Exhibit (h)(11)
TRANSFER AGENCY AGREEMENT
AGREEMENT, dated as of February 1, 2002, between Xxxxxxx X.
Xxxxxxxxx Fund, Inc., a Maryland corporation and an open-end investment company
registered with the Securities and Exchange Commission (the "SEC") under the
Investment Company Act of 1940 (the "Investment Company Act"), having its
principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Fund"), on behalf of each of its series listed on Schedule I hereto (each, a
"Portfolio"), and ALLIANCE GLOBAL INVESTOR SERVICES, INC., a Delaware
corporation registered with the SEC as a transfer agent under the Securities
Exchange Act of 1934, having its principal place of business at 000 Xxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 ("Investor Services"), provides as follows:
WHEREAS, Investor Services has agreed to act as transfer agent
to the Fund for the purpose of recording the transfer, issuance and redemption
of shares of each class of the Portfolios listed on Schedule I hereto ("Shares"
or "Shares of a Series"), transferring the Shares, disbursing dividends and
other distributions to shareholders of the Portfolio, and performing such other
services as may be agreed to pursuant hereto;
NOW THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, the parties do hereby agree as
follows:
SECTION 1. The Fund hereby appoints Investor Services as its
transfer agent, dividend disbursing agent and shareholder servicing agent for
the Shares, and Investor Services agrees to act in such capacities upon the
terms set forth in this Agreement. Capitalized terms used in this Agreement and
not otherwise defined shall have the meanings assigned to them in SECTION 30.
SECTION 2. (a) The Fund shall provide Investor Services with
copies of the following documents:
(1) Specimens of all forms of certificates for Shares;
(2) Specimens of all account application forms and other
documents relating to Shareholders' accounts;
(3) Copies of each Prospectus;
(4) Specimens of all documents relating to withdrawal plans
instituted by the Fund, as described in SECTION 16; and
(5) Specimens of all amendments to any of the foregoing
documents.
(b) The Fund shall furnish to Investor Services a supply of blank Share
Certificates for the Shares and, from time to time, will renew such supply upon
Investor Services' request. Blank Share Certificates shall be signed manually or
by facsimile signatures of officers of the Fund authorized to sign by law or
pursuant to the bylaws of the Fund and, if required by Investor Services, shall
bear the Fund's seal or a facsimile thereof.
SECTION 3. Investor Services shall make original issues of
Shares in accordance with SECTIONS 13 and 14 and the Prospectus upon receipt of
(i) Written Instructions requesting the issuance, (ii) a certified copy of a
resolution of the Fund's Directors authorizing the issuance, (iii) necessary
funds for the payment of any original issue tax applicable to such Shares, and
(iv) an opinion of the Fund's counsel as to the legality and validity of the
issuance, which opinion may provide that it is contingent upon the filing by the
Fund of an appropriate notice with the SEC, as required by Rule 24f-2 of the
Investment Company Act, as amended from time to time.
SECTION 4. Transfers of Shares shall be registered and,
subject to the provisions of SECTION 10 in the case of Shares evidenced by Share
Certificates, new Share Certificates shall be issued by Investor Services upon
surrender of outstanding Share Certificates in the form deemed by Invesor
Services to be properly endorsed for transfer, which form shall include (i) all
necessary endorsers' signatures guaranteed by a member firm of a national
securities exchange or a domestic commercial bank or through other procedures
mutually agreed to between the Fund and Investor Services, (ii) such assurances
as Investor Services may deem necessary to evidence the genuineness and
effectiveness of each endorsement and (iii) satisfactory evidence of compliance
with all applicable laws relating to the payment or collection of taxes.
SECTION 5. Investor Services shall forward Share Certificates
in "non-negotiable" form by first-class or registered mail, or by whatever means
Investor Services deems equally reliable and expeditious. While in transit to
the addressee, all deliveries of Share Certificates shall be insured by Investor
Services as it deems appropriate. Investor Services shall not mail Share
Certificates in "negotiable" form, unless requested in writing by the Fund and
fully indemnified by the Fund to Investor Services' satisfaction.
