Exhibit 99.(H)(4)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
ICON FUNDS
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
PAGE
----
1. Terms of Appointment and Duties 1
2. Third Party Administrators for Defined Contribution Plans 3
3. Fees and Expenses 4
4. Representations and Warranties of the Transfer Agent 5
5. Representations and Warranties of the Fund 6
6. Wire Transfer Operating Guidelines 6
7. Data Access and Proprietary Information 8
8. Indemnification 9
9. Standard of Care 10
10. Confidentiality 11
11. Covenants of the Fund and the Transfer Agent 11
12. Termination of Agreement 12
13. Assignment and Third Party Beneficiaries 13
14. Subcontractors 14
15. Miscellaneous 14
16. Additional Funds 16
17. Limitations of Liability of the Trustees and Shareholders 16
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 22nd day of April, 2005, by and between the
ICON FUNDS,
a
Massachusetts business trust, having its principal office and place of
business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Fund"), and BOSTON FINANCIAL DATA SERVICES, INC., 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;
WHEREAS, the Fund intends to initially offer shares in seventeen (17) series,
such series shall be named in the attached Schedule A which may be amended by
the parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with SECTION 16, being herein referred to as a "Portfolio", and
collectively as the "Portfolios"); and
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans 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:
1. TERMS OF APPOINTMENT AND DUTIES
1.1 TRANSFER AGENCY SERVICES. 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 Fund's authorized
and issued shares of its beneficial interest ("Shares"), dividend
disbursing agent and agent in connection with any accumulation,
open-account or similar plan provided to the shareholders of each of
the respective Portfolios of the Fund ("Shareholders") and set out in
the currently effective prospectuses and statements of additional
information ("prospectus") of the Fund on behalf of the applicable
Portfolio, including without limitation any periodic investment plan
or periodic withdrawal program. The Transfer Agent will:
(a) Receive for acceptance, in accordance with the current prospectus
as provided to the Transfer Agent by the Fund, orders for the purchase
of Shares, and promptly deliver payment and appropriate documentation
thereof to the custodian of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above,
the Transfer Agent shall execute transactions directly with
broker-dealers authorized by the Fund;
(e) 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;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared and funded by the Fund on behalf of the applicable Portfolio;
(h) Issue replacement checks and place stop orders on original checks
based on Shareholder's representation that a check was not received or
was lost. Such stop orders and replacements will be deemed to have
been made at the request of the Fund, and the Fund shall be
responsible for all losses or claims resulting from such replacement;
(i) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of the Fund
which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. 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.
1.2 ADDITIONAL SERVICES. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above SECTION 1.1, the
Transfer Agent shall perform the following services:
(a) OTHER CUSTOMARY SERVICES. Perform the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plan (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;
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 1099
2
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;
(b) CONTROL BOOK (ALSO KNOWN AS "SUPER SHEET"). Maintain a daily
record and produce a daily report for the Fund of all transactions and
receipts and disbursements of money and securities and deliver a copy
of such report for the Fund for each business day to the Fund no later
than 9:00 AM Eastern Time, or such earlier time as the Fund may
reasonably require, on the next business day;
(c) "BLUE SKY" REPORTING. The Fund or its limited agent 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 providing a system which will enable the Fund to
monitor the total number of Shares sold in each State;
(d) NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of
shares in such accounts through Fund/SERV (Networking and Fund/SERV
being programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with, instructions transmitted to
and received by the Transfer Agent by transmission from NSCC on behalf
of broker-dealers and banks which have been established by, or in
accordance with the instructions of authorized persons, as hereinafter
defined on the dealer file maintained by the Transfer Agent; (ii)
issue instructions to Fund's banks for the settlement of transactions
between the Fund and NSCC (acting on behalf of its broker-dealer and
bank participants); (iii) provide account and transaction information
from the affected Fund's records on DST Systems, Inc. computer system
TA2000 ("TA2000 System") in accordance with NSCC's Networking and
Fund/SERV rules for those broker-dealers; and (iv) maintain
Shareholder accounts on TA2000 System through Networking;
(e) NEW PROCEDURES. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to
time by agreement between the Fund and the Transfer Agent. The
Transfer Agent may at times perform only a portion of these services
and the Fund or its agent may perform these services on the Fund's
behalf;
(f) NEW FUNCTIONS/SYSTEM ENHANCEMENTS. The Transfer Agent shall use
its best efforts to keep the Fund apprised of, and will provide,
reasonably promptly under the circumstances, information with respect
to any new, additional functions, features,
3
changes or improvements to existing functions or features as may be
available from time to time.
(g) ANTI-MONEY LAUNDERING ("AML") DELEGATION. If the Fund elects to
delegate to the Transfer Agent certain AML duties under this
Agreement, the parties will agree to such duties and terms as stated
in the attached schedule ("Schedule 1.2 entitled "AML Delegation"
which may be changed from time to time subject to mutual written
agreement between the parties. In consideration of the performance of
the duties by the Transfer Agent pursuant to this SECTION 1.2, the
Fund agrees to pay the Transfer Agent for the reasonable
administrative expense that may be associated with such additional
duties in the amount as the parties may from time to time agree in
writing in accordance with SECTION 3 (Fees and Expenses) below.
