As filed with the Securities and Exchange Commission
on November 5, 1998
Registration No. 33-4038; 811-4614
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |_|
Post-Effective Amendment No. 39 |X|
and
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 |_|
Amendment No. 40 |X|
(Check appropriate box or boxes)
------------------------
NATIONS FUND, INC.
(Exact Name of Registrant as specified in Charter)
111 Center Street
Little Rock, Arkansas 72201
(Address of Principal Executive Offices, including Zip Code)
--------------------------
Registrant's Telephone Number, including Area Code: (800) 321-7854
Richard H. Blank, Jr.
c/o Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
(Name and Address of Agent for Service)
With copies to:
Robert M. Kurucza, Esq. Carl Frischling, Esq.
Marco E. Adelfio, Esq. Kramer, Levin, Naftalis
Morrison & Foerster LLP & Frankel
2000 Pennsylvania Ave., N.W., Suite 5500 919 Third Avenue
Washington, D.C. 20006 New York, New York 10022
It is proposed that this filing will become effective (check appropriate box):
|X| Immediately upon filing pursuant to |_| on (date) pursuant to Rule
Rule 485(b); or 485(b), or
|_| 60 days after filing pursuant to |_| on (date) pursuant
Rule 485(a), or to Rule 485(a)
|_| 75 days after filing pursuant to |_| on (date) pursuant to
paragraph (a)(2) paragraph (a)(2) of Rule 485
If appropriate, check the following box:
|_| this post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
<PAGE>
EXPLANATORY NOTE
The Registrant is filing this Post-Effective Amendment No. 39 to the
Registration Statement of Nations Fund, Inc. (the "Company") solely for the
purpose of including certain EDGARized exhibits to the Registration Statement.
Part A included in Post-Effective Amendment No. 38 filed September 4, 1998
and the Part B filed pursuant to Rule 497(c) on October 19, 1998 are
incorporated by reference herein.
<PAGE>
NATIONS FUND, INC.
FILE NOS. 33-4038; 811-4614
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) Financial Statements:
Included in Part A:
Per Share Income and Capital Changes
Included in Part B:
Audited financial statements for Nations Prime Fund, Nations Treasury
Fund, Nations International Equity Fund, Nations Equity Income Fund,
Nations International Growth Fund, Nations Small Company Growth Fund,
Nations U.S. Government Bond Fund and Nations Government Securities
Fund:
Schedule of Investments for March 31, 1998
Statements of Assets and Liabilities for March 31, 1998
Statements of Operations for the fiscal year ended March 31, 1998
Statements of Changes in Net Assets for the fiscal year ended March 31,
1998 and the fiscal period ended March 31, 1997
Schedule of Capital Stock Activity for the fiscal year ended March 31,
1998
Notes to Financial Statements
Report of Independent Accountants, dated May 28, 1998
Audited financial statements for Emerald International Equity Fund:
Schedule of Portfolio Investments for May 15, 1998
Statement of Assets and Liabilities for May 15, 1998
Statement of Operations for the period ended May 15, 1998
Statements of Changes in Net Assets
Notes to Financial Statements
Independent Auditors' Report, dated July 1, 1998
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<PAGE>
Included in Part C:
(b) Exhibits
Exhibit
Number
------
(1)(a) Articles of Incorporation dated December 9, 1983 and filed December
13, 1983, are incorporated by reference to Post-Effective Amendment
No. 29 filed on March 19, 1996.
(1)(b) Articles of Amendment dated March 10, 1986 and filed March 11, 1986
are incorporated by reference to Post-Effective Amendment No. 29
filed on March 19, 1996.
(1)(c) Articles of Amendment dated July 31, 1986 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(d) Articles Supplementary dated July 31, 1986 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(e) Articles of Amendment dated October 4, 1989 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(f) Articles Supplementary dated November 30, 1989 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(g) Articles Supplementary dated March 26, 1991 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(h) Articles Supplementary dated April 15, 1992 and filed April 24,
1992, are incorporated by reference to Post-Effective Amendment No.
29 filed on March 19, 1996.
(1)(i) Articles Supplementary filed September 22, 1992 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(j) Articles Supplementary dated February 18, 1993 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(k) Articles Supplementary dated July 9, 1993 and filed July 12, 1993
are incorporated by reference to Post-Effective Amendment No. 29
filed on March 19, 1996.
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<PAGE>
(1)(l) Articles Supplementary dated March 21, 1994 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(m) Articles Supplementary filed December 21, 1994 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(n) Articles Supplementary dated March 18, 1996 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(1)(o) Articles Supplementary dated March 1, 1998 are incorporated by
reference to Post-Effective Amendment No. 29 filed on March 19,
1996.
(l)(p) Articles Supplementary dated October 7, 1998 are filed herewith.
(2)(a) Amended and Restated By-Laws are incorporated by reference to
Post-Effective Amendment No. 36, filed June 1, 1998.
(3) None.
(4)(a) Specimen copy of share certificates, shall be filed by amendment.
(5)(a) Investment Advisory Agreement between NationsBanc Advisors, Inc
("NBAI") and Registrant is incorporated by reference to
Post-Effective Amendment No. 28, filed January 29, 1996.
(5)(b) Sub-Investment Advisory Agreement between TradeStreet Investment
Associates, Inc. ("TradeStreet") and Registrant is incorporated by
reference to Post-Effective Amendment No. 28, filed January 29,
1996.
(5)(c) Sub-Advisory Agreement between Gartmore Global Partners ("Gartmore")
and Registrant is is incorporated by reference to Post-Effective
Amendment No. 28, filed January 29, 1996.
(5)(d) Sub-Advisory Agreement between Boatmen's Capital Management, Inc.
("Boatmen's") and Registrant are incorporated by reference to
Post-Effective Amendment No. 36, filed June 1, 1998.
(5)(e) Sub-Advisory Agreement between Brandes Investment Partners, L.P.
and Registrant are incorporated by reference to Post-Effective
Amendment No. 36, filed June 1, 1998.
(6)(a) Distribution Agreement between Registrant and Stephens Inc. dated
March 31, 1993, is filed herewith.
(7) None.
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<PAGE>
(8)(a) Custody Agreement between Registrant and The Bank of New York dated,
October 19, 1998 is filed herewith.
(8)(b) Global Custody Agreement between the Registrant, on behalf of
Nations International Equity Fund, and Morgan Guaranty Trust Company
of New York is incorporated by reference to post-Effective Amendment
No. 2, filed September 28, 1995.
(9)(a) Transfer Agency Agreement between Registrant and NCNB Texas National
Bank, dated October 1, 1991, relating to Institutional Classes
(currently known as Primary Shares), is filed herewith.
(9)(b) Transfer Agency and Registrar Agreement, dated June 1, 1992, between
Registrant and The Shareholder Servicing Group, Inc., relating to
Investor Shares, is filed herewith.
(9)(c) Amendment No. 1 dated February 3, 1993, to the Transfer Agency and
Registrar Agreement between Registrant and The Shareholder Services
Group, Inc. dated April 25, 1992, relating to the Money Market
Funds' Investor B Shares and the Non-Money Market Funds' Investor C
Shares of the Company, is incorporated by reference to
Post-Effective Amendment No. 20, filed March 26, 1993.
(9)(d) Amendment No. 2 to the Transfer Agency and Registrar Agreement
between Registrant and The Shareholder Services Group, Inc. dated
April 25, 1992, relating to the addition of the Investor C Shares to
the Money Market Funds of the Company, is filed herewith.
(9)(e) Shareholder Services Plan relating to the Primary B Shares, is filed
herewith.
(9)(f) Form of Shareholder Servicing Agreement, relating to the Primary B
Shares, is filed herewith.
(9)(g) Shareholder Servicing Plan for Investor A Shares incorporated by
reference to Post-Effective Amendment No. 21, filed herewith.
(9)(h) Forms of Shareholder Servicing Agreement for Investor A Shares are
incorporated by reference to Post-Effective Amendment No. 21, filed
herewith.
(9)(i) Amended and Restated Shareholder Servicing Plan for Investor B
Shares of the Money Market Funds and Investor C Shares (formerly
Investor B Shares) of the Non-Money Market Funds is filed herewith.
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<PAGE>
(9)(j) Forms of Shareholder Servicing Agreement for Investor B Shares of
the Money Market Funds and Investor C Shares (formerly Investor B
Shares) of the Non-Money Market Funds are filed herewith.