SECTION 6. In registering transfers of Shares, Investor
Services may rely upon the Uniform Commercial Code as in effect from time to
time in the State of Maryland or, if appropriate, in the State of New Jersey;
provided that Investor Services may rely in addition or alternatively on any
other statutes in effect in the State of New Jersey or in the state under the
laws of which the Fund is incorporated or organized that, in the opinion of
Investor Services' counsel, protect Investor Services and the Fund from
liability arising from (i) not requiring complete documentation in connection
with an issuance or transfer, (ii) registering a transfer without an adverse
claim inquiry, (iii) delaying registration for purposes of an adverse claim
inquiry or (iv) refusing registration in connection with an adverse claim.
SECTION 7. Investor Services may issue new Share Certificates
in place of those lost, destroyed or stolen, upon receiving indemnity
satisfactory to Investor Services; and may issue new Share Certificates in
exchange for, and upon surrender of, mutilated Share Certificates as Investor
Services deems appropriate.
SECTION 8. Unless otherwise directed by the Fund, Investor
Services may issue or register Share Certificates reflecting the signature, or
facsimile thereof, of an officer who has died, resigned or been removed by the
Fund. The Fund shall file promptly with Investor
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Services' approval, adoption or ratification of such action as may be required
by law or by Investor Services.
SECTION 9. Investor Services shall maintain customary share
registry records for Shares of each Series noting the issuance, transfer or
redemption of Shares and the issuance and transfer of Share Certificates.
Investor Services may also maintain for Shares of each Series an account
entitled "Unissued Certificate Account," in which Investor Services will record
the Shares, and fractions thereof, issued and outstanding from time to time for
which issuance of Share Certificates has not been requested. Investor Services
is authorized to keep records for Shares of each Series containing the names and
addresses of record of Shareholders, and the number of Shares, and fractions
thereof, from time to time owned by them for which no Share Certificates are
outstanding. Each Shareholder will be assigned a single account number for
Shares of each Series, even though Shares for which Certificates have been
issued will be accounted for separately.
SECTION 10. Investor Services shall issue Share Certificates
for Shares only upon receipt of a written request from a Shareholder and as
authorized by the Fund. If Shares are purchased or transferred without a request
for the issuance of a Share Certificate, Investor Services shall merely note on
its share registry records the issuance or transfer of the Shares and fractions
thereof and credit or debit, as appropriate, the Unissued Certificate Account
and the respective Shareholders' accounts with the Shares. Whenever Shares, and
fractions thereof, owned by Shareholders are surrendered for redemption,
Investor Services may process the transactions by making appropriate entries in
the stock transfer records, and debiting the Unissued Certificate Account and
the record of issued Shares outstanding; it shall be unnecessary for Investor
Services to reissue Share Certificates in the name of a Portfolio.
SECTION 11. Investor Services shall also perform the usual
duties and functions required of a stock transfer agent for a corporation,
including but not limited to (i) issuing Share Certificates as treasury Shares,
as directed by Written Instructions, and (ii) transferring Share Certificates
from one Shareholder to another in the usual manner. Investor Services may rely
conclusively and act without further investigation upon any list, instruction,
certification, authorization, Share Certificate or other instrument or paper
reasonably believed by it in good faith to be genuine and unaltered, and to have
been signed, countersigned or executed or authorized by a duly-authorized person
or persons, or by the Fund, or upon the advice of counsel for the Fund or for
Investor Services. Investor Services may record any transfer of Share
Certificates which it reasonably believes in good faith to have been duly
authorized, or may refuse to record any transfer of Share Certificates if, in
good faith, it reasonably deems such refusal necessary in order to avoid any
liability on the part of either the Fund or Investor Services.
SECTION 12. Investor Services shall notify the Fund of any
request or demand for the inspection of the Fund's share records. Investor
Services shall abide by the Fund's instructions for granting or denying the
inspection; provided, however, Investor Services may grant the inspection
without such instructions if it is advised by its counsel that failure to do so
will result in liability to Investor Services.
