THE STOCKBACK TRUST
TRANSFER AGENCY AGREEMENT
AGREEMENT made this 1st day of January 2000 by and between The
StockBack Trust, a Delaware business trust, having its principal office and
place of business at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Trust"),
▇▇▇▇▇▇▇▇▇.▇▇▇, LLC a Delaware limited liability company ("Stockback"), and
American Data Services, Inc., a New York corporation having its principal office
and place of business at the Hauppauge Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ADS").
WHEREAS, the Trust is an open-end management investment company
registered with the United States Securities and Exchange Commission (the "SEC")
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("Shares") in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets, and is authorized to divide those series into
separate classes; and
WHEREAS, the Trust offers shares in the series as listed in Schedule A
hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 13, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of the classes of each Fund as listed in
Appendix A hereto (each such class together with all other classes subsequently
established by the Trust in a Fund being herein referred to as a "Class," and
collectively as the "Classes");
WHEREAS, ADS is a corporation experienced in providing transfer agency
and related services to mutual funds and possesses facilities sufficient to
provide such services; and
WHEREAS, the Trust desires to appoint ADS as its transfer agent and
dividend disbursing agent for each Fund and Class thereof and ADS desires to
accept such appointment; and
WHEREAS, StockBack is the Sponsor of the Trust;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust, ADS and StockBack hereby agree as
follows:
1. APPOINTMENT AND DELIVERY OF DOCUMENTS
(a) Appointment. The Trust, on behalf of the Funds, hereby appoints ADS
to act as, and ADS agrees to act as, (i) transfer agent for the authorized and
issued shares of beneficial interest stock of the Trust representing interests
in each of the respective Funds and Classes thereof ("Shares"), (ii) dividend
disbursing agent and (iii) agent in connection with any accumulation,
open-account or similar plans provided to the registered owners of shares of any
of the Funds ("Shareholders") and set out in the currently effective
prospectuses and statements of additional information of the applicable Fund,
including, without limitation, any periodic investment plan or periodic
withdrawal program.
(b) Document Delivery. The Trust has delivered to ADS copies of:
(i) the Trust's Agreement and Declaration of Trust and Bylaws
(collectively, as amended from time to time, "Organic Documents");
(ii) the Trust's Registration Statement and all amendments
thereto (the "Registration Statement") filed with the SEC pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), or the
1940 Act;
(iii) the current Prospectus and Statement of Additional
Information of each Fund (collectively, as currently in effect and as
amended or supplemented, the "Prospectus");
(iv) each current plan of distribution or similar document
adopted by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and
each current shareholder service plan or similar document adopted by
the Trust ("Service Plan"); and
(v) the Trust shall promptly furnish ADS with all amendments
or supplements to the foregoing and shall deliver to ADS a certified
copy of the resolution of the Board of Trustees of the Trust (the
"Board") appointing ADS and authorizing the execution and delivery of
this Agreement.
