Exhibit (h)(8)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
▇▇▇▇▇▇ VALUE SERIES, INC.
and
▇▇▇▇▇▇▇ SERVICE CORPORATION
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of February 1, 2001, by and between ▇▇▇▇▇▇ VALUE
SERIES, INC, a Maryland corporation, having its principal office and place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Corporation") and ▇▇▇▇▇▇▇ SERVICE CORPORATION, a Massachusetts corporation,
having its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Agent").
WHEREAS, the Corporation desires to appoint the Agent as a transfer
agent, dividend disbursing agent and agent in connection with certain other
activities on behalf of the Class S shares of each series of the Fund listed on
the attached Schedule A and the Agent desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1. Terms of Appointment: Duties of the Agent.
1.01. Subject to the terms and conditions set forth in this Agreement,
the Corporation hereby employs and appoints the Agent to act as, and the Agent
agrees to act as, transfer agent for the Corporation's authorized and issued
Class S shares of beneficial interest ("Shares") of each series of the Fund
listed on the attached Schedule A, dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans provided to the
shareholders of the Corporation ("Shareholders") and set out in a currently
effective prospectus ("Prospectus") or currently effective statement of
additional information ("Statement of Additional Information") of the
Corporation, including without limitation any periodic investment plan or
periodic withdrawal program. The term "Corporation" shall be deemed to apply to
each series of Shares, unless the context otherwise requires.
1.02. The Agent agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Corporation and the Agent, the Agent shall:
(i) Receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation thereof
to the duly authorized custodian of the Corporation (the
"Custodian").
(ii) Pursuant to orders for the purchase of Shares, record the
purchase of the appropriate number of Shares in the
Shareholder's account and, if requested by the Shareholder,
and if the Directors of the Corporation have authorized the
issuance of stock certificates, issue a certificate for the
appropriate number of Shares;
(iii) Pursuant to instructions provided by Shareholders, reinvest
income dividends and capital gain distributions;
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(iv) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the Custodian;
(v) Provide an appropriate response to Shareholders with respect
to all correspondence and rejected trades;
(vi) 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;
(vii) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(viii) Prepare and transmit payments for dividends and distributions
declared by the Corporation ;
(ix) Report abandoned property to the various states as authorized
by the Corporation in accordance with policies and principles
agreed upon by the Corporation and Agent;
(x) Maintain records of account for and advise the Corporation and
its Shareholders as to the foregoing;
(xi) Record the issuance of Shares of the Corporation and maintain
an accurate control book with respect to Shares pursuant to
SEC Rule 17Ad-10(e) under the Securities Exchange Act of 1934.
The Agent shall also provide the Corporation on a regular
basis with the total number of Shares which are 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 Corporation;
(xii) Respond to all telephone inquiries from Shareholders or their
authorized representatives regarding the status of Shareholder
accounts;
(xiii) Respond to correspondence from Shareholders or their
authorized representatives regarding the status of Shareholder
accounts or information related to Shareholder accounts; and
(xiv) Perform all Shareholder account maintenance updates.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Agent shall: (i) perform the
customary services of a transfer agent, dividend disbursing agent and, as
relevant, agent in connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan or periodic
withdrawal program). 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
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accounts, preparing Shareholder meeting lists, mailing proxy statements and
proxies, receiving and tabulating proxies, mailing shareholder reports and
prospectuses to current Shareholders, and withholding all applicable taxes
(including but limited to all withholding taxes imposed under the U.S. Internal
Revenue Code and Treasury regulations promulgated thereunder, and applicable
state and local laws to the extent consistent with good industry practice),
preparing and filing U.S. Treasury Department Forms 1099, Form 941 when
applicable and other appropriate forms required with respect to dividends,
distributions and taxes withheld on Shareholder accounts by federal authorities
for all registered Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases and redemptions of
Shares and other conformable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing Shareholder account
information, (ii) provide daily and monthly a written report and access to
information which will enable the Corporation to monitor the total number of
Shares sold and the aggregate public offering price thereof in each State by the
Corporation , added by sales in each State of the registered Shareholder or
dealer branch office, as defined by the Corporation, and (iii) if directed by
the Corporation, (A) each confirmation of the purchase which establishes a new
account will be accompanied by a Prospectus and any amendment or supplement
thereto, and (B) a Prospectus, and any amendment or supplement thereto, will be
mailed to each Shareholder at the time a confirmation of the first purchase by
such Shareholder, subsequent to the effective date of a Prospectus or any
amendment or supplement thereto, is mailed to such Shareholders.
