for that
purpose it may require a guaranty of signature in accordance with the
Signature Guarantee Procedures. DST will incur no liability and shall
be indemnified and held harmless by the Fund for any action taken by
it in accordance with an instruction bearing what purports to be a
signature guarantee or medallion of an Eligible Guarantor Institution
or otherwise in accordance with DST's Signature Guarantee Procedures
adopted pursuant to 17 C.F.R. Section 240.17Ad-15 under the Securities
and Exchange Act of 1934. DST also reserves the right to refuse to
transfer or redeem shares until DST is satisfied that the requested
transfer or redemption is legally authorized, and it will incur no
liability for the refusal in good
21
faith to make transfers or redemptions which, in its reasonable
judgment, are improper or unauthorized. Authority to perform a
redemption shall be suspended when the Trust suspends the
shareholders' right of redemption provided that the Trust delivers
written notice of such suspension to DST. DST may, in effecting
transfers or redemptions, rely upon Simplification Acts, UNIFORM
COMMERCIAL CODE or other statutes which protect it and the Trust in
not requiring complete fiduciary documentation. In cases in which DST
is not directed or otherwise required to maintain the consolidated
records of shareholder's accounts, DST will not be liable for any loss
which may arise by reason of not having such records.
D. When mail is used for delivery of Certificates, DST will forward
Certificates in "nonnegotiable" form by first class or registered mail
and Certificates in "negotiable" form by registered mail, all such
mail deliveries to be covered while in transit to the addressee by
insurance arranged for by DST.
E. DST will issue and mail subscription warrants, Certificates
representing stock dividends, exchanges or split ups, or act as
Conversion Agent upon receiving written instructions from any officer
of the Trust and such other documents as DST deems necessary.
F. DST will issue, transfer, and split up Certificates and will issue
Certificates of stock representing full Shares upon surrender of scrip
certificates aggregating one full share or more when presented to DST
for that purpose upon receiving written instructions from an officer
of the Trust and such other documents as DST may deem necessary.
G. DST may issue new Certificates in place of Certificates represented to
have been lost, destroyed, stolen or otherwise wrongfully taken upon
receiving instructions from the Trust and indemnity satisfactory to
DST and the Trust, and may issue new Certificates in exchange for, and
upon surrender of, mutilated Certificates. Such instructions from the
Trust will be in such form as will be approved by the Board of
Trustees of the Trust and will be in accordance with the provisions of
law and the bylaws of the Trust governing such matter.
22
H. DST will supply a shareholder's list to the Trust for its annual
meeting upon receiving a request from an officer of the Trust. It will
also, at the expense of the Trust, supply lists at such other times as
may be requested by an officer of the Trust.
I. Upon receipt of written instructions of an officer of the Trust, DST
will, at the expense of the Trust, address and mail notices to
shareholders.
J. In case of any request or demand for the inspection of the
securityholder files or stock books of the Trust or any other books or
records in the possession of the Trust in DST's possession, DST will
not permit such inspection, except (i) after prior notification to and
approval in writing by the Trust or Advisor as appropriate, which
approval shall not be unreasonably withheld and may not be withheld or
delayed where DST may be exposed to civil or criminal contempt
proceedings for failure to comply when requested to divulge such
information by duly constituted authorities, or (ii) when so requested
by the Trust or an Authorized Person. Nothing in the foregoing is
intended to, nor does it, prohibit or deny to DST the right to
disclose information requested by subpoena, Court Order,
administrative order or request issued by a federal, state or local
authority purporting to be issued under statutory authority or a
self-regulatory organization registered under the '34 Act. DST shall
use reasonable efforts to advise the Trust concerning subpoenas
received for records of the Trust and, upon being so advised, the
Trust shall be responsible for handling and responding thereto.
20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. DST will, at the expense of the Trust, provide a special form of check
containing the imprint of any device or other matter desired by the
Trust. Said checks must, however, be of a form and size convenient for
use by DST.
B. If the Trust desires to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished
DST within a reasonable time prior to the date of mailing of the
dividend checks, at the expense of the Trust.
