TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 3rd day of October, 1995
between
PANORAMA TRUST (the "Fund"), a Massachusetts business trust, and
having its principal
place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and THE
SHAREHOLDER SERVICES GROUP, INC. (the "Transfer Agent"), a
Massachusetts
corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH
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;
WHEREAS, the Fund initially intends to offer shares in those
Portfolios and classes of
Shares identified in the attached Exhibit 1, each such Portfolio,
together with all other
Portfolios subsequently established by the Fund shall be subject
to this Agreement in
accordance with Article 16;
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 and
promises
hereinafter set forth, the Fund and the Transfer Agent agree as
follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words
and phrases, unless the
context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation,
Declaration of Trust, or other similar organizational document as
the case may be, of
the Fund as the same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized
officer of the Fund; or (ii) any person, whether or not such
person is an officer or
employee of the Fund, duly authorized to give Oral Instructions or
Written Instructions
on behalf of the Fund as indicated in writing to the Transfer
Agent from time to time.
(c) "Trustees" shall mean the Board of Trustees of the
Fund,
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and
other property which the Fund may from time to time deposit, or
cause to be deposited
or held under the name or account of such a custodian pursuant to
a Custodian
Agreement.
(f) "1934 Act" shall mean the Securities Exchange
Act of 1934 and the
rules and regulations promulgated thereunder, all as amended
from time to time.
(g) "1940 Act" shall mean the Investment Company Act of
1940 and the
rules and regulations promulgated thereunder, all as amended from
time to time.
(h) "Oral Instructions" shall mean instructions, other
than Written
Instructions, actually received by the Transfer Agent from a
person reasonably believed
by the Transfer Agent to be an Authorized Person;
(i) "Portfolio" shall mean each separate series of shares
offered by the Fund
representing interest in a separate portfolio of securities and
other assets;
(j) "Prospectus" shall mean the most recently dated Fund
Prospectus and
Statement of Additional Information, including any supplements
thereto if any, which
has become effective under the Securities Act of 1933 and the 1940
Act.
(k) "Shares" refers collectively to such shares of capital
stock or beneficial
interest, as the case may be, or class thereof, of each respective
Portfolio of the Fund
as may be issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of
each respective
Portfolio of the Fund.
(m) "Written Instructions" shall mean a written
communication signed by a
person reasonably believed by the Transfer Agent to be an
Authorized Person and
actually received by the Transfer Agent. Written Instructions
shall include manually
executed originals and authorized electronic transmissions,
including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of the Transfer Agent. The Fund, on
behalf of the Portfolios,
hereby appoints and constitutes the Transfer Agent as transfer
agent and dividend disbursing
agent for Shares of each respective Portfolio of the Fund and as
shareholder servicing agent
for the Fund and the Transfer Agent hereby accepts such
appointments and agrees to perform
the duties hereinafter set forth.
Article 3 Duties of the Transfer Agent.
3.1 The Transfer Agent shall be responsible for:
(a) Administering and/or performing the customary services
of a transfer
agent; acting as service agent in connection with dividend and
distribution functions;
and for performing shareholder account and administrative agent
functions in
connection with the issuance, transfer and redemption or
repurchase (including
coordination with the Custodian) of Shares of each Portfolio, as
more fully described in
the written schedule of Duties of the Transfer Agent annexed
hereto as Schedule A and
incorporated herein, and in accordance with the terms of the
Prospectus of the Fund on
behalf of the applicable Portfolio, applicable law and the
procedures established from
time to time between the Transfer Agent and the Fund.
(b) Recording the issuance of Shares and maintaining
pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of Shares
of each Portfolio
which are authorized, based upon data provided to it by the Fund,
and issued and
outstanding. The Transfer Agent shall provide the Fund on a
regular basis with the
total number of Shares of each Portfolio 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.
(c) Notwithstanding any of the foregoing provisions of
this Agreement, the
Transfer Agent shall be under no duty or obligation to inquire
into, and shall not be
liable for: (i) the legality of the issuance or sale of any
Shares or the sufficiency of the
amount to be received therefor; (ii) the legality of the
redemption of any Shares, or the
propriety of the amount to be paid therefor; (iii) the legality of
the declaration of any
dividend by the Trustees, or the legality of the issuance of any
Shares in payment of
any dividend; or (iv) the legality of any recapitalization or
readjustment of the Shares.
