TRANSFER AGENCY AND SERVICES AGREEMENT
.........THIS AGREEMENT, dated as of this 9th day of May, 1997 between
Tweedy, Xxxxxx Fund Inc. (the "Fund"), a Maryland corporation having its
principal place of business at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and FIRST DATA INVESTOR SERVICES GROUP, INC. ("FDISG"), a Massachusetts
corporation with principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000.
.........WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund initially intends to offer Shares in those Portfolios
identified in the attached Exhibit 1, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to this
Agreement in accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint FDISG as its
transfer agent, dividend disbursing agent and agent in connection with certain
other activities and FDISG desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and FDISG agree as follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
(a)......"Articles of Incorporation" shall mean the Articles of Incorporation,
Declaration of Trust, or other similar organizational document as the case may
be, of the Fund as the same may be amended from time to time.
(b)......"Authorized Person" shall be deemed to include (i) any authorized
officer of the Fund; or (ii) any person, whether or not such person is an
officer or employee of the Fund, duly authorized to give Oral Instructions or
Written Instructions on behalf of the Fund as indicated in writing to FDISG from
time to time.
(c)......"Board of Directors" shall mean the Board of Directors or Board of
Trustees of the Fund, as the case may be.
(d)......"Commission" shall mean the Securities and Exchange Commission.
(e)......"Custodian" refers to any custodian or subcustodian of securities and
other property which the Fund may from time to time deposit, or cause to be
deposited or held under the name or account of such a custodian pursuant to a
Custodian Agreement.
(f)......"1934 Act" shall mean the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder, all as amended from time to time.
(g)......"1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to time.
(h)......"Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by FDISG from a person reasonably believed by
FDISG to be an Authorized Person;
(i)......"Portfolio" shall mean each separate series of shares offered by
the Fund representing interests in a separate portfolio of securities and other
assets;
(j)......"Prospectus" shall mean the most recently dated Fund Prospectus and
Statement of Additional Information, including any supplements thereto, if any,
which has become effective under the Securities Act of 1933 and the 1940 Act.
(k)......"Shares" refers collectively to such shares of capital stock or
beneficial interest, as the case may be, or class thereof, of each respective
Portfolio of the Fund as may be issued from time to time.
(l)......"Shareholder" shall mean a record owner of Shares of each respective
Portfolio of the Fund.
(m)......"Written Instructions" shall mean a written communication signed by a
person reasonably believed by FDISG to be an Authorized Person and actually
received by FDISG. Written Instructions shall include manually executed
originals and authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes FDISG as
transfer agent and dividend disbursing agent for Shares of each respective
Portfolio of the Fund and as shareholder servicing agent for the Fund and FDISG
hereby accepts such appointments and agrees to perform the duties hereinafter
set forth.
Article 3 Duties of FDISG.
3.1 FDISG shall be responsible for:
(a)......Administering and/or performing the customary services of a transfer
agent; acting as service agent in connection with dividend and distribution
functions; and performing shareholder account and administrative agent functions
in connection with the issuance, transfer and redemption or repurchase
(including coordination with the Custodian) of Shares of each Portfolio, as more
fully described in the written schedule of Duties of FDISG annexed hereto as
Schedule A and incorporated herein, and in accordance with the terms of the
Prospectus of the Fund on behalf of the applicable Portfolio, applicable law and
the procedures established from time to time between FDISG and the Fund.
(b)......Recording the issuance of Shares and maintaining pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of Shares of each
Portfolio which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. FDISG shall provide the Fund on a regular basis with the
total number of Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation under this Agreement, when recording
the issuance of Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund or its administrator.
(c)......Notwithstanding any of the foregoing provisions of this Agreement,
under this Agreement FDISG shall be under no duty or obligation to inquire into,
and shall not be liable for: (i) the legality of the issuance or sale of any
Shares or the sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety of the amount to be
paid therefor; (iii) the legality of the declaration of any dividend by the
Board of Directors, or the legality of the issuance of any Shares in payment of
any dividend; or (iv) the legality of any recapitalization or readjustment of
the Shares.