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SECTION 13. Investor Services shall observe the following
procedures in handling funds received:
(a) Upon receipt at the office designated by the Fund of any
check or other order drawn or endorsed to the Fund or otherwise
identified as being for the account of the Fund, and, in the case of a
new account, accompanied by a new account application or sufficient
information to establish an account as provided in the Prospectus,
Investor Services shall stamp the transmittal document accompanying
such check or other order with the name of the Fund and the time and
date of receipt and shall forthwith deposit the proceeds thereof in the
custodial account of the Fund.
(b) In the event that any check or other order for the
purchase of Shares is returned unpaid for any reason, Investor Services
shall, in the absence of other instructions from the Fund, advise the
Fund of the returned check and prepare such documents and information
as may be necessary to cancel promptly any Shares purchased on the
basis of such returned check and any accumulated income dividends and
capital gains distributions paid on such Shares.
(c) As soon as possible after 4:00 p.m., Eastern time or at
such other times as the Fund may specify in Written or Oral
Instructions for any Series (the "Valuation Time") on each Business Day
Investor Services shall obtain from the Fund's Adviser a quotation (on
which it may conclusively rely) of the net asset value, determined as
of the Valuation Time on that day. On each Business Day Investor
Services shall use the net asset value(s) determined by the Fund's
Adviser to compute the number of Shares and fractional Shares to be
purchased and the aggregate purchase proceeds to be deposited with the
Custodian. As necessary but no more frequently than daily (unless a
more frequent basis is agreed to by Investor Services), Investor
Services shall place a purchase order with the Custodian for the proper
number of Shares and fractional Shares to be purchased and promptly
thereafter shall send written confirmation of such purchase to the
Custodian and the Fund.
SECTION 14. Having made the calculations required by SECTION
13, Investor Services shall thereupon pay the Custodian the aggregate net asset
value of the Shares purchased. The aggregate number of Shares and fractional
Shares purchased shall then be issued daily and credited by Investor Services to
the Unissued Certificate Account. Investor Services shall also credit each
Shareholder's separate account with the number of Shares purchased by such
Shareholder. Investor Services shall mail written confirmation of the purchase
to each Shareholder or the Shareholder's representative and to the Fund if
requested. Each confirmation shall indicate the prior Share balance, the new
Share balance, the Shares for which Stock Certificates are outstanding (if any),
the amount invested and the price paid for the newly-purchased Shares.
SECTION 15. Prior to the Valuation Time on each Business Day,
as specified in accordance with SECTION 13, Investor Services shall process all
requests to redeem Shares and, with respect to each Portfolio, shall advise the
Custodian of (i) the total number of Shares available for redemption and (ii)
the number of Shares and fractional Shares requested to be
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redeemed. Upon confirmation of the net asset value by the Fund's Adviser,
Investor Services shall notify the Fund and the Custodian of the redemption,
apply the redemption proceeds in accordance with SECTION 16 and the Prospectus,
record the redemption in the share registry books, and debit the redeemed Shares
from the Unissued Certificates Account and the individual account of the
Shareholder.
In lieu of carrying out the redemption procedures described in
the preceding paragraph, Investor Services may, at the request of the Fund, sell
Shares to the Fund as repurchases from Shareholders, provided that the sale
price is not less than the applicable redemption price. The redemption
procedures shall then be appropriately modified.