(9)(k) Shareholder Servicing Plan for Investor C Shares of the Money Market
Funds and Investor B Shares (formerly Investor N Shares) of the
Non-Money Market Funds is filed herewith.
(9)(l) Forms of Shareholder Servicing Agreement for Investor C Shares of
the Money Market Funds and Investor B Shares (formerly Investor N
Shares) of the Non-Money Market Funds are filed herewith.
(9)(m) Shareholder Administration Agreement for Primary B Shares is
incorporated by reference to Post-Effective Amendment No. 28, filed
January 29, 1996.
(9)(n) Cross-Indemnification dated June 27, 1995 between the Company,
Nations Fund Trust and Nations Fund Portfolios, Inc. are filed
herewith.
(10) N/A
(11) N/A
(12) None.
(13) None.
(14)(a)Prototype Individual Retirement Account Plan, is incorporated by
reference to Amendment No. 20, filed March 26, 1993.
(15)(a)Amended and Restated Shareholder Servicing and Distribution Plan
pursuant to Rule 12b-1, relating to Investor A Shares, is filed
herewith.
(15)(b)Form of Sales Support Agreement, relating to Investor A Shares is
filed herewith.
(15)(c)Amended and Restated Distribution Plan, relating to Investor B
Shares of the Money Market Funds and Investor C Shares (formerly
Investor B Shares) of the Non-Money Market Funds is filed herewith.
(15)(d)Form of Sales Support Agreement relating to Investor B Shares of the
Money Market Funds and Investor C Shares (formerly Investor B
Shares) of the Non-Money Market Funds is filed herewith.
(15)(e)Distribution Plan relating to the non-money market funds' Investor B
Shares (formerly Investor N Shares) is filed herewith.
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<PAGE>
(15)(f)Form of Sales Support Agreement, relating to non-money market funds'
Investor B Shares (formerly Investor N Shares) is filed herewith.
(15)(g)Shareholder Administration Plan for Primary B Shares is incorporated
by reference to Post-Effective Amendment No. 28, filed January 29,
1996.
(16)(a)Schedules for Computation of Primary A Shares is incorporated by
reference to Post-Effective Amendment No. 21, filed March 29, 1994.
(16)(b)Schedules for Computation of Primary B Shares, shall be filed by
amendment.
(16)(c)Schedules for Computation of Investor A Shares is incorporated by
reference to Post-Effective Amendment No. 21, filed March 29, 1994.
(16)(d)Schedules for Computation of Investor C Shares (formerly Investor B
Shares) is incorporated by reference to Post-Effective Amendment No.
21, filed March 29, 1994.
(16)(e)Schedules for Computation of Investor N Shares (formerly Investor C
Shares) is incorporated by reference to Post-Effective Amendment No.
21, filed March 29, 1994.
(17) N/A
(18) Revised Form of Plan entered into by Registrant pursuant to Rule
18f-3 under the Investment Company Act of 1940 is incorporated by
reference to Post-Effective Amendment No. 38, filed September 4,
1998.
.
Item 25. Persons Controlled By or Under Common Control With Registrant
Registrant is controlled by its Board of Directors.
Item 27. Indemnification
Under the terms of the Maryland Corporation Law and the Registrant's
Charter and By-Laws, incorporated by reference as Exhibits (1) and 2(a)
hereto, provides for the indemnification of Registrant's directors and
employees. Indemnification of Registrant's principal underwriter,
custodian, and transfer agent is provided for, respectively, in the
Registrant's:
1. Administration Agreement with Stephens Inc.;
2. Co-Administration Agreement with First Data Investors Services Group,
Inc.;
3. Distribution Agreement with Stephens;
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<PAGE>
4. Custody Agreements with Bank of New York;
5. Transfer Agency Agreement with NationsBank; and
6. Transfer Agency and Registrar Agreement with First Data Investors
Services Group, Inc.
The Registrant has entered into a Cross Indemnification Agreement with
Nations Fund Trust (the "Trust") and Nations Portfolios, Inc.
("Portfolios") dated June 27, 1995. The Trust and/or the Portfolios will
indemnify and hold harmless the Company against any losses, claims,
damages or liabilities, to which the Company may become subject, under the
Securities Act of 1933 (the "Act") and the 1940 Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Prospectuses, any
Preliminary Prospectuses, the Registration Statements, any other
Prospectuses relating to the securities, or any amendments or supplements
to the foregoing (hereinafter referred to collectively as the "Offering
Documents"), or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Offering Documents in
reliance upon and in conformity with written information furnished to the
Company by the Trust and/or Portfolios expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim; provided, however, that the Trust and/or Portfolios shall
not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Offering Documents in reliance upon and in conformity with written
information furnished to the Trust and/or Portfolios by the Company
expressly for use in the Offering Documents.
Promptly after receipt by an indemnified party above of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
7
<PAGE>
Registrant has obtained from a major insurance carrier a directors' and
officers' liability policy covering certain types of errors and omissions.
In no event will Registrant indemnify any of its directors, officers,
employees, or agents against any liability to which such person would
otherwise be subject by reason of his/her willful misfeasance, bad faith,
gross negligence in the performance of his/her duties, or by reason of
his/her reckless disregard of the duties involved in the conduct of
his/her office or arising under his agreement with Registrant. Registrant
will comply with Rule 484 under the Act and Release No. 11330 under the
1940 Act, in connection with any indemnification.
Insofar as indemnification for liability arising under the Act may be
permitted to directors, officers, and controlling persons of Registrant
pursuant to the foregoing provisions, or otherwise, Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer, or controlling person of
Registrant in the successful defense of any action, suit, or proceeding)
is asserted by such director, officer, or controlling person in connection
with the securities being registered, Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
Item 28. Business and Other Connections of Investment Advisers
To the knowledge of the Registrant, none of the directors or officers of
NBAI, TradeStreet or Gartmore except those set forth below, is or has
been, at any time during the past two calendar years, engaged in any other
business, profession, vocation or employment of a substantial nature,
except that certain directors and officers also hold various positions
with, and engage in business for, the company that owns all the
outstanding stock (other than directors' qualifying shares) of NBAI,
TradeStreet or Gartmore or other subsidiaries of NationsBank Corporation.
(a) NBAI performs investment advisory services for the Registrant and
certain other customers. NBAI is a wholly owned subsidiary of NationsBank, N.A.,
which in turn is a wholly owned banking subsidiary of NationsBank Corporation.
Information with respect to each director and officer of the investment adviser
is incorporated by reference to Form ADV filed by NBAI with the Securities and
Exchange Commission pursuant to the Investment Advisers Act of 1940 (file no.
801-49874).
(b) TradeStreet performs investment sub-advisory services for the
Registrant and certain other customers. TradeStreet is a wholly owned subsidiary
of NationsBank, N.A., which in turn is a wholly owned banking subsidiary of
NationsBank Corporation. Information with respect to each director and officer
of the sub-investment adviser is incorporated by reference to Forms filed by
TradeStreet with the Securities and Exchange Commission pursuant to the
Investment Advisers Act of 1940 (file no. 801-50372).
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<PAGE>
(c) Gartmore performs investment sub-advisory services for Registrant and
certain other customers. Information with respect to each director and officer
of the sub-investment adviser is incorporated by reference to Forms filed by
Gartmore with the Securities and Exchange Commission pursuant to the Investment
Advisers Act of 1940 (file no. 801-88811).
(d) Boatmen's performs investment sub-advisory services for the Registrant
(and certain other customers). Boatmen's is a wholly owned subsidiary of
NationsBank, N.A., which in turn is a wholly owned banking subsidiary of
NationsBank Corporation. Information with respect to each director and officer
of the sub-investment adviser is incorporated by reference to Forms filed by
Boatmen's with the Securities and Exchange Commission pursuant to the Investment
Advisers Act of 1940 (file no. 801-54630).
(d) Brandes performs investment sub-advisory services for the Registrant
(and certain other customers). Information with respect to each director and
officer of the sub-investment adviser is incorporated by reference to Forms
filed by Brandes with the Securities and Exchange Commission pursuant to the
Investment Advisers Act of 1940 (file no. 801-24896).
