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EXHIBIT 9(g)
FORM OF TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN THE REGISTRANT AND STATE STREET BANK AND TRUST COMPANY
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TRANSFER AGENCY AND SERVICE AGREEMENT
between
STATE STREET BANK AND TRUST COMPANY
and
THE HIGHMARK GROUP
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TRANSFER AGENCY AND SERVICE AGREEMENT
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AGREEMENT made as of the day of February, 1997, by and between The
HighMark Group, a Massachusetts business trust, having its principal office and
place of business at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ 19087(the "Fund"), and
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund currently offers shares in sixteen (16) series
listed on Schedule A hereto (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 10, are herein referred to individually as a
"Portfolio", and collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the
Transfer Agent as its transfer agent, dividend disbursing agent, and agent in
connection with certain other activities, and the Transfer Agent desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article l TERMS OF APPOINTMENT; DUTIES OF THE TRANSFER AGENT
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund, on behalf of the Portfolios, hereby employs and appoints
the Transfer Agent to act as, and the Transfer Agent agrees to act, as its
transfer agent for the authorized and issued shares of beneficial interest of
the Fund representing interests in each of the respective Portfolios ("Shares"),
dividend disbursing agent, and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the
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currently effective prospectus and statement of additional information
("prospectus") of the Fund relating to the applicable Portfolio, including
without limitation any periodic investment plan or periodic withdrawal program.
1.02 The Transfer Agent agrees that it will perform the
following services:
(a) In accordance with any procedures which may be established
from time to time by agreement between the Fund on behalf of each of the
Portfolios, as applicable, and the Transfer Agent, the Transfer Agent shall:
(i) Receive for acceptance orders
for the purchase of Shares and promptly deliver
payment and appropriate documentation thereof to
the custodian of the Fund authorized pursuant to
the Declaration of Trust 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 for acceptance
redemption requests and redemption directions and
deliver the appropriate documentation thereof to
the Custodian;
(iv) With respect to the
transactions in items (i), (ii) and (iii) above,
the Transfer Agent may execute transactions
directly with broker-dealers authorized by the Fund
(or the Distributor) who shall for such purpose be
deemed to be acting on behalf of the Fund;
(v) 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;
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(vi) 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 on behalf of the applicable Portfolio;
(viii) Maintain records of account
for and advise the Fund and its Shareholders as to
the foregoing;
(ix) 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
Transfer Agent 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 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; and
(x) The Transfer Agent shall
provide additional services on behalf of the Fund
(e.g., escheatment services) which may be agreed
upon in writing between the Fund and the Transfer
Agent.
(b) In addition to and neither in lieu nor in
contravention of the services set forth in the above paragraph (a), the Transfer
Agent shall: (i) perform 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, mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident alien
accounts, preparing,
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mailing 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 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) The Fund shall (i) identify to the 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 the effective date of this Agreement. The
responsibility of the Transfer Agent for the Fund's blue sky State registration
status is solely limited to monitoring the daily activity for each State, 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 Article 1 may be established from time to time by written agreement
between the Fund and the Transfer Agent, whereby the Transfer Agent may perform
only a portion of these services and the Fund or other agent may perform these
services on each Portfolio's behalf.
Article 2 FEES AND EXPENSES
2.01 For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees on behalf of each of the Portfolios to pay the
Transfer Agent an annual maintenance fee
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for each Shareholder account as set out in Schedule B attached hereto. Such 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 the Transfer Agent.
2.02 In addition to the fee paid under Section 2.01 above,
the Fund agrees on behalf of each of the Portfolios to reimburse the Transfer
Agent for out-of-pocket expenses as set forth in Schedule B hereto, or advances
incurred by the Transfer Agent for the items set out in Schedule B attached
hereto. In addition, any other expenses incurred by the Transfer Agent at the
request or with the consent of the Fund, will be reimbursed by the Fund on
behalf of the applicable Portfolio.
2.03 The Fund agrees on behalf of each of the Portfolios to
pay all fees and reimbursable expenses within five days following the 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
Transfer Agent by the Fund at least seven (7) days prior to the mailing date of
such materials.
Article 3 REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in
good standing under the laws of the State of Massachusetts.
3.02 It is duly qualified to carry on its business in the
states where it is conducting business.
3.03 It is empowered under applicable laws and by its
Charter and By-Laws to enter into and perform this Agreement.
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3.04 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3.06 It is registered as a transfer agent pursuant to Section
17A of the Securities Exchange Act of 1934.
Article 4 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
4.01 It is a business trust duly organized and existing and
in good standing under the laws of the Commonwealth of Massachusetts.
4.02 It is empowered under applicable laws and by its
Declaration of Trust and ByLaws to enter into and perform this Agreement.
4.03 All proceedings required by said Declaration of Trust
and By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end and management investment company
registered under the Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of
1933, as amended, relating to the Shares of each of the Portfolios is currently
effective.
Article 5 DATA ACCESS AND PROPRIETARY INFORMATION
5.01 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 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
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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 locations 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 access is
inadvertently obtained, to inform the Transfer
Agent in a timely manner of such fact and dispose
of such information in accordance with the Transfer
Agent 's instructions;
(d) to refrain from causing or
allowing data acquired hereunder from being
retransmitted to any unauthorized computer facility
or other location, except with the prior written
consent 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
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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 Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Fund notifies 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 the 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
6.01 The Transfer Agent shall not be responsible for, and
the Fund shall indemnify and hold the Transfer Agent harmless from and against,
any and all losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents 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 Fund's lack of good faith, negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Transfer Agent or its
agents or subcontractors of information, records, documents or services which
(i) are received by the 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, provided that such actions are taken in good faith and
without negligence or willful misconduct.