SECTION 16. Investor Services will carry out the following
procedures with respect to Share redemptions:
(a) As to each request received by the Fund from or on behalf
of a Shareholder for the redemption of Shares, and unless the right of
redemption has been suspended as contemplated by the Prospectus,
Investor Services shall, within seven days after receipt of such
redemption request, either (i) mail a check in the amount of the
proceeds of such redemption to the person designated by the Shareholder
or other person to receive such proceeds or, (ii) in the event
redemption proceeds are to be wired through the Federal Reserve Wire
System or by bank wire pursuant to procedures described in the
Prospectus, cause such proceeds to be wired in Federal funds to the
bank or trust company account designated by the Shareholder to receive
such proceeds. Investor Services shall also prepare and send a
confirmation of such redemption to the Shareholder. Redemptions in kind
shall be made only in accordance with such Written Instructions as
Investor Services may receive from the Fund. The requirements as to
instruments of transfer and other documentation, the determination of
the appropriate redemption price and the time of payment shall be as
provided in the Prospectus, subject to such additional requirements
consistent therewith as may be established by mutual agreement between
the Fund and Investor Services. In the case of a request for redemption
that does not comply in all respects with the requirements for
redemption, Investor Services shall promptly so notify the Shareholder
and shall effect such redemption at the price in effect at the time of
receipt of documents complying with such requirements. Investor
Services shall notify the Fund's Custodian and the Fund on each
Business Day of the amount of cash required to meet payments made
pursuant to the provisions of this paragraph and thereupon the Fund
shall instruct the Custodian to make available to Investor Services in
timely fashion sufficient funds therefor.
(b) Procedures and standards for effecting and accepting
redemption orders from Shareholders by telephone or by such check
writing service as the Fund may institute may be established by mutual
agreement between Investor Services and the Fund consistent with the
Prospectus.
(c) For purposes of redemption of Shares that have been
purchased by check within fifteen (15) days prior to receipt of the
redemption request, the Fund shall provide
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Investor Services with Written Instructions concerning the time within
which such requests may be honored.
(d) Investor Services shall process withdrawal orders duly
executed by Shareholders in accordance with the terms of any withdrawal
plan instituted by the Fund and described in the Prospectus. Payments
upon such withdrawal orders and redemptions of Shares held in
withdrawal plan accounts in connection with such payments shall be made
at such times as the Fund may determine in accordance with the
Prospectus.
(e) The authority of Investor Services to perform its
responsibilities under SECTIONS 15 and 16 with respect to the Shares of
any Series shall be suspended if Investor Services receives notice of
the suspension of the determination of the net asset value of the
Series.
SECTION 17. Upon the declaration of each dividend and each
capital gains distribution by the Fund's Directors, the Fund shall notify
Investor Services of the date of such declaration, the amount payable per Share,
the record date for determining the Shareholders entitled to payment, the
payment and the reinvestment date price.
SECTION 18. Upon being advised by the Fund of the declaration
of any income dividend or capital gains distribution on account of its Shares,
Investor Services shall compute and prepare for the Fund records crediting such
distributions to Shareholders. Investor Services shall, on or before the payment
date of any dividend or distribution, notify the Fund and the Custodian of the
estimated amount required to pay any portion of a dividend or distribution which
is payable in cash, and thereupon the Fund shall, on or before the payment date
of such dividend or distribution, instruct the Custodian to make available to
Investor Services sufficient funds for the payment of such cash amount. Investor
Services will, on the designated payment date, reinvest all dividends in
additional shares and promptly mail to each Shareholder at his address of record
a statement showing the number of full and fractional Shares (rounded to three
decimal places) then owned by the Shareholder and the net asset value of such
Shares; provided, however, that if a Shareholder elects to receive dividends in
cash, Investor Services shall prepare a check in the appropriate amount and mail
it to the Shareholder at his address of record within five (5) business days
after the designated payment date, or transmit the appropriate amount in Federal
funds in accordance with the Shareholder's agreement with the Fund.
