EXHIBIT NO. EX-99.h
TRANSFER AGENCY AGREEMENT
This Agreement made as of the 15th day of December, 2000 between J&B
Funds, a Delaware Business Trust (the "Fund"), and Jones & Babson, Inc., a
Missouri corporation (the "Transfer Agent").
WITNESSETH
That in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
1. "Approved Institution" shall mean an entity so named in a
Certificate, as hereinafter defined. From time to time, the Fund may amend a
previously delivered Certificate by delivering to the Transfer Agent a
Certificate naming an additional entity or deleting any entity named in a
previously delivered Certificate.
2. The "Board of Directors" shall mean the Board of Directors of the
Fund.
3. "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement to be given
to the Transfer Agent by the Fund which is signed by any Officer, as
hereinafter defined, and actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Fund, or its successor(s).
5. "Fund Business Day" shall be determined as set out in the Fund's
prospectuses as shall be effective from time to time.
6. "Officer" shall be deemed to be the Fund's President, any Vice
President, Secretary, Treasurer, Controller, any Assistant Controller, any
Assistant Treasurer and any Assistant Secretary, and any other person duly
authorized by the Board of Directors of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the Fund, and any person
reasonably believed by the Transfer Agent to be such a person.
7. "Out-of-Pocket Expenses" means amounts reasonably necessary and
actually incurred by Transfer Agent in the provision of Transfer Agent
services or pursuant to this Agreement for the following purposes: postage
(and first class mail insurance in connection with mailing Share
certificates), envelopes, check forms, continuous forms, forms for reports
and statements, stationery and other similar items, telephone and telegraph
charges incurred in answering inquiries from dealers or shareholders,
microfilm used to record transactions in shareholder accounts and computer
tapes used for permanent storage of records and cost of insertion of
materials in mailing envelopes by outside firms. Any charges associated with
special or exception processing shall also be considered Out-of-Pocket
Expenses.
8. "Prospectus" shall mean the most recent Fund prospectus actually
received by the Transfer Agent from the Fund with respect to which the Fund
has indicated a registration statement under the Securities Act of 1933, as
amended, has become effective, including the Statement of Additional
Information, incorporated by reference therein.
9. "Shares" shall mean all or any part of each class or series of
the shares of beneficial interest of the Fund or portfolio listed in the
Certificate as to which the Transfer Agent acts as transfer agent hereunder,
as may be amended from time to time, which are authorized and/or issued by
the Fund.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. Effective as of the date of this Agreement, the Fund hereby
constitutes and appoints the Transfer Agent as transfer agent of all the
Shares of the Fund and as dividend disbursing agent during the period of this
Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent
and dividend disbursing agent and agrees to perform duties thereof as
hereinafter set forth.
3. In connection with such appointment, the Fund upon the request of
the Transfer Agent, shall deliver the following documents to the Transfer
Agent:
(i) A copy of the Articles of Incorporation of the Fund and all
amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-laws of the Fund certified by the
Secretary of the
Fund;
(iii) A copy of a resolution of the Board of Directors of the Fund
certified by the Secretary of the Fund appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund
specifying: the number of authorized Shares, the number of such
authorized Shares issued, the number of such authorized Shares issued
and currently outstanding, the names and specimen signatures of the
Officers of the Fund and the name and address of the legal counsel for
the Fund;
(v) Specimen Share certificate for each or series class of
Shares in the form approved by the Board of Directors of the Fund (and
in a format compatible with the Transfer Agent's system), together with
a Certificate signed by the Secretary of the Fund as to such approval;
(vi) Copies of the Fund's registration statement, as amended to
date, and the most recently filed Post-Effective Amendment thereto,
filed by the Fund with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and under the Investment Company
Act of 1940, as amended, together with any applications filed in
connection therewith; and
(vii) Opinion of counsel for the Fund with respect to the
validity of the authorized and outstanding Shares, whether such Shares
are fully paid and nonassessable and the status of such Shares under
the Securities Act of 1933, as amended, and any other applicable
federal law or regulation (i.e., if subject to registration, that they
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have been registered and that the registration statement has become
effective or, if exempt, the specific grounds therefor).
