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EXHIBIT 9(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE BAUPOST FUND
and
STATE STREET BANK AND TRUST COMPANY
Domestic/Trust
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TABLE OF CONTENTS
Page
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1. Terms of Appointment; Duties of the Bank........................................................1
2. Fees and Expenses...............................................................................3
3. Representations and Warranties of the Bank......................................................3
4. Representations and Warranties of the Fund......................................................4
5. Data Access and Proprietary Information.........................................................4
6. Indemnification.................................................................................6
7. Standard of Care................................................................................7
8. Covenants of the Fund and the Bank..............................................................8
9. Termination of Agreement........................................................................8
10. Assignment......................................................................................9
11. Amendment.......................................................................................9
12. Massachusetts Law to Apply......................................................................9
13. Force Majeure...................................................................................9
14. Consequential Damages..........................................................................10
15. Merger of Agreement............................................................................10
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16. Limitations of Liability of the Trustees
and Shareholders...............................................................................10
17. Counterparts...................................................................................10
18. Reproduction of Documents......................................................................10
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 31st day of October, 1997, by and between THE BAUPOST
FUND, a Massachusetts business trust, having its principal office and place of
business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Fund"), and
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its transfer agent, dividend
disbursing agent and agent in connection with certain other activities, and the
Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Terms of Appointment; Duties of the Bank
1.1 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Bank to act as, and the Bank
agrees to act as, its transfer agent for the Fund's authorized and
issued shares of its beneficial interests ("Shares"), dividend
disbursing agent, and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of the Fund
("Shareholders") and set out in the currently effective prospectus and
statement of additional information ("prospectus") of the Fund.
1.2 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to
time by agreement between the Fund and the Bank, the Bank
shall:
(i) Receive orders for the purchase of
Shares by Shareholders from The Baupost Group, Inc.
and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund
(the "Custodian");
(ii) Pursuant to purchase orders, issue the
appropriate number of Shares and hold such Shares in
the appropriate Shareholder account;
(iii) Receive redemption requests and
redemption directions by
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Shareholders from The Baupost Group, Inc. and deliver
the appropriate documentation thereof 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 and as
permitted by the prospectus;
(v) 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;
(ix) Maintain records of account for and
advise the Fund and its Shareholders as to the
foregoing; and
(x) 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 which are
authorized, based upon data provided to it by the
Fund, and issued and outstanding. The Bank shall also
provide the 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 take cognizance
of any laws relating to the issue or sale of such
Shares.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall perform the
following customary services of a transfer agent, dividend disbursing agent,
and, as relevant, agent in connection with accumulation, open-account or similar
plans: maintaining all Shareholder accounts, preparing Shareholder meeting
lists, 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 to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing to The Baupost Group,
Inc. for forwarding to Shareholders confirmation forms and statements of account
for all purchases and redemptions of Shares and other confirmable transactions
in Shareholder accounts, preparing and mailing to The Baupost Group, Inc. for
forwarding to Shareholders activity statements for Shareholders, and providing
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Shareholder account information to The Baupost Group, Inc., which will
communicate directly with Shareholders.
(c) In addition, the Fund shall (i) identify to the Bank 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 the Bank 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 and the Bank per the attached
service responsibility schedule. The Bank may at times perform
only a portion of these services and the Fund or its agent may
perform these services on the Fund's behalf.
(e) The Bank shall provide additional services on behalf of
the Fund (i.e., escheatment services) which may be agreed upon
in writing between the Fund and the Bank.
2. Fees and Expenses
2.1 For the performance by the Bank pursuant to this Agreement, the Fund
agrees to pay the Bank 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
2.2 below may be changed from time to time subject to mutual written
agreement between the Fund and the Bank.
2.2 In addition to the fee paid under Section 2.1 above, the Fund agrees to
reimburse the Bank for reasonable and documented out-of-pocket
expenses, including but not limited to confirmation production,
postage, forms, telephone, microfilm, microfiche, tabulating proxies,
records storage, or advances incurred by the Bank for the items set out
in the fee schedule attached hereto. In addition, any other expenses
incurred by the Bank at the request or with the consent of the Fund
will be reimbursed by the Fund.
2.3 The Fund agrees to pay all fees and reimbursable expenses within five
days following the
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receipt of the respective billing notice. Postage for mailing of
dividends, proxies, Fund reports and other mailings to all shareholder
accounts shall be advanced to the Bank by the Fund at least seven (7)
days prior to the mailing date of such materials.
3. Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
3.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement and the performance of its duties
hereunder will not violate the provisions of any other agreement to
which it is bound.
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 the Bank that:
4.1 It is a business trust duly organized and existing under the laws of
The Commonwealth of Massachusetts.
4.2 It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
4.3 All corporate proceedings required by said Agreement and Declaration of
Trust and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.4 It is an open-end, non-diversified management investment company
registered under the
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Investment Company Act of 1940, as amended.
4.5 A registration statement of the Fund has been filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended,
is currently effective, and will remain effective and appropriate state
securities law filings have been made and will continue to be made with
respect to all Shares of the Fund being offered for sale and for Shares
of the Fund sold.
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 the Bank as part of the
Fund's ability to access certain Fund-related data ("Customer Data")
maintained by the Bank on data bases under the control and ownership of
the Bank or a third party, if any, ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the
Bank or a third party, if any. In no event shall Proprietary
Information be deemed Customer Data. The Fund agrees to treat all
Proprietary Information as proprietary to the Bank and further agrees
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 the Bank and solely in accordance
with the Bank's applicable user documentation;
(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 the
Bank's 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
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written consent of the Bank;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by the Bank
to protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law, under federal copyright
law and under other federal or state law.
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 earlier termination of this Agreement.
5.2 If the Fund notifies the Bank that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, the Bank shall endeavor in a timely
manner to correct such failure. Organizations from which the Bank 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 the Bank 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. THE BANK 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.
5.3 If the transactions available to the Fund include the ability to
originate electronic instructions to the Bank in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event the Bank shall be
entitled to rely on the reasonable validity and authenticity of such
instruction without undertaking any further inquiry (provided that no
circumstances exist that would make the lack of further inquiry
unreasonable) as long as such instruction is undertaken in conformity
with security procedures established by the Bank from time to time.
6. Indemnification
6.1 The Bank shall not be responsible for, and the Fund shall indemnify and
hold the Bank harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments,
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expenses and liability arising out of or attributable to:
(a) All actions of the Bank or its agents or subcontractors
required to be taken pursuant to this Agreement; provided,
that the Bank's actions are taken in good faith and without
negligence, misfeasance, or willful misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or services
which (i) are received by the Bank 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 including but not limited to any previous transfer
agent or registrar; provided, that the Bank's actions are
taken in good faith and without negligence, misfeasance or
willful misconduct. . (d) The reliance on, or the carrying out
by the Bank or its agents or subcontractors of, any
instructions or requests of the Fund, unless the Bank or its
agent or subcontractors receives clear written later
instructions to the contrary; provided, that the Bank's
actions are taken in good faith and without negligence,
misfeasance or willful misconduct. . (e) The offer or sale of
Shares in violation of federal or state securities laws or
that such Shares be registered or in violation of any stop
order or other determination or ruling by any federal or any
state agency with respect to the offer or sale of such Shares.
(f) The negotiation and processing by the Bank of checks not
made payable to the order of the Bank, the Fund, the Fund's
investment adviser, transfer agent or distributor or the
retirement account custodian or trustee for a plan account
investing in Shares, which checks are tendered to the Bank for
the purchase of Shares (i.e., checks made payable to
prospective or existing Shareholders, such checks are commonly
known as "third party checks") ; provided, that the Bank's
actions are taken in good faith and without negligence,
misfeasance or willful misconduct. .
6.2 At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be
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performed by the Bank under this Agreement, and the Bank and its agents
or subcontractors shall not be liable and shall be indemnified by the
Fund for any action taken or omitted by it in reasonable reliance upon
such instructions or upon the opinion of such counsel; provided,
however that such counsel has been selected with reasonable care. The
Bank, its agents and subcontractors shall be protected and indemnified
in acting upon any paper or document furnished 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 the Bank 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. The Bank, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates
which are reasonably believed to bear the proper manual or facsimile
signatures of the officers of the Fund, and the proper countersignature
of any former transfer agent or former registrar, or of a co-transfer
agent or co-registrar.