C. If the Trust desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to DST but
the size and form of said envelopes will be subject to the approval of
DST. If stamped envelopes are used, they must be furnished by the
Trust; or if postage stamps are to be affixed to the
23
envelopes, the stamps or the cash necessary for such stamps must be
furnished by the Trust.
D. DST shall establish and maintain on behalf of the Trust one or more
deposit accounts as Agent for the Trust, into which DST shall deposit
the funds DST receives for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder and to draw
checks against such accounts.
E. DST is authorized and directed to stop payment of checks theretofore
issued hereunder, but not presented for payment, when the payees
thereof allege either that they have not received the checks or that
such checks have been mislaid, lost, stolen, destroyed or through no
fault of theirs, are otherwise beyond their control, and cannot be
produced by them for presentation and collection, and, to issue and
deliver duplicate checks in replacement thereof.
21. ASSUMPTION OF DUTIES BY THE TRUST OR AGENTS DESIGNATED BY THE TRUST.
A. The Trust or its designated agents other than DST may assume certain
duties and responsibilities with respect to the operations of the
Trust, including (with DST's agreement) providing all, or a portion,
of those services which DST is obligated to provide under Section 4.D.
of this Agreement.
B. To the extent the Trust or its agent or affiliate assumes DST's duties
and responsibilities (which assumption should be embodied in writing),
DST shall be relieved from all responsibility and liability therefor
(including any Adverse Consequences directly or indirectly arising out
of or resulting from the actions or omissions of the Trust or its
designees, as well as from any "as of" liability or withholding
reversals in connection therewith) and DST is hereby indemnified and
held harmless against any liability therefrom in the same manner and
degree as provided for in Section 8 hereof.
C. Initially, with respect to accounts serviced by JPM or banks
affiliated with or a correspondent of JPM, the Trust or its designees
shall be responsible for the following: (i) answering and responding
to telephone inquiries from shareholders and brokers; (ii) accepting
shareholder and broker instructions (either or both oral and written)
and (A) transmitting to DST orders (transactions and maintenance)
based on such instructions for input into TA2000 by DST or (B)
themselves
24
inputting such orders into TA2000 on a remote basis; (iii) preparing
and mailing confirmations; (iv) classifying the status of shareholders
and shareholder accounts under applicable tax law and in accordance
with the capabilities provided on TA2000, and performing all
compliance functions with respect thereto, including without
limitation obtaining certified TIN's, Form W-8's and other
documentation, and properly coding accounts (social codes, tax status,
foreign accounts and so forth) as provided for on TA2000; (v) on a
remote basis establishing shareholder accounts on the TA2000(TM)
System, establishing the appropriate privileges thereupon and
assigning social codes and Taxpayer Identification Number codes
thereof; (vi) disbursing monies of the Trust; (vii) sending redemption
and dividend wires in accordance with instructions received; and
(viii) following up and collecting upon unsettled trade orders and
unpaid broker-dealer, institutional or shareholder "as of's".
Additionally, the Trust or its designees are also responsible for
verifying the accuracy of, and notifying DST as to errors in, the
MENTAP/Market Advisor and Confluence FundStation databases.
22. TERMINATION OF AGREEMENT.
A. Each party, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the occurrence at
any time of any of the following events with respect to the other
party:
(1) The bankruptcy of the other party or its assigns or the
appointment of a receiver for the other party or its assigns;
(2) failure by the other party or its assigns to perform its duties
(including any material interruption or cessation of its
operations) in accordance with the Agreement, which failure
materially adversely affects the business operations of the first
party and which failure continues for thirty (30) days after
receipt of written notice from the first party, unless such
failure is excused under Section 15 of this Agreement; or
(3) merger, consolidation or sale of substantially all of the assets
of the other party or its assigns; or
(4) acquisition of a controlling interest in the other party or its
assigns by any third party except as may presently exist within
the previous sixty (60) days.
25
B. In the event of termination, the Trust will promptly pay DST all
amounts due to DST hereunder, including, if this Agreement is
terminated by the Trust for any reason other than those set forth in
Sections 22.A. hereof, the termination fee set forth in Exhibit A to
this Agreement shall apply.