3.2 In addition, 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 activation and
thereafter monitor the daily activity for each State. The
responsibility of the 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.
3.3 In addition to the duties set forth herein, the
Transfer Agent shall perform such
other duties and functions, and shall be paid such amounts
therefor, as may from time to time
be agreed upon in writing between the Fund and the Transfer Agent.
Article 4 Recordkeeping and Other Information.
4.1 The Transfer Agent shall create and maintain all
records required of it pursuant
to its duties hereunder and as set forth in Schedule A in
accordance with all applicable laws,
rules and regulations, including records required by Section 31(a)
of the 1940 Act. All
records shall be available during regular business hours for
inspection and use by the Fund.
Where applicable, such records shall be maintained by the Transfer
Agent for the periods and
in the places required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act,
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 will be
surrendered promptly to the Fund on and in accordance with the
Fund's request.
4.3 In case of any requests or demands for the inspection
of Shareholder records of
the Fund, the Transfer Agent will endeavor to notify the Fund of
such request and secure
Written Instructions as to the handling of such request. 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 comply with such
request.
Article 5 Fund Instructions.
5.1 The Transfer Agent will have no liability when acting
upon Written or Oral
Instructions believed to have been executed or orally communicated
by an Authorized Person
and will not be held to have any notice of any change of authority
of any person until receipt
of a Written Instruction thereof from the Fund.
5.2 At any time, the Transfer Agent may request Written
Instructions from the Fund
and may seek advice from legal counsel for the Fund, or its own
legal counsel, with respect to
any matter arising in connection with this Agreement, and it shall
not be liable for any action
taken or not taken or suffered by it in good faith in accordance
with such Written Instructions
or in accordance with the opinion of counsel for the Fund or for
the Transfer Agent. Written
Instructions requested by the Transfer Agent will be provided by
the Fund within a reasonable
period of time.
5.3 The Transfer Agent, its officers, agents or employees,
shall accept Oral
Instructions or Written Instructions given to them by any person
representing or acting on
behalf of the Fund only if said representative is an Authorized
Person. The Fund agrees that
all Oral Instructions shall be followed within one business day by
confirming Written
Instructions, and that the Fund's failure to so confirm shall not
impair in any respect the
Transfer Agent's right to rely on Oral Instructions.
Article 6 Compensation.
6.1 The Fund on behalf of each of the Portfolios will
compensate the Transfer
Agent for the performance of its obligations hereunder in
accordance with the fees set forth in
the written Fee Letter Agreement annexed hereto as Schedule B and
incorporated herein.
6.2 In addition to those fees set forth in Section 6.1
above, the Fund on behalf of
each of the Portfolios agrees to pay, and will be billed
separately for, out-of-pocket expenses
incurred by the Transfer Agent in the performance of its duties
hereunder. Out-of-pocket
expenses shall include, but shall not be limited to, the items
specified in the written schedule
of out-of-pocket charges annexed hereto as Schedule C and
incorporated herein. Schedule C
may be modified by written agreement between the parties.
Unspecified out-of-pocket
expenses shall be limited to those out-of-pocket expenses
reasonably incurred by the Transfer
Agent in the performance of its obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to
pay promptly all fees
and out-of-pocket expenses following the receipt of the respective
invoice.
6.4 Any compensation agreed to hereunder may be adjusted
from time to time by
attaching to Schedule B, a revised Fee Schedule executed and dated
by the parties hereto.
Article 7 Documents. In connection with the appointment of the
Transfer Agent, the
Fund shall, on or before the date this Agreement goes into effect,
but in any case within a
reasonable period of time for the Transfer Agent to prepare to
perform its duties hereunder,
deliver or caused to be delivered to the Transfer Agent the
documents set forth in the written
schedule of Fund Documents annexed hereto as Schedule D.
Article 8 Transfer Agent System.