1.3 RETIREMENT ACCOUNTS. With respect to certain retirement plans or
accounts (such as individual retirement accounts ("IRAs"), SIMPLE
IRAs, SEP IRAs, ▇▇▇▇ IRAs, Education IRAs, and 403(b) Plans (such
accounts, "Retirement Accounts"), the Transfer Agent, at the request
of the Fund, shall arrange for the provision of appropriate prototype
plans as well as provide or arrange for the provision of various
services to such plans and/or accounts, which services may include
custodial services to be provided by State Street Bank and Trust
Company (the "Bank"), account set-up maintenance, and disbursements as
well as such other services as the parties hereto shall mutually agree
upon.
2. THIRD PARTY ADMINISTRATORS FOR DEFINED CONTRIBUTION PLANS
2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan
or Plans") for the benefit of the individual Plan participant (the
"Plan Participant"), such Plan(s) being qualified under Section 401(a)
of the Internal Revenue Code of 1986, as amended ("Code") and
administered by third party administrators which may be plan
administrators as defined in the Employee Retirement Income Security
Act of 1974, as amended (the "TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule
2.1 entitled "Third Party Administrator Procedures", as may be amended
by the Transfer Agent and the Fund from time to time ("Schedule 2.1"),
the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name of
the Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under SECTION 1 as transfer agent of the
Funds and not as a record-keeper for the Plans.
4
2.3 Transactions identified under SECTION 2 of this Agreement shall be
deemed exception services ("Exception Services") when such
transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform services
under SECTION 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000 System;
or
(c) Require more manual intervention by the Transfer Agent, either in
the entry of data or in the modification or amendment of reports
generated by the TA2000 System than is usually required by
non-retirement plan and pre-nightly transactions.
3. FEES AND EXPENSES
3.1 FEE SCHEDULE. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent an annual
maintenance fee for each Shareholder account as set forth in the
attached fee schedule ("Schedule 3.1"). Such fees and out-of-pocket
expenses and advances identified under SECTION 3.2 below may be
changed from time to time subject to mutual written agreement between
the Fund and the Transfer Agent.
3.2 OUT-OF-POCKET EXPENSES. In addition to the fee paid under SECTION 3.1
above, the Fund agrees to reimburse the Transfer Agent for
out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche, mailing
and tabulating proxies, records storage, or advances incurred by the
Transfer Agent for the items set out in Schedule 3.1 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.
3.3 POSTAGE. 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.
3.4 INVOICES. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective
billing notice, except for any fees or expenses that are subject to
good faith dispute. In the event of such a dispute, the Fund may only
withhold that portion of the fee or expense subject to the good faith
dispute. The Fund shall notify the Transfer Agent in writing within
twenty-one (21) calendar days following the receipt of each billing
notice if the Fund is disputing any amounts in good faith. If the Fund
does not provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Fund. The Fund shall
settle such disputed amounts within five (5) days of the day on which
the parties agree on the amount to be paid by
5
payment of the agreed amount. If no agreement is reached, then such
disputed amounts shall be settled as may be required by law or legal
process.
3.5 COST OF LIVING ADJUSTMENT. Following the first anniversary of the date
first written above, the total fee for all services for each
succeeding year shall equal the fee that would be charged for the same
services based on a fee rate (as reflected in a fee rate schedule)
increased by the percentage increase for the twelve-month period of
such previous calendar year of the CPI-W (defined below), or, in the
event that publication of such Index is terminated, any successor or
substitute index, appropriately adjusted, acceptable to both parties.
As used herein, "CPI-W" shall mean the Consumer Price Index for Urban
Wage Earners and Clerical Workers for Boston-Brockton-Nashua,
MA-NH-ME-CT, (Base Period: 1982-84 = 100), as published by the United
States Department of Labor, Bureau of Labor Statistics.
3.6 LATE PAYMENTS. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the
Fund shall pay the Transfer Agent interest thereon (from the due date
to the date of payment) at a per annum rate equal to one percent
(1.0%) plus the Prime Rate (that is, the base rate on corporate loans
posted by large domestic banks) published by THE WALL STREET JOURNAL
(or, in the event such rate is not so published, a reasonably
equivalent published rate selected by the Fund) on the first day of
publication during the month when such amount was due. Notwithstanding
any other provision hereof, such interest rate shall be no greater
than permitted under applicable provisions of
Massachusetts law.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of
Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform the services
contemplated in this Agreement.
4.4 It is a transfer agent fully registered as a transfer agent pursuant
to Section 17A(c)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
4.5 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.6 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
6
5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of
Massachusetts.
5.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended ("1940
Act").
5.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be
made, with respect to all Shares of the Fund being offered for sale.