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. If requested by the Transfer Agent, the Fund shall deliver to the
Transfer Agent the following documents on or before the effective date of any
increase or decrease in the total number of Shares authorized to be issued:
(a) A certified copy of the amendment to the Articles of
Incorporation giving effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for the
Fund with respect to the validity of the Shares of the Fund and the
status of such Shares under the Securities Act of 1933, as amended, and
any other applicable federal law or regulation (i.e., if subject to
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registration, that they have been registered and that the registration
statement has become effective or, if exempt, the specific grounds
therefor); and
(c) In the case of an increase, if the appointment of the
Transfer Agent was theretofore expressly limited, a certified copy of a
resolution of the Board of Directors of the Fund increasing the
authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares pursuant to stock
dividends or stock splits, etc., and prior to any reduction in the number of
Shares outstanding, if requested by the Transfer Agent, the Fund shall
deliver the following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the Board
of Directors and/or the shareholders of the Fund authorizing such
issuance of additional Shares or such reduction, as the case may be; and
(b) An opinion of counsel for the Fund with respect to the
validity of the Shares and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable federal
law or regulation (i.e., if subject to registration, that they have
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been registered and that the registration statement has become
effective, or, if exempt, the specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or
other capital adjustment requiring a change in the form of Share
certificates, the Transfer Agent will issue Share certificates in the new
form in exchange for, or upon transfer of, outstanding Share certificates in
the old form, upon receiving:
(a) A Certificate authorizing the issuance of the Share
certificates in the new form;
(b) A certified copy of any amendment to the Articles of
Incorporation with respect to the change;
(c) Specimen Share certificates for each class of Shares in the
new form approved by the Board of Directors of the Fund, with a
Certificate signed by the Secretary of the Fund as to such approval; and
(d) An opinion of counsel for the Fund with respect to the
validity of the Shares in the new form and the status of such Shares
under the Securities Act of 1933, as amended, and any other applicable
federal law or regulation (i.e., if subject to registration, that the
Shares have been registered and that the registration statement has
become effective or, if exempt, the specific grounds therefor).
2. The Fund at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time
to time will replenish such supply upon the request of the Transfer Agent.
Such blank Share certificates shall be compatible with the Transfer Agent's
system and shall be properly signed by facsimile or otherwise by Officers of
the Fund authorized by law or by the By-laws to sign Share certificates and,
if required, shall bear the corporate seal or facsimile thereof. The Fund
agrees to indemnify and exonerate, save and hold the Transfer Agent harmless
from and against any and all claims or demands that may be asserted against
the Transfer Agent with respect to the genuineness of any Share certificate
supplied to the Transfer Agent pursuant to this Article.
ARTICLE V
ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy
of the Fund's Prospectus, which Prospectus describes how sales and
redemption of Shares of the Fund shall be made, and the Transfer Agent
agrees to accept purchase orders and redemption requests with respect
to Shares on each Fund Business Day in accordance with such Prospectus.
The Fund agrees to provide the Transfer Agent with sufficient advance
notice to enable the Transfer Agent to effect any changes in the
procedures set forth in the Prospectus regarding such purchase and
redemption procedure; provided, however, that in no event will such
advance notice be less than thirty (30) days.
(b) The Transfer Agent shall also accept with respect to each
Fund Business Day, at such times as are agreed upon from time to time
by the Transfer Agent and the Fund, a computer tape or electronic data
transmission consistent in all respects with the Transfer Agent's
record format, as amended from time to time, which is believed by the
Transfer Agent to be furnished by or on behalf of any Approved
Institution. The Transfer Agent shall not be liable for any losses or
damages to the Fund or its shareholders in the event that a computer
tape or electronic data transmission from an Approved Institution is
unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or
transmission is found to be incorrect.
2. On each Fund Business Day, the Transfer Agent shall, as of the
time at which the Fund computes the net asset value of the Fund, issue to and
redeem from the accounts specified in a purchase order, redemption request or
computer tape or electronic data transmission, which in accordance with the
Prospectus is effective on such Fund Business Day, the appropriate number of
full and fractional Shares based on the net asset value per Share of such
Fund specified in an advice received on such Fund Business Day from the Fund.
Notwithstanding the foregoing, if a redemption specified in a computer tape
or electronic data transmission is for a dollar value of Shares in excess of
the dollar value of uncertificated Shares in the specified account, the
Transfer Agent shall not effect such redemption in whole or in part and shall
within twenty-four (24) hours orally advise the Approved Institution which
supplied such tape of the discrepancy.
