TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 2nd day of December, 1996 by and between XXXX XXXXXXX
SERIES TRUST, a Massachusetts business trust, having its principal office and
place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 (the
"Trust"), and Xxxx Xxxxxxx Investor Services Corporation, a Delaware corporation
having its principal office and place of business at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("JHISC").
WITNESSETH:
WHEREAS, the Trust desires to appoint JHISC as its transfer agent, dividend
disbursing agent and agent in connection with certain other activities, and
JHISC desires to accept such appointment;
WHEREAS, the Trust is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Trust intends to initially offer shares in two series designated
as: Xxxx Xxxxxxx Emerging Growth Fund and Xxxx Xxxxxxx Global Technology Fund,
together with all other series subsequently established by the Trust and made
subject to this Agreement (each, a "Fund" and collectively, the "Funds");
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of JHISC
1.01 Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints JHISC to act, and JHISC agrees to
act, as transfer agent and dividend disbursing agent with respect to
the authorized and issued shares of beneficial interest ("Shares") of
each series of the Trust subject to this Agreement and to provide to
the shareholders of the Trust ("Shareholders") such services in
connection therewith as may be set out in the prospectuses of the
Trust from time to time.
1.02 JHISC agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Trust and JHISC, JHISC shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation therefor to
each Fund's Custodian authorized pursuant to the Trust's Declaration
of Trust (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance, redemption requests and redemption
directions and deliver the appropriate documentation therefor to the
Custodian;
(iv) At the appropriate time as and when it receives monies paid
to it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
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(v) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Funds, processing the reinvestment of
distributions on each Fund at the net asset value per share for that
Fund next computed after the payment (in accordance with the Fund's
then-current prospectus);
(vii) Maintain records of account for and advise the Trust and
its Shareholders as to the foregoing; and
(viii) Record the issuance of Shares of each Fund and maintain
pursuant to Rule 17Ad-10(e) of the rules and regulations of the
Securities Exchange Act of 1934 a record of the total number of Shares
of each Fund which are authorized, based upon data provided to it by
each Fund, and issued and outstanding. JHISC shall also provide each
Fund on a regular basis with the total number of Shares which are
authorized and issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of
these Shares or to take cognizance of any laws relating to the issue
or sale of these Shares, which functions shall be the sole
responsibility of each Fund.
(b) In calculating the number of Shares to be issued on purchase or
reinvestment, or redeemed or repurchased, or the amount of the
purchase payment or redemption or repurchase payments owed, JHISC
shall use the net asset value per share (as described in each fund's
then-current prospectus) computed by it or such other person as may be
designated by the Trust's board of trustees. It is understood that,
unless the Trust directs otherwise, the issuance, redemption or
repurchase of the Funds' shares arising out of an automatic
transaction under an insurance contract (such as investment of net
premiums, death of insureds, deduction of fees and charges, transfers,
surrenders, loans, loan repayments, deductions of interest on loans,
lapses, reinstatements and similar automatic transactions) shall be
effected at the net asset value per share computed as of the close of
business on the day as of which said automatic transaction is
effected, even though the "order" for purchase, sale or redemption of
the Funds' shares is not received until after said close of business.
All other issuances, redemptions or repurchases of the Funds' shares
shall be effected at net asset values per share next computed after
receipt of the orders therefore and said orders shall become
irrevocable at the time as of which said value is next computed.
(c) In addition to and not in lieu of the services set forth in the
above paragraph (a), JHISC shall: (i) perform all of the customary
services of a transfer agent and dividend disbursing agent including
but not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, receiving and tabulating
proxies, mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident
alien accounts, preparing and filing appropriate forms required with
respect to dividends and distributions by federal authorities for all
Shareholders, preparing and mailing confirmation forms and statements
of account to Shareholders for all purchases and redemptions of Shares
and other confirmable transactions in Shareholder accounts, preparing
and mailing activity statements for Shareholders, and providing
Shareholder account information and (ii) provide a system which will
enable the Trust to monitor the total number of each Fund's Shares
sold in each State.
(d) In addition, the Trust shall (i) identify to JHISC in writing
those transactions and assets to be treated as exempt from the 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 JHISC for the Trust's blue sky State registration
status is solely limited to the initial establishment of transactions
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subject to blue sky compliance by the Trust and the reporting of these
transactions to the Trust as provided above.
(e) Additionally, JHISC shall:
(i) Utilize a system to identify all share transactions which
involve purchase and redemption orders that are processed at a time
other than the time of the computation of net asset value per share
next computed after receipt of such orders, and shall compute the net
effect upon each Fund of the transactions so identified on a daily and
cumulative basis.
(ii) If upon any day the cumulative net effect of such
transactions upon a Fund is negative and exceeds a dollar amount
equivalent to 1/2 of 1 cent per share, JHISC shall promptly make a
payment to the Fund in cash or through the use of a credit in the
manner described in paragraph (iv) below, in such amount as may be
necessary to reduce the negative cumulative net effect to less than
1/2 of 1 cent per share.