3.2......In addition, the Fund or its agent shall (i) identify to FDISG in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of FDISG under this Agreement for
the Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3......FDISG shall serve as the Fund's exclusive service provider with respect
to those teleservicing, fulfillment and print/mail services more fully described
in Schedule B for the fees also set forth in Schedule B.
3.4......In addition to the duties set forth herein, FDISG shall perform such
other duties and functions, and shall be paid such amounts therefor, as may from
time to time be agreed upon in writing between the Fund and FDISG.
Article 4 Recordkeeping and Other Information.
4.1......FDISG shall create and maintain all records required of it pursuant to
its duties hereunder and as set forth in Schedule A in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the 1940 Act. Where applicable, such records shall be maintained by
FDISG for the periods and in the places required by Rule 31a-2 under the 1940
Act.
4.2......To the extent required by Section 31 of the 1940 Act, FDISG agrees that
all such records prepared or maintained by FDISG relating to the services to be
performed by FDISG hereunder are the property of the Fund and will be preserved,
maintained and made available in accordance with such section, and will be
surrendered promptly to the Fund on and in accordance with the Fund's request.
4.3......In case of any requests or demands for the inspection of Shareholder
records of the Fund, FDISG will endeavor to notify the Fund of such request and
secure Written Instructions as to the handling of such request. Unless expressly
indemnified by the Fund, FDISG reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be held liable for the failure to comply with such request.
Article 5 Fund Instructions.
5.1......FDISG will have no liability when acting upon Written or Oral
Instructions believed to have been executed or orally communicated by an
Authorized Person and will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from the
Fund. FDISG will also have no liability when processing Share certificates which
it reasonably believes to bear the proper manual or facsimile signatures of the
officers of the Fund and the proper countersignature of FDISG.
5.2......At any time, FDISG may request Written Instructions from the Fund and
may seek advice from legal counsel for the Fund, or its own legal counsel, with
respect to any matter arising in connection with this Agreement, and it shall
not be liable for any action taken or not taken or suffered by it in good faith
in accordance with such Written Instructions or in accordance with the opinion
of counsel for the Fund or for FDISG. Written Instructions requested by FDISG
will be provided by the Fund within a reasonable period of time.
5.3......FDISG, its officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person representing or
acting on behalf of the Fund only if said representative is an Authorized
Person. The Fund agrees that all Oral Instructions shall be followed within one
business day by confirming Written Instructions, and that the Fund's failure to
so confirm shall not impair in any respect FDISG's right to rely on Oral
Instructions.
Article 6 Compensation.
6.1......The Fund on behalf of each of the Portfolios will compensate FDISG for
the performance of its obligations hereunder in accordance with the fees set
forth in the written Fee Schedule annexed hereto as Schedule B and incorporated
herein.
6.2......In addition to those fees set forth in Section 6.1 above, the Fund on
behalf of each of the Portfolios agrees to pay, and will be billed separately
for, out-of-pocket expenses incurred by FDISG in the performance of its duties
hereunder. Out-of-pocket expenses shall include, but shall not be limited to,
the items specified in the written schedule of out-of-pocket charges annexed
hereto as Schedule C and incorporated herein. Schedule C may be modified by
written agreement between the parties. Unspecified out-of-pocket expenses shall
be limited to those out-of-pocket expenses reasonably incurred by FDISG in the
performance of its obligations hereunder.
6.3......The Fund on behalf of each of the Portfolios agrees to pay all
fees and out-of-pocket expenses within fifteen (15) days following the receipt
of the respective invoice.
6.4......Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule executed and dated by
the parties hereto.
6.5......The Fund acknowledges that the fees that FDISG charges the Fund under
this Agreement reflect the allocation of risk between the parties, including the
disclaimer of warranties in Section 9.3 and the exclusion of remedies in Article
12. Modifying the allocation of risk from what is stated here would affect the
fees that FDISG charges, and in consideration of those fees, the Fund agrees to
the stated allocation of risk.
Article 7 Documents.