3. In connection with a reinvestment of a dividend or distribution
of Shares of the Fund, the Transfer Agent shall as of each Fund Business Day,
as specified in a Certificate or resolution described in paragraph 1 of
succeeding Article VI, issue Shares of the Fund based on the net asset value
per Share of such Fund specified in an advice received from the Fund on such
Fund Business Day.
4. On each Fund Business Day, the Transfer Agent shall supply the
Fund with a statement specifying with respect to the immediately preceding
Fund Business Day: the total number of Shares of the Fund (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of the Fund sold on such day, pursuant to the
preceding paragraph 2 of this Article; the total number of Shares of the Fund
redeemed from shareholders by the Transfer Agent on such day; the total
number of Shares of the Fund, if any, sold on such day pursuant to the
preceding paragraph 3 of this Article, and the total number of Shares of the
Fund issued and outstanding.
5. In connection with each purchase and each redemption of Shares,
the Transfer Agent shall send such statements as are prescribed by the
Federal Securities laws applicable to transfer agents or as described in the
Prospectus. If the Prospectus indicates that certificates for Shares are
available and if specifically requested in writing by any shareholder, or if
otherwise required hereunder, the Transfer Agent will countersign (if
necessary), issue and mail to such shareholder at the address set forth in
the records of the Transfer Agent a Share certificate for any full Share
requested.
6. As of each Fund Business Day, the Transfer Agent shall furnish
the Fund with an advice setting forth the number and dollar amount of Shares
to be redeemed on such Fund Business Day in accordance with paragraph 2 of
this Article.
7. Upon receipt of a proper redemption request and moneys paid to it
by the Custodian in connection with a redemption of Shares, the Transfer
Agent shall cancel the redeemed Shares and after making appropriate deduction
for any withholding of taxes required of it by applicable law: (a) in the
case of a redemption of Shares pursuant to a redemption described in the
preceding paragraph l(a) of this Article, make payment in accordance with the
Fund's redemption and payment procedures described in the Prospectus; and (b)
in the case of a redemption of Shares pursuant to a computer tape or
electronic data transmission described in the preceding paragraph l(b) of
this Article, make payment by directing a federal funds wire order to the
account previously designated by the Approved Institution specified in said
computer tape or electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares
after it has received from an Officer of the Fund or from an appropriate
federal or state authority written notification that the sale of Shares has
been suspended or discontinued, and the Transfer Agent shall be entitled to
rely upon such written notification.
9. Upon the issuance of any Shares in accordance with this
Agreement, the Transfer Agent shall not be responsible for the payment of any
original issue or other taxes required to be paid by the Fund in connection
with such issuance of any Shares.
10. The Transfer Agent shall accept a computer tape or electronic
data transmission consistent with the Transfer Agent's record format, as
amended from time to time, which is reasonably believed by the Transfer Agent
to be furnished by or on behalf of any Approved Institution and is
represented to be instructions with respect to the transfer of Shares from
one account of such Approved Institution to another such account, and shall
effect the transfers specified in said computer tape or electronic data
transmission. The Transfer Agent shall not be liable for any losses to the
Fund or its shareholders in the event that a computer tape or electronic data
transmission from an Approved Institution is unable to be processed for any
reason beyond the control of the Transfer Agent, or if any of the information
on such tape or transmission is found to be incorrect.
11. (a) Except as otherwise provided in subparagraph (b) of this
paragraph and in paragraph 13 of this Article, Shares will be
transferred or redeemed upon presentation to the Transfer Agent of
Share certificates or instructions properly endorsed for transfer or
redemption, accompanied by such documents as the Transfer Agent deems
necessary to evidence the authority of the person making such transfer
or redemption, and bearing satisfactory evidence of the payment of
stock transfer taxes. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished
with an appropriate surety bond, and without further approval of the
Fund, transfer or redeem Shares registered in the name of a decedent
where the current market value of the Shares being transferred does not
exceed such amount as may from time to time be prescribed by various
states. The Transfer Agent reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the endorsement on the stock
certificate or instructions is valid and genuine, and for that purpose
it will require, unless otherwise instructed by an authorized Officer
of the Fund, a guarantee of signature by an "Eligible Guarantor
Institution" as that term is defined by SEC Rule 17Ad-15. The Transfer
Agent also reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the requested transfer or redemption is
legally authorized, and it shall incur no liability for the refusal, in
good faith, to make transfers or redemptions which the Transfer Agent,
in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis to any claims adverse to such transfer
or redemption. The Transfer Agent may, in effecting transfers and
redemptions of Shares, rely upon those provisions of the Uniform Act
for the Simplification of Fiduciary Security Transfers or the Uniform
Commercial Code, as the same may be amended from time to time,
applicable to the transfer of securities, and the Fund shall indemnify
the Transfer Agent for any act done or omitted by it in good faith in
reliance upon such laws. In no event will the Fund indemnify the
Transfer Agent for any act done by it as a result of willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties. The Transfer Agent shall be entitled to accept, and shall be
fully protected by the Fund in accepting, any request from any entity
to carry out any transaction in Shares received by the Transfer Agent
through any of the various programs offered through the National
Securities Clearing Corporation ("NSCC") (including, but not limited
to, Networking and FundServ). Any such entity shall constitute an
Approved Institution as defined herein.