(c) In addition, the Corporation shall (i) identify to the Agent in
writing those transactions and assets to be treated as exempt from blue sky
reporting to the Corporation for each state and (ii) approve those transactions
to be included for each state on the blue sky program prior to activation and
thereafter monitor the daily activity for each state. The responsibility of the
Agent for the Corporation's blue sky State registration and compliance status is
solely limited to the initial establishment of transactions subject to blue sky
compliance by the Corporation and the reporting of such transactions as provided
above.
(d) The Agent shall utilize a system to identify all share transactions
which involve purchase and redemption orders that are processed at a time other
than the time of the computation of net asset value per share next computed
after receipt of such orders, and shall compute the net effect upon the company
of such transactions so identified on a daily and cumulative basis.
(e) The Agent shall supply to the Corporation from time to time, as
mutually agreed upon, reports summarizing the transactions identified pursuant
to paragraph (d) above, and the daily and cumulative net effects of such
transactions, and shall advise the Corporation at the end of each month of the
net cumulative effect at such time. The Agent shall promptly advise the
Corporation if at any time the cumulative net effect exceeds a dollar amount
equivalent to 1/2 of 1 cent per outstanding Share.
(f) The Agent shall make appropriate arrangements with banking
institutions in connection with effecting timely redemptions of shares by the
Write-a-Check redemption feature described in the Corporation's Prospectus and
Statement of Additional Information, if applicable.
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1.03. The Agent's offices, personnel and computer and other equipment
shall be adequate to perform the services contemplated by this Agreement for the
Corporation and for other investment companies advised by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Investments, Inc. and its affiliates. The Agent shall notify the Corporation in
the event that it proposes to provide such services for any investment companies
or other entities other than those managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.
and its affiliates.
Article 2. Fees and Expenses
2.01. For the performance by the Agent pursuant to this Agreement,
the Agent shall be paid an annual maintenance fee for each Shareholder account
as set out in a fee schedule agreed to by both parties in writing. Such fees and
out-of-pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the
Corporation and the Agent, as approved by a majority of the Directors who are
not "interested persons" (as defined in the Investment Corporation Act of 1940)
of the Corporation.
2.02. In addition to the fee paid under Section 2.01 above, the Agent
shall be reimbursed for out-of-pocket expenses or advances incurred by the Agent
for the items set out in the fee schedule agreed to by both parties in writing.
In addition, any other expenses incurred by the Agent at the request or with the
consent of the Corporation will be reimbursed.
2.03. All reimbursable expenses shall be paid promptly, the terms,
method and procedures for which are detailed on the fee schedule agreed to by
both parties in writing. Postage for mailing of dividends, proxy statements,
Corporation reports and other mailings to all Shareholder accounts shall be
advanced to the Agent at least two (2) days prior to the mailing date of such
materials.
2.04. The Corporation may engage accounting firms or other
consultants to evaluate the fees paid to, and quality of services rendered by,
the Agent hereunder, and such firms or other consultants shall be provided
access by the Agent to such information as may be reasonably required in
connection with such engagement. The Agent will give due consideration and
regard to the recommendations to the Corporation in connection with such
engagement, but shall not be bound thereby.
3. Representations and Warranties of the Agent.
The Agent represents and warrants to the Corporation that:
3.01. It is a corporation duly organized and existing and in good
standing under the laws of The
Commonwealth of Massachusetts.
3.02. It has the legal power and authority to carry on its business
in The Commonwealth of Massachusetts.
3.03. It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
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3.04. All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.05. It is duly registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934, as amended.
3.06. 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 4. Representations and Warranties of the Corporation.
The Corporation represents and warrants to the Agent that:
4.01. It is a business Corporation duly organized and existing and in
good standing under the laws of Maryland.
4.02. It is empowered under applicable laws and by its Articles of
Incorporation and Articles Supplementary to enter into and perform this
Agreement.
4.03. All proceedings required by said Articles of Incorporation and
Articles Supplementary have been taken to authorize it to enter into and perform
this Agreement.
4.04. It is an investment company registered under the Investment
Company Act of 1940, as amended.
4.05. A registration statement under the Securities Act of 1933 is
currently effective (or will be effective prior to commencement by the Agent of
performance of services hereunder) and will remain effective, and appropriate
state securities law filings have been made and/or will continue to be made,
with respect to all Shares of the Corporation being offered for sale.
Article 5. Indemnification
5.01. To the extent that the Agent acts in good faith and without
negligence or willful misconduct, the Agent shall not be responsible for, and
the Corporation shall indemnify and hold the Agent harmless from and against,
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liabilities arising out of or attributable to:
(a) All actions of the Agent or its agents or subcontractors
required to be taken and correctly executed pursuant to this
Agreement.
(b) The Corporation's lack of good faith, negligence or willful
misconduct or which arise out of the breach of any
representation or warranty of the Corporation hereunder.
