Exhibit (9)(h)
FIFTH AMENDMENT TO THE TRANSFER AGENCY AGREEMENT
AGREEMENT made as of July 16 , 1996, by and between Xxxxxxx X. Xxxxxxxxx Fund,
Inc. (the "Fund") and State Street Bank and Trust Company, a Massachusetts trust
company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 (the "Transfer Agent");
WHEREAS the Transfer Agent and the Fund are parties to a Transfer Agency
Agreement dated October 12, 1988, as amended April 30, 1990, March 18, 1992,
April 19, 1994 and August 21, 1995 (the "Transfer Agency Agreement"); and
WHEREAS, Xxxxxxx X. Xxxxxxxxx & Co., Inc., the Fund's investment advisor
("Xxxxxxxxx"), intends to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain prototype defined contribution plans ("Plan" or
"Plans") qualified under section 401(a) of the Internal Revenue Code of 1986,
as amended ("Code"); and
WHEREAS, Trust Consultants, Inc. ("TCI") is mass submitter sponsor in accordance
with IRS procedure 89.9 of the Plans to be adopted by Employers who participate
in the Program and each Employer who participates in the Program shall retain
TCI to provide certain administrative services to the Plan adopted by the
Employer and appoint the Transfer Agent to serve as trustee of the trust(s)
established under the Plan(s) (in such capacity, the "Trustee");
WHEREAS, the Fund will make available to Plans, for investment pursuant to the
Plans, shares ("Shares") of the following portfolios of the Fund: Xxxxxxxxx
Intermediate Duration Portfolio, Xxxxxxxxx Short Duration Plus Portfolio,
Xxxxxxxxx International Value Portfolio, Xxxxxxxxx Emerging Markets Value
Portfolio (the "Portfolios"); and
WHEREAS, the Transfer Agent and the Fund wish to amend the Transfer Agency
Agreement to provide for the Transfer Agent to maintain records and provide
certain additional services to the Fund as set forth in Articles 1 through 5
hereof and to make the other amendments to the Transfer Agency Agreement set
forth in Article 6 hereof.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Availability of Shares
1.1 The Fund will give the Transfer Agent and each Participating Employer one
hundred and twenty (120) days prior notice of the Fund's ceasing to offer Shares
to Plans, or the best possible notice in the event that the Fund is required by
law to cease offering Shares.
2. Appointment of the Transfer Agent as Record-Keeper
2.1 Each Employer participating in the Program who retains TCI and appoints the
Transfer Agent to serve as Trustee is hereinafter referred to as a
"Participating Employer". For each Plan of a Participating Employer, the
Transfer Agent shall maintain individual 401(k) accounts on its records in its
name as Trustee for the benefit of the individual 401(k) Plan participants (the
"Plan Participants") and shall provide to the Fund all of the services described
in Article 1 of the Transfer Agency Agreement with respect to Plan Participants
as if they were Shareholders (as defined in the Transfer Agency Agreement) of
the Fund.
3. Acknowledgments About the Transfer Agent, the Fund and Xxxxxxxxx
3.1 The Transfer Agent and the Fund agree that:
(a) The Transfer Agent shall have no responsibility for the selection of any
investments made for the Plans other than to provide the services set forth in
Article 2 hereof; and
(b) in any communication from the Transfer Agent to any prospective or actual
Employer adopting a Plan or to any Plan Participant, the Transfer Agent shall
not state or represent that it has any investment discretion or other power
concerning investments of any Plan or shall act as Plan Administrator or have
administrative or other responsibility for the administration or operation of
any Plan except as set forth herein.
4. Fees and Expenses; Indemnification
4.1 For the performance by the Transfer Agent pursuant to this Agreement, the
Fund agrees to pay the Transfer Agent fees for each Plan Participant investment
account as set out in the initial Fee Schedule attached hereto.