Item 29. Principal Underwriters
(a) Stephens Inc., distributor for the Registrant, does not presently act as
investment adviser for any other registered investment companies, but does
act as principal underwriter for the Nations Fund Trust, Nations Annuity
Trust, Nations Fund Portfolios, Inc., Nations Institutional Reserves,
Nations LifeGoal Funds, Inc., Overland Express Funds, Inc., Stagecoach
Inc., Stagecoach Funds, Inc. and Stagecoach Trust and is the exclusive
placement agent for Master Investment Trust, Managed Series Investment
Trust, Life & Annuity Trust and Master Investment Portfolio, all of which
are registered open-end management investment companies, and has acted as
principal underwriter for the Liberty Term Trust, Inc., Nations Government
Income Term Trust 2003, Inc., Nations Government Income Term Trust 2004,
Inc. and Managed Balanced Target Maturity Fund, Inc., closed-end
management investment companies.
(b) Information with respect to each director and officer of the principal
underwriter is incorporated by reference to Form ADV filed by Stephens
Inc. with the Securities and Exchange Commission pursuant to the
Investment Advisers Act of 1940 (file #501-15510).
(c) Not applicable.
Item 30. Location of Accounts and Records
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<PAGE>
(1) NationsBank, 901 Main Street Dallas, Texas 75202 (records relating to its
function as custodian for Nations Prime, Nations Treasury, Nations
Government Securities and Nations Equity Income Funds, and records
relating to its function as transfer agent for the Primary A and B
Shares).
(2) NBAI, One NationsBank Plaza, Charlotte, North Carolina 28255 (records
relating to its function as investment adviser).
(3) TradeStreet, One NationsBank Plaza, Charlotte, North Carolina 28255
(records relating to its function as sub-adviser).
(4) Gartmore, Gartmore House, 16-18 Monument Street, London EC3R 8AJ, England
(records relating to its functions as sub-adviser for Nations
International Equity Fund).
(5) Brandes, 12750 High Bluff Drive, San Diego, California 92130 (records
relating to its function as sub-adviser to Nations International Value
Fund).
(6) Boatmen's, 100 North Broadway, St. Louis, Missouri 63102 (records relating
to its function as sub-adviser to Nations U.S. Government Bond Fund).
(7) Stephens Inc., 111 Center Street, Little Rock, Arkansas 72201 (records
relating to its functions as distributor).
(8) Stephens Inc., 111 Center Street, Little Rock, Arkansas 72201 (records
relating to its functions as Administrator).
(9) First Data Investors Services Group, Inc., One Exchange Place, Boston,
Massachusetts 02109 (records relating to its functions as Co-Administrator
and Transfer Agent.
(10) NationsBank, 1401 Elm Street, Dallas, Texas 75202 (records relating to its
function as Sub-Transfer Agent for the Primary A and B Shares).
(11) The Bank of New York, Avenue des Arts, 35 1040 Brussels, Belgium (records
relating to its function as custodian of Nations International Equity
Fund).
(12) The Bank of New York, 90 Washington Street, New York, New York 10286
(records relating to its function as custodian)
Item 31. Inapplicable.
Item 32. Undertakings
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(a) Registrant undertakes to call a meeting for the purpose of voting upon the
question or removal of a director or directors when requested in writing
to do so by the holders of at least 10% of a Fund's outstanding shares of
beneficial interest and in connection with such meeting to comply with the
provisions of Section 16(c) of the 1940 Act, relating to shareholder
communications.
(b) Registrant undertakes to furnish each person to whom a prospectus is
delivered with a copy of the Registrant's most recent annual report to
shareholders upon request and without charge.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it meets all the
requirements for effectiveness of this Post-Effective Amendment to the
Registration Statement pursuant to Rule 485(b) under the Securities Act of 1933
and has duly caused this Amendment to its Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Little
Rock, State of Arkansas on the 5th day of November, 1998.
NATIONS FUND, INC.
By: *
------------------------------------
A. Max Walker
President and Chairman
of the Board of Directors
By: /s/ Richard H. Blank, Jr.
------------------------------------
Richard H. Blank, Jr.
*Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed below by
the following persons in the capacities and on the date indicated:
SIGNATURES TITLE DATE
* President and Chairman November 5, 1998
- -------------------------------- of the Board of Directors
(A. Max Walker) (Principal Executive
Officer)
* Treasurer November 5, 1998
- -------------------------------- Vice President
(Richard H. Rose) (Principal Financial and
Accounting Officer)
* Director November 5, 1998
- --------------------------------
(Edmund L. Benson, III)
* Director November 5, 1998
- --------------------------------
(James Ermer)
* Director November 5, 1998
- --------------------------------
(William H. Grigg)
* Director November 5, 1998
- --------------------------------
(Thomas F. Keller)
* Director November 5, 1998
- --------------------------------
(Carl E. Mundy, Jr.)
* Director November 5, 1998
- --------------------------------
(Charles B. Walker)
* Director November 5, 1998
- --------------------------------
(Thomas S. Word)
* Director November 5, 1998
- --------------------------------
(James P. Sommers)
- --------------------------------
Richard H. Blank, Jr.
*Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
EX-99.B1(p) Articles Supplementary
EX-99.B6(a) Distribution Agreement with Stephens Inc.
EX-99.B8 Custody Agreement with The Bank of New York
EX-99.B9(a) Transfer Agency Agreement with NCNB Texas National Bank
EX-99.B9(b) Transfer Agency with The Shareholder Servicing Group, Inc.
EX-99.B9(d) Amendment No. 2 to the Transfer Agency and Registrar
Agreement
EX-99.B9(e) Shareholder Servicing Plan for Primary B Shares
EX-99.B9(f) Form of Shareholder Servicing Agreement for Primary B
Shares
EX-99.B9(g) Shareholder Servicing Plan for Investor A Shares
EX-99.B9(h) Forms of Shareholder Servicing Agreement for Investor A
Shares
EX-99.B9(i) Amended and Restated Shareholder Servicing Plan for
Investor B/ Investor C Shares
EX-99.B9(j) Forms of Shareholder Servicing Agreement for Investor B
Shares/Investor C Shares
EX-99.B9(k) Shareholder Servicing Plan for Investor C Shares/Investor B
Shares
EX-99.B9(l) Forms of Shareholder Servicing Agreement for Investor C/
Investor B Shares
EX-99.B9(n) Cross-Indemnification Agreement
EX-99.B15(a) Amended and Restated Shareholder Servicing and Distribution
Plan for Investor A Shares
EX-99.B15(b) Form of Sales Support Agreement for Investor A Shares
<PAGE>
EX-99.B15(c) Distribution Plan for the Investor B Shares/ Investor C
Shares
EX-99.B15(d) Form of Sales Support Agreement for Investor B Shares/
Investor C Shares
EX-99.B15(e) Distribution Plan for the Investor B Shares
EX-99.B15(f) Form of Sales Support Agreement for Investor B Shares
EX-99.B1(p)
NATIONS FUND, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING NEW SERIES
OF CAPITAL STOCK OF THE CORPORATION
FIRST: The Board of Directors, pursuant to a resolution duly adopted by
a majority of the Corporation's Board of Directors at a meeting of the Board
held on October 7, 1998, and pursuant to Article EIGHTH of the Corporation's
Articles of Incorporation and in accordance with Sections 2-105 (c) and 2-208.1
of the Code, authorized the appropriate Officers of the Corporation to take such
action as necessary to increase the number of authorized shares of common stock
of the Corporation from four hundred seventy billion (470,000,000,000) shares to
four hundred eighty billion (480,000,000,000) shares, all of which have a par
value of one-tenth of one cent ($.001) per share, having an aggregate par value
of four hundred eighty million dollars ($480,000,000.00).
