Exhibit h.1
Transfer Agency
and
Service Agreement
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
PHOENIX-EUCLID FUNDS
AND
PHOENIX EQUITY PLANNING CORPORATION
TABLE OF CONTENTS
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Page
Article 1 Terms of Appointment; Duties of Transfer Agent 1
Article 2 Fees and Expenses 2
Article 3 Representations and Warranties of Transfer Agent 3
Article 4 Representations and Warranties of the Phoenix Funds 3
Article 5 Data Access and Proprietary Information 4
Article 6 Indemnifications 5
Article 7 Standard of Care 6
Article 8 Covenants 6
Article 9 Termination 6
Article 10 Assignments 7
Article 11 Amendment 7
Article 12 Connecticut Law to Apply 7
Article 13 Force Majeure 7
Article 14 Consequential Damages 7
Article 15 Merger of Agreement 7
Article 16 Limitations of Liability of the Trustees & Shareholders 8
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 22 day of July 1999, by and between the
Phoenix-Euclid Funds (hereinafter referred to as "Fund"), and PHOENIX EQUITY
PLANNING CORPORATION (hereinafter referred to as the "Transfer Agent").
W I T N E S S E T H:
WHEREAS, Fund desires to appoint Transfer Agent as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and Transfer Agent desires to accept such appointment; and
WHEREAS, the parties wish to set forth herein their mutual
understandings and agreements.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable considerations, the receipt and
sufficiency whereof being acknowledged and affirmed, the parities hereto agree
as follows:
ARTICLE 1 TERMS OF APPOINTMENT; DUTIES OF TRANSFER AGENT
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1.01 Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs and appoints Transfer Agent to act as, and Transfer
Agent agrees to act as, agent for the authorized and issued shares of beneficial
interest, of the Fund (hereinafter referred to as "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 as set out
in the currently effective registration statement of the Fund (the prospectus
and statement of additional information portions of such registration statement
being referred to as the "Prospectus"), including, without limitation, any
periodic investment plan or periodic withdrawal program.
1.02 Transfer Agent agrees that it will perform the following
services pursuant to this Agreement:
(a) In accordance with procedures established from time to time by
agreement between the Fund and Transfer Agent, Transfer Agent shall:
i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian appointed
from time to time by the Trustee of the Fund (which
entity shall be referred to as the "Custodian");
ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such shares in each appropriate
Shareholder account;
iii) Receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Transfer Agent shall execute
transactions directly with broker-dealers authorized
by the Fund who shall thereby be deemed to be acting
on behalf of the Fund.
v) At the appropriate time as and when it received
monies paid to it by any 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;
vi) Effect transfer 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, if any;
viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Transfer Agent of indemnification
satisfactory to the Transfer Agent and the Fund and the
Transfer Agent at its option, may issue replacement
certificates in place of mutilated stock certificates
upon presentation thereof without such indemnity;
ix) Maintain records of account for and advise the Fund
and its respective Shareholders as to the foregoing; and
x) Record the issuance of Shares and maintain pursuant to
Rule 17Ad-10(e) under the Exchange Act of 1934, a record
of the total number of Shares with are authorized, issued
and outstanding based upon data provided to it by the
Fund. The Transfer Agent shall also provide on a regular
basis to the Fund the total number of Shares which are
authorized, issued and outstanding 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
Fund.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a), Transfer Agent shall: (i) perform all of the customary
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),
including, but not limited to, maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, receiving and tabulating proxies,
mailing Shareholder reports and Prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts, preparing
and filing U.S. Treasury Department Forms 1009 and other appropriate forms
required with respect to dividends and distributions by federal authorities for
all Shareholders, preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account information; and
(ii) provide a system which will enable the Fund to monitor the total number of
Shares sold in each State.
(c) In addition, the Fund shall (i) identify to Transfer Agent 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 daily
activity for each State. The responsibility of Transfer Agent 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 the services in
Article 1 may be established from time to time by agreement between the Fund and
Transfer Agent per the attached service responsibility schedule, if any. The
Transfer Agent may at times perform only a portion of these services and the
Fund or its agent may perform these services on behalf of the Fund.
