EXHIBIT 9(a)
TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY
AND SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT made as of the day of , 1997 by and between
XXXXXXX XXXXX CONVERTIBLE FUND, INC., a Maryland corporation (the "Company"),
and XXXXXXX XXXXX FINANCIAL DATA SERVICES, INC. ("MLFDS"), a New Jersey
corporation.
WITNESSETH:
WHEREAS, the Company wishes to appoint MLFDS to be the Transfer
Agent, Dividend Disbursing Agent and Shareholder Servicing Agent upon, and
subject to, the terms and provisions of this Agreement, and MLFDS is desirous
of accepting such appointment upon, and subject to, such terms and
provisions:
NOW, THEREFORE, in consideration of mutual covenants contained in
this Agreement, the Company and MLFDS agree as follows:
1. Appointment of MLFDS as Transfer Agent, Dividend Disbursing Agent
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and Shareholder Servicing Agent.
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a. The Company hereby appoints MLFDS to act as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Company upon, and
subject to, the terms and provisions of this Agreement.
b. MLFDS hereby accepts the appointment as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Company, and agrees
to act as such upon, and subject to, the terms and provisions of this
Agreement.
2. Definitions.
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a. In this Agreement:
(1) The term "Act" means the Investment Company Act of 1940 as
amended from time to time and any rule or regulation thereunder;
(2) The term "Account" means any account of a Shareholder, or, if
the shares are held in an account in the name of MLPF&S for benefit of an
identified customer, such account, including a Plan Account, any account
under a plan (by whatever name referred to in the Prospectus) pursuant to the
Self-Employed Individuals Retirement Act of 1962 ("Xxxxx Act Plan") and any
plan (by whatever name referred to in the Prospectus) in conjunction with
Section 401 of the Internal Revenue Code ("Corporation Master Plan");
(3) The term "application" means an application made by a
Shareholder or prospective Shareholder respecting the opening of an Account;
(4) The term "MLFD" means Xxxxxxx Xxxxx Funds Distributor, Inc., a
Delaware corporation;
(5) The term "MLPF&S" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation;
(6) The term "Officer's Instruction" means an instruction in
writing given on behalf of the Company to MLFDS, and signed on behalf of the
Company by the President, any Vice President, the Secretary or the Treasurer
of the Company;
(7) The term "Prospectus" means the Prospectus and the Statement
of Additional Information of the Company as from time to time in effect;
(8) The term "Shares" means shares of stock or beneficial
interest, as the case may be, of the Company, irrespective of class or
series;
(9) The term "Shareholder" means the holder of record of Shares;
(10) The term "Plan Account" means an account opened by a
Shareholder or prospective Shareholder in respect to an open account, monthly
payment or withdrawal plan (in each case by whatever name referred to in the
Prospectus), and may also include an account relating to any other plan if
and when provision is made for such plan in the Prospectus.
3. Duties of MLFDS as Transfer Agent, Dividend Disbursing Agent and
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Shareholder Servicing Agent.
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a. Subject to the succeeding provisions of the Agreement, MLFDS hereby
agrees to perform the following functions as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Company:
(i) Issuing, transferring and redeeming Shares;
(ii) Opening, maintaining, servicing and closing Accounts;
(iii) Acting as agent for the Company Shareholders and/or customers
of MLPF&S in connection with Plan Accounts, upon the terms and subject to the
conditions contained in the Prospectus and application relating to the
specific Plan Account;
(iv) Acting as agent of the Company and/or MLPF&S, maintaining such
records as may permit the imposition of such contingent deferred sales
charges as may be described in the Prospectus, including such reports as may
be reasonably requested by the Company with respect to such Shares as may be
subject to a contingent deferred sales charge;
(v) Upon the redemption of Shares subject to such a contingent
deferred sales charge, calculating and deducting from the redemption proceeds
thereof the amount of such charge in the manner set forth in the Prospectus.