D. In the event of termination, DST will use its best efforts to transfer
the records of the Trust to the designated successor transfer agent,
to provide reasonable assistance to the Trust and its designated
successor transfer agent, and to provide other information relating to
its services provided hereunder (subject to the recompense of DST for
such assistance at its standard rates and fees for personnel then in
effect at that time); provided, however, as used herein "reasonable
assistance" and "other information" shall not include assisting any
new service or system provider to modify, alter, enhance, or improve
its system or to improve, enhance, or alter its current system, or to
provide any new functionality or to require DST to disclose any DST
Confidential Information, as hereinafter defined, or any information
which is otherwise confidential to DST.
23. CONFIDENTIALITY.
A. DST agrees on behalf of itself, its affiliates, its officers and
employees, except as provided in Section 19.J. hereof, or as otherwise
required by law, DST will keep confidential all records of and
information in its possession relating to the Trust or its
shareholders or shareholder accounts and will not disclose the same to
any person except at the request or with the consent of the Trust.
Notwithstanding the foregoing, DST shall be permitted in the ordinary
course of business to provide such information to third parties
providing services to DST which DST utilizes in connection with the
services DST provides to the Trust under this Agreement or in
accordance with Section 19.J. of this Agreement.
B. The Trust on behalf of itself, its affiliates, its officers and
employees and all entities which it directs DST to provide any of the
following information agrees to keep confidential all financial
statements and other financial records (other than statements and
records relating solely to the Trust's business dealings with DST) and
all manuals, systems and other technical information and data, not
publicly disclosed, relating to DST's operations and programs
furnished to it by DST
26
pursuant to this Agreement and will not disclose the same to any
person except at the request or with the consent of DST.
C. (1) The Trust acknowledges that DST has proprietary rights in and to
the TA2000(TM) System used to perform services hereunder
including, but not limited to the maintenance of shareholder
accounts and records, processing of related information and
generation of output, including, without limitation any changes
or modifications of the TA2000(TM) System and any other DST
programs, data bases, supporting documentation, or procedures
(collectively "DST Confidential Information") which the Trust's
access to the TA2000(TM) System or computer hardware or software
may permit the Trust or its employees or agents to become aware
of or to access and that the DST Confidential Information
constitutes confidential material and trade secrets of DST. The
Trust agrees to maintain the confidentiality of the DST
Confidential Information of which it is, or becomes, aware or to
which it has access.
(2) The Trust acknowledges that any unauthorized use, misuse,
disclosure or taking of DST Confidential Information which is
confidential as provided by law, or which is a trade secret,
residing or existing internal or external to a computer, computer
system, or computer network, or the knowing and unauthorized
accessing or causing to be accessed of any computer, computer
system, or computer network, may be subject to civil liabilities
and criminal penalties under applicable state law. The Trust will
advise all of its employees and agents who have access to any DST
Confidential Information or to any computer equipment capable of
accessing DST or DST hardware or software of the foregoing.
(3) The Trust acknowledges that disclosure of the DST Confidential
Information may give rise to an irreparable injury to DST
inadequately compensable in damages. Accordingly, DST may seek
(without the posting of any bond or other security) injunctive
relief against the breach of the foregoing undertaking of
confidentiality and nondisclosure, in addition to any other legal
remedies which may be available, and the Trust consents to
27
the obtaining of such injunctive relief. All of the undertakings
and obligations relating to confidentiality and nondisclosure,
whether contained in this Section or elsewhere in this Agreement
shall survive the termination or expiration of this Agreement for
a period of ten (10) years.
24. CHANGES AND MODIFICATIONS.
A. During the term of this Agreement DST will use on behalf of the Trust
without additional cost all modifications, enhancements, or changes
which DST may make to the TA2000(TM) System in the normal course of
its business and which are applicable to functions and features
offered by the Trust to its shareholders, unless substantially all DST
clients are charged separately for such modifications, enhancements or
changes, including, without limitation, substantial system revisions
or modifications necessitated by changes in existing laws, rules or
regulations. The Trust agrees to pay DST promptly for modifications
and improvements which are charged for separately at the rate provided
for in DST's standard pricing schedule which shall be identical for
substantially all clients, if a standard pricing schedule shall exist.
If there is no standard pricing schedule, the parties shall mutually
agree upon the rates to be charged.
B. DST shall have the right, at any time and from time to time, to alter
and modify any systems, programs, procedures or facilities used or
employed in performing its duties and obligations hereunder; provided
that the Trust will be notified as promptly as possible prior to
implementation of such alterations and modifications and that no such
alteration or modification or deletion shall materially adversely
change or affect the operations and procedures of the Trust in using
or employing the TA2000(TM) System or DST Facilities hereunder or the
reports to be generated by such system and facilities hereunder,
unless the Trust is given thirty (30) days prior notice to allow the
Trust to change its procedures and DST provides the Trust with revised
operating procedures and controls.
C. All enhancements, improvements, changes, modifications or new features
added to the TA2000(TM) System however developed or paid for shall be,
and shall remain, the confidential and exclusive property of, and
proprietary to, ▇▇▇.
▇▇
▇▇. ASSIGNMENT AND SUBCONTRACTORS.
A. Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party hereto without the written consent of the
other party. In the event of a mutually agreed to assignment, each
party shall remain liable for the performance of its assignee(s). DST
may, however, employ agents to assist it in performing its duties
hereunder.
B. Notwithstanding anything in this Agreement to the contrary, nothing
herein shall impose any duty upon DST in connection with or make DST
liable for the actions or omissions to act of unaffiliated third
parties such as, by way of example and not limitation, Airborne
Services, the U.S. mails, the National Securities Clearing Commission
and telecommunication companies, provided, if DST selected such
company, DST shall have exercised due care in selecting the same.
26. LIMITATIONS ON LIABILITY.
A. Notwithstanding anything in this Agreement to the contrary, each of
the four Trusts which executed this Agreement, together with each Fund
which is a part of such Trust (SEE, Appendix I) is and shall be
regarded for all purposes hereunder as a separate party apart from
each other Trust and all other Funds. To the extent that a Trust is
comprised of more than one Fund, each Fund shall be regarded for all
purposes hereunder as a separate party apart from each other Fund.
Unless the context otherwise requires, with respect to every
transaction covered by this Agreement, every reference herein to the
Trust shall be deemed to relate solely to the particular Fund or Trust
to which such transaction relates. Under no circumstances shall the
rights, obligations or remedies with respect to a particular Trust or
a particular Fund constitute a right, obligation or remedy applicable
to any other Trust or Fund. The use of this single document to
memorialize the separate agreement of each Trust and each Fund herein
is understood to be for clerical convenience only and shall not
constitute any basis for joining the Trusts or Funds for any reason.
B. Notice is hereby given that a copy of the Trust's Trust Agreement and
all amendments thereto is on file with the Secretary of State of the
state of its organization; that this Agreement has been executed on
behalf of the Trust by the
29
undersigned duly authorized representative of the Trust in his/her
capacity as such and not individually; and that the obligations of
this Agreement shall only be binding upon the assets and property of
the Trust and shall not be binding upon any trustee, officer or
shareholder of the Trust individually.
27. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of
the State of Missouri, excluding that body of law applicable to choice
of law.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
C. The representations and warranties, and the indemnification extended
hereunder, if any, are intended to and shall continue after and
survive the execution, expiration, termination or cancellation of this
Agreement or the performance of services hereunder until any statute
of limitations applicable to the matter at issues shall have expired.
D. No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed
by each party hereto.
E. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
F. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
30
H. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between the
Trust and DST. It is understood and agreed that all services performed
hereunder by DST shall be as an independent contractor and not as an
employee of the Trust. This Agreement is between DST and the Trust and
neither this Agreement nor the performance of services under it shall
create any rights in any third parties. There are no third party
beneficiaries hereto.
I. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not
affect any rights or obligations of any other party hereunder.
J. The failure of either party to insist upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed as
a continuing or permanent waiver of any such terms, conditions, rights
or privileges, but the same shall continue and remain in full force
and effect as if no such forbearance or waiver had occurred.
K. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof, whether oral or
written, and this Agreement may not be modified except by written
instrument executed by both parties.
L. All notices to be given hereunder shall be deemed properly given if
delivered in person or if sent by U.S. mail, first class, postage
prepaid, or if sent by facsimile and thereafter confirmed by mail as
follows:
If to DST:
DST Systems, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President-Full Service
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
31
With a copy of non-operational notices to:
DST Systems, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trust:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant Secretary
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as shall have been specified in writing by
the party to whom such notice is to be given.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers, to be effective as of the day and
year first above written.
DST SYSTEMS, INC.
By:
--------------------------------------
Title:
-----------------------------------
▇.▇. ▇▇▇▇▇▇ FLEMINGSERIES TRUST
By:
--------------------------------------
Title:
-----------------------------------
32
EXHBIT A
FEE SCHEDULE
I. TRANSFER AGENCY
A. BASE FEES
Complex Base Fee - $1,316,250 per year
CUSIP Fees - The standard Chase Vista rate of $21,000 per year is bundled
in the complex fee.
CUSIP Base Fee for Omnibus Positions (DFR CUSIPS) - $13,750 per CUSIP per
year
Closed Cusips - $150 per month through May of the following Year.
Additional Items Bundled in Complex Fee:
- SuperSelect Reports
- Bulk Transmissions
- Standard Tape Generations
B. ACCOUNT MAINTENANCE AND PROCESSING FEES
Non Institutional Non Network Level 3 Open Accounts - $16.35 per account
per year
Non-Institutional Network Level 3 Open Accounts - $12.85 per account
per year
Closed Accounts - Included in Base Fee
Transaction Processing
Contingency Processing - $1,000 per initiation + $5.00 per retail
transaction and/or $10.00 per institutional transaction (for entities that
remotely process; includes financial, non-financial, confirmed orders,
omnibus and maintenance transactions)
Non-Institutional Omnibus Transactions - $1.00 per transaction
Phone Calls - Inbound & Outbound, including Fulfillment - $4.60 per call
Lost Shareholder Compliance - $1.25 per lost s/h account per year + $1.60
per database match
Checkwriting - included in base/account fees
ACH Transactions & Listbill Processing - included in base/account fees
Contingent Deferred Sales Charge / Sharelot Accounting - included in
base/account fees
12b-1 / TASS Processing - included in base/account fees
Investor Facility - included in base/account fees
Special 12b-1 Runs (more than 1 mo cycle and 2 quarterly cycles) -
$1,338/quarter plus $.01 per open and closed account per cycle
33
TRAC-2000 - separate schedule
TA2000 Voice System - see Exhibit A
*NSCC - see Exhibit B
*Remote TA2000 AWD/IWS Software and Licensing Fees - under separate
schedule
*FAN - under separate schedule
Vision - under separate schedule
Fanmail - under separate schedule
C. SHAREOWNER/MANAGEMENT COMPANY CHARGES
Fiduciary Trustee Fees:
Paid By the Shareowner:
Non-Employees (Traditional and ▇▇▇▇ ▇▇▇) - $15.00 per social
security # per plan type per year
Simples (Non DFI) - $10.00 per social security # per plan type per
year, $0 Set-up charge
Simples (DFI) - $10.00 per social security # per plan type per year,
$10.00 Set-up charge
Paid By the Management Company:
Employees (Traditional and ▇▇▇▇ ▇▇▇) - $5.00 per account per year
No Fee IRA's (Traditional and ▇▇▇▇ ▇▇▇) - $15.00 per social security #
per plan type per year
403(b) Loan Fees:
Application/Origination Fee - $25.00 per loan
Annual Processing Fee - $25.00 per loan per year
D. PROGRAMMING (2001 STANDARD RATES)
*COBOL Programmer:
Dedicated Resources $150,000 per year
On-Request: $120.00 per hour
*Workstation Programmer:
Dedicated Resources $185,000 per year
On-Request $150.00 per hour
*Business Analyst/Tester:
Dedicated Resources $95,000 per year
On-Request $75.00 per hour
34
*Web Developer:
Dedicated Resources $220,000 per year
On-Request $180.00 per hour
*Full Service Staff Support:
Senior Staff Support $75 per hour
Staff Support $55 per hour
Clerical Support $45 per hour
NOTES TO THE ABOVE FEE SCHEDULE
A. The above schedule does not include out of pocket expenses incurred by DST
on the Fund's behalf. Examples of out of pocket expenses include but are
not limited to forms, postage, mailing services, telephone line and long
distance charges, client remote hardware, disaster recovery (range
$0.08-$0.12 per acct per year, currently $0.10 based on actual expense),
magnetic tapes, printing, ACH bank charges, NSCC charges, proxy processing,
microfilm/microfiche, etc.