(c) The reasonable reliance on or use by the Agent or its agents
or subcontractors of information, records and documents or
services which are received or relied upon by the Agent or its
agents or subcontractors and furnished to it or performed by
or on behalf of the Corporation.
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(d) The reasonable reliance on, or the carrying out by the Agent
or its agents or subcontractors of, any written instructions
or requests of the Corporation.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations, or the
securities laws or regulations of any state that such Shares
be registered in such state, or in violation of any stop order
or other determination or ruling by any federal agency or any
state with respect to the offer or sale of such Shares in such
state, unless such violation is the result of the Agent's
negligent or willful failure to comply with the provisions of
Section 1.02(b) of this Agreement.
5.02. The Agent shall indemnify and hold the Corporation harmless
from and against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liabilities arising out of or attributable to the Agent's
refusal or failure to comply with the terms of this Agreement (whether as a
result of the acts or omissions of the Agent or of its agents or subcontractors)
or arising out of the lack of good faith, negligence or willful misconduct of
the Agent, or its agents or subcontractors, or arising out of the breach of any
representation or warranty of the Agent hereunder.
5.03. At any time the Agent may apply to any officer of the
Corporation for instructions, and may consult with outside legal counsel with
respect to any matter arising in connection with the services to be performed by
the Agent under this Agreement, and the Agent and its agents or subcontractors
shall not be liable and shall be indemnified by the Corporation for any action
reasonably taken or omitted by it in reliance upon such instructions or upon the
opinion of such counsel. The Agent, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by or
on behalf of the Corporation, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided to the Agent or its agents or subcontractors
by machine-readable input, telex, CRT data entry or other similar means
authorized by the Corporation, and shall not be held to have notice of any
change of authority of any person, until receipt by the Agent of written notice
thereof from the Corporation. The Agent, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officers of the Corporation, and the proper countersignature of any former
transfer agent or registrar, or of a co-transfer agent or co-registrar.
5.04. In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable to the other for
any damages resulting from such failure to perform or otherwise from such
causes.
5.05. Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement, but each
shall be liable for general damages resulting from breach of this Agreement. For
the purposes of this Agreement, the term "general damages" shall include but
shall not be limited to:
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(a) All costs of correcting errors made by the Agent or its agents
or subcontractors in Corporation shareholder accounts,
including the expense of computer time, computer programming
and personnel;
(b) Amounts which the Corporation is liable to pay to a person (or
his representative) who has purchased or redeemed, or caused
to be repurchased, Shares at a price which is higher, in the
case of a purchase, or lower, in the case of a redemption or
repurchase, than correct net asset value per Share, but only
to the extent that the price at which such Shares were
purchased, redeemed or repurchased was incorrect as a result
of either (i) one or more errors caused by the Agent or its
agents or subcontractors in processing shareholder accounts of
the Corporation or (ii) the posting by the Agent of the
purchase, redemption or repurchase of Shares subsequent to the
time such purchase, redemption or repurchase should have been
posted pursuant to laws and regulations applicable to open-end
investment companies, if the delay is caused by the Agent, its
agents or subcontractors;
(c) The value of dividends and distributions which were not
credited on Shares because of the failure of the Agent or its
agents or subcontractors to timely post the purchase of such
Shares;
(d) The value of dividends and distributions which were
incorrectly credited on Shares because of the failure of the
Agent or its agents or subcontractors to timely post the
redemption or repurchase of such Shares;
(e) The value of dividends and distributions, some portion of
which was incorrectly credited, or was not credited, on Shares
because of the application by the Agent or its agents or
subcontractor of an incorrect dividend or distribution factor
or otherwise;
(f) Penalties and interest which the Corporation is required to
pay because of the failure of the Agent or its agents or
subcontractors to comply with the information reporting and
withholding (including backup withholding) requirements of the
Internal Revenue Code of 1986, as amended, and applicable
Treasury regulations thereunder, applicable to Corporation
Shareholder accounts: and
(g) Interest in accordance with the laws of The State of Maryland
on any damages from the date of the breach of this Agreement.
5.06. In order that the indemnification provisions contained in this
Article 5 shall apply, upon the assertion of a claim or loss for which either
party may be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion or loss, and shall keep
the other party advised with respect to all developments concerning such claim.
The party who may be required to indemnify shall have the option to participate
at its expense with the party seeking indemnification in the defense of such
claim. The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which
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the other party may be required to indemnify it except with the other party's
prior written consent.
5.07. Losses incurred by the Corporation arising from the Agent
effecting a share transaction at a trade (pricing) date prior to the processing
date shall be governed by a separate agreement between the Agent and the
Corporation.