6.3 Upon the assertion of a claim for which the Fund may be required to
indemnify the Bank, the Bank shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all
developments concerning such claim; provided, however, that the failure
to so advise, identify or notify the Fund shall not in any way limit
the Fund's liability for indemnification under this Agreement with
respect to any such claim to the extent that the defense thereof is not
materially prejudiced by such failure. The Fund shall have the option
to participate with the Bank in the defense of such claim or, upon
acknowledging to the Bank in writing that the claim is such that the
Fund is required to indemnify the Bank, to defend against said claim in
its own name or in the name of the Bank. In the event the Fund assumes
control of any such defense proceeding, the Fund shall keep the Bank
notified of the progress of such proceeding and, upon request, consult
with the Bank and counsel to the Bank. The Fund shall not settle or
compromise any proceeding without the prior written consent of the Bank
unless (i) such settlement or compromise involves no admission or
guilt, wrongdoing, or any obligations or restrictions on the Bank other
than obligations to pay money that are subject to the indemnity under
this Agreement, and (iii) the Fund shall have paid, or made
arrangements satisfactory to the Bank for payment of amounts payable by
the Bank in connection with such settlement. The Bank shall in no case
confess any claim or make any compromise in any case in which the Fund
will be asked to indemnify the Bank except with the Fund's prior
written consent.
7. Standard of Care
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The Bank 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, misfeasance, bad faith, or willful
misconduct.
8. Covenants of the Fund and the Bank
8.1 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the appointment of the Bank
and the execution and delivery of this Agreement.
(b) A copy of the Agreement and Declaration of Trust and
By-Laws of the Fund and all amendments thereto.
8.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices,
if any; and for the preparation or use, and for keeping account of,
such certificates, forms and devices.
8.3 The Bank 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, the Bank agrees that all such
records prepared or maintained by the Bank relating to the services to
be performed by the Bank 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.
8.4 The Bank 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.
8.5 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund
as to such inspection. The Bank reserves the right, however, to exhibit
the
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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 sixty (60) days
written notice to the other.
9.2 Should the Fund exercise its right to terminate, all reasonable
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund.
10. Assignment
10.1 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other
party.
10.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
10.3 The Bank may, with the consent of the Fund, 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)(2) of the Securities Exchange
Act of 1934, as amended ("Section 17A(c)(2)"), (ii) a BFDS subsidiary
duly registered as a transfer agent pursuant to Section 17A(c)(2) or
(iii) a BFDS affiliate; provided, however, that the Bank shall be as
fully responsible to the Fund for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
11. 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 Trustees of the Fund.
12. Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
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13. 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.
14. Consequential Damages
Neither party to this Agreement shall be liable to the other 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.
15. 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.
16. Limitations of Liability of the Trustees and Shareholders
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees
of the Fund as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or
Shareholders individually but are binding only upon the assets and
property of the Fund.
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.
18. Reproduction of Documents
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The
parties hereto all/each agree that any such reproduction shall be
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admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence
and whether or not such reproduction was made by a party in the regular
course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
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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.
ATTEST: THE BAUPOST FUND
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Title: Vice President
ATTEST: STATE STREET BANK AND TRUST
COMPANY
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- ------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President Executive Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST COMPANY
FUND SERVICE RESPONSIBILITIES
Service Performed Responsibility
Bank Fund
1. Receive orders for the purchase NO YES
of Shares.
2. Issue Shares and hold Shares in
Shareholders accounts. YES NO
3. Receive redemption requests. NO YES
4. Effect transactions 1-3 above
directly with broker-dealers. N/A N/A
5. Pay over monies to redeeming
Shareholders. YES NO
6. Effect transfers of Shares. YES NO
7. Prepare and transmit dividends
and distributions. YES NO
8. Issue Replacement Certificates. N/A N/A
9. Reporting of abandoned property. N/A N/A
10. Maintain records of account. YES NO
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Service Performed
Responsibility
Bank Fund
11. Maintain and keep a current and
accurate control book for each
issue of securities. N/A N/A
12. Mail proxies. NO YES
13. Mail Shareholder reports. NO YES
14. Mail prospectuses to current NO YES
Shareholders.
15. Withhold taxes on U.S. resident
and non-resident alien accounts. YES NO
16. Prepare and file U.S. Treasury
Department forms. YES NO
17. Prepare account and
confirmation statements for
Shareholders. YES NO
18. Mail account and confirmation
statements to Shareholders. NO YES
19. Provide Shareholder account
information to Shareholders. NO YES
20. Blue sky reporting. NO YES
* Such services are more fully described in Section 1.2 (a), (b) and (c)
of the Agreement.
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ATTEST: THE BAUPOST FUND
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ATTEST: STATE STREET BANK AND TRUST
COMPANY
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President Executive Vice President