8.1 The Transfer Agent shall retain title to and ownership
of any and all data bases,
computer programs, screen formats, report formats, interactive
design techniques, derivative
works, inventions, discoveries, patentable or copyrightable
matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by the Transfer Agent
in connection with the services provided by the Transfer Agent to
the Fund herein (the
"Transfer Agent System").
8.2 The Transfer Agent hereby grants to the Fund a limited
license to the Transfer
Agent System for the sole and limited purpose of having the
Transfer Agent provide the
services contemplated hereunder and nothing contained in this
Agreement shall be construed or
interpreted otherwise and such license shall immediately terminate
with the termination of this
Agreement.
Article 9 Representations and Warranties of the Transfer Agent.
The Transfer Agent
represents and warrants to the Fund that:
(a) It is a corporation duly organized an existing and in
good standing under
the laws of the Commonwealth of Massachusetts;
(b) It is empowered under applicable laws and by its
Articles of
Incorporation and By-Laws to enter into and perform this
Agreement;
(c) All requisite corporate proceedings have been taken to
authorized it to
enter into this Agreement;
(d) It is duly registered with its appropriate regulatory
agency as a transfer
agent and such registration will remain in effect for the duration
of this Agreement;
(e) It has and will continue to have access to the
necessary facilities,
equipment and personnel to perform its duties and obligations
under this Agreement.
Article 10 Representations and Warranties of the Fund. The Fund
represents and warrants
to the Transfer Agent that:
(a) It is duly organized and existing and in good standing
under the laws of
the jurisdiction in which it is organized;
(b) It is empowered under applicable laws and by its
Article of Incorporation
and By-Laws to enter into this Agreement;
(c) All corporate proceedings required by said Articles of
Incorporation, By-
Laws and applicable laws have been taken to authorized it to enter
into this Agreement;
(d) A registration statement under the Securities Act of
1933, as amended,
and the 1940 Act on behalf of each of the Portfolios is currently
effective and will
remain effective, and all appropriate state securities law filings
have been made and
will continue to be made, with respect to all Shares of the Fund
being offered for sale;
(e) All outstanding Shares are validly issued, fully paid
and non-assessable.
When Shares are hereafter issued in accordance with the terms of
the Fund's Articles of
Incorporation and its Prospectus with respect to each Portfolio,
such Shares shall be
validly issued, fully paid and non-assessable; and
Article 11 Indemnification.
11.1 The Transfer Agent shall not be responsible for and
the Fund on behalf of each
Portfolio shall indemnify and hold the Transfer Agent harmless
from and against any and all
claims, costs, expenses (including reasonable attorneys' fees),
losses, damages, charges,
payments and liabilities of any sort or kind which may be asserted
against the Transfer Agent
or for which the Transfer Agent may be held to be liable (a
"Claim") arising out of or
attributable to any of the following:
(a) Any actions of the Transfer Agent required to be taken
pursuant to this
Agreement unless such Claim resulted from a negligent act or
omission to act or bad
faith by the Transfer Agent in the performance of its duties
hereunder.
(b) The Transfer Agent's reasonable reliance on, or
reasonable use of
information, data, records and documents (including but not
limited to magnetic tapes,
computer printouts, hard copies and microfilm copies) received by
the Transfer Agent
from the Fund, or any authorized third party acting on behalf of
the Fund, in the
performance of the Transfer Agent's duties and obligations
hereunder.
(c) The reliance on, or the implementation of, any Written
or Oral
Instructions or any other instructions or requests of the Fund on
behalf of the applicable
Portfolio.
(d) The offer or sales of shares in violation of any
requirement under 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 state with respect
to the offer or sale of such shares in such state.
(e) The Fund's refusal or failure to comply with the terms
of this
Agreement, or any Claim which arises out of the Fund's negligence
or misconduct or
the breach of any representation or warranty of the Fund made
herein.
11.2 In any case in which the Fund may be asked to
indemnify or hold the Transfer
Agent harmless, the Transfer Agent will notify the Fund promptly
after identifying any
situation which it believes presents or appears likely to present
a claim for indemnification
against the Fund although the failure to do so shall not prevent
recovery by the Transfer Agent
and shall keep the Fund advised with respect to all developments
concerning such situation.