MLFDS shall pay, on behalf of MLFD, to MLPF&S such deducted contingent
deferred sales charges imposed upon all Shares maintained in the name of
MLPF&S, or maintained in the name of an account identified as a customer
account of MLPF&S. Sales charges imposed upon any other Shares shall be paid
by MLFDS to MLFD;
(vi) Exchanging the investment of an investor into, or from the
shares of other open-end investment companies or other series portfolios of
the Company, if any, if and to the extent permitted by the Prospectus at the
direction of such investor;
(vii) Processing redemptions;
(viii) Examining and approving legal transfers;
(ix) Replacing lost, stolen or destroyed certificates representing
Shares, in accordance with, and subject to, procedures and conditions adopted
by the Company;
(x) Furnishing such confirmations of transactions relating to
their Shares as required by applicable law;
(xi) Acting as agent for the Company and/or MLPF&S, furnishing
such appropriate periodic statements relating to Accounts, together with
additional enclosures, including appropriate income tax information and
income tax forms duly completed, as required by applicable law;
(xii) Acting as agent for the Company and/or MLPF&S, mailing
annual, semi-annual and quarterly reports prepared by or on behalf of the
Company, and mailing new Prospectuses upon their issue to Shareholders as
required by applicable law;
(xiii) Furnishing such periodic statements of transactions effected
by MLFDS, reconciliations, balances and summaries as the Company may
reasonably request;
(xiv) Maintaining such books and records relating to transactions
effected by MLFDS as are required by the Act, or by any other applicable
provision of law, rule or regulation, to be maintained by the Company or its
transfer agent with respect to such transactions, and preserving, or causing
to be preserved any such books and records for such periods as may be
required by any such law, rule or regulation and as may be agreed upon from
time to time between MLFDS and the Company. In addition, MLFDS agrees to
maintain and preserve master files and historical computer tapes on a daily
basis in multiple separate locations a sufficient distance apart to insure
preservation of at least one copy of such information;
(xv) Withholding taxes on non-resident alien Accounts, preparing
and filing U.S. Treasury Department Form 1099 and other appropriate forms as
required by applicable law with respect to dividends and distributions; and
(xvi) Reinvesting dividends for full and fractional shares and
disbursing cash dividends, as applicable.
b. MLFDS agrees to act as proxy agent in connection with the holding of
annual, if any, and special meetings of Shareholders, mailing such notices,
proxies and proxy statements in connection with the holding of such meetings
as may be required by applicable law, receiving and tabulating votes cast by
proxy and communicating to the Company the results of such tabulation
accompanied by appropriate certifications, and preparing and furnishing to
the Company certified lists of Shareholders as of such date, in such form and
containing such information as may be required by the Company.
c. MLFDS agrees to deal with, and answer in a timely manner, all
correspondence and inquiries relating to the functions of MLFDS under this
Agreement with respect to Accounts.
d. MLFDS agrees to furnish to the Company such information and at such
intervals as is necessary for the Company to comply with the registration
and/or the reporting requirements (including applicable escheat laws) of the
Securities and Exchange Commission, Blue Sky authorities or other
governmental authorities.
e. MLFDS agrees to provide to the Company such information as may
reasonably be required to enable the Company to reconcile the number of
outstanding Shares between MLFDS's records and the account books of the
Company.
f. Notwithstanding anything in the foregoing provisions of this
paragraph, MLFDS agrees to perform its functions thereunder subject to such
modification (whether in respect of particular cases or in any particular
class of cases) as may from time to time be contained in an Officer's
Instruction.
4. Compensation. The charges for services described in this Agreement,
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including out-of-pocket expenses, will be set forth in the Schedule of Fees
attached hereto.
5. Right of Inspection. MLFDS agrees that it will in a timely manner
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make available to, and permit, any officer, accountant, attorney or
authorized agent of the Company to examine and make transcripts and copies
(including photocopies and computer or other electronical information storage
media and print-outs) of any and all of its books and records which relate to
any transaction or function performed by MLFDS under or pursuant to this
Agreement.