SECTION 19. Investor Services shall prepare and maintain for
the Fund records showing for each Shareholder's account the following:
A. The name, address and tax identification number of the
Shareholder;
B. The number of Shares of each Series held by the
Shareholder;
C. Historical information including dividends paid and date
and price for all transactions;
D. Any stop or restraining order placed against such account;
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E. Information with respect to the withholding of any portion
of income dividends or capital gains distributions as are required to
be withheld under applicable law;
F. Any dividend or distribution reinvestment election,
withdrawal plan application, and correspondence relating to the current
maintenance of the account;
G. The certificate numbers and denominations of any Share
Certificates issued to the Shareholder; and
H. Any additional information required by Investor Services to
perform the services contemplated by this Agreement. Investor Services
agrees to make available upon request by the Fund or the Fund's Adviser
and to preserve for the periods prescribed in Rule 31a-2 of the
Investment Company Act any records related to services provided under
this Agreement and required to be maintained by Rule 31a-1 of that Act,
including:
(i) Copies of the daily transaction register for each
Business Day of the Fund;
(ii) Copies of all dividend, distribution and
reinvestment blotters;
(iii) Schedules of the quantities of Shares of each
Series distributed in each state for purposes of any state's
laws or regulations as specified in Oral or Written
Instructions given to Investor Services from time to time by
the Fund or its agents; and
(iv) Such other information, including Shareholder
lists, and statistical information as may be agreed upon from
time to time by the Fund and Investor Services.
SECTION 20. Investor Services shall maintain those records
necessary to enable the Fund to file, in a timely manner, form N-SAR
(Semi-Annual Report) or any successor report required by the Investment Company
Act or rules and regulations thereunder.
SECTION 21. Investor Services shall cooperate with the Fund's
independent public accountants and shall take reasonable action to make all
necessary information available to such accountants for the performance of their
duties.
SECTION 22. In addition to the services described above,
Investor Services will perform other services for the Fund as may be mutually
agreed upon in writing from time to time, which may include preparing and filing
Federal tax forms with the Internal Revenue Service, and, subject to supervisory
oversight by the Fund's Adviser, mailing Federal tax information to
Shareholders, mailing semi-annual Shareholder reports, preparing the annual list
of Shareholders, mailing notices of Shareholders' meetings, proxies and proxy
statements and tabulating proxies. Investor Services shall answer the inquiries
of certain Shareholders related to their share accounts and other correspondence
requiring an answer from the Fund. Investor Services shall maintain dated copies
of written communications from Shareholders, and replies thereto.
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SECTION 23. Nothing contained in this Agreement is intended to
or shall require Investor Services, in any capacity hereunder, to perform any
functions or duties on any day other than a Business Day. Functions or duties
normally scheduled to be performed on any day which is not a Business Day shall
be performed on, and as of, the next Business Day, unless otherwise required by
law.
SECTION 24. For the services rendered by Investor Services as
described above, the Fund shall pay to Investor Services fees based upon a fee
schedule to be mutually agreed upon from time to time. Such fee shall be
prorated for the months in which this Agreement becomes effective or is
terminated. In addition, the Fund shall pay, or Investor Services shall be
reimbursed for, all out-of-pocket expenses incurred in the performance of this
Agreement, including but not limited to the cost of stationery, forms, supplies,
blank checks, stock certificates, proxies and proxy solicitation and tabulation
costs, all forms and statements used by Investor Services in communicating with
Shareholders of the Fund or especially prepared for use in connection with its
services hereunder, specific software enhancements as requested by the Fund,
costs associated with maintaining withholding accounts (including non-resident
alien, Federal government and state), postage, telephone, telegraph (or similar
electronic media) used in communicating with Shareholders or their
representatives, outside mailing services, microfiche/microfilm, freight charges
and off-site record storage. It is agreed in this regard that Investor Services,
prior to ordering any form in such supply as it estimates will be adequate for
more than two years' use, shall obtain the written consent of the Fund. All
forms for which Investor Services has received reimbursement from the Fund shall
be the property of the Fund.
SECTION 25. Investor Services shall not be liable for any
taxes, assessments or governmental charges that may be levied or assessed on any
basis whatsoever in connection with the Fund or any Shareholder, excluding taxes
assessed against Investor Services for compensation received by it hereunder.
SECTION 26. (a) Investor Services shall at all times act in
good faith and with reasonable care in performing the services to be provided by
it under this Agreement, but shall not be liable for any loss or damage unless
such loss or damage is caused by the negligence, bad faith or willful misconduct
of Investor Services or its employees or agents.
