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EXHIBIT (h).1
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 2nd day of April, 2001, by and among Fortis
Series Fund, Inc., a Minnesota corporation, having its principal office and
place of business at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000 (the
"Fund"), Hartford Administrative Services Company ("HASCO") formerly known as
Fortis Advisers, Inc., having its principal office and place of business at 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000, and HL Investment Advisors, LLC
("HLA"), having its principal office and place of business at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000. This Agreement is intended to take effect
as if entered into among the Fund (on behalf of each of its series of shares,
severally), and HASCO and HLA, and the provisions of this Agreement shall be
construed accordingly.
WHEREAS, the Fund is authorized to issue shares in separate series and
classes within each series; and
WHEREAS, the Fund, on behalf of each of its investment portfolios (the
"Portfolios"), desires to appoint HASCO as transfer agent, dividend disbursing
agent and agent in connection with certain other activities, and HASCO desires
to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF FORTIS ADVISERS
1.1 Subject to the terms and conditions set forth in this
Agreement, the Fund, on behalf of the Portfolios, hereby
employs and appoints HASCO to act as, and HASCO agrees to act
as its transfer agent for each of the Fund's authorized and
issued shares of its common stock ("Shares"), dividend
disbursing agent and agent in connection with any
accumulation, open-account or similar plans provided to the
shareholders of each of the respective Portfolios of the Fund
("Shareholders") and set out in the currently effective
prospectuses and statements of additional information
("prospectuses") of the Fund.
1.2 HASCO agrees that it will perform the following services:
(a) In accordance with procedures established from time
to time by agreement between the Fund on behalf of
each of the Portfolios, as applicable and HASCO,
HASCO shall:
(i) Receive for acceptance, orders for the
purchase of Shares, and promptly deliver
payment and appropriate documentation
thereof to the custodian of the Fund (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
accounts;
(iii) Receive for acceptance redemption requests
and redemption directions and deliver the
appropriate documentation thereof to the
Custodian;
(iv) In respect to the transactions in items (i),
(ii) and (iii) above, HASCO shall execute
transactions directly with broker-dealers
authorized by the Fund who shall thereby be
deemed to be acting on behalf of the Fund;
(v) 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;
(vi) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate
instructions;
(vii) Prepare and transmit payments for dividends
and distributions declared by the Fund on
behalf of each Portfolio;
(viii) Maintain records of account for and advise
the Fund and its Shareholders as to the
foregoing; and
(ix) Record the issuance of shares of the Fund
and maintain pursuant to SEC Rule 17Ad-10(e)
a record of the total number of Shares that
are authorized, issued and outstanding.
HASCO shall also provide the Fund on a
regular basis with the total number of
shares that are authorized, issued and
outstanding and shall have no obligation,
when recording the issuance of shares, to be
responsible for any laws relating to the
issue or sale of such shares, which function
shall be the sole responsibility of the
Fund.
(b) In addition to the services set forth in paragraph
(a), HASCO shall (i) perform the customary services
of a transfer agent, dividend disbursing agent and,
as relevant, agent in connection with accumulation,
open-account or other similar plans (including
without limitation any periodic investment plan or
periodic withdrawal program), including but not
limited to: maintaining all Shareholder accounts,
preparing Shareholder meeting lists, mailing proxies,
mailing Shareholder reports and prospectuses to
current Shareholders, withholding taxes on U.S.
resident and non-resident alien accounts, preparing
and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect
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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 Fund to monitor the
total shares sold in each state.
(c) In addition, the Fund shall (i) identify to HASCO 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 HASCO 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.
(d) Procedures as to who shall provide certain of these
services in Section 1 may be established from time to
time by agreement between the Fund on behalf of each
Portfolio and HASCO.
(e) HASCO shall provide additional services on behalf of
the Fund (e.g., escheatment services) which may be
agreed upon in writing between the Fund and HASCO.