(b) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Transfer Agent shall
be fully protected by the Fund in not requiring any instruments,
documents, assurances, endorsements or guarantees, including, without
limitation, any signature guarantees, in connection with a redemption
or transfer of Shares whenever the Transfer Agent reasonably believes
that requiring the same would be inconsistent with the transfer and
redemption procedures as described in the Prospectus.
12. Notwithstanding any provision contained in this Agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as
a condition to any transfer of any Shares pursuant to paragraph 11 of this
Article or any redemption of any Shares pursuant to a computer tape or
electronic data transmission described in this Agreement, any documents,
including, without limitation, any documents of the kind described in
subparagraph (a) of paragraph 11 of this Article, to evidence the authority
of the person requesting the transfer or redemption and/or the payment of any
stock transfer taxes, and shall be fully protected in acting in accordance
with the applicable provisions of this Article.
13. (a) As used in this Agreement, the terms "computer tape or
electronic data transmission" and "computer tape believed by the
Transfer Agent to be furnished by an Approved Institution", shall
include any tapes generated by the Transfer Agent to reflect
information believed by the Transfer Agent to have been input by an
Approved Institution, via a remote terminal or other similar link, into
a data processing, storage or collection system, or similar system (the
"System"), located on the Transfer Agent's premises. For purposes of
paragraph 1 of this Article, such a computer tape or electronic data
transmission shall be deemed to have been furnished at such times as
are agreed upon from time to time by the Transfer Agent and Fund only
if the information reflected thereon was input to the System at such
times as are agreed upon from time to time by the Transfer Agent and
the Fund.
(b) Nothing contained in this Agreement shall constitute any
agreement or representation by the Transfer Agent to permit, or to
agree to permit, any Approved Institution to input information into a
System.
(c) The Transfer Agent reserves the right to approve, in
advance, any Approved Institution; such approval not to be unreasonably
withheld. The Transfer Agent also reserves the right to terminate any
and all automated data communications, at its discretion, upon a
reasonable attempt to notify the Fund when in the opinion of the
Transfer Agent continuation of such communications would jeopardize the
accuracy and/or integrity of the Fund's records on the System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a
resolution of its Board of Directors, certified by the Secretary
or any Assistant Secretary, either: (i) setting forth the date of the
declaration of a dividend or distribution, the date of accrual or payment, as
the case may be, thereof, the record date as of which shareholders entitled
to payment, or accrual, as the case may be, shall be determined, the amount
per Share of such dividend or distribution, the payment date on which all
previously accrued and unpaid dividends are to be paid and the total amount,
if any, payable to the Transfer Agent on such payment date; or (ii)
authorizing the declaration of dividends and distributions on a daily or
other periodic basis and authorizing the Transfer Agent to rely on a
Certificate setting forth the information described in subsection (i) of this
paragraph.