In connection with the appointment of FDISG, the Fund shall, on or before the
date this Agreement goes into effect, but in any case within a reasonable period
of time for FDISG to prepare to perform its duties hereunder, deliver or cause
to be delivered to FDISG the documents set forth in the written schedule of Fund
Documents annexed hereto as Schedule D except to the extent previously delivered
to FDISG in connection with any other agreement.
Article 8 Transfer Agent System.
8.1......FDISG shall retain title to and ownership of any and all data bases,
computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by FDISG in connection with the services
provided by FDISG to the Fund herein (the "FDISG System").
8.2......FDISG hereby grants to the Fund a limited license to the FDISG System
for the sole and limited purpose of having FDISG provide the services
contemplated hereunder and nothing contained in this Agreement shall be
construed or interpreted otherwise and such license shall immediately terminate
with the termination of this Agreement.
Article 9 Representations and Warranties.
9.1......FDISG represents and warrants to the Fund that:
(a)......it is a corporation duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(b)......it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c)......all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement;
(d)......it is duly registered with its appropriate regulatory agency as a
transfer agent and such registration will remain in effect for the duration of
this Agreement; and
(e)......it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
9.2......The Fund represents and warrants to FDISG that:
(a)......it is duly organized, existing and in good standing under the laws
of the jurisdiction in which it is organized;
(b)......it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement;
(c)......all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize it to
enter into this Agreement;
(d)......a registration statement under the Securities Act of 1933, as amended,
and the 1940 Act on behalf of each of the Portfolios is currently effective and
will remain effective, and all appropriate state securities law filings have
been made and will continue to be made, with respect to all Shares of the Fund
being offered for sale; and
(e)......all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with the terms
of the Fund's Articles of Incorporation and its Prospectus with respect to each
Portfolio, such Shares shall be validly issued, fully paid and non-assessable.
9.3...... THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, FDISG DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM
OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES
PROVIDED UNDER THIS AGREEMENT. FDISG DISCLAIMS ANY WARRANTY OF TITLE OR
NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
Article 10 Indemnification.
10.1 FDISG shall not be responsible under this Agreement for and the Fund on
behalf of each Portfolio shall indemnify and hold FDISG harmless from and
against any and all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any sort or kind
which may be asserted against FDISG or for which FDISG may be held to be liable
(a "Claim") arising out of or attributable to any of the following:
(a)......any actions of FDISG taken pursuant to this Agreement unless such Claim
arises out of gross negligence or bad faith or willful misconduct by FDISG in
the performance of its duties hereunder;
(b)......FDISG's reasonable reliance on, or reasonable use of information, data,
records and documents (including but not limited to magnetic tapes, computer
printouts, hard copies and microfilm copies) received by FDISG from the Fund, or
any authorized third party acting on behalf of the Fund, including but not
limited to the prior transfer agent for the Fund, in the performance of FDISG's
duties and obligations hereunder;
(c)......the reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund on behalf of the
applicable Portfolio;
(d)......the offer or sale of shares in violation of any requirement under the
securities laws or regulations of any state that such shares be registered in
such state or in violation of any stop order or other determination or ruling by
any state with respect to the offer or sale of such shares in such state; and
(e)......the Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's gross negligence or bad
faith or willful misconduct (except to the extent of FDISG's gross negligence or
bad faith or willful misconduct) or the breach of any representation or warranty
of the Fund made herein.
10.2 In any case in which the Fund may be asked to indemnify or hold FDISG
harmless, FDISG will notify the Fund promptly after identifying any situation
which it believes presents or appears likely to present a claim for
indemnification against the Fund although the failure to do so shall not prevent
recovery by FDISG and shall keep the Fund advised with respect to all
developments concerning such situation. The Fund shall have the option to defend
FDISG against any Claim which may be the subject of this indemnification, and,
in the event that the Fund so elects, such defense shall be conducted by counsel
chosen by the Fund and satisfactory to FDISG, and thereupon the Fund shall take
over complete defense of the Claim and FDISG shall sustain no further legal or
other expenses in respect of such Claim. FDISG will not confess any Claim or
make any compromise in any case in which the Fund will be asked to provide
indemnification, except with the Fund's prior written consent. The obligations
of the parties hereto under this Article 10 shall survive the termination of
this Agreement.