2. FEES AND EXPENSES
2.1 Except as otherwise contemplated in any investment advisory or
similar agreement between a Portfolio and HIFSCO, HIFSCO
agrees to pay all fees and expenses of HASCO under this
Agreement within five days following the receipt of the
respective billing notice.
3. REPRESENTATIONS AND WARRANTIES OF HASCO
HASCO represents and warrants to the Fund that:
3.1 It is a corporation duly organized and existing and in good
standing under the laws of Minnesota.
3.2 It is duly qualified to carry on its business in the State of
Minnesota and is duly registered as a transfer agent pursuant
to Section 17A(c)(2) of the Securities Exchange Act of 1934,
as amended.
3.3 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
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3.4 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to HASCO that:
4.1 It is a corporation duly organized and existing and in good
standing under the laws of the State of Minnesota.
4.2 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement.
4.3 All corporate proceedings required by such Articles of
Incorporation and By-Laws have been taken to authorize it to
enter into and perform this Agreement.
4.4 It is registered as an open-end, management investment company
under the Investment Company Act of 1940, as amended.
4.5 A registration statement under the Securities Act of 1933, as
amended, is currently effective, and will remain in effect,
for each series and class of Shares, and appropriate
securities law filings have been made and will continue to be
made with the SEC with respect to the Fund.
5. DATA ACCESS AND PROPRIETARY INFORMATION
5.1 The Fund acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques,
and documentation manuals furnished to the Fund by HASCO as
part of its ability to access certain Fund-related data
("Customer Data") maintained by HASCO on data bases under the
control and ownership of HASCO ("Data Access Services")
constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of
substantial value to HASCO or other third party. In no event
shall Proprietary Information be deemed Customer Data. The
Fund agrees to treat all Proprietary Information as
proprietary to HASCO and further agree that it shall not
divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without
limiting the foregoing, the Fund agrees for itself and its
employees and agents:
(a) to access Customer Data solely from locations as may
be designated in writing by HASCO and solely in
accordance with HASCO' applicable user documentation;
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(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such
access is inadvertently obtained, to inform in a
timely manner of such fact and dispose of such
information in accordance with HASCO' instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other
computer facility or other location, except with the
prior written consent of HASCO;
(e) that the Fund shall have access only to those
authorized transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by
HASCO to protect at HASCO' expense the rights of
HASCO in Proprietary Information at common law, under
federal copyright law and under other federal or
state law.
5.2 Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Section 5. The
obligations of this Section shall survive any termination of
this Agreement.
5.3 If the Fund notifies HASCO that any of the Data Access
Services do not operate in material compliance with the most
recently issued user documentation for such services, HASCO
shall endeavor in a timely manner to correct such failure.
Organizations from which HASCO may obtain certain data
included in the Data Access Services are solely responsible
for the contents of such data and the Fund agrees to make no
claim against HASCO arising out of the contents of such
third-party data, including, but not limited to, the accuracy
thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS. HASCO EXPRESSLY
DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. INDEMNIFICATION
6.1 HASCO shall not be responsible for, and the Fund shall, on
behalf of the applicable Portfolio, indemnify and hold HASCO
harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability
arising out of or attributable to:
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(a) All actions of HASCO 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 misconduct.
(b) Lack of good faith, negligence or willful misconduct
on the part of the Fund which arise out of the breach
of any representation or warranty of the Fund
hereunder.
(c) The reliance on or use by HASCO or its agents or
subcontractors of information, records, documents or
services which (i) are received by HASCO or its
agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Fund or any
other person or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by HASCO or its
agents or subcontractors of any instructions or
requests of the Fund on behalf of the applicable
Portfolio.
(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 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 such
Shares in such state.
(f) The negotiation and processing by HASCO of checks not
made payable to the order of the Fund, or to the
retirement account custodian or trustee for a plan
account investing in Shares, which checks are
tendered to HASCO for the purchase of Shares (i.e.,
"third party checks").