B. Service fees and out of pocket expenses are billed monthly. Any fees or
out-of-pocket expenses not paid within 30 days of the date of the original
invoice will be charged a late payment fee of 1.5% per month until payment
is received.
C. In the event ▇▇ ▇▇▇▇▇▇ were to move its Transfer Agency servicing operation
to another platform for any reason other than material service deficiencies
brought to DST's attention which were not remedied within an acceptable
timeframe, ▇▇ ▇▇▇▇▇▇ would compensate DST for staff wind down and related
expenses using the aggregate of the salaries paid by DST during the two
months immediately preceding the termination to all DST personnel utilized
to provide Transfer Agent and Corporate Support services to the fund.
Except for a termination pursuant to the provisions of Section 22.A., six
months notice is required by either party to terminate the
Transfer Agency
agreement.
D. The fees in this schedule, except those indicated by an "*", are guaranteed
through the Fund Merger. Items marked by an "*" are subject to change with
60 days written notice.
35
TA2000 VOICE(TM) SYSTEM
FEE SCHEDULE
================================================================================
PER CALL SERVICE FEE
Utilization of DST's TA2000 Voice(TM) System is based on a service fee of $.21
PER CALL. Each call has a maximum duration of seven (7) minutes. This charge is
a flat rate regardless of the number or type of transactions that a shareholder
processes during the call. A given call could result in inquiries and/or
transactions being processed for various funds in the complex. Therefore, on a
monthly basis, DST will report the number of inquiries and/or transactions
processed by fund. A percentage of the total will be derived and reported for
each fund. As a result of this process, DST will allocate the charges among the
individual funds.
MULTIPLE CALL FLOWS
An additional fee of $525 per month will be charged for each additional call
flow that requires different flows, functions, vocabulary, processing, rules or
access method. An additional fee of $210 per month will be charged for each
additional call flow that is identical in flows, functions, vocabulary,
processing rules or access method.
MINIMUM MONTHLY CHARGE
DST's commitment to the reliability and continued enhancement of the TA2000
Voice System necessitates a minimum monthly charge for the service. The minimum
monthly charge will only be assessed when it is greater than the monthly service
fees. The minimum monthly charge will be implemented on a graduated basis based
on the number of cusips and shareholders in a fund complex and is the sum of the
cusip and account charges. The schedule for this charge is as follows:
YEARS CHARGE PER CHARGE PER
OF CUSIP AUTHORIZED SHAREHOLDER
SERVICE FOR SERVICE* ACCOUNT**
1 $ 52.50 $ .002
2 $ 78.75 $ .003
3 $ 105.00 $ .004
* CUSIPS ADDED TO THE SERVICE will be subject to the same minimums
being charged to the other cusips in the complex at the time the
cusips are added.
** THE PER ACCOUNT CHARGE is based on the total number of
shareholder accounts in authorized cusips at the end of each
month.
36
OUT OF POCKET COSTS
Each fund complex will require a unique WATS number for their shareholders to
call. Each WATS number will require a specific number of trunks to service a
given volume of shareholder calls. All installation and monthly usage charges
associated with these will be billed through monthly out-of-pocket invoices.
37
NSCC FEES AND OUT-OF-POCKET EXPENSES
================================================================================
SETTLING BANK FEES
The fund may be charged fees by the Settling Bank at which the net
settlement account resides for monthly maintenance of this account. These
are negotiated directly between the Fund and the Settling Bank.
NSCC PARTICIPANT FEES
The NSCC charges $40 per month per management company for CPU access/shared
line costs.
A combined participant base fee of $200 per month is charged for the
following services:
FUND/SERV:
The NSCC charges an activity charge of $.25 per inputted transaction.
Transactions include purchases, redemptions and exchanges.