SECOND: The Board of Directors has duly classified ten billion
(10,000,000,000) shares of the authorized, unissued and unclassified shares of
common stock of the Corporation into the following class and has provided for
the issuance of such shares:
(a) ten billion (10,000,000,000) authorized, unissued and unclassified
shares are classified as Marsico Shares of Nations Prime Fund;
THIRD: The class of shares of Nations Prime Fund of the Corporation
referred to in Articles FIRST and SECOND shall have the following preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of redemptions:
(a) All considerations received by the Corporation for the issue or sale
of shares of each class of Shares ("Class") of each Fund, together
with all income, earnings, profits, and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably belong
to such Class for all purposes, subject only to the rights of
creditors, and shall be so recorded upon the books of account of the
Corporation. Such consideration, income, earnings, profits and
proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation thereof, and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the same may
be, are herein referred to as "assets belong to" each such Class. The
assets belonging to each other Class of such Fund and, if so, the
income, earnings, profits and proceeds thereof shall be allocated to
each Class of the Fund in the proportion that the assets belonging to
each Class bear to the total assets of the Fund or as otherwise
determined by the Board of Directors;
<PAGE>
(b) Dividends or distributions on each Class of each Fund, whether
payable in stock or cash, shall be paid only out of earnings, surplus
or other assets belonging to each such Class;
(c) In the event of the liquidation or dissolution of the Corporation,
the holders of each Class of each Fund shall each be entitled to
receive, as a Class, out of the assets of the Corporation available
for distribution to stockholders, other than general assets not
belonging to any particular Class, assets belonging to such Class of
such Fund. The assets so distributable to the holders of each Class
of each Fund shall be distributed among such stockholders in
proportion to the number of shares of each such Class held by them
and recorded on the books the Corporation;
(d) The assets belonging to each Class of each Fund shall be charged with
the expenses and liabilities of the Corporation in respect of such
Class as well as with such Class' share of the general expenses and
liabilities of the Fund and/or the Corporation as determined by the
Board of Directors. The expenses and liabilities so charged to each
Class are herein referred to as "expenses and liabilities belonging
to" such Class. The determination of the Board of Directors shall be
conclusive as to the allocation of expenses and liabilities,
including accrued expenses and reserves, and assets to a given Class
or Classes;
(e) On each matter submitted to a vote of the stockholders, each holder
of shares of a Class shall be entitled to one vote for each such
share standing in his or her name on the books of the Corporation and
shall vote together with the holders of all Classes of stock of the
Corporation as a single Class; provided, however, that holders of a
Class of a Fund shall have the exclusive right to vote on any
agreement, investment restriction or other matter requiring
shareholder vote that relates only to such Class or Classes of such
Fund ("Class Voting"), that holders of all Classes of a Fund shall
have the exclusive right to vote on any agreement or other matter
requiring shareholder vote that relates only to that Fund ("Fund
Voting"), and that to the extent Class Voting or Fund Voting is
required by the Investment Company Act of 1940 or Maryland Law as to
any matter, those requirements shall apply. Any fractional share, if
any such fractional share is outstanding, shall carry proportionately
all the rights of a whole share, including the right to vote and the
right to receive dividends, but excluding the right to receive a
stock certificate evidencing a fractional share;
(f) The net asset value of each Class of each Fund shall be computed
separately from that of each other Class of that Fund or any other
class of stock of the Corporation; and
(g) Except as otherwise provided herein, the preferences, conversion and
other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption
applicable to the Corporation's stock as set forth in the
Corporation's Articles of Incorporation, as it may be amended from
time to time, shall apply.
2
<PAGE>
FOURTH: Immediately before the issuance of the ten billion
(10,000,000,000) shares as set forth in Articles FIRST and SECOND hereto, the
Corporation was authorized to issue four hundred seventy billion
(470,000,000,000) shares of authorized common stock, which were classified as
follows:
(a) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations International Value Fund;
(b) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations International Value Fund;
(c) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations International Value Fund;
(d) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations International Value Fund;
(e) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations International Value Fund;
(f) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations U.S. Government Bond Fund;
(g) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations U.S. Government Bond Fund;
(h) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations U.S. Government Bond Fund;
(i) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations U.S. Government Bond Fund;
(j) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations U.S. Government Bond Fund;
(k) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations International Growth Fund;
(l) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations International Growth Fund;
3
<PAGE>
(m) ten billion (10,000,000,000) shares are classified as Investor A
Shares of National International Growth Fund;
(n) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations International Growth Fund.
(o) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations International Growth Fund;
(p) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Small Company Growth Fund;
(q) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Small Company Growth Fund;
(r) ten billion (10,000,000,000) shares are classified as Investor A
Shares of nations Small Company Growth Fund;
(s) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Small Company Growth Fund;
(t) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Small Company Growth Fund.
(u) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Prime Fund;
(v) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Prime Fund;
(w) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Prime Fund;
(x) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Prime Fund;
(y) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Prime Fund;
(z) ten billion (10,000,000,000) shares are classified as Daily Shares of
Nations Prime Fund;
(aa) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Treasury Fund;
4
<PAGE>
(bb) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Treasury Fund;
(cc) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Treasury Fund;
(dd) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Treasury Fund;
(ee) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Treasury Fund;
(ff) ten billion (10,000,000,000) shares are classified as Daily Shares of
Nations Treasury Fund;
(gg) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Equity Income Fund;
(hh) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Equity Income Fund;
(ii) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Equity Income Fund;
(jj) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Equity Income Fund;
(kk) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Equity Income Fund;
(ll) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Government Securities Fund;
(mm) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Government Securities Fund;
(nn) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Government Securities Fund;
(oo) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Government Securities Fund;
(pp) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Government Securities Fund;
5
<PAGE>
(qq) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations International Equity Fund;
(rr) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations International Equity Fund;
(ss) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations International Equity Fund;
(tt) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations International Equity Fund; and
(uu) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations International Equity Fund.
FIFTH: Following the issuance of the ten billion (10,000,000,000)
shares as set forth in Articles FIRST and SECOND, the Corporation's four hundred
eighty billion (480,000,000,000) total authorized common stock, all of which
have a par value of one tenth of one cent ($.001) per share, having an aggregate
par value of four hundred eighty million dollars ($480,000,000.00), are
classified as follows:
(a) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations International Value Fund;
(b) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations International Value Fund;
(c) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations International Value Fund;
(d) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations International Value Fund;
(e) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations International Value Fund;
(f) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations U.S. Government Bond Fund;
(g) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations U.S. Government Bond Fund;
(h) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations U.S. Government Bond Fund;
6
<PAGE>
(i) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations U.S. Government Bond Fund;
(j) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations U.S. Government Bond Fund;
(k) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations International Growth Fund;
(l) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations International Growth Fund;
(m) ten billion (10,000,000,000) shares are classified as Investor A
Shares of National International Growth Fund;
(n) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations International Growth Fund;
(o) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations International Growth Fund;
(p) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Small Company Growth Fund;
(q) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Small Company Growth Fund;
(r) ten billion (10,000,000,000) shares are classified as Investor A
Shares of National Small Company Growth Fund;
(s) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Small Company Growth Fund;
(t) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Small Company Growth Fund;
(u) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Prime Fund;
(v) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Prime Fund;
(w) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Prime Fund;
7
<PAGE>
(x) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Prime Fund;
(y) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Prime Fund;
(z) ten billion (10,000,000,000) shares are classified as Daily Shares
of Nations Prime Fund;
(aa) ten billion (10,000,000,000) shares are classified as Marsico
Shares of Nations Prime Fund'
(bb) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Treasury Fund;
(cc) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Treasury Fund;
(dd) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Treasury Fund;
(ee) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Treasury Fund;
(ff) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Treasury Fund;
(gg) ten billion (10,000,000,000) shares are classified as Daily Shares
of Nations Treasury Fund;
(hh) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Equity Income Fund;
(ii) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Equity Income Fund;
(jj) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Equity Income Fund;
(kk) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Equity Income Fund;
(ll) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Equity Income Fund;
8
<PAGE>
(mm) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations Government Securities Fund;
(nn) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations Government Securities Fund;
(oo) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations Government Securities Fund;
(pp) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations Government Securities Fund;
(qq) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations Government Securities Fund;
(rr) ten billion (10,000,000,000) shares are classified as Primary A
Shares of Nations International Equity Fund;
(ss) ten billion (10,000,000,000) shares are classified as Primary B
Shares of Nations International Equity Fund;
(tt) ten billion (10,000,000,000) shares are classified as Investor A
Shares of Nations International Equity Fund;
(uu) ten billion (10,000,000,000) shares are classified as Investor B
Shares of Nations International Equity Fund; and
(vv) ten billion (10,000,000,000) shares are classified as Investor C
Shares of Nations International Equity Fund.
The summary and restatement of the total outstanding shares of the
Corporation's common stock in this Article FIFTH has not otherwise changed the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemptions of such classes of shares.
SIXTH: The Corporation is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended.
SEVENTH: The Board of Directors has duly authorized the filing of
these Articles Supplementary.