6. WIRE TRANSFER OPERATING GUIDELINES/ARTICLES 4A OF THE UNIFORM
COMMERCIAL CODE
6.1 OBLIGATION OF SENDER. The Transfer Agent is authorized to promptly
debit the appropriate Fund account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"Security Procedure") chosen for funds transfer and in the amount of
money that the Transfer Agent has been instructed to transfer. The
Transfer Agent shall execute payment orders in compliance with the
Security Procedure and with the Fund instructions on the execution
date provided that such payment order is received by the customary
deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications received
after this the customary deadline will be deemed to have been received
the next business day.
6.2 SECURITY PROCEDURE. The Fund acknowledges that the Security Procedure
it has designated on the Fund Selection Form was selected by the Fund
from security procedures offered by the Transfer Agent. The Fund shall
restrict access to confidential information relating to the Security
Procedure to authorized persons as communicated to the Transfer Agent
in writing. The Fund must notify the Transfer Agent immediately if it
has reason to believe unauthorized persons may have obtained access to
such information or of any change in the Fund's authorized personnel.
The Transfer Agent shall verify the authenticity of all Fund
instructions according to the Security Procedure.
6.3 ACCOUNT NUMBERS. The Transfer Agent shall process all payment orders
on the basis of the account number contained in the payment order. In
the event of a discrepancy
7
between any name indicated on the payment order and the account
number, the account number shall take precedence and govern.
6.4 REJECTION. The Transfer Agent reserves the right to decline to process
or delay the processing of a payment order which (a) is in excess of
the collected balance in the account to be charged at the time of the
Transfer Agent's receipt of such payment order; (b) if initiating such
payment order would cause the Transfer Agent, in the Transfer Agent's
sole judgment, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Transfer Agent;
or (c) if the Transfer Agent, in good faith, is unable to satisfy
itself that the transaction has been properly authorized.
6.5 CANCELLATION AMENDMENT. The Transfer Agent shall use reasonable
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, the Transfer
Agent assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6.6 ERRORS. The Transfer Agent shall assume no responsibility for failure
to detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the
Transfer Agent complies with the Security Procedure. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
6.7 INTEREST. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the
unauthorized payment order within thirty (30) days of notification by
the Transfer Agent of the acceptance of such payment order.
6.8 ACH CREDIT ENTRIES/PROVISIONAL PAYMENTS. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant to
these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association, the
Bank will act as an Originating Depository Financial Institution
and/or Receiving Depository Financial Institution, as the case may be,
with respect to such entries. Credits given by the Transfer Agent with
respect to an ACH credit entry are provisional until the Transfer
Agent receives final settlement for such entry from the Federal
Reserve Bank. If the Transfer Agent does not receive such final
settlement, the Fund agrees that the Transfer Agent shall receive a
refund of the amount credited to the Fund in connection with such
entry, and the party making payment to the Fund via such entry shall
not be deemed to have paid the amount of the entry.
6.9 CONFIRMATION. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours
notice of which may be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back. Fund
must report any objections to the execution of an order within thirty
(30) days.
8
7. DATA ACCESS AND PROPRIETARY INFORMATION
7.1 The Fund acknowledges that the databases, 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 databases 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 to:
(a) Use such programs and databases (i) solely on the computers of the
Fund and its affiliates and agents, or (ii) solely from equipment at
the location agreed to between the Fund and the Transfer Agent and
(iii) solely in accordance with the Transfer Agent's applicable user
documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform in a timely manner of such fact and dispose of such
information in accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted
to any other computer terminal or other device except as expressly
permitted by the Transfer Agent (such permission not to be
unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent; and
(f) 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.
7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by
a written release by the Transfer Agent; or (iii) are
9
already in the possession of the receiving party at the time of
receipt without obligation of confidentiality or breach of this
Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest
of the Transfer Agent and that the disclosure of such Proprietary
Information in breach of this Agreement would cause the Transfer Agent
immediate, substantial and irreparable harm, the value of which would
be extremely difficult to determine. Accordingly, the parties agree
that, in addition to any other remedies that may be available in law,
equity, or otherwise for the disclosure or use of the Proprietary
Information in breach of this Agreement, the Transfer Agent shall be
entitled to seek and obtain a temporary restraining order, injunctive
relief, or other equitable relief against the continuance of such
breach.
7.4 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.
7.5 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, 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.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this SECTION 7. The obligations of this
Section shall survive any earlier termination of this Agreement.