The Fund shall have the option to defend the Transfer Agent
against any Claim which may be
the subject of this indemnification, and, in the event that the
Fund so elects, such defense shall
be conducted by counsel chosen by the Fund and satisfactory to the
Transfer Agent, and
thereupon the Fund shall take over complete defense of the Claim
and the Transfer Agent shall
sustain no further legal or other expenses in respect of such
Claim. The Transfer Agent will
not confess any Claim or make any compromise in any case in which
the Fund will be asked to
provide indemnification, except with the Fund's prior written
consent. The obligations of the
parties hereto under this Article 14 shall survive the termination
of this Agreement.
Article 12 Standard of Care.
12.1 The Transfer Agent shall at all times act in good
faith and agrees to use its best
efforts within commercially reasonable limits to ensure the
accuracy of all services performed
under this Agreement, but assumes no responsibility for loss or
damage to the Fund unless said
errors are caused by the Transfer Agent's own negligence, bad
faith or willful misconduct or
that of its employees.
12.2 Notwithstanding the foregoing Section 12.1 or anything
else contained in this
Agreement to the contrary, the Transfer Agent's entire liability
to the Fund for any loss or
damage, direct or indirect for any cause whatsoever (including but
not limited to those arising
out of this Agreement), and regardless of the form of action,
shall be limited to the Fund's
actual direct out-of-pocket expenses which are reasonably incurred
by the Fund, but shall not
under any circumstances exceed the lesser of (i) an amount
equivalent to the average of twelve
month's fees paid to the Transfer Agent under this Agreement or
(ii) one million dollars
($1,000,000).
Article 13 Consequential Damages. In no event and under no
circumstances shall either
party to this Agreement be liable to the other party for
consequential or indirect loss of profits,
reputation or business or any other special damages under any
provision of this Agreement or
for any act or failure to act hereunder.
Article 14 Term and Termination.
14.1 This Agreement shall be effective on the date first
written above and shall
continue for a period of two (2) years (the "Initial Term"),
unless earlier terminated pursuant
to the terms of this Agreement. Thereafter, this Agreement shall
automatically be renewed for
successive annual periods ("Renewal Terms").
14.2 Either party may terminate this Agreement at the end
of the Initial Term or any
subsequent Renewal Term upon not less than ninety (90) days or
more than one-hundred
eighty (180) days prior written notice to the other party.
14.3 In the event a termination notice is given by the
Fund, all expenses associated
with movement of records and materials and conversion thereof to a
successor transfer agent
will be borne by the Fund.
14.4 If a party hereto is guilty of a material failure to
perform its duties and
obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may
give written notice thereof to the Defaulting Party, and if such
material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the
Non-Defaulting Party may terminate this Agreement by giving thirty
(30) days written notice
of such termination to the Defaulting Party. If the Transfer
Agent is the Non-Defaulting
Party, its termination of this Agreement shall not constitute a
waiver of any other rights or
remedies of the Transfer Agent with respect to services performed
prior to such termination or
rights of the Transfer Agent to be reimbursed for out-of-pocket
expenses. In all cases,
termination by the Non-Defaulting Party shall not constitute a
waiver by the Non-Defaulting
Party of any other rights it might have under this Agreement or
otherwise against the
Defaulting Party.
Article 15 Additional Portfolios. In the event that the Fund
establishes one or more
Portfolios in addition to those identified in Exhibit 1, with
respect to which the Fund desires to
have the Transfer Agent render services as transfer agent under
the terms hereof, the Fund
shall so notify the Transfer Agent in writing, and if the Transfer
Agent agrees in writing to
provide such services, Exhibit 1 shall be amended to include such
additional Portfolios or
classes.
Article 16 Confidentiality.