NETWORKING: The NSCC charges the following activity fee:
- $.02 per account for funds paying dividends on a monthly basis
- $.01 per account for funds paying dividends other than monthly
COMMISSION SETTLEMENT: The NSCC charges the following processing fee:
- $.30 per hundred records, per month, for one to 500,000 records;
there is a $50 per month minimum processing charge
- $.20 per hundred records, per month, for 500,001 to 1,000,000
records
- $.10 per hundred records, per month, for 1,000,001 records and above
Note: Participant fees are cumulative when Fund/SERV, Networking and/or
Commission Settlement are used in conjunction with each other.
38
EXHIBIT B
AUTHORIZED PERSONNEL
Pursuant to Section 8.B.(3) of the Agency Agreement between the Trust and DST
(the "Agreement"), the Trust authorizes the following Trust personnel to provide
instructions to DST, and receive inquiries from DST in connection with the
Agreement:
NAME TITLE SIGNATURE
---- ----- ---------
------------------------ ------------------- -------------------------
------------------------ ------------------- -------------------------
------------------------ ------------------- -------------------------
------------------------ ------------------- -------------------------
------------------------ ------------------- -------------------------
------------------------ ------------------- -------------------------
------------------------ ------------------- -------------------------
This Exhibit may be revised by the Trust by providing DST with a substitute
Exhibit B. Any such substitute Exhibit B shall become effective twenty-four (24)
hours after DST's receipt of the document and shall be incorporated into the
Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC.
By:
--------------------------------
Title:
-----------------------------
Date:
------------------------------
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SERIES TRUST
By:
--------------------------------
Title:
-----------------------------
Date:
------------------------------
39
EXHIBIT C
TRANSFER AGENCY SERVICES AND SYSTEMS FEATURES
FUNCTIONS
A. Issuance of stock certificates
B. Recording of non-certificate shares
C. Purchase, redemptions, exchanges, transfers and legal transfer
D. Changes of address, etc.
E. Daily balancing of the Fund (that is maintaining the master, history and
certificate files in balance, advising the Trust of any differences and
resolving those caused by DST's error)
F. Dividend calculation and disbursement
G. Mailing of quarterly and annual reports, if requested
H. Filing of 1099/1042 information to shareholders and government
I. Provide N1R information - as available on TA2000
J. Systematic withdrawal and purchase plans
K. Pre-authorized checks
L. Purchase reminders
M. Reconcilement of dividend and disbursement accounts and advising trust of
any discrepancies
N. Provide research and correspondence to shareholder's inquiries
O. Daily communication of standard reports to the Fund
P. Provide listings, labels and other special reports
Q. Proxy issuance and tabulation
40
R. Annual Statements of shareholders on microfilm
S. Provide reports as required under Section 19K
T. Wire order processing
U. 12B-1 processing
41
EXHIBIT D
ABC - Auditor's Short Name
DEF - Auditor's Address
GHI - Auditor's Legal Name
JKL - Client Short Name
MNO - Client
CONFIDENTIALITY AGREEMENT FOR AUDITORS
This Agreement entered into this ____ day of ____________, 20__, by and
between DST Systems, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("DST") and GHI, DEF ("ABC").
WHEREAS, DST has developed a proprietary software system for mutual fund
shareholder recordkeeping and accounting ("DST System"); and
WHEREAS, MNO ("JKL") and DST have entered into an Agency Agreement dated as
of ________________________ (the "Agreement"), whereby JKL has obtained the
right to access DST's TA2000(TM) System and the DST Facilities, as defined in
the Agreement, in connection with the provisions of services to JKL's client
investment companies (the "Funds");
WHEREAS, pursuant to the Agreement JKL has the right to cause its auditors,
ABC, to perform on-site audits of records and accounts and operating procedures
directly pertaining to JKL's securityholder accounts in and the performance of
services for the Funds (the "Audit Subject Matter") subject to the execution of
this Confidentiality Agreement;
WHEREAS, DST will not permit any auditor access to its Facilities, its
TA2000 System and JKL's records in its possession and on its computers unless
and until such auditor duly executes this Agreement;
WHEREAS, each person set forth on the list attached hereto as Exhibit I
(the "Auditors") (a) is employed and designated by ABC, JKL's independent,
public auditing firm, to perform the aforementioned
42
audit of the Audit Subject Matter and (b) must obtain such access in order (i)
for ABC to fulfill its obligations to JKL and (ii) for each Auditor to perform
their obligations to ABC;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, the parties agree as follows:
(a) In accordance with the terms and conditions of the Agreement, DST
shall permit the Auditors reasonable access to the DST Facilities, as
defined in the Agreement, and the Audit Subject Matter and provide
reasonable assistance to them.