(d) The reliance on, or the carrying out by the Transfer
Agent or its agents or subcontractors of any instructions or requests of the
Fund on behalf of the applicable Portfolio, provided that such actions are taken
in good faith and without negligence or willful misconduct.
(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, provided that such actions are taken in good faith and without negligence
or willful misconduct.
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6.02 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 the
Transfer Agent under this Agreement, and the Transfer Agent and its agents or
subcontractors shall not be liable and shall be indemnified by the Fund on
behalf of the applicable Portfolio for any action taken or omitted by it in
reliance upon such instructions or upon the written opinion of such counsel. The
Transfer Agent, its agents and subcontractors shall be protected and indemnified
in acting upon any paper or document furnished by 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 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.
6.03 In order that the indemnification provisions contained
in this Article 6 shall apply, upon the assertion of a claim for which the Fund
may be required to indemnify the Transfer Agent, the Transfer Agent shall
promptly notify the Fund of such assertion, and shall keep the Fund advised with
respect to all developments concerning such claim. The Fund shall have the
option to participate with the Transfer Agent in the defense of such claim or to
defend against said claim in its own name or in the name of the Transfer Agent.
The Transfer Agent shall in no case confess any claim or make any compromise in
any case in which the Fund may be required to indemnify the Transfer Agent
except with the Fund's prior written consent.
Article 7 STANDARD OF CARE
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
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unless said errors are caused by its negligence, bad faith, or willful
misconduct or that of its employees.
Article 8 COVENANTS OF THE FUND AND THE TRANSFER AGENT
8.01 The Fund shall promptly furnish to the Transfer Agent
the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the
Fund and amendments thereto.
8.02 The Transfer Agent hereby agrees to establish and
maintain facilities and procedures reasonably acceptable to the Fund for
safekeeping of check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such forms and
devices.
8.03 The Transfer Agent 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 Transfer Agent agrees that all
such records prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the property of the
Fund and 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.
8.04 The Transfer Agent and the Fund agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
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8.05 In case of any requests or demands for the inspection
of the Shareholder records of any Portfolio of the Fund, the Transfer Agent will
endeavor to notify the Fund and to secure instructions from an authorized
officer of the Fund as to such inspection. The 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 liable for the failure to exhibit the
Shareholder records to such person unless (in cases involving potential exposure
only to civil liability) the Fund has agreed to indemnify the Transfer Agent
against such liability.
Article 9 TERMINATION OF AGREEMENT
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 on behalf of the applicable Portfolio(s). Additionally, the
Transfer Agent reserves the right to charge for any other reasonable expenses
associated with such termination up to a maximum of $20,000.
Article 10 ADDITIONAL FUNDS
10.01 In the event that the Fund establishes one or more
additional series of Shares with respect to which it desires to have the
Transfer Agent render services as transfer agent under the terms hereof, it
shall notify the Transfer Agent in writing, and if the Transfer Agent agrees in
writing to provided such services, such series of Shares shall become a
Portfolio hereunder.
Article 11 ASSIGNMENT
11.01 Except as provided in Section 11.03 below, neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
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11.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
11.03 The Transfer Agent may, without further consent on the
part 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)(1) of the
Securities Exchange Act of 1934, as amended ("Section 17A(c)(1)"), (ii) a BFDS
subsidiary duly registered as a transfer agent pursuant to Section 17A(c)(1) or
(iii) a BFDS affiliate; provided, however, that the Transfer Agent 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.
Article 12 AMENDMENT
12.01 This Agreement may be amended or modified by a written
agreement executed by both parties.
Article 13 MASSACHUSETTS LAW TO APPLY
13.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts without regard to the conflict of laws, provisions thereof.
Article 14 FORCE MAJEURE
14.01 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 to
the other for any damages resulting from such failure to perform or otherwise
from such causes.
Article 15 CONSEQUENTIAL DAMAGES
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15.01 Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of this Agreement
or for any consequential damages arising out of any act or failure to act
hereunder.
Article 16 MERGER OF AGREEMENT
16.01 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.
Article 17 COUNTERPARTS
17.01 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.
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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.
THE HIGHMARK GROUP
BY:
Vice President
ATTEST:
STATE STREET BANK AND TRUST
COMPANY
BY:
Vice President
ATTEST:
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SCHEDULE A
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
DATED
[ ]
HighMark California Tax-Free Fund
HighMark Diversified Obligations Fund
HighMark Tax-Free Fund
HighMark U.S. Government Obligations Fund
HighMark 100% U.S. Treasury Obligations Fund
HighMark Balanced Fund
HighMark Growth Fund
HighMark Income Equity Fund
HighMark Bond Fund
HighMark Government Bond Fund
HighMark Income and Growth Fund
HighMark Intermediate Term Bond Fund
HighMark California Intermediate Term Bond Fund
HighMark Government Securities Fund
HighMark Convertible Securities Fund
HighMark Value Momentum Fund
HighMark Blue Chip Growth Fund
HighMark Emerging Growth Fund
HighMark International Equity Fund
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SCHEDULE B
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
Annual fees (per class/per fund) $15,000
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Fees are billable on a monthly basis at the rate of 1/12 of the annual fee.
Account Transaction Fee $25.00/account
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▇▇▇ Custodial Fees
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Acceptance & Setup $5.00/account
Annual Maintenance $10.00/account
Out-of-Pocket Expenses
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Out of pocket expenses include but are not limited to: confirmation statements,
postage, forms, audio response, telephone, records retention, transcripts,
microfilm, microfiche, and expenses incurred at the specific direction of the
fund.
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