6.2 At any time HASCO may apply to any officer of the Fund for
instructions, and may consult with legal counsel to the Fund
with respect to any matter arising in connection with the
services to be performed by HASCO under this Agreement, and
HASCO and its agents or subcontractors shall not be liable and
shall be indemnified by the Fund on behalf of the applicable
Portfolio for any action taken or omitted by it in reliance
upon such instructions or upon the opinion of such counsel.
HASCO, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by
or on behalf of the Fund, 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 HASCO or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means
authorized by the Fund, and shall not be held to have notice
of any change of authority of any person, until receipt of
written notice thereof from the Fund.
6.3 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which
the Fund may be required to
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indemnify HASCO, HASCO shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the
option to participate with HASCO in the defense of such claim
or to defend against said claim in its own name or in the name
of HASCO. HASCO shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to
indemnify HASCO except with the Fund's prior written consent.
For clarity, to the extent any obligation to provide indemnity
under this Section 6 arises in respect of a Portfolio or
Portfolios, the obligation so to indemnify shall be the
obligation only of such Portfolio or Portfolios, and of no
other Portfolio.
7. STANDARD OF CARE
HASCO shall at all times act in good faith and agrees to use its best
efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees.
8. COVENANTS OF THE FUND AND HASCO
8.1 The Fund shall on behalf of each of the Portfolios promptly
furnish to HASCO the following:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of
HASCO and the execution and delivery of this
Agreement.
(b) A copy of the Articles of Incorporation and By-Laws
of the Fund and all amendments thereto.
8.2 HASCO 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, as amended, and the Rules
thereunder, HASCO agrees that all such records prepared or
maintained by HASCO relating to the services to be performed
by HASCO hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered promptly to
the Fund on and in accordance with its request.
8.3 HASCO and the Fund 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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8.4 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, HASCO will endeavor to notify
the Fund and to secure instructions from an authorized officer
of the Fund as to such inspection. HASCO 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.
9. TERMINATION OF AGREEMENT
9.1 This Agreement may be terminated by either party upon ninety
(90) days written notice to the other.
9.2 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be borne by the Fund on behalf of the
applicable Portfolio(s). Additionally, HASCO reserves the
right to charge for any other reasonable expenses associated
with such termination.
10. ADDITIONAL FUNDS
In the event that the Fund establishes one or more additional series or
classes of Shares to which it desires to have HASCO render services as transfer
agent under the terms hereof, it shall so notify HASCO in writing, and if HASCO
agrees in writing to provide such services, such series or classes of Shares
shall be included under this agreement.
11. ASSIGNMENT
11.1 Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of
the other party.
11.2 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns.
12. AMENDMENT
This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Directors of the Fund.
13. CONNECTICUT LAW TO APPLY
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of Connecticut.
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14. FORCE MAJEURE
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.
15. CONSEQUENTIAL DAMAGES
No party to this Agreement shall be liable to another party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
16. MERGER OF AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
17. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
FORTIS SERIES FUND, INC.
BY: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
ATTEST:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
HARTFORD ADMINISTRATIVE SERVICES COMPANY
BY:
-------------------------------------
ATTEST:
HL INVESTMENT ADVISERS, LLC
BY: /s/ Xxxxx X. Xxxxxxxxxxxx
-------------------------------------
ATTEST:
/s/ Xxxxx X. Xxxx
----------------------------------------
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SERVICES TO BE PERFORMED
1. Receives orders for the purchase of Shares.
2. Issue Shares and hold Shares in Shareholders accounts.
3. Receive redemption requests.
4. Effect transactions 1-3 above directly with broker-dealers.
5. Pay over monies to redeeming Shareholders.
6. Effect transfers of Shares.
7. Prepare and transmit dividends and distributions.
8. Maintain records of account.
9. Maintain and keep a current and accurate control book for each issue of
securities.
10. Mail proxies.
11. Mail Shareholder reports.
12. Mail prospectuses to current Shareholders.
13. Withhold taxes on U.S. resident and non-resident alien accounts.
14. Prepare and file U.S. Treasury Department forms.
15. Prepare and mail account and confirmation statements for Shareholders.
16. Provide Shareholder account information.
