Exhibit 9(a)
TRANSFER AGENT AGREEMENT
BETWEEN
XXXXXX XXXX MUTUAL FUNDS
AND
XXXXXX XXXX SERVICE CORPORATION
AGREEMENT made this ______ day of ____________, 199_ by and between the
Xxxxxx Xxxx Mutual Funds, which is currently comprised of three portfolios, (the
"Fund"), a Delaware business trust, which is registered as an open-end
investment company under the Investment Company Act of 1940 and Xxxxxx Xxxx
Service Corporation ("HMSC"), an Illinois corporation registered as a Transfer
Agent.
WITNESSETH
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1. Employment as Transfer Agent. The Fund hereby employs HMSC and HMSC
hereby accepts such employment as its Transfer Agent. In that capacity, HMSC
will provide the Fund with recording services, redemption and repurchase
services, and such other related services as the Fund and HMSC may mutually
agree upon from time to time.
2. Documents. In connection with this Agreement and within a reasonable
time after the execution of this Agreement, the Fund will deliver to HMSC
certified or otherwise authenticated copies of the following documents:
(a) The Declaration of Trust and Certificate of Trust of the Fund,
together with all amendments thereto;
(b) The Bylaws of the Fund as in force on the day this Agreement is
executed;
(c) Copies of the latest Prospectus of the Fund;
(d) A certified copy of a resolution of the Board of Trustees of the
Fund appointing HMSC as Transfer Agent;
(e) Specimen signatures of Officers of the Fund or other individuals
who are authorized to give instructions to HMSC on behalf of the Fund; and
(f) Any other document, certificates, or instructions that HMSC may
reasonably require relating to the services it shall provide under this
Agreement.
From time to time as appropriate, the Fund shall also promptly furnish
to HMSC the following additional documentation:
(a) A copy of the Fund's registration statement or amendment thereto,
filed with the United States Securities and Exchange Commission subsequent to
the date of this Agreement, together with a copy of the order of effectiveness
relating to that registration statement;
(b) A certified copy of each resolution of the Fund's Board of
Trustees authorizing certain Fund Officers or other individuals to give
instructions to HMSC;
(c) A copy of any amendment to the Fund's Declaration of Trust
subsequent to the date hereof; and
(d) A copy of any amendment to the Bylaws of the Fund subsequent to
the date of this Agreement.
3. Authorized Shares. The Fund certifies to HMSC that, as of the date of
this Agreement, it has authorized an unlimited number of units of interest in
the Fund ("Shares") with no par value.
4. Capacity to Perform. In order to provide the services required to be
performed by it, HMSC represents that it is duly registered as a Transfer Agent
and has the capital, equipment and personnel sufficient to enable it to perform
the functions of this Agreement.
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5. General Duties of HMSC. Subject to written instructions from the Fund
and subject to events and conditions beyond HMSC's control, and subject to
receiving reasonable cooperation from the Fund, the underwriter and the dealers,
HMSC shall perform the duties of Transfer Agent for the Fund and shall maintain
Shareholders' accounts in a competent, efficient, timely and accurate manner.
Without limiting the scope of the foregoing, HMSC shall maintain the accounts,
books and other required documents maintained by it hereunder in compliance with
the Investment Company Act of 1940 (the "Act") and the rules and regulations
under the Act (the "Rules"), including without limitation Section 31(a) of the
Act and Rule 31a-1 under the Act. HMSC and the Fund each agree further that it
shall promptly give written notice to the other if it discovers that the
accounts, books or other required documents are not in compliance with the Act
and Rules of the Securities and Exchange Commission.
At the Fund's request, HMSC shall:
(a) calculate dividends and capital gains distributions payable to the
Fund's Shareholders; and
(b) print and mail to Shareholders
(i) applicable Tax Form 1099,
(ii) confirmation of reinvestment of dividends and
distributions,
(iii) proxy materials and proxies, and
(iv) other communication to Shareholders as the Fund may
request.
HMSC shall be reimbursed by the Fund for the costs of printing, paper,
envelopes and postage, if any, incurred in the above distributions to
Shareholders.
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6. Compensation. The Fund agrees to compensate HMSC for its services
hereunder in accordance with the Fee Schedule annexed to this Agreement and
incorporated herein by reference as Schedule A. This Fee Schedule may be
periodically revised and adjusted by mutual agreement of the Parties. The Fund
and HMSC agree that services performed in accordance with this Fee Schedule are,
in effect, provided at HMSC's cost.
From the execution date of this Agreement, fees will be charged at a
monthly rate that will not exceed that rate which is stated in Schedule A.
7. Payment. HMSC will xxxx the Fund within ten (10) days after the end
of each calendar month, and said xxxxxxxx will be detailed in accordance with
the Fee Schedule. HMSC may require advance payment of postage cost, if any,
incurred in connection with general mailings to all Shareholders of the Fund.