(b) The Fund shall indemnify and hold Investor Services
harmless from all loss, cost, damage and expense, including reasonable expenses
for counsel, incurred by it resulting from any claim, demand, action or suit in
connection with the performance of its duties hereunder, or as a result of
acting upon any instruction reasonably believed by it to have been properly
given by a duly authorized officer of the Fund, or upon any information, data,
records or documents provided to Investor Services or its agents by computer
tape, telex, CRT data entry or other similar means authorized by the Fund;
provided that this indemnification shall not apply to actions or omissions of
Investor Services in cases of its own bad faith, willful misconduct or
negligence, and provided further that if in any case the Fund may be asked to
indemnify or hold Investor Services harmless pursuant to this Section, the Fund
shall have been fully and promptly advised by Investor Services of all material
facts concerning the situation in question. The Fund shall have the option to
defend Investor Services against any claim which may be the subject of this
indemnification, and in the event that the Fund so elects it will so notify
Investor Services,
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and thereupon the Fund shall retain competent counsel to undertake defense of
the claim, and Investor Services shall in such situations incur no further legal
or other expenses for which it may seek indemnification under this paragraph.
Investor Services shall in no case confess any claim or make any compromise in
any case in which the Fund may be asked to indemnify Investor Services except
with the Fund's prior written consent.
Without limiting the foregoing:
(i) Investor Services may rely upon the advice of the Fund or
counsel to the Fund or Investor Services, and upon statements of
accountants, brokers and other persons believed by Investor Services in
good faith to be expert in the matters upon which they are consulted.
Investor Services shall not be liable for any action taken in good
faith reliance upon such advice or statements;
(ii) Investor Services shall not be liable for any action
reasonably taken in good faith reliance upon any Written Instructions
or certified copy of any resolution of the Fund's Directors, including
a Written Instruction authorizing Investor Services to make payment
upon redemption of Shares without a signature guarantee; provided,
however, that upon receipt of a Written Instruction countermanding a
prior Instruction that has not been fully executed by Investor
Services, Investor Services shall verify the content of the second
Instruction and honor it, to the extent possible. Investor Services may
rely upon the genuineness of any such document, or copy thereof,
reasonably believed by Investor Services in good faith to have been
validly executed;
(iii) Investor Services may rely, and shall be protected by
the Fund in acting, upon any signature, instruction, request, letter of
transmittal, certificate, opinion of counsel, statement, instrument,
report, notice, consent, order, or other paper or document reasonably
believed by it in good faith to be genuine and to have been signed or
presented by the purchaser, the Fund or other proper party or parties;
and
(c) Investor Services may, with the consent of the Fund,
subcontract the performance of any portion of any service to be provided
hereunder, including with respect to any Shareholder or group of Shareholders,
to any agent of Investor Services and may reimburse the agent for the services
it performs at such rates as Investor Services may determine; provided that no
such reimbursement will increase the amount payable by the Fund pursuant to this
Agreement; and provided further, that Investor Services shall remain ultimately
responsible as transfer agent to the Fund.
SECTION 27. The Fund shall deliver or cause to be delivered
over to Investor Services (i) an accurate list of Shareholders, showing each
Shareholder's address of record, number of Shares of each Series owned and
whether such Shares are represented by outstanding Share Certificates or by
non-certificated Share accounts and (ii) all Shareholder records, files, and
other materials necessary or appropriate for proper performance of the functions
assumed by Investor Services under this Agreement (collectively referred to as
the "Materials"). The Fund shall indemnify Investor Services and hold it
harmless from any and all expenses, damages, claims, suits, liabilities,
actions, demands and losses arising out of or in connection with any
9
error, omission, inaccuracy or other deficiency of such Materials, or out of the
failure of the Fund to provide any portion of the Materials or to provide any
information in the Fund's possession needed by Investor Services to
knowledgeably perform its functions; provided the Fund shall have no obligation
to indemnify Investor Services or hold it harmless with respect to any expenses,
damages, claims, suits, liabilities, actions, demands or losses caused directly
or indirectly by acts or omissions of Investor Services or the Fund's Adviser.