8. INDEMNIFICATION
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent and the Bank, as to SECTION
8.1(e), harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of
or attributable to:
10
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement (including the defense
of any law suit in which the Transfer Agent or affiliate is a named
party), 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;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on:
(i) any information, records, documents, or data which are received by
the Transfer Agent or its agents or subcontractors by machine readable
input, facsimile, CRT data entry, electronic instructions or other
similar means authorized by the Fund, and which 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 broker-dealer, TPA
or previous transfer agent; (ii) any instructions or requests of the
Fund or any of its officers; (iii) any instructions or opinions of
legal counsel with respect to any matter arising in connection with
the services to be performed by the Transfer Agent under this
Agreement which are provided to the Transfer Agent after consultation
with such legal counsel; or (iv) any paper or document, reasonably
believed to be genuine, authentic, or signed by the proper person or
persons;
(d) The acceptance of e-mail and facsimile transaction requests on
behalf of individual Shareholders received from broker-dealers, TPAs,
or the Funds, and the reliance by the Transfer Agent on the
broker-dealer, TPA, or the Fund to ensure that the original source
documentation is in good order and properly retained;
(e) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination or
ruling by any federal or any state agency with respect to the offer or
sale of such Shares;
(d) The negotiation and processing of any checks, wires and ACH
payments including without limitation for deposit into the Fund's
demand deposit account maintained by the Transfer Agent; or
(e) Upon the Fund's request entering into any agreements required by
the NSCC for the transmission of Fund or Shareholder data through the
NSCC clearing systems.
8.2 The Transfer Agent shall indemnify and hold the Fund and its officers,
directors and agents 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 the Transfer Agent as a result of the Transfer
Agent's lack of good faith, negligence or willful misconduct.
11
8.3 In order that the indemnification provisions contained in this SECTION
8 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.
9. STANDARD OF CARE/LIMITATION OF LIABILITY
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to ensure 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, including encoding and payment processing errors, unless said
errors are caused by its negligence, bad faith, or willful misconduct
or that of its employees or agents. The parties agree that any
encoding or payment processing errors shall be governed by this
standard of care and Section 4-209 of the Uniform Commercial Code is
superseded by SECTION 9 of this Agreement. This shall apply to
Exception Services as defined in SECTION 2.3 herein, but such
application shall take into consideration the manual processing
involved in, and time sensitive nature of, Exception Services.
Notwithstanding the foregoing, the Transfer Agent's aggregate
liability during any term of this Agreement with respect to, arising
from or arising in connection with this Agreement, or from all
services provided or omitted to be provided by the Transfer Agent
under this Agreement, whether in contract, or in tort, or otherwise,
is limited to, and shall not exceed, the aggregate of the amounts
actually received hereunder by the Transfer Agent as fees and charges,
but not including reimbursable expenses, during the twelve (12)
calendar months immediately preceding the event for which recovery
from the Transfer Agent is being sought.
10. CONFIDENTIALITY
The Fund's records, including all those maintained hereunder by the
Transfer Agent, whether in magnetic media, hard copy, film form or
other format, shall be the Fund's property for all purposes and the
Transfer Agent shall treat confidentially and as proprietary
information all such records and other information related to the Fund
and its Shareholders which is not independently available to the
Transfer Agent or in the public domain, and shall use such records
only in connection with the performance of its duties hereunder and
for no other purpose. The Transfer Agent and the Fund further agree
that they will not, at any time during the term of this Agreement or
after its termination, reveal, divulge, or make known to any person,
firm, corporation or other business organization, any customers'
lists, trade secrets, cost figures and projections, profit figures and
projections, or any other secret or confidential information
whatsoever, whether of the Transfer Agent or of the Fund, used or
gained by the Transfer Agent or the Fund during performance under this
Agreement (collectively, "Confidential
12
Information"). The Fund and the Transfer Agent further covenant and
agree to retain all such Confidential Information acquired during and
after the term of this Agreement in trust for the sole benefit of the
Transfer Agent or the Fund and their successors and assigns. In
particular, each party agrees with respect to such Confidential
Information:
(a) That all Confidential Information so acquired by it or its
employees, agents or contractors under this Agreement, or in
contemplation thereof, shall be and shall remain the other
party's exclusive property;
(b) to inform its employees, agents or contractors engaged in
handling Confidential Information of its confidential nature;
(c) to limit access to such Confidential Information to authorized
employees, agents or contractors who have a need to know and use
such information and data in connection with this Agreement and
the services to be supplied hereunder;
(d) to keep, and have their employees, agents and contractors keep
and all such information and data confidential.
10.1 In the event of breach of the foregoing by either party, the remedies
provided by SECTION 7.3 shall be available to the party whose
Confidential Information is disclosed. The above prohibition of
disclosure shall not apply to the extent that the Transfer Agent must
disclose such data to its sub-contractor or Fund agent for purposes of
providing services under this Agreement; provided the Transfer Agent
takes such precautions with regard to such information and data to
ensure that the sub-contractor guards the secrecy and confidentiality
of the information and data as though the sub-contractor were a party
to this Agreement.
10.2 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for records
of Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), 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 expressly reserves the right, however,
to exhibit the Shareholder records to any person whenever it is
advised by counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person or if required by law
or court order.
11. COVENANTS OF THE FUND AND THE TRANSFER AGENT
11.1 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; and
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments
13
thereto.
11.2 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; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
11.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner and for such period, as
are required by Section 31 of the 1940 Act, as amended as it may deem
advisable. 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.