(b) ABC and each Auditor recognizes the proprietary right of DST in
and to the TA2000 System which ABC and each Auditor agrees that: (i) all
materials, information and data, in whatever form or media, including
without limitation documents, specifications, forms, systems designs,
structures, procedures, flow charts, data and screen formats, algorithms
and source and object code, pertaining to aspects of the DST System which
DST treats as confidential and protected, and requires its customers to
treat as confidential and protected ("DST Information"), provided to or
disclosed to ABC and its auditors shall remain the sole and exclusive
property of DST; (ii) all DST Information shall be held in strictest
confidence by ABC and each Auditor; (iii) ABC and each Auditor shall use
such DST Information solely for the purpose of auditing the Audit Subject
Matter in accordance with generally accepted auditing standards and, except
for such audit, neither ABC nor any Auditor shall utilize, distribute,
transfer or disclose in any way to any person or firm other than JKL the
DST Information provided or disclosed to it by DST, its employees,
representatives and agents; and (iv) only those employees, representatives
or agents of ABC having a "need to know" shall have access to the DST
Information.
(c) Upon completion of its review of the DST Information furnished or
disclosed to it (or upon earlier request by DST upon reasonable cause being
shown) ABC and each of its Auditors: (i) shall return to DST any tangible
materials furnished to any of them hereunder, and any copies
43
thereof; (ii) shall make available to DST any portion of any analyses,
compilations, studies or documents in whatever form or media made by it or
any of the Auditors containing or summarizing the details of any DST
Information; and (iii) shall safeguard or destroy, as DST may reasonably
require, such portions thereof as might compromise the confidentiality of
any DST Information; and (iv) shall provide DST with a written statement to
effect that the obligations undertaken in (i) - (iii) of this Paragraph (c)
have been fulfilled. Subsection (ii) hereof is not intended to, and does
not, apply to or prohibit the preparation and provision solely to JKL and
the Funds of an Audit Report conforming to generally accepted auditing
standards and applicable law with respect thereto.
(d) ABC shall be responsible for any breach of this Agreement by any
of the Auditors.
(e) This Agreement shall be inoperative as to such portions of the DST
Information which (i) are or become generally available to the public other
than as a result of a disclosure by ABC or the Auditors; or (ii) become
available to ABC on a non-confidential basis from a third party (unrelated
to ABC or DST) which is entitled to disclose it; or (iii) was known to ABC
on a non-confidential basis prior to its disclosure to ABC by DST.
The parties acknowledge that in the event of any breach or threatened
breach of this Agreement remedies at law will be inadequate and the party
seeking to enforce this Agreement will be entitled to injunctive and other
equitable relief (without the posting of any bond).
IN WITNESS WHEREOF, the parties hereto executed this Agreement the day and
year first above written.
ABC DST SYSTEMS, INC.
By: By:
--------------------------- -------------------------------
Dated: Dated:
------------------------ ----------------------------
44
EXHIBIT I
The following individuals are all employees of ABC and are the only persons
whom ABC will use to perform the audit of the Audit Subject Matter and to whom
DST Information will be disclosed. The signature of each Auditor hereupon
evidences his/her acknowledgment and awareness of and agreement to be bound by
the terms of the attached Confidentiality Agreement.
NAME OF AUDITOR TITLE SIGNATURE
--------------- ----- ---------
45
APPENDIX I
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SERIES TRUST CUSIP NUMBER
-------------------------------- ------------
▇.▇. ▇▇▇▇▇▇ Multi-Manager Small Cap Growth Fund
▇.▇. ▇▇▇▇▇▇ Multi-Manager Small Cap Value Fund
46