10.3.....Any claim for indemnification under this Agreement must be made prior
to the earlier of:
(a)......one year after the Fund becomes aware of the event for which
indemnification is claimed; or
(b)......one year after the earlier of the termination of this Agreement or
the expiration of the term of this Agreement.
10.4.....Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
FDISG's sole and exclusive remedy for claims or other actions or proceedings to
which the Fund's indemnification obligations pursuant to this Article 10 may
apply.
Article 11 Standard of Care.
11.1 FDISG shall at all times act in good faith and agrees to use its best
efforts within commercially reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility for loss
or damage to the Fund unless said errors are caused by FDISG's own gross
negligence, bad faith or willful misconduct or that of its employees.
11.2 Neither party may assert any cause of action against the other party under
this Agreement that accrued more than six (6) years prior to the filing of the
suit (or commencement of arbitration proceedings) alleging such cause of action.
11.3 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY UNDER ANY
THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR LOST PROFITS OF THE OTHER PARTY, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL
DAMAGES OR INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED
BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE
OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first written above and shall
continue for a period of three (3) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall automatically
renew for successive terms of one (1) year ("Renewal Terms") each, unless the
Fund or FDISG provides written notice to the other of its intent not to renew.
Such notice must be received not less than sixty (60) days prior to the
expiration of the Initial Term or the then current Renewal Term. Not less than
one hundred and fifty (150) days prior to the expiration of the Initial Term or
the then current Renewal Term, if either party wishes to modify the fees listed
in the schedules to this Agreement with respect to the upcoming Renewal Term,
the parties will promptly enter into good faith discussions with regard thereto.
13.3 In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion thereof to a
successor transfer agent will be borne by the Fund.
13.4 If the Board of Directors of the Fund determines in good faith in the
exercise of its fiduciary duties that FDISG has breached its obligations
hereunder in a material manner or has failed to maintain service quality, the
Fund will notify FDISG of that determination and provide FDISG with an
opportunity to cure such breach or service deficiency during the sixty (60) days
following the receipt of such notice. If FDISG is unable, in the good faith
judgment of the Fund's Board of Directors, to cure such breach or bring such
service quality up to the reasonable satisfaction of the Board, the Fund may
terminate this Agreement by giving FDISG not less than sixty (60) days prior
written notice. In making any determination hereunder, the Board will take into
account data regarding FDISG's transaction throughput, transaction handling
quality, telephone abandonment rate, average speed of answer, speed and accuracy
of response to financial and non-financial correspondence and any other data
provided by FDISG or management. In the event that (i) the Fund provides notice
of termination as a result of service quality issues in accordance with the
provisions outlined above and determines that FDISG is unable to bring such
quality levels up to the standards previously; and (ii) FDISG in good faith
disputes the determination made by the Board of Directors with respect thereto,
the parties shall agree to submit the issues in dispute to a mutually agreed
upon independent third party arbiter for determination. If the arbiter
determines that there are material quality issues with respect to the
performance of services by FDISG and FDISG has failed to cure such issues, the
Fund may terminate this Agreement upon sixty (60) days written notice as set
forth above. If the arbiter determines that there are no material quality issues
with respect to the performance of services by FDISG or that there were material
quality issues with respect to the performance of services by FDISG, but FDISG
has cured such issues, the Fund may terminate this Agreement upon sixty (60)
days written notice as set forth above; provided, however, that the Fund shall
prior to the effective date of such termination, provide FDISG with a rebate of
the unamortized portion of all costs associated with the Fund's conversion to
FDISG and further provided that such unamortized costs will not exceed $103,000
and which shall be amortized over a period not greater than the Initial Term.
FDISG will have parallel termination rights with respect to breach of this
Agreement by the Fund. Termination of this Agreement in accordance with the
foregoing process shall not constitute a waiver of any other rights the
terminating party may have with respect to the services performed or failed to
be performed prior to such termination under this Agreement or otherwise or
rights of FDISG to payment of its fees and out-of pocket expenses.
13.5 This Agreement shall terminate upon the termination of the Amended and
Restated Administration Agreement between the Fund and FDISG.