11.4 Each of the parties shall at its own expense secure and maintain, and
shall require its subcontractors to secure and maintain, throughout
the term of the Agreement, the minimum insurance coverage it deems
adequate, provided that such coverage is available from a domestic
insurance carrier at a reasonable cost to the insured party. Such
insurance will be maintained with companies qualified to do business
in the jurisdiction in which the services will be performed. The
insurance coverage maintained by each party and such party's
subcontractors shall be primary to insurance coverage, if any,
maintained by the other parties. Transfer Agent shall notify the Trust
promptly of any material claims against it with respect to the
services performed under this Agreement, whether or not they may be
covered by insurance, and shall notify the Trust promptly should the
total outstanding claim made by Transfer Agent under its insurance
coverage materially impair, or threaten to materially impair, the
adequacy of its coverage.
12. TERMINATION OF AGREEMENT
12.1 TERM. The initial term of this Agreement (the "Initial Term") shall be
three (3) years from the date first stated above unless terminated
pursuant to the provisions of this SECTION 12. Unless a terminating
party gives written notice to the other party one hundred and twenty
(120) days before the expiration of the Initial Term or any Renewal
Term, this Agreement will renew automatically from year to year (each
such year-to-year renewal term a "Renewal Term"). One hundred and
twenty (120) days before the expiration of the Initial Term or a
Renewal Term the parties to this Agreement will agree upon a Fee
Schedule for the upcoming Renewal Term. Otherwise, the fees shall be
increased pursuant to SECTION 3.5 of this Agreement.
12.1(A) CAUSE. If either of the parties hereto becomes in default in the
performance of its duties or obligations hereunder and such default
has a material effect on the other party, or if the Transfer Agent's
performance of the services hereunder does not meet or exceed the same
measures as set forth in Schedule 12.1.A for a period of three (3)
consecutive months (a "Service Level Default"), then the
non-defaulting party may give notice to the
14
defaulting party specifying the nature of the default in sufficient
detail to permit the defaulting party to identify and cure such
default. If the defaulting party fails to cure such default within
thirty (30) days of receipt of such notice, or, with respect to a
Service Level Default, within ninety (90) days of receipt of such
notice, or within such other period of time as the parties may agree
is necessary for such cure, then the non-defaulting party may
terminate this Agreement upon notice of not less than five (5) days to
the defaulting party.
12.2 EARLY TERMINATION. Notwithstanding anything contained in this
Agreement to the contrary, should the Fund desire to move any of its
services provided by the Transfer Agent hereunder to a successor
service provider prior to the expiration of the then current Initial
or Renewal Term, or without the required notice, the Transfer Agent
shall make a good faith effort to facilitate the conversion on such
prior date; however, there can be no guarantee or assurance that the
Transfer Agent will be able to facilitate a conversion of services on
such prior date. In connection with the foregoing, should services be
converted to a successor service provider, or if the Fund is
liquidated or its assets merged or purchased or the like with or by
another entity which does not utilize the services of the Transfer
Agent, the fees payable to the Transfer Agent shall be calculated as
if the services had been performed by the Transfer Agent until the
expiration of the then current Initial or Renewal Term and calculated
at the asset and/or Shareholder account levels, as the case may be, on
the date notice of termination was given to the Transfer Agent, and
the payment of all fees to the Transfer Agent as set forth herein
shall be accelerated to the business day immediately prior to the
conversion or termination of services.
12.3 EXPIRATION OF TERM. During the Initial Term or Renewal Term, whichever
currently is in effect, should either party exercise its right to
terminate, all out-of-pocket expenses or costs associated with the
movement of records and material will be borne by the Fund.
Additionally, the Transfer Agent reserves the right to charge for any
other reasonable expenses associated with such termination.
12.4 CONFIDENTIAL INFORMATION. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations.
12.5 UNPAID INVOICES. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the Transfer
Agent being outstanding for more than ninety (90) days, except with
respect to any amount subject to a good faith dispute within the
meaning of SECTION 3.4 of this Agreement.
12.6 BANKRUPTCY. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b)
an action is commenced by or against the other party under Title 11 of
the United States Code or a receiver, conservator or similar officer
is
15
appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
13. ASSIGNMENT AND THIRD PARTY BENEFICIARIES
13.1 Except as provided in SECTION 14.1 below neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. Any attempt to do so
in violation of this Section shall be void. Unless specifically stated
to the contrary in any written consent to an assignment, no assignment
will release or discharge the assignor from any duty or responsibility
under this Agreement.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in
this Agreement to anyone other than the Transfer Agent and the Fund,
and the duties and responsibilities undertaken pursuant to this
Agreement shall be for the sole and exclusive benefit of the Transfer
Agent and the Fund. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective permitted successors
and assigns.
13.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in SECTION 14.1 and Schedule 1.2(f), neither party shall make
any commitments with third parties that are binding on the other party
without the other party's prior written consent.
14. SUBCONTRACTORS
14.1 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with a subsidiary or
affiliate duly registered as a transfer agent; provided, however that
the Transfer Agent shall be fully responsible to the Fund for the acts
and omissions of such subsidiary or affiliate as it is for its own
acts and omissions.