9
<PAGE>
IN WITNESS WHEREOF, NATIONS FUND, INC. has caused these Articles
Supplementary to be executed by its President and its corporate seal to be
affixed and attested by its Secretary on this ____ day of October, 1998. The
President of the Corporation who signed these Articles Supplementary
acknowledges them to be the act of the Corporation, and states under the
penalties of perjury that to the best of his knowledge, information and belief,
the matters and facts relating to approval hereof are true in all material
respects.
NATIONS FUND, INC.
By: /s/ A. Max Walker
--------------------------
A. Max Walker
President
ATTEST:
/s/ Richard H. Blank, Jr.
- --------------------------
Richard H. Blank, Jr.
Secretary
10
EX-99.B6(a)
DISTRIBUTION AGREEMENT
NATIONS FUND, INC.
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Nations Fund, Inc. (the "Company"), a Maryland
corporation, has agreed that Stephens Inc. (the "Distributor") shall be, for the
period of this Agreement, the exclusive distributor of the shares of common
stock in all classes of shares ("Shares") of the investment portfolios of the
Company listed on Schedule I (individually, a "Fund" and collectively the
"Funds"). Absent written notification to the contrary by either the Company or
the Distributor, each new investment portfolio established in the future shall
automatically become a "Fund" for all purposes hereunder and shares of each new
class established in the future shall automatically become "Shares" for all
purposes hereunder as if set forth on Schedule I.
1. Services as Distributor.
1.1 The Distributor will act as agent for the distribution of Shares in
accordance with the instructions of the Company's Board of Directors and the
Company's registration statement and prospectus then in effect under the
Securities Act of 1933, as amended, and will transmit promptly any orders
received by it for the purchase or redemption of Shares to the Company or its
transfer agent.
1.2 The Distribution agrees to use appropriate efforts to solicit
orders for the sale of Shares and will undertake such advertising and promotion
as it believes appropriate in connection with such solicitation. The Company
understands that the Distributor is and may in the future be the distributor of
shares of other investment company portfolios ("Portfolios") including
Portfolios having investment objectives similar to those of the Funds. The
Company further understands that existing and future investors in the Funds may
invest in shares of such other Portfolios. The Company agrees that the
Distributor's duties to such Portfolios shall not be deemed in conflict with its
duties to the Company under this paragraph 1.2.
<PAGE>
1.3 The Distributor shall, at its own expense, finance such activities
as it deems reasonable and which are primarily intended to result in the sale of
Shares, including, but not limited to, advertising, compensation of
underwritings, dealers and sales personnel, the printing and mailing of
prospectuses to other than current shareholders, and the printing and mailing of
sales literature. The Distributor shall be responsible for reviewing and
providing advice and counsel on all sales literature (e.g., advertisements,
brochures and shareholder communications) with respect to each of the Funds. In
addition, the Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Funds.
1.4 All activities by the Distributor and its agents and employees as
distributor of Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted pursuant to the Investment Company Act of 1940 ("1940 Act") by the
Securities and Exchange Commission (the "SEC") or any securities association
registered under the Securities Exchange Act of 1934.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by other circumstances of any kind,
the Company's officers may decline to accept any orders for, or make any sales
of Shares until such time as those officers deem it advisable to accept such
orders and to make such sales.
1.6 The Company agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the registration or
qualification of Shares for sale in such states as the Distributor may designate
to the Company and the Company may approve, and the Company shall pay all fees
and other expenses incurred in connection with such registration or
qualification.
1.7 The Company shall furnish from time to time, for use in connection
with the sale of Shares, such information with respect to the Funds and Shares
as the Distributor may reasonably request; and the Company warrants that the
statements contained in any such information shall fairly show or represent what
they purport to show or represent. The Company shall also furnish the
Distributor upon request with: (a) audited annual and unaudited semi-annual
statements of the Company's books and accounts with respect to each Fund, and,
(b) from time to time such additional information regarding the Funds' financial
condition as the Distributor may reasonably request.
2
<PAGE>
1.8 The Distributor may be reimbursed for all or a portion of the
expenses described above to the extent permitted by a distribution plan adopted
by the Company on behalf of a Fund pursuant to Rule 12b-1 under the 1940 Act. No
provision of this Agreement shall be deemed to prohibit any payments by a Fund
to the Distributor or by a Fund or the Distributor to investment dealers, banks
or other financial institutions through whom shares of the Fund are sold where
such payments are made under a distribution plan adopted by the Company on
behalf of such Fund pursuant to Rule 12b-1 under the 1940 Act. In addition, the
Company shall pay to the Distributor the proceeds from any contingent deferred
sales charge imposed on the redemption of the shares as specified in the Fund's
Registration Statement.
1.9 The Distributor will execute and deliver agreements with
broker/dealers, financial institutions and other industry professionals based on
the forms attached hereto or based on the additional forms of agreement approved
from time to time by the Company's Board of Directors with respect to the
various classes of shares of the Funds , including but not limited to forms of
sales support agreements and shareholder servicing agreements approved in
connection with a distribution and/or servicing plan approved in accordance with
Rule 12b-1 under the 1940 Act.
2. Representations; Indemnification.
3
<PAGE>
2.1 The Company represents to the Distributor that all registration
statements and prospectuses filed by the Company with the SEC under the
Securities Act of 1933, as amended ("Act"), with respect to Shares have been
prepared in conformity with the requirements of said Act and rules and
regulations of the SEC thereunder. As used in this Agreement, the terms
"registration statement" and "prospectus" shall mean any registration statement
and then current prospectus (together with any related then current statement of
additional information) filed with the SEC with respect to Shares, and any
amendments and supplements thereto which at any time shall have been filed
therewith. The Company represents and warrants to the Distributor that any
registration statement and prospectus, when such registration statement becomes
effective, will contain all statements required to be stated therein in
conformity with said Act and the rules and regulations of the SEC; that all
statements of fact contained in any such registration statement and prospectus
will be true and correct when such registration statement and prospectus become
effective; and that neither any registration statement nor any prospectus when
any registration statement becomes effective will include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading to a purchaser of
Shares. The Company may, but shall not be obligated to, propose from time to
time such amendment or amendments to any registration statement and such
supplement or supplements to any prospectus which in light of future
developments, may, in the opinion of the Company's counsel, be necessary or
advisable. The Company shall promptly notify the Distributor of any advice given
to it by the Company's counsel regarding the necessity or advisability so to
amend or supplement such registration statement or prospectus. If the Company
shall not propose such amendment or amendments and/or supplement within fifteen
days after receipt by the Company of a written request from the Distributor to
do so, the Distributor may, at its option, terminate this Agreement. The Company
shall not file any amendment to any registration statement or supplement to any
prospectus without giving the Distributor reasonable notice thereof in advance;
provided, however, that nothing contained in this Agreement shall in any way
limit the Company's right to file at any time such amendments to any
registration statement and/or supplements to any prospectus, of whatever
character, as the Company may deem advisable, such right being in all respects
absolute and unconditional.