16.1 In connection with the services provided by the
Transfer Agent hereunder, certain
confidential and proprietary information regarding the Transfer
Agent and the Fund may be
disclosed to the other. In connection therewith, the parties agree
as follows:
(a) Confidential Information disclosed under this
Agreement shall mean:
(i) any data or information that is competitively sensitive
material, and not
generally known to the public, including, but not limited to,
information about
product plans, marketing strategies, finance, operations, customer
relationships,
customer profiles, sales estimates, business plans, and internal
performance
results relating to the past, present or future business
activities of the Transfer
Agent or the Fund, their respective parent corporation, their
respective
subsidiaries and affiliated companies and the customers, clients
and suppliers of
any of the foregoing;
(ii) any scientific or technical information, design, process,
procedure,
formula, or improvement that is commercially valuable and secret
in the sense
that its confidentiality affords the Transfer Agent or the Fund a
competitive
advantage over its competitors; and
(iii) all confidential or proprietary concepts, documentation,
reports, data,
specifications, computer software, source code, object code, flow
charts,
databases, inventions, know-how, show-how and trade secrets,
whether or not
patentable or copyrightable.
(b) Confidential Information includes, without limitation,
all documents,
inventions, substances, engineering and laboratory notebooks,
drawings, diagrams,
specifications, bills of material, equipment, prototypes and
models, and any other
tangible manifestation of the foregoing which now exist or come
into the control or
possession of the party.
16.2 Except as expressly authorized by prior written
consent of the disclosing party
("Discloser"), the party receiving Confidential Information
("Recipient") shall:
(a) limit access to Discloser's Confidential
Information to Recipient's
employees who have a need-to-know in connection with the subject
matter thereof;
(b) advise those employees who have access to the
Confidential Information
of the proprietary nature thereof and of the obligations set forth
in this Confidentiality
Agreement;
(c) take appropriate action by instruction or agreement
with the employees
having access to Discloser's Confidential Information to fulfill
Recipient's obligations
under this Confidentiality Agreement;
(d) safeguard all of Discloser's Confidential Information
by using a
reasonable degree of care, but not less than that degree of care
used by Recipient in
safeguarding its own similar information or material;
(e) use all of Discloser's Confidential Information solely
for purposes that it
was intended;
(f) not disclose any of Discloser's Confidential
Information to third parties;
and
(g) not disclose the existence of the discussions to any
third party.
16.3 Upon Discloser's request, Recipient shall surrender to
Discloser all memoranda,
notes, records, drawings, manuals, records, and other documents or
materials (and all copies
of same) relating to or containing Discloser's Confidential
Information. When Recipient
returns the materials, Recipient shall certify in writing that it
has returned all materials
containing or relating to the Confidential Information.
16.4 The obligations of confidentiality and restriction on
use in this Article 17 shall
not apply to any Confidential Information that Recipient proves:
(a) was in the public domain prior to the date of this
Agreement or
subsequently came into the public domain through no fault of
Recipient; or
(b) was lawfully received by Recipient from a third party
free of any
obligation of confidence to the third party; or
(c) was already in Recipient's possession prior to receipt
from Discloser; or
(d) is required to be disclosed in a judicial or
administrative proceeding after
all reasonable legal remedies for maintaining such information in
confidence have been
exhausted including, but not limited to, giving Discloser as much
advance notice as
practical of the possibility of disclosure to allow Discloser to
stop such disclosure or
obtain a protective order concerning such disclosure; or
(e) is subsequently and independently developed by
Recipient's employees,
consultants or agents without reference to Confidential
Information.
16.5 The Fund and the Transfer Agent agree that money
damages would not be a
sufficient remedy for breach of this Article 16. Accordingly, in
addition to all other remedies
that either party may have, a party shall be entitled to specific
performance and injunctive or
other equitable relief as a remedy for any breach of this
Agreement. The parties agree to
waive any requirement for a bond in connection with any such
injunctive or other equitable
relief.
Article 17 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,
labor difficulties,
mechanical breakdowns, 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 18 Amendments. This Agreement may only be amended or
modified by a written
instrument executed by both parties.
Article 19 Subcontracting. The Fund agrees that the Transfer
Agent may, in its discretion,
subcontract for certain of the services described under this
Agreement or the Schedules hereto;
provided that the appointment of any such Transfer Agent shall not
relieve the Transfer Agent
of its responsibilities hereunder.
Article 20 Arbitration.