Article 14 Additional Portfolios.
In the event that the Fund establishes one or more Portfolios in addition to
those identified in Exhibit 1, with respect to which the Fund desires to have
FDISG render services as transfer agent under the terms hereof, the Fund shall
so notify FDISG in writing, and if FDISG agrees in writing to provide such
services, Exhibit 1 shall be amended to include such additional Portfolios.
Article 15 Confidentiality.
15.1.....The parties agree that the Proprietary Information (defined below) and
the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The Fund
and FDISG shall exercise at least the same degree of care, but not less than
reasonable care, to safeguard the confidentiality of the Confidential
Information of the other as it would exercise to protect its own confidential
information of a similar nature. Except as required by law, the Fund and FDISG
shall not duplicate, sell or disclose to others the Confidential Information of
the other, in whole or in part, without the prior written permission of the
other party. The Fund and FDISG may, however, disclose Confidential Information
to their respective parent corporation, their respective affiliates, their
subsidiaries and affiliated companies and employees, provided that each shall
use reasonable efforts to ensure that the Confidential Information is not
duplicated or disclosed in breach of this Agreement. The Fund and FDISG may also
disclose the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
FDISG disclose the Confidential Information to any competitor of the other
without specific, prior written consent.
15.2.....Proprietary Information means:
(a)......any data or information that is competitively sensitive material, and
not generally known to the public, including, but not limited to, information
about product plans, marketing strategies, finance, operations, customer
relationships, customer profiles, sales estimates, business plans, and internal
performance results relating to the past, present or future business activities
of the Fund or FDISG, their respective subsidiaries and affiliated companies and
the customers, clients and suppliers of any of them;
(b)......any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in the sense
that its confidentiality affords the Fund or FDISG a competitive advantage over
its competitors; and
(c)......all confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, show-how and trade secrets, whether or not
patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party which now
exist or come into the control or possession of the other.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by (i) fire, flood, elements of nature or other
acts of God; (ii) any outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of the other party or any
governmental authority; (iv) any labor disputes (whether or not the employees'
demands are reasonable or within the party's power to satisfy); or (v)
nonperformance by a third party (other than any person to whom a party has
delegated any responsibilities hereunder in accordance herewith) or any similar
cause beyond the reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment. In any such
event, the non-performing party shall be excused from any further performance
and observance of the obligations so affected only for as long as such
circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned or otherwise transferred by either
party hereto, without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided, however, that FDISG may
upon sixty (60) days notice to the Fund, in its sole discretion, assign all its
right, title and interest in this Agreement to an affiliate, parent or
subsidiary. FDISG may, in its sole discretion, engage subcontractors to perform
any of the obligations contained in this Agreement to be performed by FDISG. If
FDISG shall assign or otherwise transfer this Agreement to an unaffiliated third
party, the Fund shall have the right to terminate this Agreement upon sixty (60)
days written notice to FDISG without the payment of any unamortized costs
referred to in Section 13.4 of this Agreement.
Article 18 Arbitration.
18.1.....Any claim or controversy arising out of or relating to this Agreement,
or breach hereof, shall be settled by arbitration administered by the American
Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the obligations
under this Agreement necessitates the use of instrumentalities of interstate
commerce and, notwithstanding other general choice of law provisions in this
Agreement, the parties agree that the Federal Arbitration Act shall govern and
control with respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by this Agreement to be
given in writing to the Fund or FDISG, shall be sufficiently given if addressed
to that party and received by it at its office set forth below or at such other
place as it may from time to time designate in writing.
To the Fund:
Tweedy, Xxxxxx Company L.P.
00 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: M. Xxxxxxx Xxxxxxxxxxx, Esq.
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws on conflicts
of laws, shall govern the interpretation, validity, and enforcement of this
agreement. All actions arising from or related to this Agreement shall be
brought in the state and federal courts sitting in the City of Boston, and FDISG
and Client hereby submit themselves to the exclusive jurisdiction of those
courts.
Article 21 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22 Captions.
The captions of this Agreement are included for convenience of reference only
and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect.