2. DUTIES OF ADS AND THE TRUST
(a) Transfer Agency Services. In accordance with procedures established
from time to time by agreement between the Trust on behalf of each of the Funds,
as applicable, and ADS, ADS will perform the following services:
(i) provide the services of a transfer agent, dividend
disbursing agent and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal program)
that are customary for open-end management investment companies
including:
(A) maintaining all Shareholder accounts;
(B) preparing Shareholder meeting lists;
(C) mailing or electronic distribution of Shareholder
reports and prospectuses to current Shareholders;
(D) withholding taxes on U.S. resident and
non-resident alien accounts;
(E) preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required by federal
authorities with respect to distributions for Shareholders;
(F) providing data to the Trust or StockBack on a
timely basis to enable them to prepare and distribute
confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts; and
(G) coordinating with StockBack to provide account
information in response to inquiries from Shareholders to ADS,
the Trust or StockBack
(ii) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate documentation
therefor to the Custodian of the Fund authorized by the Board of
Directors of the Fund (the "Custodian"); or, in the case of a Fund's
operating in a master-feeder or fund of funds structure, to the
transfer agent or interest-holder recordkeeper for the master
portfolios in which the Fund invests;
(iii) pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate Shareholder
account;
(iv) receive for acceptance redemption requests and deliver
the appropriate documentation therefor to the Custodian or, in the case
of Fund's operating in a master-feeder or fund of funds structure, to
the transfer agent or interest-holder recordkeeper for the master
portfolios in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian
with respect to any redemption, pay the redemption proceeds as required
by the Prospectus pursuant to which the redeemed Shares were offered
and as instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the
appropriate Shareholder accounts) payments for all distributions
declared by the Trust with respect to Shares;
(viii) upon the request of the Trust or StockBack, issue share
certificates and replacement share certificates for those share
certificates alleged to have been lost, stolen, or destroyed upon
receipt by ADS of indemnification satisfactory to ADS and protecting
ADS and the Trust and, at the option of ADS, issue replacement
certificates in place of mutilated share certificates upon presentation
thereof without requiring indemnification;
(ix) receive from Shareholders or debit Shareholder accounts
for sales commissions, including contingent deferred, deferred and
other sales charges, and service fees (i.e., wire redemption charges)
and prepare and transmit payments to underwriters, selected dealers and
others for commissions and service fees received;
(x) track shareholder accounts by financial intermediary
source and otherwise as requested by the Trust and provide periodic
reporting to the Trust or its administrator or other agent;
(xi) maintain records of account for and provide reports and
statements to the Trust and Shareholders as to the foregoing in
accordance with the Prospectus;
(xii) 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
of the Fund which are authorized, based upon data provided to it by the
Fund, and issued and outstanding;
(xiii) provide a system which will enable the Trust to
calculate accurately the total number of Shares of each Fund and Class
thereof sold in each State; and
(xiv) install or implement a Unix server system by March 31,
2000.
(b) Other Services. ADS shall provide the following additional services
on behalf of the Trust and such other services agreed to in writing by the Trust
and ADS:
(i) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States; and
(ii) provide a program to train employees of StockBack in
shareholder servicing.
(c) Blue Sky Matters. The Trust or its administrator or other agent
(i) shall identify to ADS in writing those transactions and
assets to be treated as exempt from reporting for each state and
territory of the United States and for each foreign jurisdiction
(collectively "States"); and
(ii) shall monitor the sales activity with respect to
Shareholders domiciled or resident in each State.
(d) Safekeeping. ADS shall establish and maintain facilities and
procedures reasonably acceptable to the Trust for the safekeeping, control,
preparation and use of share certificates (if the Trust determines to utilize
share certificates), check forms, and facsimile signature imprinting devices.
ADS shall establish and maintain facilities and procedures reasonably acceptable
to the Trust for safekeeping of all records maintained by ADS pursuant to this
Agreement.
(e) Cooperation with Accountants. ADS shall cooperate with each Fund's
independent public accountants and shall take reasonable action to make all
necessary information available to the accountants for the performance of the
accountants' duties.
(f) Responsibility for Compliance with Law.
(i) In General. Except with respect to ADS's duties as set
forth in this Section 2 and except as otherwise specifically provided
herein, the Trust assumes all responsibility for ensuring that the
Trust complies with all applicable requirements of the Securities Act,
the 1940 Act and any laws, rules and regulations of governmental
authorities with jurisdiction over the Trust. All references to any law
in this Agreement shall be deemed to include reference to the
applicable rules and regulations promulgated under authority of the law
and all official interpretations of such law or rules or regulations.
(ii) Issuance of Shares. The responsibility of ADS under this
Agreement for the Trust's state registration status is solely limited
to the reporting of transactions to the Trust, and ADS shall have no
obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to
the issue or sale of such Shares, which functions shall be the sole
responsibility of the Trust or its administrator or other agent.