20.1 Any claim or controversy arising out of or relating to
this Agreement, or breach
hereof, shall be settled by arbitration administered by the
American Arbitration Association in
Boston, Massachusetts in accordance with its applicable rules,
except that the Federal Rules of
Evidence and the Federal Rules of Civil Procedure with respect to
the discovery process shall
apply.
20.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator
may be entered in any court having jurisdiction.
20.3 The parties acknowledge and agree that the performance
of the obligations under
this Agreement necessitates the use of instrumentalities of
interstate commerce and,
notwithstanding other general choice of law provisions in this
Agreement, the parties agree
that the Federal Arbitration Act shall govern and control with
respect to the provisions of this
Article 21.
Article 21 Notice. Any notice or other instrument authorized or
required by this
Agreement to be given in writing to the Fund or the Transfer
Agent, shall be sufficiently given
if addressed to that party and received by it at its office set
forth below or at such other place
as it may from time to time designate in writing.
To the Fund:
Panorama Trust
▇/▇ ▇▇▇▇▇▇ & ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
To the Transfer Agent:
The Shareholder Services Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to the Transfer Agent's General Counsel
Article 22 Successors. This Agreement shall extend to and shall
be binding upon the
parties hereto, and their respective successors and assigns,
provided, however, that this
Agreement shall not be assigned to any person other than a person
controlling, controlled by or
under common control with the assignor without the written consent
of the other party, which
consent shall not be unreasonably withheld.
Article 23 Governing Law. This Agreement shall be governed
exclusively by the laws of
the Commonwealth of Massachusetts without reference to the choice
of law provisions thereof.
Each party hereto hereby (i) consents to the personal jurisdiction
of the Commonwealth of
Massachusetts courts over the parties hereto, hereby waiving any
defense of lack of personal
jurisdiction; and (iii) appoints the person to whom notices
hereunder are to be sent as agent for
service of process.
Article 24 Matters Relating to the Fund as a Massachusetts
Business Trust. The terms
"Fund" and "Trustees" refer respectively to the Trust created and
the Trustees, as trustees but
not individually or personally, acting from time to time under a
Declaration of Trust dated as
of May 23, 1995 to which reference is hereby made and a copy of
which is on file at the office
of the Secretary of the Commonwealth of Massachusetts and
elsewhere as required by law, and
to any and all amendments thereto so filed or hereafter filed.
The obligations of the Fund
entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents
are made not individually, but in such capacities, and are not
binding upon any of the
Trustees, Shareholders or representatives of the Fund personally,
but bind only the assets of
the Fund, and all persons dealing with the Fund or a Portfolio
must look solely to the assets of
the Fund belonging to such Portfolio for the enforcement of any
claims against the Fund.
Article 25 Counterparts. This Agreement may be executed in any
number of counterparts,
each of which shall be deemed to be an original; but such
counterparts shall, together,
constitute only one instrument.
Article 26 Captions. The captions of this Agreement are included
for convenience of
reference only and in no way define or limit any of the provisions
hereof or otherwise affect
their construction or effect.
Article 27 Use of Transfer Agent/Fund Name.
27.1 The Fund shall not use the name of the Transfer Agent
in any Prospectus,
Statement of Additional Information, Shareholders' report, sales
literature or other material
relating to the Fund in a manner not approved prior thereto in
writing; provided, that the
Transfer Agent need only receive notice of all reasonable uses of
its name which merely refer
in accurate terms to its appointment hereunder or which are
required by any government
agency or applicable law or rule.
27.2 The Transfer Agent shall not use the name of the Fund
or material relating to the
Fund on any documents or forms for other than internal use in a
manner not approved prior
thereto in writing; provided, that the Fund need only receive
notice of all reasonable uses of its
name which merely refer in accurate terms to the appointment of
the Transfer Agent or which
are required by any government agency or applicable law or rule.
Article 28 Relationship of Parties. The parties agree that they
are independent contractors
and not partners or co-venturers and nothing contained herein
shall be interpreted or construed
otherwise.
Article 29 Entire Agreement; Severability. This Agreement and
the Exhibits and
Schedules attached hereto constitute the entire agreement of the
parties hereto relating to the
matters covered hereby and supersede any previous agreements. If
any provision is held to be
illegal, unenforceable or invalid for any reason, the remaining
provisions shall not be affected
or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by
their duly authorized officers, as of the day and year first above
written.