The obligations of the parties hereto under this Article 5 shall
survive the termination of this Agreement.
Article 6. Covenants of the Corporation and the Agent.
6.01. The Corporation shall promptly furnish to the Agent the
following:
(a) A certified copy of the resolution of the Board of
Directors of the Corporation authorizing the
appointment of the Agent and the execution and
delivery of this Agreement.
(b) A copy of the Articles of Incorporation and Articles
Supplementary of the Corporation and all amendments
thereto.
6.02. The Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Corporation 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.
6.03. The Agent shall at all times maintain insurance coverage which
is reasonable and customary in light of its duties hereunder and its other
obligations and activities.
6.04. The Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as amended,
(the "Act") and the Rules thereunder, the Agent agrees that all such records
prepared or maintained by the Agent relating to the services to be performed by
the Agent hereunder and those records that the Corporation and the Agent agree
from time to time to be the records of the Corporation are the property of the
Corporation and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered promptly to the Corporation
on and in accordance with its request. Records surrendered hereunder shall be in
machine readable form, except to the extent that the Agent has maintained such a
record only in paper form.
6.05. The Agent and the Corporation agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential and shall not be voluntarily disclosed to
any other person, except as may be required by law.
6.06. In case of any requests or demands for the inspection of the
Shareholders records of the Corporation, the Agent will endeavor to notify the
Corporation and to secure instructions from an authorized officer of the
Corporation as to such inspection. The Agent reserves the
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right, however, to exhibit the Shareholders records to any person whenever it is
reasonably advised by its counsel that it may be held liable for the failure to
exhibit the Shareholders records to such person.
6.07. The Agent agrees to maintain or provide for redundant
facilities or a compatible configuration and to maintain or provide for backup
of the Corporation's master and input files and to store such files in a secure
off-premises location so that in the event of a power failure or other
interruption of whatever cause at the location of such files the Corporation's
records are maintained intact and transactions can be processed at another
location.
6.08. The Agent acknowledges that the Corporation, as a registered
investment company under the Act, is subject to the provisions of the Act and
the rules and regulations thereunder, and that the offer and sale of the
Corporation 's Shares are subject to the provisions of federal and state laws
and regulations applicable to the offer and sale of securities. The Corporation
acknowledges that the Agent is not responsible for the Corporation's compliance
with such laws and regulations. If the Corporation advises the Agent that a
procedure of the Agent related to the discharge of its obligations hereunder has
or may have the effect of causing the Corporation to violate any of such laws or
regulations, the Agent shall use its best efforts to develop a mutually
agreeable alternative procedure which does not have such effect.
Article 7. Termination of Agreement.
7.01. This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
7.02. Should the Corporation exercise its right to terminate, all
reasonable out-of-pocket expenses of the Agent associated with the movement of
records and materials required by this Agreement will be borne by the
Corporation . Additionally, the Agent reserves the right to charge for any other
reasonable expenses associated with such termination.
Article 8. Additional Series.
8.01. In the event that the Corporation establishes one or more
series of Shares with respect to which it desires to have the Agent render
services as transfer agent under the terms hereof, it shall so notify the Agent
in writing, and unless the Agent objects in writing to providing such services,
the term "Corporation " hereunder, unless the context otherwise requires, shall
be deemed to include each such series of Shares. All recordkeeping and reporting
shall be done separately for each series. Unless the Corporation and the Agent
agree to an amended fee schedule, the fee schedule attached hereto shall apply
to each series separately.
Article 9. Assignment.
9.01. Except as provided in Section 9.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
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9.02. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
9.03. The Agent may, with notice to and consent on the part of the
Corporation, which consent shall not be unreasonably withheld, subcontract for
the performance of certain services under this Agreement to qualified service
providers, which shall be registered as transfer agents under Section 17A of the
Securities Exchange Act of 1934 if such registration is required; provided,
however, that the Agent shall be as fully responsible to the Corporation for the
acts and omissions of any subcontractor as it is for its own acts and omissions.
Article 10. Amendment.
10.01. 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 Directors or Trustees of each party.
Article 11. Massachusetts Law to Apply.
11.01. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 12. Form N-SAR.
12.01. The Agent shall maintain such records as shall enable the
Corporation to fulfill the requirements of Form N-SAR or any successor report
which must be filed with the Securities and Exchange Commission.
Article 13. Merger of Agreement.
13.01. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof or thereof whether oral or written.
Article 14. Counterparts.
14.01. This Agreement may be executed by the parties hereto in any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
▇▇▇▇▇▇ VALUE SERIES, INC.
By:
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ SERVICE CORPORATION
By:
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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Schedule A
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▇▇▇▇▇▇ Small Cap Value Fund Class S
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