2. Upon the mail date specified in such Certificate or resolution,
as the case may be, the Fund shall, in the case of a cash dividend or
distribution, cause the Custodian to deposit in an account in the name of the
Transfer Agent on behalf of the Fund an amount of cash, if any, sufficient
for the Transfer Agent to make the payment, as of the mail date, specified in
such Certificate or resolution, as the case may be, to the shareholders who
were of record on the record date. The Transfer Agent will, upon receipt of
any such cash, make payment of such cash dividends or distributions to the
shareholders of record as of the record date by: (i) mailing a check, payable
to the registered shareholder, to the address of record or dividend mailing
address; or (ii) wiring such amounts to the accounts previously designated by
an Approved Institution, as the case may be. The Transfer Agent shall not be
liable for any improper payments made in good faith and without negligence,
in accordance with a Certificate or resolution described in the preceding
paragraph. If the Transfer Agent shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all
shareholders of the Fund as of the record date, the Transfer Agent shall,
upon notifying the Fund, withhold payment to all shareholders of record as of
the record date until sufficient cash is provided to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be
responsible for the determination of the rate or form of dividends or capital
gain distributions due to the shareholders. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate
that is incorrect. The Fund agrees to pay the Transfer Agent for any and all
costs, both direct and Out-of-Pocket Expenses, incurred in such corrective
work as necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such
appropriate information returns concerning the payment of dividend and
capital gain distributions with the proper federal, state and local
authorities as are required by law to be filed by the Fund, but shall in no
way be responsible for the collection or withholding of taxes due on such
dividends or distributions due to shareholders, except and only to the extent
required by applicable law. Anything in this Agreement to the contrary
notwithstanding, the Fund shall be solely responsible for the accurate,
complete and timely filing with the proper federal, state and local
authorities of all tax information with respect to any Fund account
maintained under Matrix Level 3 through any of the various programs offered
through the NSCC (including, but not limited to, Networking and FundServ).
ARTICLE VII
CONCERNING THE FUND
1. The Fund represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under the
laws of the State of Maryland.
(b) It is empowered under applicable laws and by its Articles
of Incorporation and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933,
as amended, with respect to the Shares is effective. The Fund shall
notify the Transfer Agent if such registration statement or any state
securities registrations have been terminated or a stop order has been
entered with respect to the Shares.
2. Each copy of the Articles of Incorporation of the Fund and copies
of all amendments thereto shall be certified by the Secretary of State (or
other appropriate official) of the state of organization, and if such
Articles of Incorporation and/or amendments are required by law also to be
filed with a county or other officer or official body, a certificate of such
filing shall be filed with a certified copy submitted to the Transfer Agent.
Each copy of the By-laws and copies of all amendments thereto, and copies of
resolutions of the Board of Directors of the Fund shall be certified by the
Secretary of the Fund under seal.
3. The Fund shall promptly deliver to the Transfer Agent written
notice of any change in the Officers authorized to sign Share certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Transfer Agent may issue such Share certificates of the Fund notwithstanding
such death, resignation or removal, and the Fund shall promptly deliver to
the Transfer Agent such approval, adoption or ratification as may be required
by law.
4. It shall be the sole responsibility of the Fund to deliver to the
Transfer Agent the Fund's currently effective Prospectus and, for purposes of
this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in such Prospectus until a reasonable time after it is
actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized and existing under the
laws of the State of Missouri.
(b) It is empowered under applicable law and by its Articles of
Incorporation and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A
of the Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be indemnified
in acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or
made by an Officer of the Fund or person designated by the Fund and shall not
be held to have any notice of any change of authority of any person until
receipt of written notice thereof from the Fund or such person. It shall also
be protected in processing Share certificates which bear the proper
countersignature of the Transfer Agent and which it reasonably believes to
bear the proper manual or facsimile signature of the Officers of the Fund.
3. The Transfer Agent upon notice to the Fund may establish such
additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent
with such rules and regulations generally adopted by mutual fund transfer
agents.
4. The Transfer Agent shall keep such records as it may deem
advisable and is agreeable to the Fund, but not inconsistent with the rules
and regulations of appropriate government authorities, in particular Rules
31a-2 and 31a-3 under the Investment Company Act of 1940, as amended. The
Transfer Agent acknowledges that such records are the property of the Fund.
The Transfer Agent may deliver to the Fund from time to time at its
discretion, for safekeeping or disposition by the Fund in accordance with
law, such records, papers, documents accumulated in the execution of its
duties as such Transfer Agent, as the Transfer Agent may deem expedient,
other than those which the Transfer Agent is itself required to maintain
pursuant to applicable laws and regulations. The Fund shall assume all
responsibility for any failure thereafter to produce any record, paper,
cancelled Share certificate or other document so returned, if and when
required. Such records maintained by the Transfer Agent pursuant to this
paragraph 4, which have not been previously delivered to the Fund pursuant to
the foregoing provisions of this paragraph 4, shall be considered to be the
property of the Fund, shall be made available upon request for inspection by
the Officers, employees and auditors of the Fund, and records shall be
delivered to the Fund upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX of this Agreement,
in the form and manner kept by the Transfer Agent on such date of termination
or such earlier date as may be requested by the Fund.