2.2 The Company authorizes the Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of Shares and represented by the Company as being the then current form of
prospectus. The Company agrees to indemnify, defend and hold the Distributor,
its several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the Act free and harmless from and against
any and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Distributor, its officers and
directors, or any such controlling person, may incur under the Act or under
common law or otherwise, arising out of or based upon any untrue statement, or
alleged untrue statement, of a material fact contained in any registration
statement
4
<PAGE>
or any prospectus or arising out of or based upon any omission, or alleged
omission, to state a material fact required to be stated in any registration
statement or prospectus or necessary to make any statement in such documents not
misleading; providing, however, that the Company's agreement to indemnify the
Distributor, its officers or directors, and any such controlling person shall
not be deemed to cover any claims, demands, liabilities or expenses arising out
of any untrue statement or alleged untrue statement or omission or alleged
omission made in any registration statement or prospectus or in any financial or
other statements in reliance upon and in conformity with any information
furnished to the Company by the Distributor or any affiliate thereof and used in
the preparation thereof; and further provided that the Company's agreement to
indemnify the Distributor and the Company's representations and warranties
herein set forth shall not be deemed to cover any liability to the Company or
its shareholders to which the Distributor would otherwise be subject by reason
or willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of the Distributor's reckless disregard of its obligations
and duties under this Agreement. The Company's agreement to indemnify the
Distributor, its officers and directors, and any such controlling person, as
aforesaid, is expressly conditioned upon the Company's being notified of any
action bought against the Distributor, its officers or directors, or any such
controlling person, such notification to be given by letter or by telegram
addressed to the Company at its principal office and sent to the Company by the
person against whom such action is brought, within a reasonable period of time
after the summons or other first legal process shall have been served. The
failure to so notify the Company of any such action shall not relieve the
Company from any liability which the Company may have to the person against whom
such action is brought by reason or any such untrue, or allegedly untrue,
statement or omission, or alleged omission, otherwise than on account of the
Company's indemnity agreement contained in this paragraph 2.2. The Company will
be entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Company and approved by the Distributor,
which approval shall not unreasonably be withheld. In the event the Company
elects to assume the defense of any such suit and retain counsel of good
standing approved by the Distributor, the defendant or defendants in such suit
shall bear the fees and expenses of any additional counsel retained by any of
them; but in case the Company does not elect to assume the defense of any such
suit, or in case the Distributor reasonably does not approve of counsel chosen
by the Company, the Company will reimburse the Distributor, its officers and
directors, or the controlling person or persons named as defendant or defendants
in such suit, for the fees and expenses of any counsel retained by the
Distributor or them. The Company's indemnification agreement contained in this
paragraph 2.2 and the Company's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Distributor, its officers and
directors, or any controlling person, and shall survive the delivery of any
Shares. This agreement of indemnify will inure exclusively to the Distributor's
benefit, to the benefit of its several officers and directors, and their
respective estates, and to the benefit of the controlling persons and their
successors. The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of any Shares.
5
<PAGE>
2.3 The Distributor agrees to indemnify, defend and hold the Company ,
its several officers and directors, and any person who controls the Company
within the meaning of Section 15 of the Act free and harmless from and against
any and all claims, demands, liabilities and expenses (including the costs of
investigation or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which the Company, its officers or
directors or any such controlling person, may incur under the Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Company, its officers or directors, or such controlling person
resulting from such claims or demands, shall arise out of or be based upon any
untrue, or alleged untrue, statement of a material fact contained in information
furnished by the Distributor or any affiliate thereof to the Company or its
counsel and used in the Company's registration statement or corresponding
statements made in the prospectus, or shall arise out of or be based upon any
omission, or alleged omission, to state a material fact in connection with such
information furnished by the Distributor or any affiliate thereof to the Company
or its counsel required to be stated in such answers or necessary to make such
information not misleading. The Distributor's agreement to indemnify the
Company, its officers and directors, and any such controlling person, as
aforesaid, is expressly conditioned upon the Distributor's being notified of any
action brought against the Company, its officers or directors, or any such
controlling person, such notification to be given by letter or telegram
addressed to the Distributor at its principal office in Little Rock, Arkansas
and sent to the Distributor by the person against whom such action is brought,
within a reasonable period of time after the summons or other first legal
process shall have been served. The Distributor shall have the right to control
the defense of such action, with counsel of its own choosing, satisfactory to
the Company, if such action is based solely upon such alleged misstatement or
omission on the Distributor's part or any affiliate thereof, and in any other
event the Company, its officers or directors or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. The failure so to notify the Distributor of any such action
shall not relieve the Distributor or any affiliate thereof from any liability
which the Distributor or any affiliate thereof may have to the Company, its
officers or directors, or to such controlling person by reason of any such
untrue or alleged untrue statement, or omission or alleged omission, otherwise
than on account of the Distributor's indemnity agreement contained in this
paragraph 2.3.
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2.4 No Shares shall be offered by either the Distributor or the Company
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Company if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the Act, or
if and so long as a current prospectus, as required by Section 10(b) of said
Act, as amended, is not on file with the SEC; provided, however, that nothing
contained in this paragraph 2.4 shall in any way restrict or have any
application to or bearing upon the Company's obligation to repurchase Shares
from any shareholder in accordance with the provisions of the Company's
prospectus or Articles of Incorporation.
2.5 The Company agrees to advise the Distributor as soon as reasonably
practical:
(a) of any request by the SEC for amendments to the registration
statement or prospectus then in effect;
(b) of the issuance by the SEC of any stop order suspending the
effectiveness of the registration statement or prospectus then in effect or of
the initiation of any proceeding for that purpose;
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(c) of the happening of any event that makes untrue any statement
of a material fact made in the registration statement or prospectus then in
effect or which requires the making of a change in such registration statement
or prospectus in order to make the statements therein not misleading;
(d) of all actions of the SEC with respect to any amendment to any
registration statement or prospectus which may from time to time be filed with
the SEC; and
(e) if a current prospectus is not on file with the SEC.
For purposes of this section, informal requests by or acts of the
Staff of the SEC shall not be deemed actions of or requests by the SEC.
1. Confidentiality.
The Distributor agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Company all records and
other information relative to the Funds and/or the Company and its prior,
present or potential shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Company, which approval shall not be unreasonably withheld and may not be
withheld where the Distributor may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Company.
2. Limitations of Liability.
Except as provided in paragraph 2.3, the Distributor shall not be
liable for any error of judgment or mistake or law or for any loss suffered by
the Company or any Fund in connection with matters to which this agreement
relates, except a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from reckless
disregard of its obligations and duties under this agreement.
3. Term.
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This agreement shall become effective on the date of its execution and,
unless soon terminated as provided herein, shall continue thereafter with
respect to each Fund for successive annual periods, provided such continuance is
specifically approved at least annually by (i) the Company's Board of Directors
or (ii) by a vote of a majority (as defined in the 1940 Act) of the outstanding
voting securities of the Fund, provided that in either event the continuance is
also approved by the majority of the Company's Directors who are not parties to
this agreement or interested persons (as defined in the 1940 Act) of any such
party, by vote cast in person at a meeting called for the purpose of voting on
such approval. This agreement is not assignable and is terminable with respect
to a Fund, without penalty, on not less than sixty days' notice, by the
Company's Board of Directors, by vote of a majority (as defined in the 1940 Act)
of the outstanding voting securities of such Fund, or by the Distributor. This
agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
4. Miscellaneous.
6.1 No provision of this Agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
6.2 This agreement shall be governed by the laws of the State of
Arkansas.
6.3 Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place indicated below,
whereupon it shall become a binding agreement between us.
Yours very truly,
NATIONS FUND, INC.
By: /s/ Richard H. Blank, Jr.
----------------------------
Name: Richard H. Blank, Jr.
Title: Secretary
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Accepted:
STEPHENS INC.
By: /s/ R. Greg Feltus
----------------------------
Name: R. Greg Feltus
Title: Senior Vice President
Dated as of September 1, 1993
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SCHEDULE I
1. Nations Prime Fund
2. Nations Treasury Fund
3. Nations Equity Income Fund
4. Nations Small Company Growth Fund
5. Nations Government Securities Fund
6. Nations U.S. Government Bond Fund
7. Nations International Equity Fund
8. Nations International Growth Fund
9. Nations International Value Fund
Amended: February 5, 1997
February 4, 1998
EX-99.B8
CUSTODY AGREEMENT
THIS AGREEMENT is made as of the 19th day of October, 1998 by and
between The Bank of New York, a New York corporation authorized to do a banking
business ("Custodian"), and Nations Fund, Inc., a Maryland corporation (the
"Company").
W I T N E S S E T H
WHEREAS, the Company is a registered open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Company desires to retain Custodian to serve as
custodian for the Company, on behalf of its portfolios listed on Schedule I
(individually a "Fund" and collectively the "Funds") and to provide the services
described herein, and Custodian is willing to serve and to provide such
services; and
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Company and Custodian hereby agree as follows:
1. Appointment. The Company hereby appoints Custodian to act as custodian
of its portfolio securities, cash and other property on the terms set forth in
this Agreement. Custodian accepts such appointment and agrees to furnish the
services herein set forth in return for the compensation as provided in
Paragraph 23 hereof. Custodian agrees to comply with all relevant provisions of
the 1940 Act and applicable rules and regulations thereunder.
The Company may from time to time issue separate series or classes, and
classify and reclassify shares of any such series or class. The Company shall
promptly specify to Custodian in writing such series or classes, or any
reclassification and thereafter Custodian shall identify to each such series or
class Property, as hereinafter defined, belonging to such series or class, and
such reports, confirmations and notices to the Company as are called for under
this Agreement shall identify the series or class to which such report,
confirmation or notice pertains.