(e) The Transfer Agent 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 Transfer Agent.
ARTICLE 2 FEES AND EXPENSES
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2.01 In consideration of the services by the Transfer Agent pursuant
to this Agreement, the Fund agrees to pay Transfer Agent an annual maintenance
fee for each Shareholder account as set forth in Schedule A attached hereto and
made a part hereof. Annual Maintenance Fees and out-of-pocket expenses and
advances identified under Section 2.02 below may be changed from time to time
subject to mutual written agreement between the Fund and Transfer Agent. Nothing
herein shall preclude the assignment of all or any portion of the foregoing fees
and expense reimbursements to any sub-agent contracted by Transfer Agent.
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2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees to reimburse Transfer Agent for out-of-pocket expenses or advances
incurred by Transfer Agent for the items set out in Schedule A attached hereto.
In addition, any other expenses incurred by Transfer Agent at the request or
with the consent of the Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses within
five days following the mailing of the respective billing notice. The above fees
will be charged against the Fund's custodian checking account five (5) days
after the invoice is transmitted to the Fund. Postage for mailing of dividends,
proxies, Fund reports and other mailings to all Shareholder accounts shall be
advanced to Transfer Agent at least seven (7) days prior to the mailing date of
such material.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT
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The Transfer Agent represents and warrants to the Fund that:
3.01 It is a corporation organized and existing in good standing
under the laws of the State of Connecticut.
3.02 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
3.03 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
3.05 It is and shall continue to be a duly registered transfer agent
pursuant to Section 17A(c)(2) of the Securities Exchange Act of 1934.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF FUND
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The Fund represents and warrants to Transfer Agent that:
4.01 All trust proceedings required to enter into and perform this
Agreement have been undertaken and are in full force and effect.
4.02 The Fund is an open-end, diversified management investment
company registered under the Investment Company Act of 1940.
4.03 A registration under the Securities Act of 1933 is currently
effective for the Fund that is offering its securities for sale and such
registration statement will remain effective, and appropriate state securities
law filings have been made and will continue to be made, with respect to all
Shares being offered for sale.
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ARTICLE 5 DATA ACCESS AND PROPRIETARY INFORMATION
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5.01 The Fund acknowledges that the data base, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain Fund-related data ("Customer Data") maintained by the
Transfer Agent on data bases under the control and ownership of the Transfer
Agent or other third party ("Data Access Services") constitute copyrighted,
trade secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third party.
In no event shall Proprietary Information be deemed Customer Data. The Fund
agrees to treat all 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 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 location as may be
designated in writing by the Transfer Agent and solely in
accordance with the Transfer Agent'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 is inadvertently
obtained, to inform in a timely manner of such fact and dispose
of such information in accordance with the Transfer Agent
instructions;
(d) to refrain from causing or allowing third-party data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of the Transfer Agent;
(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 Transfer
Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state
law.
Each part shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Fund notified the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall endeavor
in a timely manner to correct such failure. Organizations from which the
Transfer Agent 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 Transfer Agent 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 TRANSFER AGENT
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.
5.03 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information (such transactions constituting a "COEFI"),
then in such event the Transfer Agent 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 the Transfer Agent from time to time.
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ARTICLE 6 INDEMNIFICATION
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6.01 The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold Transfer Agent harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments expenses and liability
arising out of or attributable to:
(a) All actions of Transfer Agent or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith and without negligence or
willful misconduct.
(b) The lack of good faith, negligence or willful misconduct by the
Fund which arise out of the breach of any representations or
warranty of the Fund hereunder.
(c) The reliance on or use by the Transfer Agent or its agents or
subcontractors of information, records and documents which (i)
are received by Transfer Agent 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.
(d) The reliance on, or the carrying out by Transfer Agent or its
agents or subcontractors of any instructions or request of the
Fund.
(e) 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.