5. The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its bad faith,
willful misfeasance, gross negligence or reckless disregard of its duties
under this Agreement.
6. (a) The Fund shall indemnify and exonerate, save and hold
harmless the Transfer Agent from and against any and all claims
(whether with or without basis in fact or law), demands, expenses
(including reasonable attorneys' fees) and liabilities of any and every
nature which the Transfer Agent may sustain or incur or which may be
asserted against the Transfer Agent by any person by reason of or as a
result of any action taken or omitted to be taken by any prior transfer
agent of the Fund or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith and without gross negligence
or willful misfeasance or in reliance upon: (i) any provision of this
Agreement; (ii) the Prospectus; (iii) any instruction or order
including, without limitation, any computer tape or electronic data
transmission reasonably believed by the Transfer Agent to have been
received from an Approved Institution; (iv) any instrument, order or
Share certificate reasonably believed by it to be genuine and to be
signed, countersigned or executed by any duly authorized Officer of the
Fund; (v) any Certificate or other instructions of an Officer; (vi) any
opinion of legal counsel for the Fund or the Transfer Agent; or (vii)
any request by any entity to carry out any transaction in Shares
received by the Transfer Agent through any of the various programs
offered through the NSCC (including, but not limited to, Networking and
FundServ). The Fund shall indemnify and exonerate, save and hold the
Transfer Agent harmless from and against any and all claims (whether
with or without basis in fact or law), demands, expenses (including
reasonable attorneys' fees) and liabilities of any and every nature
which the Transfer Agent may sustain or incur or which may be asserted
against the Transfer Agent by any person by reason of or as a result of
any action taken or omitted to be taken by the Transfer Agent in good
faith in connection with its appointment or in reliance upon any law,
act, regulation or any interpretation of the same even though such law,
act or regulation may thereafter have been altered, changed, amended or
repealed.
(b) The Transfer Agent shall not settle any claim, demand,
expense or liability to which it may seek indemnity pursuant to
paragraph 6(a) above (each, an "Indemnifiable Claim") without the
express written consent of an Officer of the Fund. The Transfer Agent
shall notify the Fund within fifteen (15) days of receipt of
notification of an Indemnifiable Claim, provided that the failure by
the Transfer Agent to furnish such notification shall not impair its
right to seek indemnification from the Fund unless the Fund is unable
to adequately defend the Indemnifiable Claim as a result of such
failure, and further provided, that if as a result of the Transfer
Agent's failure to provide the Fund with timely notice of the
institution of litigation a judgment by default is entered, prior to
seeking indemnification from the Fund the Transfer Agent, at its own
cost and expense, shall open such judgment. The Fund shall have the
right to defend any Indemnifiable Claim at its own expense, provided
that such defense shall be conducted by counsel selected by the Fund
and reasonably acceptable to the Transfer Agent. The Transfer Agent may
join in such defense at its own expense, but to the extent that it
shall so desire the Fund shall direct such defense. The Fund shall not
settle any Indemnifiable Claim without the express written consent
of the Transfer Agent if the Transfer Agent determines that such
settlement would have an adverse effect on the Transfer Agent beyond
the scope of this Agreement. In such event, the Fund and the Transfer
Agent shall each be responsible for their own defense at their own cost
and expense, and such claim shall not be deemed an Indemnifiable Claim
hereunder. If the Fund shall fail or refuse to defend an Indemnifiable
Claim, the Transfer Agent may provide its own defense at the cost and
expense of the Fund. Anything in this Agreement to the contrary
notwithstanding, the Fund shall not indemnify the Transfer Agent
against any liability or expense arising out of the Transfer Agent's
willful misfeasance, bad faith, gross negligence or reckless disregard
of its duties and obligations under this Agreement. The Transfer Agent
shall indemnify and hold the Fund harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action or failure or
omission to act by the Transfer Agent as a result of the Transfer
Agent's lack of good faith, gross negligence or willful misfeasance.