(iii) If on the last business day of any month the cumulative net
effect upon a Fund of such transactions (adjusted by the amount of all
prior payments and credits by JHISC and the Fund) is negative, the
Fund shall be entitled to a reduction in the fee next payable under
the Agreement by an equivalent amount, except as provided in paragraph
(iv) below. If on the last business day in any month the cumulative
net effect upon a Fund of such transactions (adjusted by the amount of
all prior payments and credits by JHISC and the Fund) is positive,
JHISC shall be entitled to recover certain past payments and
reductions in fees, and to a credit against all future payments and
fee reductions that may be required under the Agreement as herein
described in paragraph (iv) below.
(iv) At the end of each month, any positive cumulative net effect
upon a Fund of such transactions shall be deemed to be a credit to
JHISC which shall first be applied to permit JHISC to recover any
prior cash payments and fee reductions made by it to the Fund under
paragraphs (ii) and (iii) above during the calendar year, by
increasing the amount of the monthly fee under the Agreement next
payable in an amount equal to prior payments and fee reductions made
by JHISC during such calendar year, but not exceeding the sum of that
month's credit and credits arising in prior months during such
calendar year to the extent such prior credits have not previously
been utilized as contemplated by this paragraph. Any portion of a
credit to JHISC not so used by it shall remain as a credit to be used
as payment against the amount of any future negative cumulative net
effects that would otherwise require a cash payment or fee reduction
to be made to a Fund pursuant to paragraphs (ii) or (iii) above
(regardless of whether or not the credit or any portion thereof arose
in the same calendar year as that in which the negative cumulative net
effects or any portion thereof arose).
(v) JHISC shall supply to each Fund from time to time, as
mutually agreed upon, reports summarizing the transactions identified
pursuant to paragraph (i) above, and the daily and cumulative net
effects of such transactions, and shall advise a Fund at the end of
each month of the net cumulative effect at such time. JHISC shall
promptly advise a Fund if at any time the cumulative net effects
exceeds a dollar amount equivalent to 1/2 of 1 cent per share.
(vi) In the event that this Agreement is terminated for whatever
cause, or this provision 1.02 (d) is terminated pursuant to paragraph
(vii) below, a Fund shall promptly pay to JHISC an amount in cash
equal to the amount by which the cumulative net effect upon the Fund
is positive or, if the cumulative net effect upon the Fund is
negative, JHISC shall promptly pay to the Fund an amount in cash equal
to the amount of such cumulative net effect.
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(vii) This provision 1.02 (e) of the Agreement may be terminated
by JHISC at any time without cause, effective as of the close of
business on the date written notice (which may be by telex) is
received by the Trust.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Trust and JHISC.
Article 2 Fees and Expenses
2.01 For performance by JHISC pursuant to this Agreement, the Trust on
behalf of each Fund agrees to pay JHISC an annual maintenance fee for
each Shareholder account as set out in the initial fee schedule
attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.02 below may be changed from time to time
subject to mutual written agreement between the Fund and JHISC.
2.02 In addition to the fee paid under Section 2.01 above, the Trust on
behalf of each Fund agrees to reimburse JHISC for out-of-pocket
expenses or advances incurred by JHISC for the items set out in the
fee schedule attached hereto. In addition, any other expenses incurred
by JHISC at the request or with the consent of a Fund, will be
reimbursed by the Trust on behalf of such Fund.
2.03 The Trust on behalf of each Fund agrees to pay all fees and
reimbursable expenses promptly following the mailing of the respective
billing notice. Postage for mailing of proxies to all shareholder
accounts shall be advanced to JHISC by the Trust on behalf of the
Funds at least seven (7) days prior to the mailing date of such
materials.
Article 3 Representations and Warranties of JHISC
JHISC represents and warrants to the Trust that:
3.01 It is a corporation duly organized and existing and in good standing
under the laws of the State of Delaware, and is duly qualified and in
good standing as a foreign corporation under the Laws of The
Commonwealth of Massachusetts.
3.02 It has corporate power and authority to enter into and perform its
obligations under this Agreement.
3.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.04 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
Article 4 Representations and Warranties of the Trust
The Trust represents and warrants to JHISC that:
4.01 It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.02 It has power and authority to enter into and perform this Agreement.
4.03 All trust proceedings required by the Declaration of Trust and By-Laws
have been taken to authorize it to enter into and perform this
Agreement.
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4.04 It is an open-end investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
4.05 A registration statement under the Securities Act of 1933, as amended,
with respect to the shares of each series of the Trust subject to this
Agreement has become effective, and appropriate state securities law
filings have been made and will continue to be made.
Article 5 Indemnification
5.01 JHISC shall not be responsible for, and the Trust shall indemnify and
hold JHISC harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities
arising out of or attributable to:
(a) All actions of JHISC or its agents or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misfeasance.