14.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as by way of
example and not limitation, Airborne Services, Federal Express, United
Parcel Service, the U.S. Mails, the NSCC and telecommunication
companies, provided, if the Transfer Agent selected such company, the
Transfer Agent shall have exercised due care in selecting the same.
15. MISCELLANEOUS
15.1 AUDITS AND INTERNAL CONTROLS REPORT. Transfer Agent shall provide the
Fund with detailed information about its servicing, including but not
limited to, monitoring phone conversations and reviewing
correspondence and operating procedures as they relate to the
provision of services under this Agreement. Access to this information
is intended to provide the Trust, and in particular it's Chief
Compliance Officer, information with
16
which it may, among other things, assure itself that the Transfer
Agent's system of internal controls is adequate. The Transfer Agent
shall also provide to the Trust annually copies of its Statement on
Auditing Standards Reports related to its transfer agency and
shareholder servicing services as prepared by the Transfer Agent's
auditing firm.
15.2 AMENDMENT. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
15.3
MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws
of The Commonwealth of
Massachusetts.
15.4 FORCE MAJEURE. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
15.5 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be liable
to the other party for special, indirect or consequential damages
under any provision of this Agreement or for any special, indirect or
consequential damages arising out of any act or failure to act
hereunder.
15.6 SURVIVAL. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or protections
of proprietary rights and trade secrets shall survive the termination
of this Agreement.
15.7 SEVERABILITY. If any provision or provisions of this Agreement shall
be held invalid, unlawful, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be
affected or impaired.
15.8 PRIORITIES CLAUSE. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
15.9 WAIVER. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the
other party shall be construed as a waiver of any succeeding breach of
the same or of any other covenant or condition.
15.10 MERGER OF AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
17
15.11 COUNTERPARTS. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
15.12. REPRODUCTION OF DOCUMENTS. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each agree
that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether
or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
15.13 NOTICES. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a) If to the Transfer Agent, to:
Boston Financial Data Services, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Fund, to:
ICON FUNDS
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
16. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of Shares,
in addition to those listed on the attached Schedule A, with respect
to which it desires to have the Transfer Agent render services as
transfer agent under the terms hereof, it shall so notify the Transfer
Agent in writing, and if the Transfer Agent agrees in writing to
provide such services, such series of Shares shall become a Portfolio
hereunder.
17. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of The Commonwealth of
Massachusetts, and notice is hereby
given that this instrument is
18
executed on behalf of the Trustees of the Trust as Trustees and not
individually and that the obligations of this instrument are not
binding upon any of the Trustees or Shareholders individually but are
binding only upon the assets and property of the Fund.
19
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.
ICON FUNDS
BY:
------------------------------
NAME:
-----------------------------
TITLE:
----------------------------
ATTEST:
-------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY:
------------------------------
NAME: D. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
TITLE: Senior Vice President
----------------------------
ATTEST:
-------------------------------
20
SCHEDULE A
ICON Asia-Pacific Region Fund
ICON Bond Fund
ICON Consumer Discretionary Fund
ICON Core Equity Fund
ICON Covered Call Fund
ICON Energy Fund
ICON Equity Income Fund
ICON Europe Fund
ICON Financial Fund
ICON Healthcare Fund
ICON Industrials Fund
ICON Information Technology Fund
ICON International Equity Fund
ICON Leisure and Consumer Staples Fund
ICON Long/Short Fund
ICON Materials Fund
ICON Telecommunication & Utilities Fund
ICON FUNDS BOSTON FINANCIAL DATA
SERVICES, INC.
By: By:
---------------------------------------- -----------------------------------
Name: Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------- -----------------------------------
Title: Title: Senior Vice President
---------------------------------------- -----------------------------------
SCHEDULE 1.2
AML DELEGATION
1. DELEGATION. In connection with the enactment of the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 and the regulations
promulgated thereunder, (collectively, the "USA PATRIOT Act"), the
Fund has developed and implemented a written anti-money laundering
program (the "AML Program"), which is designed to satisfy the
requirements of the USA PATRIOT Act. Under the USA PATRIOT Act, a
mutual fund can elect to delegate certain duties with respect to the
implementation and operation of its AML Program to a service provider,
including its transfer agent. The Fund is desirous of having the
Transfer Agent perform certain delegated duties pursuant to the AML
Program and the Transfer Agent desires to accept such delegation.
2. LIMITATION ON DELEGATION. The Fund acknowledges and agrees that in
accepting the delegation hereunder, the Transfer Agent is agreeing to
perform only those duties that have been expressly delegated on this
Schedule 1.2(h) (the "Delegated Duties"), as may be amended from time
to time, and is not undertaking and shall not be responsible for any
other aspect of the AML Program or for the overall compliance by the
Fund with the USA PATRIOT Act or for any other matters that have not
been delegated hereunder. Additionally, the parties acknowledge and
agree that the Transfer Agent shall only be responsible for performing
the Delegated Duties with respect to the ownership of, and
transactions in, shares in the Fund for which the Transfer Agent
maintains the applicable shareholder information.