2. Delivery of Documents. The Company has furnished Custodian with copies
properly certified or authenticated of each of the following:
(a) resolutions of the Company's Board of Directors authorizing the
appointment of Custodian as custodian of portfolio securities, cash and other
property of the Company, respectively, and approving and consenting to this
Agreement;
(b) schedules identifying and containing the signatures of all of
the Company's officers and any other persons authorized to issue Oral
Instructions and to sign Written Instructions, as hereinafter defined, on behalf
of the Funds of the Company;
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(c) the Company's current Registration Statement on Form N-1A under
the 1940 Act and the Securities Act of 1933, as amended (the "1933 Act"), as
filed with the Securities and Exchange Commission (the "SEC"), relating to
shares of beneficial interest of the Company, without par value (the "Shares");
(d) the current prospectuses and statement of additional information
of each of the Funds, including all amendments and supplements thereto (the
"Prospectuses"); and
(e) a copy of the opinion of counsel for the Company, filed with the
SEC as part of the Company's current registration statement.
The Company will furnish Custodian from time to time with copies,
properly certified or authenticated, of all amendments of or supplements to any
of the foregoing, if any.
3. Definitions.
(a) "Authorized Person". As used in this Agreement, the term
"Authorized Person" means any of the Company's officers, and any other person,
whether or not any such person is an officer or employee of the Company, duly
authorized by the Board of Directors of the Company to give Oral and Written
Instructions to Custodian on behalf of the Company and listed on a schedule
provided to Custodian pursuant to Section 2 of this Agreement. Authorized
Persons duly authorized by the Board of Directors of the Company to buy and sell
foreign currency on a spot and forward basis and options to buy and sell foreign
currency are denoted by an asterisk thereon.
(b) "Book-Entry System". As used in this Agreement, the term
"Book-Entry System" means the Federal Reserve/Treasury book-entry system for
United States and federal agency securities, its successor or successors and its
nominee or nominees and any book-entry system maintained by a clearing agency
registered with the SEC under Section 17A of the Securities Exchange Act of 1934
(the "1934 Act").
(c) "Composite Currency Unit". Shall mean the European Currency Unit
or any other composite unit consisting of the aggregate of specified amounts of
specified Currencies as such unit may be constituted from time to time.
(d) "Currency". Shall mean money denominated in a lawful currency of
any country or the European Currency Unit.
(e) "FX Transaction". Shall mean any transaction for the purchase by
one party of an agreed amount in one Currency against the sale by it to the
other party of an agreed amount in another Currency.
(f) "Instructions". Shall mean instruction communications
transmitted by appropriately safeguarded (whether by password protection or
other means) electronic or telecommunications media including but not limited to
S.W.I.F.T., LASER, computer-to-computer interface, dedicated transmission line
and tested telex.
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(g) "Oral Instructions". As used in this Agreement, the term "Oral
Instructions" means oral instructions actually received by Custodian from an
Authorized Person or from a person reasonably believed by Custodian to be an
Authorized Person.
(h) "Officer's Certificate". The term "Officer's Certificate" as
used in this Agreement means instructions delivered by hand, mail, tested
telegram, cable, telex, or facsimile sending device, and actually received by
Custodian signed or reasonably believed by Custodian to be signed by two
officers of the Company listed on a schedule provided to Custodian pursuant to
Section 2 of this Agreement.
(i) "Property". The term "Property", as used in this Agreement,
means:
(i) any and all securities and other property of the Company
which the Company may from time to time deliver to Custodian, as applicable, or
which Custodian may from time to time hold for the Company;
(ii) all income in respect of any securities or other property
described in immediately preceding clause (i);
(iii) all proceeds of sales of any of such securities or other
property described in preceding clause (i) actually received by Custodian; and
(iv) proceeds of the sale of Shares received by Custodian from
time to time from or on behalf of the Company.
(j) "Securities Depository". As used in this Agreement, the term
"Securities Depository" shall mean The Depository Trust Company, a clearing
agency registered with the SEC or its successor or successors and its nominee or
nominees; and shall also mean any other registered clearing agency, its
successor or successors specifically identified in a certified copy of a
resolution of the Company's Board of Directors approving deposits by Custodian
therein.
(k) "Written Instructions". As used in this Agreement, "Written
Instructions" means instructions delivered by hand, mail, tested telegram,
cable, telex, or facsimile sending device, and actually received by Custodian,
signed or reasonably believed by Custodian to be signed by an appropriate number
of Authorized Person(s), and the term Written Instructions shall also include
Instructions, except that Instructions need not be signed or reasonably believed
to be signed by any Authorized Person(s) where such Instructions are transmitted
by Software pursuant to Paragraph 26A. A fax receipt or comparable confirmation
of transmission of any Written Instructions shall be deemed evidence of actual
receipt by Custodian.
4. Delivery and Registration of the Property. The Company shall deliver or
cause to be delivered to Custodian all securities and all monies owned by the
Funds, including cash received for the issuance of Shares, at any time during
the period of this Agreement, except for securities and monies to be delivered
to any sub-custodian appointed, with approval of the Company, by Custodian
pursuant to Paragraphs 7, 27, or 28(g) hereof. Custodian will not be responsible
for such securities and such monies until actually received by it. All
securities delivered to Custodian or any such sub-custodian (other than in
bearer form) shall be registered in the name of the Fund or in the name of a
nominee of a Fund or in the name of Custodian or any nominee of Custodian (with
or without indication of fiduciary status) or in the name of any sub-custodian
or any nominee of such sub-custodian appointed, with approval of the Company,
pursuant to Paragraphs 7, 27, or 28(g) hereof or shall be properly endorsed and
in form for transfer satisfactory to Custodian.
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5. Voting and Other Rights. With respect to all securities, however
registered, it is understood that the voting and other rights and powers shall
be exercised by the Company. Custodian's only duty with respect to such rights
shall be to mail to the Company within two (2) business days following receipt
by Custodian any documents received by Custodian as custodian, including notices
of corporate action, proxies, proxy soliciting materials and offering circulars,
with any elections or proxies for securities registered in a nominee name
executed by such nominee. In addition, Custodian shall provide notice of
Custodian's receipt of such documents by electronic means (e.g., posting notice
on LASER), as agreed between the parties. Where warrants, options, tenders or
other securities have fixed expiration dates, the Company understands that in
order for Custodian to act, Custodian must receive the Company's instructions at
its offices in New York, addressed as Custodian may from time to time request,
by no later than noon (New York City time) at least one (1) business day prior
to the last scheduled date to act with respect thereto (or such earlier date or
time as Custodian may reasonably notify the Company). Absent Custodian's timely
receipt of such instructions, such instructions will expire without liability to
Custodian. Custodian shall have no duty to forward to the Company any annual,
quarterly or special reports issued by companies whose securities are held by
Custodian hereunder.
6. Receipt and Disbursement of Money.
(a) Custodian shall open and maintain a custody account for each
Fund of the Company, subject only to draft or order by Custodian acting pursuant
to the terms of this Agreement, and, subject to Paragraphs 7, 27, or 28(g)
hereof, shall hold in such account, subject to the provisions hereof, all cash
received by it from or for the Funds. Custodian shall make payments of cash to,
or for the account of, each Fund from such cash only (i) for the purchase of
securities for the Funds as provided in Paragraph 14 hereof; (ii) upon receipt
of an Officer's Certificate for the payment of dividends or other distributions
on or with respect to Shares, or for the payment of interest, taxes,
administration, distribution or advisory fees or expenses which are to be borne
by the Funds under the terms of this Agreement and, with respect to each Fund,
and under the terms of any investment advisory agreements, administration
agreements or distribution agreements; (iii) upon receipt of Written
Instructions for payments in connection with the conversion, exchange or
surrender of securities owned or subscribed to by the Funds and held by or to be
delivered to Custodian; (iv) to a sub-custodian pursuant to Paragraphs 7, 27, or
28(g) hereof; or (v) for the redemption of Shares; or (vi) upon receipt of an
Officer's Certificate for other corporate purposes.
(b) Custodian is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money received as Custodian
for the Funds.
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7. Receipt of Securities.