7. The Transfer Agent shall not be liable to the Fund with respect
to any redemption draft on which the signature of the drawer is forged and
which the Fund's Custodian has advised the Transfer Agent to honor the
redemption (but nothing herein is meant to impose any duties upon the Fund's
Custodian); nor shall the Transfer Agent be liable for any material
alteration or absence or forgery of any endorsement, it being understood that
the Transfer Agent's sole responsibility with respect to inspecting
redemption drafts is to use reasonable care to verify the drawer's signature
against signatures on file.
8. There shall be excluded from the consideration of whether the
Transfer Agent has breached this Agreement in any way, any period of time,
and only such period of time during which the Transfer Agent's performance is
materially affected, by reason of circumstances beyond its control
(collectively, "Causes"), including, without limitation, mechanical
breakdowns of equipment (including any alternative power supply and operating
systems software), flood or catastrophe, acts of God, failures of
transportation, communication or power supply, strikes, lockouts, work
stoppages or other similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of the
Fund for written instructions with respect to any matter arising in
connection with the Transfer Agent's duties and obligations under this
Agreement, and the Transfer Agent shall not be liable for any action taken or
permitted by it in good faith in accordance with such written instructions.
Such application by the Transfer Agent for written instructions from an
Officer of the Fund may set forth in writing any action proposed to be taken
or omitted by the Transfer Agent with respect to its duties or obligations
under this Agreement and the date on and/or after which such action shall be
taken. The Transfer Agent shall not be liable for any action taken or omitted
in accordance with a proposal included in any such application on or after
the date specified therein unless, prior to taking or omitting any such
action, the Transfer Agent has received written instructions in response to
such application specifying the action to be taken or omitted. The Transfer
Agent may consult counsel of the Fund, or upon notice to the Fund, its own
counsel, at the expense of the Fund and shall be fully protected with respect
to anything done or omitted by it in good faith in accordance with the advice
or opinion of counsel to the Fund or its own counsel.
10. The Transfer Agent may issue new Share certificates in place of
certificates represented to have been lost, stolen or destroyed upon
receiving written instructions from the shareholder accompanied by proof of
an indemnity or surety bond issued by a recognized insurance institution
specified by the Fund or the Transfer Agent.
If the Transfer Agent receives written notification from the shareholder or
broker dealer that the certificate issued was never received, and such
notification is made within thirty (30) days of the date of issuance, the
Transfer Agent may reissue the certificate without requiring a surety bond.
The Transfer Agent may also reissue certificates which are represented as
lost, stolen or destroyed without requiring a surety bond provided that the
notification is in writing and accompanied by an indemnification signed on
behalf of a member firm of the New York Stock Exchange and signed by an
officer of said firm with the signature guaranteed. Notwithstanding the
foregoing, the Transfer Agent will reissue a certificate upon written
authorization from an Officer of the Fund.
11. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to notify
the Fund promptly and to secure instructions from an Officer as to such
inspection. The Transfer Agent reserves the right, however, to exhibit the
shareholder records to any person whenever it receives an opinion from its
counsel that there is a reasonable likelihood that the Transfer Agent will be
held liable for the failure to exhibit the shareholder records to such
person; provided, however, that in connection with any such disclosure the
Transfer Agent shall promptly notify the Fund that such disclosure has been
made or is to be made.
12. At the request of an Officer of the Fund, the Transfer Agent will
address and mail such appropriate notices to shareholders as the Fund may
direct.
13. Notwithstanding any of the foregoing provisions of this
Agreement, the Transfer Agent shall be under no duty or obligation to inquire
into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor, or the authority of
the Approved Institution or of the Fund, as the case may be, to request
such sale or issuance;
(b) The legality of a transfer of Shares, or of a redemption of
any Shares, the propriety of the amount to be paid therefor, or the
authority of the Approved Institution or of the Fund, as the case may
be, to request such transfer or redemption;
(c) The legality of the declaration of any dividend by the
Fund, or the legality of the issue of any Shares in payment of any
stock dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
14. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set
forth in this Agreement, and no covenant or obligation shall be implied in
this Agreement against the Transfer Agent.
15. Purchase and Prices of Services:
(a) The Fund will compensate the Transfer Agent for, and
Transfer Agent will provide, beginning on the execution date of this
Agreement and continuing until the termination of this Agreement as
provided hereinafter, the services set forth in Schedule I.