6.02 Transfer Agent shall indemnify and hold the Fund harmless
from and against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to any action or
failure or omission to act by Transfer Agent, or any sub-agent, as a result of
Transfer Agent's, or such sub-agent's, lack of good faith, negligence or willful
misconduct.
6.03 At any time the Transfer Agent 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 performed by Transfer Agent
under this Agreement, and Transfer Agent 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 reliance upon such instructions or upon the opinion of such
counsel. The Transfer Agent, its agents and subcontractors shall be protected
and indemnified in acting upon any paper or documents provided Transfer Agent 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. Transfer Agent, 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 registrar, or of a co-transfer agent or co-registrar.
6.04 In order that the indemnification provisions contained in the
Article 6 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. 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.
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6.05 Transfer Agent hereby expressly acknowledges that recourse
against the Fund, if any, shall be subject to those limitations provided by
governing law and the Declaration of Trust of the Fund and agrees that
obligations assumed by the Fund hereunder shall be limited in all cases to the
Fund and its respective assets. Transfer Agent shall not seek satisfaction of
any such obligations from the shareholders or any shareholder of the Fund nor
shall the Transfer Agent seek satisfaction of any obligations from the Trustees
or any individual Trustee of the Fund.
ARTICLE 7 STANDARD OF CARE
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7.01 The Transfer Agent 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, bad faith, or willful misconduct of that of its
employees.
ARTICLE 8 COVENANTS
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8.01 The Phoenix Fund shall promptly furnish to Transfer Agent the
following:
(a) A certified copy of the resolution of its Trustees authorizing
the appointment of Transfer Agent and the execution and delivery
of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws, it any, and all
amendments thereto of the Fund.
8.02 The Transfer Agent 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, for the preparation or use, and for keeping account of, such certificates,
forms and devices.
8.04 The parties 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.
8.05 In case of any requests or demands for the inspection of the
Shareholder records, Transfer Agent will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund as to such
inspection. Transfer Agent reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be held in liable for the failure to exhibit the Shareholder records to such
person.
ARTICLE 9 TERMINATION
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9.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
9.02 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, Transfer
Agent reserves the right to charge any other reasonable expenses
associated with such termination and/or a charge equivalent
to the average of three (3) months' fees to the Fund.
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ARTICLE 10 ASSIGNMENT
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10.01 Except as provided in Section 10.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned without the
written consent of the other party.
10.02 This Agreement shall insure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
10.03 The Transfer Agent may, without further consent on the part of
the Fund, subcontract for the performance hereof with one or more sub-agents;
provided, however, that Transfer Agent shall be a fully responsible to the Fund
for the acts and omissions of any subcontractor as it is for its own acts and
omissions.
ARTICLE 11 AMENDMENT
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11.01 The Agreement may be amended or modified by a written agreement
executed by the parties and authorized or approved by a resolution of the
Trustees of the Fund.
ARTICLE 12 CONNECTICUT LAW TO APPLY
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12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Connecticut.
ARTICLE 13 FORCE MAJUERE
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13.01 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.
ARTICLE 14 CONSEQUENTIAL DAMAGES
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14.01 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
ARTICLE 15 MERGER OF AGREEMENT
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15.01 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.
15.02 This Agreement shall not be merged with or construed in
conjunction with any other current or future agreement between the Fund and
Phoenix Equity Planning Corporation, each and all of which agreements shall at
all times remain separate and distinct.
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ARTICLE 16 LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
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16.01 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 Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duty authorized officers, as of the day and year first above written.
Phoenix-Euclid Funds
By: ________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
ATTEST:
By: _________________________
Name:
Title:
PHOENIX EQUITY PLANNING CORPORATION
By: ________________________________________
ATTEST:
By: _________________________
Name:
Title:
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SCHEDULE A
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FEE SCHEDULE
ANNUAL MAINTENANCE FEES: The Annual maintenance fee for each Shareholder
account for all funds subject to this agreement
shall be $13.50.
OUT OF POCKET EXPENSES: Out-of-pocket expenses include but are not
limited to: confirmation statements, postage,
forms, audio response, telephone, microfiche,
and expenses incurred at the specific direction
of the fund.