3. RECORDKEEPING
(a) Recordkeeping. ADS shall keep records relating to the services to
be performed under this Agreement in the form and manner as it may deem
advisable and as required by applicable law. To the extent required by Section
31 of the 1940 Act, and the rules thereunder, ADS agrees that all such records
prepared or maintained by ADS relating to the services to be performed by ADS
under this Agreement are the property of the Trust and will be preserved,
maintained and made available in accordance with Section 31 of the 1940 Act and
the rules thereunder, and will be surrendered promptly to the Trust on and in
accordance with the Trust's request. The Trust and the Trust's authorized
representatives shall have access to ADS's records relating to the services to
be performed under this Agreement at all times during ADS's normal business
hours. Upon the reasonable request of the Trust, copies of any such records
shall be provided promptly by ADS to the Trust or its authorized
representatives.
(b) Confidentiality of Records. ADS and the Trust 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.
(c) Inspection of Records by Others. In case of any requests or demands
for the inspection of the Shareholder records of the Fund, ADS will notify the
Fund and secure instructions from an authorized officer of the Fund as to such
inspection. ADS reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by its counsel that it may be held liable
for the failure to exhibit the Shareholder records to such person, and shall
promptly notify the Fund of any unusual request to inspect or copy the
shareholder records of the Fund or the receipt of any other unusual request to
inspect, copy or produce the records of the Fund.
4. ISSUANCE AND TRANSFER OF SHARES
(a) Issuance of Shares. ADS shall make original issues of Shares of
each Fund and Class thereof in accordance with the Trust's then current
prospectus only upon receipt of
(i) instructions requesting the issuance,
(ii) a certified copy of a resolution of the Board authorizing
the issuance,
(iii) necessary funds for the payment of any original issue
tax (if any) applicable to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality and
validity of the issuance, which opinion may provide that it is
contingent upon the filing by the Trust of an appropriate notice with
the SEC, as required by Section 24 of the 1940 Act or the rules
thereunder. If such opinion is contingent upon a filing under Section
24 of the 1940 Act, the Trust shall indemnify ADS for any liability
arising from the failure of the Trust to comply with that section or
the rules thereunder.
(b) Transfer of Shares. Transfers of Shares of each Fund and Class
thereof shall be registered on the Shareholder records maintained by ADS. In
registering transfers of Shares, ADS may rely upon the Uniform Commercial Code
as in effect in the State of New York or any other statutes that, in the opinion
of ADS's counsel, protect ADS and the Trust from liability arising from:
(i) not requiring complete documentation;
(ii) registering a transfer without an adverse claim inquiry;
(iii)delaying registration for purposes of such inquiry; or,
(iv) refusing registration whenever an adverse claim requires
such refusal. As Transfer Agent, ADS will be responsible for delivery
to the transferor and transferee of such documentation as is required
by the Uniform Commercial Code.
5. SHARE CERTIFICATES
(a) Surcharge for Issuance of Share Certifications. If the Trust issues
share certificates, the Trust shall pay the surcharge for issuance of
certificates set forth in Fee Schedule for Administrative and Transfer Agency
Services.
(b) Procedures for Issuance of Certificates. In the event the Trust
elects to issue share certificates, the following provisions shall apply:
(i) Certificates. The Trust shall furnish to ADS a supply of
blank share certificates of each Fund and Class thereof and, from time
to time, will renew such supply upon ADS's request. Blank share
certificates shall be signed manually or by facsimile signatures of
officers of the Trust authorized to sign by the Organic Documents of
the Trust and, if required by the Organic Documents, shall bear the
Trust's seal or a facsimile thereof. Unless otherwise directed by the
Trust, ADS may issue or register Share certificates reflecting the
manual or facsimile signature of an officer who has died, resigned or
been removed by the Trust.
(ii) Endorsement; Transportation. New Share certificates shall
be issued by ADS upon surrender of outstanding Share certificates in
the form deemed by ADS to be properly endorsed for transfer and
satisfactory evidence of compliance with all applicable laws relating
to the payment or collection of taxes. ADS shall forward Share
certificates in "non-negotiable" form by first-class or registered
mail, or by whatever means ADS deems equally reliable and expeditious.
ADS shall not mail Share certificates in "negotiable" form unless
requested in writing by the Trust and fully indemnified by the Trust to
ADS's satisfaction.