PANORAMA TRUST:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Trustee
THE SHAREHOLDER SERVICES GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operations Officer
Exhibit 1
LIST OF PORTFOLIOS AND CLASSES
Pictet Global Emerging Markets Fund (with one class of shares)
Schedule A
DUTIES OF THE TRANSFER AGENT
1. Shareholder Information. The Transfer Agent
shall maintain a record of the
number of Shares held by each Shareholder of record which shall
include name, address,
taxpayer identification and which shall indicate whether such
Shares are held in certificates or
uncertificated form.
2. Shareholder Services. The Transfer Agent shall
respond as appropriate to all
inquiries and communications from Shareholders relating to
Shareholder accounts with respect
to its duties hereunder and as may be from time to time mutually
agreed upon between the
Transfer Agent and the Fund.
3. Mailing Communications to Shareholders; Proxy
Materials. The Transfer
Agent will address and mail to Shareholders of the Fund, all
reports to Shareholders, dividend
and distribution notices and proxy material for the Fund's
meetings of Shareholders. In
connection with meetings of Shareholders, the Transfer Agent will
prepare Shareholder lists,
mail and certify as to the mailing of proxy materials, process and
tabulate returned proxy
cards, report on proxies voted prior to meetings, act as inspector
of election at meetings and
certify Shares voted at meetings.
4. Sales of Shares
(a) The Transfer Agent shall not be required to issue
any Shares of the Fund
where it has received a Written Instruction from the Fund or
official notice from any
appropriate authority that the sale of the Shares of the Fund has
been suspended or
discontinued. The existence of such Written Instructions or such
official notice shall be
conclusive evidence of the right of the Transfer Agent to rely on
such Written Instructions or
official notice.
(b) In the event that any check or other order for
the payment of money is
returned unpaid for any reason, the Transfer Agent will endeavor
to: (i) give prompt notice of
such return to the Fund or its designee; (ii) place a stop
transfer order against all Shares issued
as a result of such check or order; and (iii) take such actions as
the Transfer Agent may from
time to time deem appropriate.
5. Transfer, Repurchase, and Exchange
(a) The Transfer Agent shall process all requests to
transfer, redeem, or
exchange Shares in accordance with the transfer, repurchase, or
exchange procedures set
forth in the Fund's Prospectus.
(b) The Transfer Agent will transfer, repurchase, or
exchange Shares upon
receipt of Oral or Written Instructions or otherwise pursuant to
the Prospectus, if any,
properly endorsed for transfer or redemption, accompanied by such
documents as the Transfer
Agent reasonably may deem necessary.
(c) The Transfer Agent reserves the right to refuse
to transfer, repurchase, or
exchange Shares until it is satisfied that the endorsement on the
instructions is valid and
genuine. The Transfer Agent also reserves the right to refuse to
transfer, repurchase, or
exchange Shares until it is satisfied that the requested transfer,
repurchase, or exchange is
legally authorized, and it shall incur no liability for the
refusal, in good faith, to make
transfer, repurchase, or exchange which the Transfer Agent, in its
good judgement, deems
improper or unauthorized, or until it is reasonably satisfied that
there is no basis to any claims
adverse to such transfer, repurchase, or exchange.
(d) When Shares are redeemed, the Transfer Agent
shall, upon receipt of the
instructions and documents in proper form, deliver to the
Custodian and the Fund or its
designee a notification setting forth the number of Shares to be
repurchased. Such repurchased
shares shall be reflected on appropriate accounts maintained by
the Transfer Agent reflecting
outstanding Shares of the Fund and Shares attributed to individual
accounts.
(e) The Transfer Agent, upon receipt of the monies
paid to it by the Custodian
for the repurchase of Shares, pay such monies as are received from
the Custodian, all in
accordance with the procedures described in the written
instruction received by the Transfer
Agent from the Fund.