(b) The Trust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's bad faith, gross
negligence or willful misfeasance or which arise out of the reckless
disregard of any representation or warranty of the Trust hereunder.
(c) The reliance on or use by JHISC or its agents or subcontractors of
information, records and documents which (i) are received by JHISC or
its agents or subcontractors and furnished to it by or on behalf of
the Trust, and (ii) have been prepared and/or maintained by the Trust
or any other person or firm on behalf of the Trust.
(d) The reliance on, or the carrying out by JHISC or its agents or
subcontractors of, any instructions or requests of the Trust.
(e) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or
regulations of any state that Fund Shares be registered in that state
or in violation of any stop order or other determination or ruling by
any federal agency or any state with respect to the offer or sale of
Shares in that state.
(f) It is understood and agreed that the assets of each Fund may be
used to satisfy the indemnity under this Article 5 only to the extent
that the loss, damage, cost, charge, counsel fee, payment, expense and
liability arises out of or is attributable to services hereunder with
respect to the Shares of such Fund.
5.02 JHISC shall indemnify and hold harmless the Trust on behalf of each
Fund from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of or
attributed to any action or failure or omission to act by JHISC as a
result of JHISC's lack of good faith, negligence or willful
misfeasance.
5.03 At any time JHISC may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by
JHISC under this Agreement, and JHISC and its agents or subcontractors
shall not be liable and shall be indemnified by the Trust for any
action taken or omitted by it in reliance upon such instructions or
upon the opinion of such counsel. JHISC, its agents and subcontractors
shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Trust, reasonably believed
to be genuine and to have been signed by the proper person or persons,
or upon any instruction, information, data, records or documents
provided JHISC or its agents or subcontractors by machine readable
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input, telex, CRT data entry or other similar means authorized by the
Trust, and shall not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from the Trust.
JHISC, its agents and subcontractors shall also be protected and
indemnified in recognizing share certificates which are reasonably
believed to bear the proper manual or facsimile signatures of the
officer of the Trust, and the proper countersignature of any former
transfer agent or registrar, or of a co- transfer agent or
co-registrar.
5.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment
or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be
liable for damages to the other for any damages resulting from such
failure to perform or otherwise from such causes.
5.05 Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which either party
may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such
assertion, and shall keep the other party advised with respect to all
developments concerning such claim. The party who may be required to
indemnify shall have the option to participate with the party seeking
indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
Article 6 Covenants of the Trust and JHISC
6.01 The Trust shall promptly furnish to JHISC the following:
(a) A certified copy of the resolution(s) of the Trustees of the Trust
authorizing the appointment of JHISC and the execution and delivery of
this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Trust and
all amendments thereto.
6.02 JHISC hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of share
certificates and facsimile signature imprinting devices, if any; and
for the preparation or use, and for keeping account of, such
certificates and devices.
6.03 JHISC shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940
and the rules and regulations of the Securities and Exchange
Commission thereunder, JHISC agrees that all such records prepared or
maintained by JHISC relating to the services to be performed by JHISC
hereunder are the property of the Trust and will be preserved,
maintained and made unavailable in accordance with such Act and rules,
and will be surrendered to the Trust on and in accordance with its
request.
6.04 JHISC and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged
or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
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6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, JHISC will endeavor to notify the
Trust and to secure instructions from an authorized officer of the
Trust as to such inspection. JHISC 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 exhibit
the Shareholder records to such person.
Article 7 Termination of Agreement
7.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days' written notice to the other.
7.02 Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
borne by the Trust. Additionally, JHISC reserves the right to charge
for any other reasonable expenses associated with such termination.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
8.03 JHISC may, without further consent on the part of the Trust,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(1) of the
Securities Exchange Act of 1934 ("Section 17A(c)(1)") or any other
entity registered as a transfer agent under Section 17A(c)(1) JHISC
deems appropriate in order to comply with the terms and conditions of
this Agreement; provided, however, that JHISC shall be as fully
responsible to the Trust for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of
the Trustees of the Trust.
Article 10 Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the internal substantive laws
of The Commonwealth of Massachusetts.
Article 11 Merger of Agreement
11.01 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
Article 12 Limitation on Liability
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12.01 The name "Xxxx Xxxxxxx Series Trust" is the designation of the
Trustees under the Declaration of Trust dated September 10, 1996. The
obligations of such Trust are not personally binding upon, nor shall
resort be had to the property of, any of the Trustees, shareholders,
officers, employees or agents of such Trust, but the Trust's property
only shall be bound. Each Fund shall be liable only for its own
obligations under this Agreement and shall not be jointly or severally
liable to the obligations of any other Fund hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
XXXX XXXXXXX SERIES TRUST
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Xxxx X. Xxxxxxx
President
XXXX XXXXXXX INVESTOR SERVICES
CORPORATION
By: /s/Xxxxxxx X. XxXxxxxx, Xx.
---------------------------
Xxxxxxx X. XxXxxxxx, Xx.
Vice President
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