6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Purchase Orders. Shares shall be issued in accordance with the
terms of a Fund's or Class' Prospectus after ADS or its agent receives either:
(i)(A) an instruction directing investment in a Fund or Class,
(B) a check (other than a third party check) or a wire or other
electronic payment in the amount designated in the instruction and (C),
in the case of an initial purchase, a completed account application;
or,
(ii) the information required for purchases pursuant to a
selected dealer agreement, processing organization agreement, or a
similar contract with a financial intermediary.
(b) Distribution Eligibility. Shares issued in a Fund after receipt of
a completed purchase order shall be eligible to receive distributions of the
Fund at the time specified in the Prospectus pursuant to which the Shares are
offered.
(c) Determination of Federal Funds. Shareholder payments shall be
considered Federal Funds no later than on the day indicated below unless other
times are noted in the prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the
wire;
(ii) for a check drawn on a member bank of the Federal Reserve
System, on the second Fund Business Day following receipt of the check;
and
(iii) for a check drawn on an institution that is not a member
of the Federal Reserve System, at such time as ADS is credited with
Federal Funds with respect to that check.
7. FEES AND EXPENSES
(a) For the services provided by ADS pursuant to this Agreement,
StockBack, on behalf of each Fund, agrees to pay ADS the fees set forth in Fee
Schedule for Administrative and Transfer Agency Services. Fees will begin to
accrue for each Fund on the latter of the date of this Agreement or the date of
commencement of operations of the Fund.
(b) In addition to the fees paid under subsection (a), the Trust and/or
StockBack will reimburse ADS for reasonable out-of-pocket expenses or advances
incurred by ADS for the items set out in the Fee Schedule for Administrative and
Transfer Agency Services attached hereto. In addition, the Trust and/or
StockBack will reimburse any other expenses incurred by ADS at the request or
with the consent of the Trust. ADS will use all reasonable efforts to minimize
reimbursable expenses.
(c) The fees, out-of pocket expenses and advances identified in the
foregoing subsections (a) and (b) above may be changed from time to time subject
to mutual written agreement between the Trust and ADS.
(d) Except as otherwise set forth on Fee Schedule for Administrative
and Transfer Agency Services, the Trust and/or StockBack will pay all fees and
reimbursable expenses within ten days following the receipt of the respective
billing notice.
8. REPRESENTATIONS AND WARRANTIES
(a) Representations of ADS. ADS represents and warrants to the Trust
that:
(i) it is a corporation duly organized and existing and in
good standing under the laws of the State of New York;
(ii) it is duly qualified to carry on its business in the
State of New York;
(iii) it is empowered under applicable laws and by its Article
of Incorporation and Bylaws to enter into this Agreement and perform
its duties under this Agreement;
(iv) it has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this Agreement;
and,
(iv) it is registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934 and shall continue to be registered
throughout the remainder of this Agreement.
(b) Representations of the Trust. The Trust represents and warrants to
ADS that:
(i) it is a business trust duly formed and existing and in
good standing under the laws Delaware;
(ii) it is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement;
(iii) all proceedings required by said Organic Documents have
been taken to authorize it to enter into and perform this Agreement;
(iv) it is an open-end management investment company
registered under the Investment Company Act of 1940; and,
(v) a registration statement under the Securities Act of 1933
is currently or will become effective and will remain effective, and appropriate
state securities law filings as required, have been or will be made and will
continue to be made, with respect to all Shares of the Fund being offered for
sale.
9. RESPONSIBILITY AND INDEMNIFICATION
(a) Responsibility and Indemnification of ADS. ADS shall be under no
duty to take any action except as specifically set forth herein or as may be
specifically agreed to by ADS in writing. ADS shall use its best judgment and
efforts in rendering the services described in this Agreement. ADS shall not be
liable to the Trust or any of the Trust's shareholders for any action or
inaction of ADS relating to any event whatsoever in the absence of bad faith,
willful misfeasance or gross negligence in the performance of, or failure to
perform, ADS's duties or obligations under this Agreement or by reason of ADS's
reckless disregard of its duties and obligations under this Agreement. Except as
may otherwise be provided by applicable law, ADS shall not be responsible for,
and the Trust shall on behalf of each applicable Fund or Class thereof indemnify
and hold ADS harmless from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liability arising out
of or attributable to:
(i) all actions of ADS or its agents or subcontractors
required to be taken by them pursuant to this Agreement, provided that
such actions are taken in good faith and without gross negligence or
willful misconduct;
(ii) the reasonable reliance on or use by ADS or its agents or
subcontractors of information, records or documents which (i) are
received by ADS or its agents or subcontractors and furnished to it by
or on behalf of the Fund, and (ii) have been prepared or maintained by
the Trust or any other person or firm on behalf of the Trust, including
but not limited to any previous transfer agent or registrar;
(iii) the reasonable reliance on, or the carrying out by ADS
or its agents or subcontractors of, any instructions or requests of the
Trust on behalf of the applicable Fund;
(iv) the Fund's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Fund's lack of good faith,
gross negligence or willful misconduct or which arise out of the breach
of any representation or warranty of the Fund hereunder; and
(v) the offer or sale of Shares in violation of any
requirement under the Federal securities laws or regulations or the
securities laws or regulations of any State that such Shares be
registered in such State or in violation of any stop order or other
determination or ruling by any federal agency or any State with respect
to the offer or sale of such Shares in such State.
(c) Indemnification of the Trust and StockBack. ADS shall indemnify and
hold the Trust and each Fund or Class thereof and StockBack harmless from and
against any and all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising out of or attributed to any action or
failure or omission to act by ADS as a result of ADS's lack of good faith, gross
negligence or willful misconduct with respect to the services performed under or
in connection with this Agreement.
(d) Reliance. At any time ADS may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to ADS with
respect to any matter arising in connection with the services to be performed by
ADS under this Agreement, and ADS and its agents or subcontractors shall not be
liable and shall be indemnified by the Trust on behalf of the applicable Fund
for any action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. ADS, its agents and
subcontractors shall be protected and indemnified in acting upon
(i) any paper or document furnished by or on behalf of the
Trust, reasonably believed by ADS to be genuine and to have been signed
by the proper person or persons;
(ii) any instruction, information, data, records or documents
provided ADS or its agents or subcontractors by machine readable input,
telex, CRT data entry or other similar means authorized by the Trust;
and
(iii) any authorization, instruction, approval, item or set of
data, or information of any kind transmitted to ADS in person or by
telephone, voice mail or other electronic means, reasonably believed by
ADS to be genuine and to have been given by the proper person or
persons. ADS shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from
the Trust. ADS, its agents and subcontractors shall also be protected
and indemnified in recognizing share certificates which are reasonably
believed to bear the proper manual or facsimile signatures of the
officers of the Trust, and the proper countersignature of any former
transfer agent or former registrar or of a co-transfer agent or
co-registrar of the Trust.
(d) Reliance on Electronic Instructions. If the Trust has the ability
to originate electronic instructions to ADS 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 ADS shall be entitled to rely on the validity
and authenticity of such instruction without undertaking any further inquiry as
long as such instruction is undertaken in conformity with security procedures
established by ADS from time to time.
(e) Use of Fund/Serv and Networking. The Trust has authorized or in the
future may authorize ADS to act as a "Mutual Fund Services Member" for the Trust
or various Funds and Classes. Fund/SERV and Networking are services sponsored by
the National Securities Clearing Corporation ("NSCC") and as used herein have
the meanings as set forth in the then current edition of NSCC RULES AND
PROCEDURES published by NSCC or such other similar publication as may exist from
time to time. Subject to subsection (a) above, the Trust shall indemnify and
hold ADS harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising directly or
indirectly out of or attributed to any action or failure or omission to act by
NSCC.
(f) Notification of Claims. In order that the indemnification
provisions contained in this Section shall apply, upon the assertion of a claim
for which either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim
or to defend against said claim in its own name or in the name of the other
party. The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
10. PROPRIETARY INFORMATION
(a) Proprietary Information of ADS. The Trust acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by ADS on databases under the
control and ownership of ADS or a third party constitute copyrighted, trade
secret, or other propriety information (collectively, "Proprietary Information")
of substantial value to ADS or the third party. The Trust agrees to treat all
Proprietary Information to any person or organization except as may be provided
under this Agreement.
(b) Proprietary Information of the Trust. ADS acknowledges that the
Shareholder list and all information related to Shareholders furnished to ADS by
the Trust or by a Shareholder in connection with this Agreement (collectively,
"Customer Data") and the databases, computer programs, screen formats, report
formats, interactive design techniques and the business model of StockBack (the
"StockBack Information") constitute copy righted, trade secret or proprietary
information of substantial value to the Trust and StockBack. In no event shall
Proprietary Information be deemed Customer Data. ADS agrees to treat all
Customer Data as proprietary to the Trust and StockBack and further agrees that
it shall not divulge any Customer Data or StockBack Information to any person or
organization except as may be provided under this Agreement or as may be
directed by the Trust or StockBack.
11. EFFECTIVENESS, DURATION, AND TERMINATION
(a) Effective Date. This Agreement shall become effective on the date
first above written.
(b) Term. This Agreement shall remain in effect for a period of three
(3) years from the date of its effectiveness and shall continue in effect for
successive twelve-month periods; provided that such continuance is specifically
approved at least annually by the Board and by a majority of the Directors who
are not parties to this Agreement or interested persons of any such party.
(c) Termination for Cause. In the event of a material breach of this
Agreement by either party, the non-breaching party shall notify the breaching
party in writing of such breach and upon receipt of such notice, the breaching
party shall have 45 days to remedy the breach. If said breach is not remedied to
the reasonable satisfaction of the non-breaching party, the non-breaching party
may thereafter terminate this Agreement immediately. Compensation due ADS and
unpaid by the Trust upon such termination shall be immediately due and payable
upon, and notwithstanding, such termination. If after such termination for so
long as ADS, with the written consent of the Trust, in fact continues to perform
any one or more of the services contemplated by this Agreement, the provisions
of this Agreement, including without limitation, the provisions dealing with
indemnification, shall continue in full force and effect.
(d) If at any time during the initial or any subsequent term of this
Agreement, ADS is replaced as administrator for any reason other than for a
material breach of this Agreement which ADS does not cure within a reasonable
time, or a Fund is merged into or sells all (or substantially all) of its assets
to another fund or family of funds for which ADS does not serve as
administrator, then the Adviser shall, immediately upon demand by ADS, make a
one time cash payment based upon the following schedule:
. If this Agreement is terminated within the first 12 months of the initial
term of the agreement, a payment equal to 50% the present value (using a 5%
discount factor) of the profit ADS would have earned during the remainder
of the initial term of the Agreement. For purposes of this paragraph,
profit shall be assumed to be 30% of the average monthly service fee. The
average monthly service fee used to calculate the amount due ADS hereunder
shall be, the average of the previous six months service fees (or the
actual number of months fees were earned by ADS if termination is within
the first six months of the agreement) earned by ADS (including any
applicable minimum) immediately preceding the termination of ADS (or merger
or sale of assets) by the Fund.
. If this Agreement is terminated during the 2nd twelve months of the initial
term of the agreement, a payment equal to 75% the present value (using a 5%
discount factor) of the profit ADS would have earned during the remainder
of the initial term of the Agreement. For purposes of this paragraph,
profit shall be assumed to be 30% of the average monthly service fee. The
average monthly service fee used to calculate the amount due ADS hereunder
shall be, the average of the previous six months service fees earned by ADS
(including any applicable minimum) immediately preceding the termination of
ADS (or merger or sale of assets) by the Fund.