SECTION 28. This Agreement may be amended from time to time by
a written supplemental agreement executed by the Fund and Investor Services and
without notice to or approval of the Shareholders; provided this Agreement may
not be amended in any manner which would substantially increase the Fund's
obligations hereunder unless the amendment is first approved by the Fund's
Directors, including a majority of the Directors who are not a party to this
Agreement or interested persons of any such party, at a meeting called for such
purpose, and thereafter is approved by the Fund's Shareholders if such approval
is required under the Investment Company Act or the rules and regulations
thereunder. The parties hereto may adopt procedures as may be appropriate or
practical under the circumstances, and Investor Services may conclusively rely
on the determination of the Fund that any procedure that has been approved by
the Fund does not conflict with or violate any requirement of its Articles of
Incorporation, Bylaws or Prospectus, or any rule, regulation or requirement of
any regulatory body.
SECTION 29. The Fund shall file with Investor Services a
certified copy of each operative resolution of its Directors authorizing the
execution of Written Instructions or the transmittal of Oral Instructions and
setting forth authentic signatures of all signatories authorized to sign on
behalf of the Fund and specifying the person or persons authorized to give Oral
Instructions on behalf of the Fund. Such resolution shall constitute conclusive
evidence of the authority of the person or persons designated therein to act and
shall be considered in full force and effect, with Investor Services fully
protected in acting in reliance thereon, until Investor Services receives a
certified copy of a replacement resolution adding or deleting a person or
persons authorized to give Written or Oral Instructions. If the officer
certifying the resolution is authorized to give Oral Instructions, the
certification shall also be signed by a second officer of the Fund.
SECTION 30. The terms, as defined in this Section, whenever
used in this Agreement or in any amendment or supplement hereto, shall have the
meanings specified below, insofar as the context will allow.
(a) Business Day: Any day on which the Fund is open for
business as described in the Prospectus.
(b) Custodian: The term Custodian shall mean the Fund's
current custodian or any successor custodian acting as such for the
Fund.
(c) Fund's Adviser: The term Fund's Adviser shall mean
Alliance Capital Management L.P. or any successor thereto who acts as
the investment adviser or manager of the Fund.
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(d) Oral Instructions: The term Oral Instructions shall mean
an authorization, instruction, approval, item or set of data, or
information of any kind transmitted to Investor Services in person or
by telephone, vocal telegram or other electronic means, by a person or
persons reasonably believed in good faith by Investor Services to be a
person or persons authorized by a resolution of the Directors of the
Fund to give Oral Instructions on behalf of the Fund. Each Oral
Instruction shall specify whether it is applicable to the entire Fund
or a specific Series of the Fund.
(e) Prospectus: The term Prospectus shall mean a prospectus
and related statement of additional information forming part of a
currently effective registration statement under the Investment Company
Act and, as used with the respect to Shares or Shares of a Series,
shall mean the prospectuses and related statements of additional
information covering the Shares or Shares of the Series.
(f) Securities: The term Securities shall mean bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities and investments from time to time owned by the Fund.
(g) Series: The term Series shall mean any series of Shares of
the Fund that the Fund may establish from time to time.
(h) Share Certificates: The term Share Certificates shall mean
the certificates for the Shares.
(i) Shareholders: The term Shareholders shall mean the
registered owners from time to time of the Shares, as reflected on the
share registry records of the Fund.
(j) Written Instructions: The term Written Instructions shall
mean an authorization, instruction, approval, item or set of data, or
information of any kind transmitted to Investor Services in original
writing containing original signatures, or a copy of such document
transmitted by telecopy, including transmission of such signature, or
other mechanical or documentary means, at the request of a person or
persons reasonably believed in good faith by Investor Services to be a
person or persons authorized by a resolution of the Directors of the
Fund to give Written Instruction shall specify whether it is applicable
to the entire Fund or a specific Series of the Fund.