(b) The current unit prices for the services are set forth in
Schedule II (the "Schedule II Fees"). Effective as of December 15,
2000, once in each calendar year, the Transfer Agent may elect to raise
the Schedule II Fees upon ninety (90) days prior notice to the Fund,
all subject to the mutual agreement of the parties hereto.
Notwithstanding the annual right to raise the Schedule II Fees, the
Transfer Agent may increase prices due to changes in legal or
regulatory requirements subject to the approval of the Fund, which
approval shall not be unreasonably withheld.
16. Billing and Payment:
(a) The Transfer Agent shall bill the Fund monthly in arrears
for accounts maintained and Out-of-Pocket Expenses. The Transfer Agent
may from time to time request that the Fund advance estimated
expenditures of an unusual nature subject to reconciliation of actual
expenses as soon as practicable thereafter.
(b) The Fund shall pay the Transfer Agent in immediately
available funds at UMB Bank, n.a. in Kansas City, Missouri within
thirty (30) days of the date of the bill. Any amounts due under this
Agreement which are not paid within said thirty (30) day period shall
bear interest at the rate of one and one-half percent (l 1/2%) per
month from such date until paid in full.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such termination,
which shall be not less than sixty (60) days after the date of receipt of
such notice. In the event such notice is given by the Fund, it shall be
accompanied by a copy of a resolution of the Board of Directors of the Fund,
certified by the Secretary or any Assistant Secretary, electing to terminate
this Agreement and designating the successor transfer agent or transfer
agents. In the event such notice is given by the Transfer Agent, the Fund
shall on or before the termination date, deliver to the Transfer Agent a copy
of a resolution of its Board of Directors, certified by the Secretary or any
Assistant Secretary, designating a successor transfer agent or transfer
agents. In the absence of such designation by the Fund, the Fund shall upon
the date specified in the notice of termination of this Agreement and
delivery of the records maintained hereunder, be deemed to be its own
transfer agent and the Transfer Agent shall thereby be relieved of all duties
and responsibilities pursuant to this Agreement.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the Fund, shall deliver the
records of the Fund on electromagnetic media to the Fund or its successor
transfer agent. The Fund shall be responsible to the Transfer Agent for the
reasonable costs and expenses associated with the preparation and delivery of
such media.
ARTICLE X
MISCELLANEOUS
1 The Fund agrees that prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations of the
Transfer Agent hereunder, it shall advise the Transfer Agent of such proposed
change at least thirty (30) days prior to the intended date of the same, and
shall proceed with such change only if it shall have received the written
consent of the Transfer Agent thereto, which shall not be unreasonably
withheld.
2. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at:
BMA Tower
700 Karnes Blvd.
Kansas City, MO 64108
or at such other place as the Fund may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Transfer Agent shall be sufficiently
given if addressed to the Transfer Agent and mailed or delivered to:
BMA Tower
700 Karnes Blvd.
Kansas City, MO 64108
or at such other place as the Transfer Agent may from time to time designate
in writing.
4. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the formality of
this Agreement.
5. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns.
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri.
7. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
8. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Fund, and no rights shall be granted to any other
person by virtue of this Agreement.
9. (a) The Transfer Agent shall endeavor to assist in resolving
shareholder inquiries and errors relating to the period during which
prior transfer agents acted as such for the Fund. Any such inquiries or
errors which cannot be expediently resolved by the Transfer Agent will
be referred to the Fund.
(b) The Transfer Agent shall only be responsible for the
safekeeping and maintenance of transfer agency records, cancelled Share
certificates and correspondence of the Fund created or produced prior
to the time of conversion which are under its control and acknowledged
in a writing to the Fund to be in its possession. Any expenses or
liabilities incurred by the Transfer Agent as a result of shareholder
inquiries, regulatory compliance or audits related to such records and
not caused as a result of Transfer Agent's bad faith, willful
misfeasance or gross negligence shall be the responsibility of the Fund
as provided in Article VIII herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective corporate officer, thereunto duly
authorized and their respective corporate seals to be hereunto affixed, as of
the day and year first above written J&B Funds.
/s/ P. Bradely Adams
Name: P. Bradley Adams
Title: Vice President
JONES & BABSON, INC.
/s/ Martin A. Cramer
Name: Martin A. Cramer
Title: Secretary
TA Agreement/J&B Funds