The Fund shall promptly pay HMSC the amount of such xxxxxxxx. At the end of
each calendar year, all payments will be compared to HMSC's actual costs. If
the Fund has overpaid fees when compared to actual costs, HMSC will refund the
excess payment. If the Fund has underpaid fees when compared to actual costs,
no reimbursement will be required to compensate for the shortage; however, upon
the mutual agreement of the Board of Trustees of the Fund and HMSC, the Fee
Schedule may be adjusted for the following year.
8. Delegation of Signature Authority. By resolution of its Board of
Trustees, the Fund may delegate to HMSC, or to HMSC Officers, authority to
execute as agent for the Fund, dividend distribution, redemption and repurchase
checks, and such other documents as may from time to time be required to be
executed in the course of providing the services called for under this
Agreement.
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9. Lost Certificates. The Fund hereby appoints HMSC as their agent for
the purpose of processing lost certificate claims in accordance with an
established Plan, or such other plan or procedure as the parties hereto may
agree upon. HMSC will provide the Secretary of the Fund with a complete record
of all claims so processed.
10. Issuance of Shares. HMSC agrees to issue shares of the Fund in
accordance with the instructions of the Fund, and to inform the Fund should any
proposed issuance in accordance with such instructions exceed the authorized
capitalization and/or the registered shares of the Fund. In the event the
issuance of such shares would exceed the authorized capitalization, HMSC agrees
that it will not issue such shares unless and until it is expressly authorized
to do so by the Fund. In the event the issuance will exceed the registered
shares, HMSC will issue the required shares and the Fund will be responsible for
filing the registration for the additional shares.
11. Transfers in General. HMSC is authorized to transfer shares of the
Fund's recorded capital stock as follows:
(a) if outstanding certificates are surrendered in proper form, HMSC
will cancel these certificates and issue shares in deposit form; or
(b) if an order is properly made by or on behalf of the registered
holder of shares in deposit form, HMSC will credit the same shares of capital
stock to the transferee in deposit form.
12. Redemption and Repurchases. At the request of the Fund, HMSC agrees
to:
(a) receive and stamp with the time and date of receipt all
certificates delivered to it which are identified as being delivered for
redemption or repurchase;
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(b) receive and stamp with the time and date of receipt all requests
for redemption or repurchase of shares in plan accounts; and
(c) process and confirm said redemptions and repurchase requests in
accordance with established procedures approved by, or with instructions
provided by, the Fund.
13. Notice of Distribution. The Fund or its designees will promptly
notify HMSC of the Fund's declaration of any dividend or distribution and will
provide HMSC with such information in respect of such distribution or dividend
as HMSC may reasonably require to perform its functions.
HMSC will promptly notify the Shareholders of the amount of the net
investment income and capital gains dividends awarded to each account.
14. Tax Reports and Withholdings. At the Fund's request, HMSC will: (a)
prepare and file in accordance with the Fund's written instructions, such tax
reports or returns for reporting dividends and distributions paid as the Fund is
required to make; and (b) withhold such sums as the Fund is required to withhold
under applicable federal or foreign income tax laws, rules and regulations,
including amounts withheld by any agent to the extent that said withholdings
have been identified by HMSC; and (c) withhold such sums under state tax laws to
the extent instructed by the Fund in writing.
HMSC will prepare and mail to Shareholders such reports as may be
required by applicable state and federal tax laws or regulations. HMSC will
forward to the Fund any requests or notices from state and federal tax
authorities received by HMSC pertaining to such reporting or withholding
requirements.
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15. Shareholder Records. HMSC agrees to maintain on behalf of the Fund
those records of Shareholder accounts required by the Fund, including records
showing for each Shareholder account the following:
(a) Name, address and tax identifying number;
(b) Number of shares held with certificate numbers of, and
denominations of, any outstanding certificates;
(c) Historical information regarding the account, including dividends
paid and date and price for all account transactions;
(d) Any restraining order placed against the account;
(e) Information with respect to withholdings on foreign accounts;
(f) Any dividend reinvestment order, monthly payment order, dividend
address and correspondence relating to the current maintenance of the account.
All records maintained by HMSC on behalf of the Fund shall be
maintained in accordance with the requirements of the Investment Company Act of
1940, the rules and regulations under the Act, and other applicable statutes,
rules, or regulations. Such records will be retained by HMSC on behalf of the
Fund for the periods required by the Investment Company Act of 1940, or for such
longer period or periods as the Fund may specify.
16. Confirmations and Statements. HMSC agrees to provide to the Fund's
Shareholder confirmations and reports with respect to the Fund's share
transactions, and such other statements of account as specified by the Fund or
by state or federal laws.
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17. Inquiries. HMSC will research and respond to proper inquiries
relating to transactions in Shareholder accounts.
18. Information to be Furnished to the Fund. When reasonably requested,
HMSC will furnish the Fund with information which is in HMSC's possession and
which the Fund requires for the conduct of its business. HMSC will also provide
any information or records in its possession or otherwise known to it and
required by the Fund to respond to inquiries received from regulatory agencies.
19. Availability of Records. Upon request for inspection by the Fund, its
directors, Officers, and authorized representatives, HMSC will make available
all records, memoranda, operating procedures, forms, correspondence, and other
materials received or produced by HMSC in the course of the performance of any
of its obligations under this Agreement. The Fund may copy such materials other
than any computer programs which HMSC is required to maintain as confidential.