SECTION 31. Investor Services shall not be liable for the loss
of all or part of any record maintained or preserved by it pursuant to this
Agreement or for any delays or errors occurring by reason of circumstances
beyond its control, including but not limited to acts of civil or military
authorities, national emergencies, fire, flood or catastrophe, acts of God,
insurrection, war, riot, or failure of transportation, communication or power
supply, except to the extent that Investor Services shall have failed to use its
best efforts to minimize the likelihood of occurrence of such circumstances or
to mitigate any loss or damage to the Fund caused by such circumstances.
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SECTION 32. The Fund may give Investor Services sixty (60)
days and Investor Services may give the Fund (90) days written notice of the
termination of this Agreement, such termination to take effect at the time
specified in the notice. Upon notice of termination, the Fund shall use its best
efforts to obtain a successor transfer agent. If a successor transfer agent is
not appointed within ninety (90) days after the date of the notice of
termination, the Directors of the Fund shall, by resolution, designate the Fund
as its own transfer agent. Upon receipt of written notice from the Fund of the
appointment of the successor transfer agent and upon receipt of Oral or Written
Instructions Investor Services shall, upon request of the Fund and the successor
transfer agent and upon payment of Investor Services reasonable charges and
disbursements, promptly transfer to the successor transfer agent the original or
copies of all books and records maintained by Investor Services hereunder and
cooperate with, and provide reasonable assistance to, the successor transfer
agent in the establishment of the books and records necessary to carry out its
responsibilities hereunder.
SECTION 33. Any notice or other communication required by or
permitted to be given in connection with this Agreement shall be in writing, and
shall be delivered in person or sent by first-class mail, postage prepaid, to
the respective parties.
Notice to the Fund shall be given as follows until further
notice:
Xxxxxxx X. Xxxxxxxxx Fund, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Notice to Investor Services shall be given as follows until further notice:
Alliance Global Investor Services, Inc.
000 Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
SECTION 34. The Fund represents and warrants to Investor
Services that the execution and delivery of this Agreement by the undersigned
officer of the Fund has been duly and validly authorized by resolution of the
Fund's Directors. Investor Services represents and warrants to the Fund that the
execution and delivery of this Agreement by the undersigned officer of Investor
Services has also been duly and validly authorized.
SECTION 35. This Agreement may be executed in more than one
counterpart, each of which shall be deemed to be an original, and shall become
effective on the last date of signature below unless otherwise agreed by the
parties. Unless sooner terminated pursuant to SECTION 32, this Agreement will
continue in effect so long as its continuance is specifically approved at least
annually by the Directors or by a vote of the stockholders of the Fund and in
either case by a majority of the Directors who are not parties to this Agreement
or interested persons of any such party, at a meeting called for the purpose of
voting on this Agreement.
12
SECTION 36. This Agreement shall extend to and shall bind the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the written
consent of Investor Services or by Investor Services without the written consent
of the Fund, authorized or approved by a resolution of the Fund's Directors.
Notwithstanding the foregoing, either party may assign this Agreement without
the consent of the other party so long as the assignee is an affiliate, parent
or subsidiary of the assigning party and is qualified to act under the
Investment Company Act, as amended from time to time.
SECTION 37. This Agreement shall be governed by the laws of
the State of New Jersey.
WITNESS the following signatures:
XXXXXXX X. XXXXXXXXX FUND, INC.
BY: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
TITLE: Secretary
ALLIANCE GLOBAL INVESTOR SERVICES, INC.
BY: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
TITLE: Senior Vice President and
General Counsel
13
SCHEDULE I
New York Municipal Portfolio
----------------------------
Alliance Intermediate New York Municipal Class A shares
Alliance Intermediate New York Municipal Class B shares
Alliance Intermediate New York Municipal Class C shares
California Municipal Portfolio
------------------------------
Alliance Intermediate California Municipal Class A shares
Alliance Intermediate California Municipal Class B shares
Alliance Intermediate California Municipal Class C shares
Diversified Municipal Portfolio
-------------------------------
Alliance Intermediate Diversified Municipal Class A shares
Alliance Intermediate Diversified Municipal Class B shares
Alliance Intermediate Diversified Municipal Class C shares