3. CONSENT TO EXAMINATION. In connection with the performance by the
Transfer Agent of the Delegated Duties, the Transfer Agent understands
and acknowledges that the Fund remains responsible for assuring
compliance with the USA PATRIOT Act and that the records the Transfer
Agent maintains for the Fund relating to the AML Program may be
subject, from time to time, to examination and/or inspection by
federal regulators in order that the regulators may evaluate such
compliance. The Transfer Agent hereby consents to such examination
and/or inspection and agrees to cooperate with such federal examiners
in connection with their review. For purposes of such examination
and/or inspection, the Transfer Agent will use its best efforts to
make available, during normal business hours and on reasonable notice
all required records and information for review by such examiners.
4. DELEGATED DUTIES
4.1 Consistent with the services provided by the Transfer Agent and with
respect to the ownership of shares in the Fund for which the Transfer
Agent maintains the applicable shareholder information, the Transfer
Agent shall:
(a) Submit all financial and non-financial transactions through the
Office of Foreign Assets Control ("OFAC") database and such other
lists or databases as may be required from time to time by applicable
regulatory authorities;
(b) Review special payee checks through OFAC database;
(c) Review redemption transactions that occur within thirty (30) days
of account establishment or maintenance;
(d) Review wires sent pursuant to banking instructions other than
those on file with the Transfer Agent;
(e) Review accounts with small balances followed by large purchases;
(f) Review accounts with frequent activity within a specified date
range followed by a large redemption;
(g) On a daily basis, review purchase and redemption activity per tax
identification number ("TIN") within the Funds to determine if
activity for that TIN exceeded the $100,000 threshold on any given
day;
(h) Monitor and track cash equivalents under $10,000 for a rolling
twelve-month period and file IRS Form 8300 and issue the Shareholder
notices required by the IRS;
(i) Determine when a suspicious activity report ("SAR") should be
filed as required by regulations applicable to mutual funds; prepare
and file the SAR. Provide the Fund with a copy of the SAR within a
reasonable time after filing; notify Fund if any further communication
is received from U.S. Department of the Treasury or other law
enforcement agencies regarding the SAR;
(j) Compare account information to any FinCEN request received by the
Fund and provided to the Transfer Agent pursuant to USA PATRIOT Act
Sec. 314(a). Provide the Fund with documents/information necessary to
respond to requests under USA PATRIOT Act Sec. 314(a) within required
time frames; and
(k) In accordance with procedures agreed upon by the parties (which
may be amended from time to time by mutual agreement of the parties)
(i) verify the identity of any person seeking to open an account with
the Fund, (ii) maintain records of the information used to verify the
person's identity and (iii) determine whether the person appears on
any lists of known or suspected terrorists or terrorists organizations
provided to the Fund by any government agency.
4.2 In the event that the Transfer Agent detects activity as a result of
the foregoing procedures, which necessitates the filing by the
Transfer Agent of a SAR, a Form 8300 or other similar report or notice
to OFAC, then the Transfer Agent shall also immediately notify the
Fund, unless prohibited by applicable law.
ICON FUNDS BOSTON FINANCIAL DATA
SERVICES, INC.
By: By:
----------------------------- ---------------------------------------
Name: Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ---------------------------------------
Title: Title: Senior Vice President
----------------------------- ---------------------------------------
2
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated: April 22, 2005
1. On each day on which both the New York Stock Exchange and the Fund are open
for business (a "Business Day"), the TPA(s) shall receive, on behalf of and
as agent of the Fund, Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the
purchases of Shares, and (ii) requests by the Plan for the redemption of
Shares; in each case based on the Plan's receipt of purchase orders and
redemption requests by Participants in proper form by the time required by
the terms of the Plan, but not later than the time of day at which the net
asset value of a Fund is calculated, as described from time to time in that
Fund's prospectus. Each Business Day on which the TPA receives Instructions
shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Transfer Agent of the net amount of such
purchases or redemptions, as the case may be, for each of the Plans. In the
case of net purchases by any Plan, the TPA(s) shall instruct the Trustees
of such Plan to transmit the aggregate purchase price for Shares by wire
transfer to the Transfer Agent on (TD+1). In the case of net redemptions by
any Plan, the TPA(s) shall instruct the Fund's custodian to transmit the
aggregate redemption proceeds for Shares by wire transfer to the Trustees
of such Plan on (TD+1). The times at which such notification and
transmission shall occur on (TD+1) shall be as mutually agreed upon by each
Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Transfer Agent
and such account shall be in the name of that Plan, the TPA(s), or the
nominee of either thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan as
of the statement closing date, purchases and redemptions of Shares by the
Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
3
7. The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to each
Fund or any agent designated by it such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary to enable
the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses, proxy
materials, periodic reports and other materials relating to each Fund be
furnished to Participants in which event the Transfer Agent or each Fund
shall mail or cause to be mailed such materials to Participants. With
respect to any such mailing, the TPA(s) shall, at the request of the
Transfer Agent or each Fund, provide at the TPA(s)'s expense complete and
accurate set of mailing labels with the name and address of each
Participant having an interest through the Plans in Shares.