Article 23 Publicity.
Neither FDISG nor the Fund shall release or publish news releases, public
announcements, advertising or other publicity relating to this Agreement or to
the transactions contemplated by it without the prior review and written
approval of the other party; provided, however, that either party may make such
disclosures as are required by legal, accounting or regulatory requirements
after making reasonable efforts in the circumstances to consult in advance with
the other party.
Article 24 Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and not partners or
co-venturers and nothing contained herein shall be interpreted or construed
otherwise.
24.2 During the term of this Agreement and for one (1) year afterward, the Fund
shall not recruit, solicit, employ or engage, for the Fund or others, FDISG's
employees.
Article 25 Entire Agreement; Severability.
25.1.....This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against FDISG unless said writing is executed by a Senior Vice
President, Executive Vice President, or President of FDISG. A party's waiver of
a breach of any term or condition in the Agreement shall not be deemed a waiver
of any subsequent breach of the same or another term or condition.
25.2.....The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties shall
in good faith modify or substitute such provision consistent with the original
intent of the parties. Without limiting the generality of this paragraph, if a
court determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement, including the
limitations on liability and exclusion of damages, shall remain fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers, as of the day and year first above written.
TWEEDY, XXXXXX FUND INC.
By:......
Title:...
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:......
Title:...
.........Exhibit 1
LIST OF PORTFOLIOS
Tweedy, Xxxxxx American Value Fund
Tweedy, Xxxxxx Global Value Fund
.........Schedule A
.........DUTIES OF FDISG
1........Shareholder Information. FDISG shall maintain a record of the number of
Shares held by each Shareholder of record which shall include name, address,
taxpayer identification and which shall indicate whether such Shares are held in
certificates or uncertificated form. In addition, FDISG shall maintain and track
such Shareholder records in a manner which will enable the Fund to properly
comply with applicable escheatment laws.
2........Shareholder Services. FDISG shall respond as appropriate to all
inquiries and communications from Shareholders relating to Shareholder accounts
with respect to its duties hereunder and as may be from time to time mutually
agreed upon between FDISG and the Fund.
3........Share Certificates.
(a)......If the Fund requests FDISG to issue a stock certificate for any Shares
then, at the expense of the Fund, the Fund shall supply FDISG with an adequate
supply of blank share certificates to meet FDISG requirements therefor. Such
Share certificates shall be properly signed manually. The Fund agrees that,
notwithstanding the death, resignation, or removal of any officer of the Fund
whose signature appears on such certificates, FDISG or its agent may continue to
countersign certificates which bear such signatures until otherwise directed by
Written Instructions.
(b) FDISG shall issue replacement Share certificates in lieu of certificates
which have been lost, stolen or destroyed, upon receipt by FDISG of properly
executed affidavits and lost certificate bonds, in form satisfactory to FDISG,
with the Fund and FDISG as obligees under the bond.
(c) FDISG shall also maintain a record of each certificate issued, the number of
Shares represented thereby and the Shareholder of record. With respect to Shares
held in open accounts or uncertificated form (i.e., no certificate being issued
with respect thereto) FDISG shall maintain comparable records of the
Shareholders thereof, including their names, addresses and taxpayer
identification. FDISG shall further maintain a stop transfer record on lost
and/or replaced certificates.
4........Mailing Communications to Shareholders; Proxy Materials. FDISG will
address and mail to Shareholders of the Fund, all reports to Shareholders,
dividend and distribution notices and proxy material for the Fund's meetings of
Shareholders. In connection with meetings of Shareholders, FDISG will prepare
Shareholder lists, mail and certify as to the mailing of proxy materials,
process and tabulate returned proxy cards, report on proxies voted prior to
meetings, act as inspector of election at meetings and certify Shares voted at
meetings.
5........Sales of Shares
(a) FDISG shall not be required to issue any Shares of the Fund where it has
received a Written Instruction from the Fund or official notice from any
appropriate authority that the sale of the Shares of the Fund has been suspended
or discontinued. The existence of such Written Instructions or such official
notice shall be conclusive evidence of the right of FDISG to rely on such
Written Instructions or official notice.
(b) In the event that any check or other order for the payment of money is
returned unpaid for any reason, FDISG will endeavor to: (i) give prompt notice
of such return to the Fund or its designee; (ii) place a stop transfer order
against all Shares issued as a result of such check or order; and (iii) take
such actions as FDISG may from time to time deem appropriate.
6........Transfer and Repurchase
(a) FDISG shall process all requests to transfer or redeem Shares in accordance
with the transfer or repurchase procedures set forth in the Fund's Prospectus.
(b) FDISG will transfer or repurchase Shares upon receipt of Oral or Written
Instructions or otherwise pursuant to the Prospectus and Share certificates, if
any, properly endorsed for transfer or redemption, accompanied by such documents
as FDISG reasonably may deem necessary.
(c) FDISG reserves the right to refuse to transfer or repurchase Shares until it
is satisfied that the endorsement on the instructions is valid and genuine.
Unless instructed by an officer of the Fund to the contrary, FDISG also reserves
the right to refuse to transfer or repurchase Shares until it is satisfied that
the requested transfer or repurchase is legally authorized, and it shall incur
no liability for the refusal, in good faith, to make transfers or repurchases
which FDISG, in its good judgment, deems improper or unauthorized, or until it
is reasonably satisfied that there is no basis to any claims adverse to such
transfer or repurchase as instructed by an officer of the Fund.
(d) When Shares are redeemed, FDISG shall, upon receipt of the instructions and
documents in proper form, deliver to the Custodian and the Fund or its designee
a notification setting forth the number of Shares to be repurchased. Such
repurchased shares shall be reflected on appropriate accounts maintained by
FDISG reflecting outstanding Shares of the Fund and Shares attributed to
individual accounts.
(e) FDISG, upon receipt of the monies provided to it by the Custodian for the
repurchase of Shares, pay such monies as are received from the Custodian, all in
accordance with the procedures described in the written instruction received by
FDISG from the Fund.
(f) FDISG shall not process or effect any repurchase with respect to Shares of
the Fund after receipt by FDISG or its agent of notification of the suspension
of the determination of the net asset value of the Fund until such determination
is resumed or processing is permitted during such suspension.
7........Dividends
(a) Upon the declaration of each dividend and each capital gain distribution by
the Board of Directors of the Fund with respect to Shares of the Fund, the Fund
shall furnish or cause to be furnished to FDISG Written Instructions setting
forth the date of the declaration of such dividend or distribution, the
ex-dividend date, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined, the amount payable per
Share to the Shareholders of record as of that date, the total amount payable on
the payment date and whether such dividend or distribution is to be paid in
Shares at net asset value.
(b) On or before the payment date specified in such resolution of the Board of
Directors, the Fund will provide FDISG with sufficient cash to make payment to
the Shareholders of record as of such payment date.
(c)......If FDISG does not receive sufficient cash from the Fund to make total
dividend and/or distribution payments to all Shareholders of the Fund as of the
record date, FDISG will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until sufficient cash is provided
to FDISG.
8........In addition to and neither in lieu nor in contravention of the
services set forth above, FDISG shall perform all
the customary services of a transfer agent, registrar, dividend disbursing
agent and agent of the dividend reinvestment and cash purchase plan as
described herein consistent with those requirements in effect as at the date
of this Agreement. The detailed definition, frequency, limitations and
associated costs (if any) set out in the attached fee schedule, include
but are not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, tabulating proxies, mailing
prospectuses, Shareholder reports to current Shareholders, withholding
taxes on U.S. resident and non-resident alient accounts where applicable,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders.
Schedule B
FEE SCHEDULE
I. Per Account Fees
Open Accounts $9.75/Account
Closed Accounts $1.80/Account
Beginning on the one year anniversary from the effective date, the
per account fees will be increased on an annual basis by a percentage
amount equal to the percentage increase in the then current Consumer
Price Index (all urban consumers), or its successor index, with a
maximum increase of seven percent (7%) per annum over the
prior years fees.
II. Fund Minimums: (annually) $24,000.00/Portfolio/Class
IV. XXX Account Fees: $10.00/Account
V. Transaction Charges:
New account & set up $4.00/Set Up
Manual Transactions $1.50 Transaction
Incoming and outgoing wires $10.00/wire
......... NSCC Fees*: ......... Financial Transactions $.10 per transaction
......... Same Day Trade Confirmations $.15 per confirm
*NSCC Fees will be waived for years one and two and will commence in the third
year from the effective date of this Agreement
VI.......Other Fees (if applicable)
......... 12b-1 Commission $1.20/Account
VII......Conversion Fees:
......... Per Account Fee $1.00/Account
......... Minimum per Portfolio $20,000.00
VIII.....Teleservicing, Conversion Tracking and Fulfillment Fees:
.........A. Inbound Teleservicing: $2.00 per minute with
......... monthly minimum
.........B. Marketing Reports:
......... Source of Leads and Conversion Reports $125/each
.........C. Out-Of-Pocket Expenses:
......... Telephone line usage charges (800 connect time)
......... Fax transmissions
......... Line charges for order transmission to fulfillment vendor
......... Forms
......... Overnight/Express Mail packages
......... Travel expenses, if on-site visits are requested
......... $.32 per order fee for all orders placed in IWS Literature
.........D. Special Projects:
......... If special programming support is required to develop a need
outside of our current scope of services, this will be billed at $75 per hour.
.........E. Fulfillment: $1.25 per package
.........Schedule C
.........OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable out-of-pocket expenses,
including, but not limited to the following items:
o........Microfiche/microfilm production
o........Magnetic media tapes and freight
o........Printing costs, including certificates, envelopes, checks and
stationery o........Postage (bulk, pre-sort, ZIP+4, barcoding, first class)
direct pass through to the Fund o........Due diligence mailings
o........Telephone and telecommunication costs, including all lease, maintenance
and line costs o........Ad hoc reports o........Proxy solicitations, mailings
and tabulations o........Daily & Distribution advice mailings relative to stock
inserts and postage o........Shipping, Certified and Overnight mail and
applicable insurance o........Year-end form production and mailings
o........Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
o........Duplicating services o........Courier services o........Federal Reserve
charges for check clearance o........Overtime, as approved by the Fund
o........Temporary staff, as approved by the Fund o........Travel and
entertainment, as approved by the Fund o........Record retention, retrieval and
destruction costs, including, but not limited to exit fees charged by third
party record keeping vendors o........Third party audit reviews o........Ad hoc
SQL time o........All Systems enhancements not related to the conversion at the
rate of $75.00 per hour o........Such other miscellaneous expenses reasonably
incurred by FDISG in performing its duties and responsibilities under this
Agreement.
The Fund agrees that postage and mailing expenses will be paid on the day of or
prior to mailing as agreed with FDISG. In addition, the Fund will promptly
reimburse FDISG for any other unscheduled expenses incurred by FDISG whenever
the Fund and FDISG mutually agree that such expenses are not otherwise properly
borne by FDISG as part of its duties and obligations under the Agreement.
.........Schedule D
.........FUND DOCUMENTS
o........Certified copy of the Articles of Incorporation of the Fund, as
amended. ......... o........Certified copy of the By-laws of the Fund, as
amended. ......... o........Copy of the resolution of the Board of Directors
authorizing the execution and delivery of this Agreement. .........
o........Specimens of the certificates for Shares of the Fund, if applicable, in
the form approved by the Board of Directors of the Fund, with a certificate of
the Secretary of the Fund as to such approval. ......... o........All account
application forms and other documents relating to Shareholder accounts or to any
plan, program or service offered by the Fund. ......... o........Certified list
of Shareholders as of the conversion date of the Fund with the name, address and
taxpayer identification number of each Shareholder, and the number of Shares of
the Fund held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any accounts against which stop
transfer orders have been placed, together with the reasons therefore, and the
number of Shares redeemed by the Fund as of the conversion date. .........
o........All notices issued by the Fund with respect to the Shares in accordance
with and pursuant to the Articles of Incorporation or By-laws of the Fund or as
required by law and shall perform such other specific duties as are set forth in
the Articles of Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required thereby.