. If this Agreement is terminated during the 3rd twelve months of the initial
or any subsequent term of the agreement, a payment equal to 90% the present
value (using a 5% discount factor) of the profit ADS would have earned
during the remainder of the initial term of the Agreement. For purposes of
this paragraph, profit shall be assumed to be 30% of the average monthly
service fee. The average monthly service fee used to calculate the amount
due ADS hereunder shall be, the average of the previous three months
service fees earned by ADS (including any applicable minimum) immediately
preceding the termination of ADS (or merger or sale of assets) by the Fund
(e) Reimbursement of ADS's Expenses. If this Agreement is terminated with
respect to a Fund or Funds, ADS shall be entitled to collect from the Fund or
Funds, in addition to the compensation described under Sections 4 and 12(d)
hereof, the amount of all of ADS's reasonable cash disbursements for services in
connection with ADS's activities in effecting such termination, including
without limitation, the delivery to the Trust and/or its designees of the
Trust's property, records, instruments and documents, or any copies thereof.
Subsequent to such termination, upon reimbursement of its reasonable costs, ADS
will provide the Trust with reasonable access to all Trust documents or records,
if any, remaining in its possession. Should the Fund exercise its right to
terminate, all out-of-pocket expenses associated with the movement of records
and material will be borne by the Fund. Additionally, ADS reserves the right to
charge for any other reasonable out-of-pocket costs and expenses associated with
such termination.
(f) Survival of Certain Obligations. The obligations of Sections 8, 10
and 11 shall survive any termination of this Agreement
(g) 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 other for any damages resulting from such failure to perform or
otherwise from such causes.
12. ADDITIONAL FUNDS AND CLASSES.
If the Trust establishes one or more series of Shares or one or more
classes of Shares after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall become Funds and Classes
under this Agreement; provided, however, that either ADS or the Trust may elect
not to make and such series or classes subject to this Agreement.
13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement
nor any rights or obligations under this Agreement may be assigned by any party
without the written consent of each other party. This Agreement shall inure to
the benefit of and be binding upon the parties and their respective permitted
successors and assigns. ADS may, without further consent on the part of the
Trust, subcontract for the performance hereof with any entity, including
affiliated persons of ADS; provided however, that ADS shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as ADS
is for its own acts and omissions.
14. TAXES
ADS 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 Trust or any Shareholder or any purchase of Shares, excluding taxes
assessed against ADS for compensation received by it under this Agreement.
15. MISCELLANEOUS
(a) Amendments. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(b) Choice of Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York.
(c) Entire 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.
(d) Counterparts. The parties may execute this Agreement on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) Severability. If any part, term or provision of this Agreement is
held to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(f) Headings. Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
(g) Notices. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or confirmed facsimile or electronic transmission and shall be given to the
following addresses (or such other addresses as to which notice is given):
To the Trust or StockBack: To ADS:
C. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Operating Officer President
▇▇▇▇▇▇▇▇▇.▇▇▇, LLC American Data Services, Inc.
11 Broadway ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(h) Business Days. Nothing contained in this Agreement is intended to
or shall require ADS, in any capacity hereunder, to perform any functions or
duties on any day other than a Fund Business Day as defined in the Prospectus
for the Fund. Functions or duties normally scheduled to be performed on any day
which is not a Fund Business Day shall be performed on, and as of, the next Fund
Business Day, unless otherwise required by law.
(i) Distinction of Funds. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund of the
Trust are separate and distinct from the assets and liabilities of each other
Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
(j) Non-liability of Affiliates. No affiliated person (as that term is
defined in the 1940 Act), employee, agent, director, officer or manager of ADS
shall be liable at law or in equity for ADS's obligations under this Agreement.
(k) Consequential Damages. No party to this Agreement shall be liable
to the other parties for consequential damages under any provision of this
Agreement.
(l) Representation of Signatories. Each of the undersigned expressly
warrants and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will bind
the party indicated to the terms hereof
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 persons,
as of the day and year first above written.
THE STOCKBACK TRUST AMERICAN DATA SERVICES, INC.
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Vice President ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
▇▇▇▇▇▇▇▇▇.▇▇▇, LLC
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇▇
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Chief Operating Officer
The StockBack Trust
TRANSFER AGENCY AGREEMENT
SCHEDULE A
Funds and Classes to be Serviced under this Agreement
1. Stockback Fund