6. Confidential Relationship. MLFDS agrees that it will, on behalf of
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itself and its officers and employees, treat all transactions contemplated by
this Agreement, and all information germane thereto, as confidential and not
to be disclosed to any person (other than the Shareholder concerned, or the
Company, or as may be disclosed in the examination of any books or records by
any person lawfully entitled to examine the same) except as may be authorized
by the Company by way of an Officer's Instruction.
7. Indemnification. The Company shall indemnify and hold MLFDS
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harmless from any loss, costs, damage and reasonable expenses, including
reasonable attorneys' fees (provided that such attorney is appointed with the
Company's consent, which consent shall not be unreasonably withheld),
incurred by it resulting from any claim, demand, action, or suit in
connection with the performance of its duties hereunder, provided that this
indemnification shall not apply to actions or omissions of MLFDS in cases of
willful misconduct, failure to act in good faith or negligence by MLFDS, its
officers, employees or agents, and further provided, that prior to
confessing any claim against it which may be subject to this indemnification,
MLFDS shall give the Company reasonable opportunity to defend against said
claim in its own name or in the name of MLFDS. An action taken by MLFDS upon
any Officer's Instruction reasonably believed by it to have been properly
executed shall not constitute willful misconduct, failure to act in good
faith or negligence under this Agreement.
8. Regarding MLFDS.
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a. MLFDS hereby agrees to hire, purchase, develop and maintain such
dedicated personnel, facilities, equipment, software, resources and
capabilities as may be reasonably determined by the Company to be necessary
for the satisfactory performance of the duties and responsibilities of MLFDS.
MLFDS warrants and represents that its officers and supervisory personnel
charged with carrying out its functions as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Company possess the
special skill and technical knowledge appropriate for that purpose. MLFDS
shall at all times exercise due care and diligence in the performance of its
functions as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent for the Company. MLFDS agrees that, in determining whether
it has exercised due care and diligence, its conduct shall be measured by the
standard applicable to persons possessing such special skill and technical
knowledge.
b. MLFDS warrants and represents that it is duly authorized and
permitted to act as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent under all applicable laws and that it will immediately notify
the Company of any revocation of such authority or permission or of the
commencement of any proceeding or other action which may lead to such
revocation.
9. Termination.
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a. This Agreement shall become effective as of the date first above
written and shall thereafter continue from year to year. This Agreement may
be terminated by the Company or MLFDS (without penalty to the Company or
MLFDS) provided that the terminating party gives the other party written
notice of such termination at least sixty (60) days in advance, except that
the Company may terminate this Agreement immediately upon written notice to
MLFDS if the authority or permission of MLFDS to act as Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent has been revoked or
if any proceeding or other action which the Company reasonably believes will
lead to such revocation has been commenced.
b. Upon termination of this Agreement, MLFDS shall deliver all unissued
and cancelled stock certificates representing Shares remaining in its
possession, and all Shareholder records, books, stock ledgers, instruments
and other documents (including computerized or other electronically stored
information) made or accumulated in the performance of its duties as Transfer
Agent, Dividend Disbursing Agent and Shareholder Servicing Agent for the
Company along with a certified locator document clearly indicating the
complete contents therein, to such successor as may be specified in a notice
of termination or Officer's Instruction; and the Company assumes all
responsibility for failure thereafter to produce any paper, record or
documents so delivered and identified in the locator document, if and when
required to be produced.
10. Amendment. Except to the extent that the performance by MLFDS or
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its functions under this Agreement may from time to time be modified by an
Officer's Instruction, this Agreement may be amended or modified only by
further written Agreement between the parties.
11. Governing Law.
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This Agreement shall be governed by the laws of the State of New
Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by their respective duly authorized officers and their
respective corporate seals hereunto duly affixed and attested, as of the day
and year above written.
XXXXXXX XXXXX CONVERTIBLE FUND, INC.
By:
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Title:
XXXXXXX XXXXX FINANCIAL DATA SERVICES, INC.
By:
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Title:
