TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 22nd day of July, 1996 by and between XXXX XXXXXXX
DECLARATION 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 ten series designated
as: Xxxx Xxxxxxx V.A. Emerging Growth Xxxx, Xxxx Xxxxxxx V.A. Discovery Xxxx,
Xxxx Xxxxxxx V.A. International Xxxx, Xxxx Xxxxxxx V.A. 500 Index Xxxx, Xxxx
Xxxxxxx V.A. Independence Equity Xxxx, Xxxx Xxxxxxx V.A. Sovereign Investors
Xxxx, Xxxx Xxxxxxx V.A. Sovereign Bond Xxxx, Xxxx Xxxxxxx V.A. Strategic Income
Xxxx, Xxxx Xxxxxxx V.A. World Bond Fund and Xxxx Xxxxxxx V.A. Money Market 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 dispursing 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");
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(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;
(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.
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(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 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
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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.
(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.
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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.
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.
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(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 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.
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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.
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.
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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.
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Article 12 Limitation on Liability
12.01 The name "Xxxx Xxxxxxx Declaration Trust" is the
designation of the Trustees under the Declaration of Trust dated November 15,
1995. 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 DECLARATION 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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TRANSFER AGENCY FEE SCHEDULE
Effective July 22, 1996, the transfer agent fees payable monthly under the
transfer agency agreement between each Fund listed below and Xxxx Xxxxxxx
Investor Services Corporation shall be the following rates plus certain
out-of-pocket expenses as described to the Board:
Fund Annual Rate Per Account
---- -----------------------
Xxxx Xxxxxxx V.A. Emerging Growth Fund $16.00
Xxxx Xxxxxxx V.A. Discovery Fund $16.00
Xxxx Xxxxxxx V.A. International Fund $16.00
Xxxx Xxxxxxx V.A. 500 Index Fund $16.00
Xxxx Xxxxxxx V.A. Independence Equity Fund $16.00
Xxxx Xxxxxxx V.A. Sovereign Investors Fund $16.00
Xxxx Xxxxxxx V.A. Sovereign Bond Fund $20.00
Xxxx Xxxxxxx V.A. Strategic Income Fund $20.00
Xxxx Xxxxxxx V.A. World Bond Fund $20.00
Xxxx Xxxxxxx V.A. Money Market Fund $25.00