20. Reports. HMSC will provide the Fund with reports regarding HMSC's
performance under this Agreement in accordance with, and at the times specified
by, a schedule of reports to be mutually agreed upon by the Fund and HMSC.
21. Prospectus. HMSC agrees to perform its duties under this Agreement in
conformity with the terms of the Fund's currently effective prospectuses, copies
of which will be provided to HMSC by the Fund. The Fund assumes full
responsibility for the contents of each prospectus of the Fund, and for
prospectus compliance with applicable requirements of the laws and regulations
governing the offering and sale of securities, except to the extent such
responsibilities are expressly assumed by HMSC.
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22. Indemnification. HMSC will not be responsible for, and the Fund will
indemnify and hold HMSC harmless from and against, any and all losses, costs,
damages and expenses (including reasonable expenses of outside counsel) if such
expenses and liabilities are incurred by HMSC, its directors, officers,
employees or agents and arise out of or are attributable to:
(a) any action taken by HMSC pursuant to this Agreement, provided that
such actions are taken in good faith and without HMSC's negligence or willful
misconduct;
(b) the Fund's lack of good faith, negligence or willful misconduct or
any breach of the Fund's representation or warranties made pursuant to this
Agreement;
(c) HMSC's reliance on or use of information, records and documents
which (i) have been furnished to HMSC by the Fund and (ii) have been prepared
and/or maintained by the Fund (unless such information or records arise from
HMSC's negligence, willful misconduct or failure with respect to such reliance
upon or use of such information);
(d) HMSC's reliance on any instructions or orders believed by it to
have been executed by a duly authorized Officer or representative of the Fund
(unless the liability arises from HMSC's failure to properly perform such
instructions or orders).
HMSC shall indemnify and hold the Fund harmless from any acts taken or
omitted by HMSC as Transfer Agent for the Fund which result in any losses,
damages, costs, expenses (including reasonable expenses of outside counsel) and
liabilities and which arise out of or are attributed to HMSC's lack of good
faith, negligence or willful misconduct in providing services hereunder.
If any Party to this Agreement is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage
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reasonably beyond its control or because of any other cause(s) beyond its
control, that Party shall not be liable to the other for any damages resulting
from such failure to perform.
No Party to this Agreement shall be liable to another Party for
Consequential Damages under any provision of this Agreement or for any act or
failure to act under this Agreement. "Consequential Damages" shall mean damages
that are not natural and probable consequences of the particular breach of this
Agreement.
For this provision to apply, a Party seeking indemnification must
promptly notify the other Party of its assertion and keep the other Party
advised of all developments relating to its claim. The Party who may be
required to indemnify shall have the option to participate with the Party
seeking indemnification in the defense of its alleged liability. The Party
seeking indemnification shall, in no case, confess to any claim or make any
compromise in any case in which the other Party may be required to indemnify it,
unless the indemnifying Party authorizes such actions in writing.
23. Further Assurances. Each Party agrees to perform such further acts
and execute such further documents as shall be necessary to effectuate the
purposes of this Agreement.
24. Term. This Agreement shall be in effect until October 31, 1998, and,
unless sooner terminated in accordance with the provisions hereof, shall renew
year to year upon the resolution of the Boards of the Fund and HMSC to do so.
Either the Fund or HMSC may terminate this Agreement at any time by giving
written notice to the other Party at least sixty (60) days prior to the date on
which such termination is to be effective. Any fees or reimbursable expenses
payable to HMSC (incurred or accrued) and as yet unpaid shall be due
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and payable upon the date of such termination. Upon termination, HMSC agrees to
cooperate with the Fund and any successor Transfer Agent in accomplishing an
orderly transition.
25. Amendment. The terms of this Agreement may be amended at any time
upon the approval and written authorization of the Fund's and HMSC's Boards of
Directors.
26. Notices. All instructions, notices, information and payments provided
or required to be provided under this Agreement shall be sent to the respective
addresses as indicated below, or to such other addresses as either Party may
designate to the other in writing from time to time:
TO THE FUND:
Xxxxxx Xxxx Mutual Funds
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
TO XXXXXX XXXX SERVICE CORPORATION:
Xxxxxx Xxxx Service Corporation
1 Xxxxxx Xxxx Plaza
Attention: Mail No. E206
Xxxxxxxxxxx, Xxxxxxxx 00000
27. Governing Law. The provisions of this Agreement shall be governed by
and interpreted under the laws of the State of Illinois
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IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be
executed by their duly authorized Officers on this ____ day of ____________,
199_.
XXXXXX XXXX MUTUAL FUNDS
By:____________________________
Witness:
____________________________
XXXXXX XXXX SERVICE CORPORATION
By:____________________________
Witness:
____________________________
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SCHEDULE "A"
TRANSFER AGENT'S FEE SCHEDULE
XXXXXX XXXX MUTUAL FUNDS
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Fee Schedule
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Monthly maintenance - $1.00/account
The monthly maintenance charge includes the processing of all transactions
and correspondence.
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