(f) The Transfer Agent shall not process or effect
any repurchase or exchange
with respect to Shares of the Fund after receipt by the Transfer
Agent or its agent of
notification of the suspension of the determination of the net
asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each
capital gain distribution by
the Trustees of the Fund with respect to Shares of the Fund, the
Fund shall furnish or cause to
be furnished to the Transfer Agent Written Instructions setting
forth the date of the declaration
of such dividend or distribution, the ex-dividend date, the date
of payment thereof, the record
date as of which Shareholders entitled to payment shall be
determined, the amount payable per
Share to the Shareholders of record as of that date, the total
amount payable to the Transfer
Agent on the payment date and whether such dividend or
distribution is to be paid in Shares at
net asset value.
(b) On or before the payment date specified in such
resolution of the Trustees,
the Fund will pay to the Transfer Agent sufficient cash to make
payment to the Shareholders of
record as of such payment date.
(c) If the Transfer Agent does not receive
sufficient cash from the Fund to
make total dividend and/or distribution payments to all
Shareholders of the Fund as of the
record date, the Transfer Agent will, upon notifying the Fund,
withhold payment to all
Shareholders of record as of the record date until sufficient cash
is provided to the Transfer
Agent.
8. In addition to and neither in lieu nor in
contravention of the services set forth
above, the Transfer Agent shall: (i) perform all the customary
services of a transfer agent,
registrar, dividend disbursing agent and agent of the dividend
reinvestment and cash purchase
plan as described herein consistent with those requirements in
effect as at the date of this
Agreement. The detailed definition, frequency, limitations and
associated costs (if any) set out
in the attached fee schedule, include but are not limited to:
maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies,
tabulating proxies, mailing
Shareholder reports to current Shareholders, withholding taxes on
U.S. resident and
non-resident alien accounts where applicable, preparing and filing
U.S. Treasury Department
Forms 1099 and other appropriate forms required with respect to
dividends and distributions
by federal authorities for all Shareholders.
Schedule B
FEE LETTER AGREEMENT
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for
applicable out-of-pocket
expenses, including, but not limited to the following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes,
checks and stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first
class) direct pass
through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all
lease,
maintenance, line and voice response system costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other
equipment and any
expenses incurred in connection with such terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve and Bank Service fees, check
clearance, ACH
transactions and other related charges
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention, retrieval and destruction costs,
including, but not
limited to exit fees charged by third party record keeping vendors
- Third party audit reviews
- All conversion costs: including System start up costs
- All Systems enhancements after the conversion at the
rate of $95.00 per
hour
- Insurance
- Such other miscellaneous expenses reasonably incurred
by the Transfer
Agent in performing its duties and responsibilities under this
Agreement.
- NSCC transaction charges
The Fund agrees that postage and mailing expenses will be
paid on the day of or prior
to mailing as agreed with the Transfer Agent. In addition, the
Fund will promptly reimburse
the Transfer Agent for any other unscheduled expenses incurred by
the Transfer Agent
whenever the Fund and the Transfer Agent mutually agree that such
expenses are not
otherwise properly borne by the Transfer Agent as part of its
duties and obligations under the
Agreement.
Schedule D
FUND DOCUMENTS
- Certified copy of the Articles of Incorporation of the
Fund, as amended
- Certified copy of the By-laws of the Fund, as amended,
- Copy of the resolution of the Trustees authorizing the
execution and
delivery of this Agreement
- Specimens of the certificates for Shares of the Fund,
if applicable, in the
form approved by the Trustees of the Fund, with a certificate of
the Secretary of
the Fund as to such approval
- All account application forms and other documents
relating to
Shareholder accounts or to any plan, program or service offered by
the Fund
- Certified list of Shareholders of the Fund with the
name, address and
taxpayer identification number of each Shareholder, and the number
of Shares
of the Fund held by each, certificate numbers and denominations
(if any
certificates have been issued), lists of any accounts against
which stop transfer
orders have been placed, together with the reasons therefore, and
the number of
Shares redeemed by the Fund
- All notices issued by the Fund with respect to the
Shares in accordance
with and pursuant to the Articles of Incorporation or By-laws of
the Fund or as
required by law and shall perform such other specific duties as
are set forth in
the Articles of Incorporation including the giving of notice of
any special or
annual meetings of shareholders and any other notices required
thereby.