4.2 The parties agree that there is added to Section 5.01 of the Transfer Agency
Agreement, immediately following subparagraph (e) thereof, the following
subparagraph:
(f) the failure of a Participating Employer to properly direct the investment of
funds in cases where no Participant directions are received or where Participant
directions cannot otherwise be implemented.
5. Covenants of the Fund and the Transfer Agent
5.1 The Transfer Agent shall keep records relating to the services to be
performed hereunder in such form and manner as it may deem advisable. The
Transfer Agent agrees that all such records prepared or maintained by the
Transfer Agent relating to the services to be performed by the Transfer Agent
hereunder are the property of the Fund and each Plan or each Plan Participant as
the case may be, and will be preserved, maintained and made available to each
Plan or each Plan Participant as the case may be, upon their request.
5.2 The Transfer Agent 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.
5.3 In case of any requests or demands for the inspection of the Plan
Participant records, the Transfer Agent will notify the Fund and the Fund will
endeavor to secure instructions from an authorized officer of the applicable
Participating Employer as to such inspection. The Transfer Agent reserves the
right, however, to exhibit the Plan Participant records to each Plan
Participantor to any person whenever it is advised by counsel that it may be
held liable for the failure to exhibit the Plan Participant records to such
person.
5.4 The Fund agrees that at the time that a Program is adopted by a
Participating Employer and an agreement is entered into between the Fund or
Xxxxxxxxx and the Participating Employer, the Fund or Xxxxxxxxx shall require,
as part of such agreement with the Participating Employer that the Participating
Employer or another authorized fiduciary of the Plan deliver directions to the
Trustee regarding the investment of plan assets for which no Participant
directions are received or where implementing Participant directions is
administratively infeasible.
6. Data Access and Proprietary Information
6.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and other information
furnished to the Fund by the Transfer Agent constitute copyrighted trade secrets
or propriety information of substantial value to the Transfer Agent. Such
databases, programs, formats, designs, techniques and other information
constitute "Proprietary Information" of the Transfer Agent. The Fund agrees that
it shall treat all such Proprietary Information as proprietary to the Transfer
Agent and further agrees that it shall not divulge any Proprietary Information
to any person or organization except as required pursuant to the Program or as
expressly permitted hereunder. The Fund agrees for itself and its employees and
agents:
(a) to use such programs and databases (i) solely on the Fund's computers, or
(ii) solely from equipment at the locations agreed to between the Fund and the
Transfer Agent and (iii) in accordance with the Transfer Agent's applicable user
documentation;
(b) to refrain from copying or duplicating in any way (other than in the normal
course of performing processing on the Fund's computers) any part of any
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any programs, data or other
information not owned by the Fund, and if such access is accidentally obtained,
to respect and safeguard as Proprietary Information of the Transfer Agent;
(d) to refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted to any
other computer terminal or other device except as expressly permitted by the
Transfer Agent, (such permission not to be unreasonably withheld);
(e) that the Fund shall have access only to those authorized transactions as
agreed to between the Fund and the Transfer Agent; and
(f) to honor reasonable written requests made by the Transfer Agent to protect
at the Transfer Agent's expense the rights of the Transfer Agent in Proprietary
Information at common law and under applicable statutes.
Each Party shall take reasonable efforts to advise its employees and agents of
their obligations pursuant to this Section 6.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Transfer Agency 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.
XXXXXXX X. XXXXXXXXX FUND, INC.
By: Xxxx Xxxxx Xxxx
Title: Secretary
Attest: Xxxxx Xxxxxx
STATE STREET BANK AND TRUST COMPANY
By: Xxxxxx X. Xxxxx
Title: Executive Vice President
Attest: Xxxxxxxx X. Xxxxx
Fee Schedule
There will be an annual account maintenance fee of $10 for each investment
account maintained pursuant to this Fifth Amendment to the Transfer Agency
Agreement. The fees provided for in this Fee Schedule are separate from the fees
and expenses for other transfer agency accounts and services provided for in
Article 2 of the Transfer Agency Agreement.