ICON FUNDS BOSTON FINANCIAL DATA
SERVICES, INC.
By: By:
----------------------------- ---------------------------------------
Name: Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ---------------------------------------
Title: Title: Senior Vice President
----------------------------- ---------------------------------------
4
SCHEDULE 3.1
FEES
Dated: April 22, 2005 through April 22, 2008
GENERAL: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee. A charge is made for an account in the month that an account opens or
closes.
ANNUAL SERVICE FEES
Open Accounts $ 13.25/account
Networked Accounts $ 7.00/account
Closed Accounts $ 1.80/account
Foreign Shareholder Servicing* $ .30/account
CUSIP Fee $ 3,500.00/CUSIP
▇▇▇ Custodian Maintenance** $ 10.00/SSN
Regulatory Compliance $ 100.00/CUSIP
AML* $ .25/account (excludes matrix level 3)
*Note: Minimum monthly charge of $200.00
**Note: Paid by Shareholder
ACTIVITY-BASED FEES
New Account Set-up $ 4.25/each
Telephone Calls $ 3.50/each
Manual Transactions $ 1.50/item
Correspondence $ 0.00
Special mailings/Proxy for Third Party Vendor $ 250.00/per mailing
ADDITIONAL CUSIP FEES
Implementation Charge $ 1,650.00/CUSIP
Rush Request (LESS THAN30 day's notice) $ 1,100.00/CUSIP
ANNUAL AUTOMATED WORK DISTRIBUTOR ("AWD") FEES++
License and Remote Processing $ 5,100.00/workstation
++Note: Excludes hardware, third-party software or connectivity costs.
CONVERSION-IN CHARGES: $ 50,000.00^
^Note: Includes only the following: System Transition; Image Conversion;
System Enhancements; Training and Travel Out-of-Pockets. Further expenses
may result for additional Fund requests or requirements.
OUT-OF-POCKET EXPENSES Billed as incurred
Out-of Pocket expenses include but are not limited to: confirmation statements,
escheatment, NSCC, freight, quarterly statements, postage, long distance
telephone calls, records retention, customized programming/enhancements, federal
wire fees, transcripts, microfilm, microfiche, disaster recovery, hardware at
your facility, telecommunications/network configuration and all other expenses
incurred on the Fund's behalf.
ICON FUNDS BOSTON FINANCIAL DATA
SERVICES, INC.
By: By:
----------------------------- ---------------------------------------
Name: Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ---------------------------------------
Title: Title: Senior Vice President
----------------------------- ---------------------------------------
2
SCHEDULE 12.1(A)
ITEM STANDARD
------------------------------------------------------------------------------------------------------------------
Processing Statistics Accuracy - Financial Transactions NQR Average by Transaction Type.
(includes purchases, redemptions and exchanges)
Processing Statistics Accuracy - Non-Financial Transactions NQR Average by Transaction Type.
(includes transfers and maintenance)
Processing Statistics Timeliness - Financial (includes paper NQR Average by Transaction Type.
based accounts, purchases, redemptions and exchanges)
Processing Statistics Timeliness - Non- Financial (includes NQR Average by Transaction Type.
transfer and maintenance)
Mailing of Shareholder Confirms Achieve 100% mailed by the 3rd business day.
Mailing of Periodic Statements Achieve 100% mailed by the 5th business day
following approval.
Mailing of Redemption/SWP Checks Achieve 100% mailed by 3rd business day.
Mailing of Cash Dividend Checks Achieve 100% mailed by 3rd business day.
Outgoing Wires 100% on next business day.
DAILY CASH AND SHAREHOLDER COMMUNICATION
Revised Shareholder Cash Reporting by 8:00 a.m. CST 100% reported without revision.
INVESTOR SERVICES
Service Level 80% of calls answered in less than 20 seconds.
Research requests for items generated within past 7 years Completed within 7 business days of receipt.
Research requests for items generated older than 7 years Completed within 7 business days of receipt.
Literature fulfillment Standard will be set after Literature
Fulfillment vendor is selected.
TAX COMPLIANCE REPORTING
Prepare and distribute appropriate Internal Revenue Service Meets all regulatory deadlines.
forms for corresponding Fund and shareholder income and capital
gains, including but not limited to Forms 1099 DIV, 1099 INT,
5498, and 1099B
Issue and submit tax withholding reports to the Internal Meets all regulatory deadlines.
Revenue Service
Provide information regarding potential market timing activity By 11:00 a.m. CST - client will use RPMS Web to
via Short-Term Trader or similar report view reports.
Sales Data Reports for Blue Sky Registration By 11:00 a.m. CST on the next business day.
Delivering Feed to the Website Online availability and systems feeds will be
available by 5:30 a.m. CST.
ICON FUNDS BOSTON FINANCIAL DATA SERVICES,
INC.
By: By:
----------------------------- ---------------------------------------
Name: Name: D. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ---------------------------------------
Title: Title: Senior Vice President
----------------------------- ---------------------------------------
3