(a) Except as provided by Paragraphs 7(c), 8, 27, or 28(g) hereof,
and except as otherwise directed by Oral or Written Instructions described in
Paragraph 11 hereof, Custodian shall hold and physically segregate in a separate
account with respect to each Fund, identifiable from those of any other person,
all securities and non-cash property received by it for the Funds. All such
securities and non-cash property are to be held or disposed of by Custodian for
each Fund pursuant to the terms of this Agreement. In the absence of Written
Instructions accompanied by a certified resolution authorizing the specific
transaction by the Company's Board of Directors, and subject to Paragraph 25
hereof, Custodian shall have no power or authority to withdraw, deliver, assign,
hypothecate, pledge or otherwise dispose of any such securities and investments,
except in accordance with the express terms provided for in this Agreement. In
no case may any director, officer, employee or agent of the Company withdraw any
securities. In connection with its duties under this Paragraph 7(a), Custodian
may enter into sub-custodian agreements with other banks or trust companies for
the receipt of certain securities and cash to be held by Custodian for the
account of a Fund pursuant to this Agreement, provided Custodian obtains the
prior written approval of the Company to any such sub-custody arrangement.
Custodian will provide the Company with a copy of each sub-custodian agreement
it executes pursuant to this Paragraph 7(a). Custodian shall be liable for acts
or omissions of any such sub-custodian selected by it pursuant to this Paragraph
7(a), under the standards of care provided for herein, except for any such
sub-custodian engaged at the specific direction of the Funds. Notwithstanding
anything herein to the contrary, this Paragraph 7(a) shall not apply to
Custodian's engagement of foreign sub-custodians, which shall instead be
governed by Paragraph 27 hereof.
(b) Promptly after the close of business on each day, Custodian
shall furnish the Company with confirmations and a summary of all transfers to
or from the account of each Fund during said day. Where securities are
transferred to the account of any Fund established at a Securities Depository or
the Book Entry System pursuant to Paragraph 8 herein, Custodian shall also, by
book-entry or otherwise, identify as belonging to such Fund the quantity of
securities in a fungible bulk of securities registered in the name of Custodian
(or its nominee) or shown in Custodian's account on the books of a Securities
Depository or the Book-Entry System. At least monthly and from time to time,
Custodian shall furnish the Company with a detailed statement of the Property
held for each Fund under this Agreement.
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(c) Notwithstanding any provision elsewhere contained herein,
Custodian shall not be required to obtain possession of any instrument or
certificate representing any futures contract, any option, or any futures
contract option until after it shall have determined, or shall have received an
Officer's Certificate from the Company stating that any such instruments or
certificates are available. The Company shall deliver to Custodian such an
Officer's Certificate no later than the business day preceding the availability
of any such instrument or certificate. Prior to such availability, Custodian
shall comply with the 1940 Act in connection with the purchase, sale,
settlement, closing out or writing of futures contracts, options, or futures
contract options by making payments or deliveries specified in such Officer's
Certificates or Written Instructions received by Custodian in connection with
any such purchase, sale, writing, settlement or closing out upon its receipt
from a broker, dealer, or futures commission merchant of a statement or
confirmation reasonably believed by Custodian to be in the form customarily used
by brokers, dealers, or future commission merchants with respect to such futures
contracts, options, or futures contract options, as the case may be, confirming
that the same is held by such broker, dealer or futures commission merchant, in
book-entry form or otherwise, in the name of Custodian (or any nominee of
Custodian) as Custodian for the Fund, provided, however, that notwithstanding
the foregoing, and subject to Paragraph 13(b) hereof, payments to or deliveries
from any margin account, and payments with respect to future contracts, options,
or future contract options to which a margin account relates, shall be made in
accordance with the terms and conditions of the Company's relevant margin
account agreement. Whenever any such instruments or certificates are available,
Custodian shall, notwithstanding any provision in this Agreement to the
contrary, make payment for any futures contract, option, or futures contract
option for which such instruments or such certificates are available against the
delivery to Custodian of such instrument or such certificate, and deliver any
futures contract, option or futures contract option for which such instruments
or such certificates are available only against receipt by Custodian of payment
therefor. Any such instrument or certificate delivered to Custodian shall be
held by Custodian hereunder in accordance with, and subject to, the provisions
of this Agreement.
8. Use of Securities Depository or the Book-Entry System. The Company
shall deliver to Custodian a certified resolution of the Board of Directors of
the Company approving, authorizing and instructing Custodian on a continuous and
ongoing basis until instructed to the contrary by Written Instructions (i) to
deposit in a Securities Depository or the Book-Entry System all securities of
the Funds held hereunder eligible for deposit therein and (ii) to utilize a
Securities Depository or the Book-Entry System to the extent possible in
connection with the performance of its duties hereunder, including without
limitation settlements of purchases and sales of securities by the Funds, and
deliveries and returns of securities loaned, subject to repurchase agreements or
used as collateral in connection with borrowings. Without limiting the
generality of such use, the following provisions shall apply thereto:
(a) Securities and any cash of the Funds deposited by Custodian in a
Securities Depository or the Book-Entry System will at all times be segregated
from any assets and cash controlled by Custodian in other than a fiduciary or
custodian capacity. Subject to Paragraph 28(m) hereof, Custodian and its
sub-custodians, if any, will pay out money only upon receipt of securities and
will deliver securities only upon receipt of money, absent Written Instructions
to the contrary.
(b) All books and records maintained by Custodian that relate to the
Funds' participation in a Securities Depository or the Book-Entry System will at
all times during Custodian's regular business hours be open to inspection by the
Company's duly authorized employees or agents and the Company's independent
auditors in accordance with applicable regulations, it being understood,
however, that such records may be kept in an off site Custodian storage location
and the Company will be furnished with all information in respect of the
services rendered to it as it may require.
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(c) Custodian will provide the Company with copies of any report
obtained by Custodian on the system of internal accounting control of the
Securities Depository or Book-Entry System promptly after receipt of such a
report by Custodian. Custodian will also provide the Company with such reports
on its own system of internal control as the Company may reasonably request from
time to time.
9. Instructions Consistent With the Charter, Etc. Unless otherwise
provided in this Agreement, Custodian shall act only upon Officer's
Certificates, Oral Instructions and/or Written Instructions. Custodian may
assume that any Officer's Certificate, Oral Instructions or Written Instructions
received hereunder are not in any way inconsistent with any provision of the
Charter or Code of Regulations or any resolution of the Company's Board of
Directors, or any committee thereof. Custodian shall be entitled to rely upon
any Oral Instructions or Written Instructions actually received by Custodian
pursuant to this Agreement, and upon any certificate, oral instructions, or
written instructions reasonably believed by Custodian to be an Officer's
Certificate, Oral Instructions or Written Instructions. The Company agrees to
forward to Custodian Written Instructions confirming Oral Instructions in such
manner that the Written Instructions are received by Custodian at the close of
business of the same day that such Oral Instructions are given to Custodian. The
Company agrees that the fact that such confirming Written Instructions are not
received by Custodian shall in no way affect the validity of any of the
transactions authorized by the Company by giving Oral Instructions, and that
Custodian's records with respect to the content of Oral Instructions shall be
controlling.
10. Transactions-Not Requiring Instructions. Custodian is authorized to
take the following action without Oral Instructions, Written Instructions, or an
Officer's Certificate:
(a) Collection of Income and Other Payments. Custodian shall,
subject to Paragraph 28(f) hereof:
(i) Collect and receive for the account of any Fund, all
income and other payments and distributions, including (without limitation)
stock dividends, rights, warrants and similar items, included or to be included
in the Property of any Fund, and promptly advise the Company of such receipt and
shall credit such income, as collected, to such Fund of the Company. From time
to time, Custodian may elect, but shall not be so obligated, to credit the
account with interest, dividends or principal payments on payable or contractual
settlement date, in anticipation of receiving same from a payor, central
depository, Securities Depository, broker or other agent employed by the Company
or Custodian. Any such crediting and posting shall be at the Company's sole
risk, and Custodian shall be authorized to reverse (A) any such advance posting
in the event it does not receive good funds from any such payor, central
depository, Securities Depository, broker or agent, and (B) any other payment or
crediting, including, without limitation, payments made by check or draft, in
the event it does not receive good funds or final payment;
(ii) With respect to securities of foreign issue, and subject
to Paragraph 27 hereof, effect collection of dividends, interest and other
income, and to promptly transmit to the Company all reports, written information
or notices actually received by Custodian as Custodian, including notices of any
call for redemption, offer of exchange, right of subscription, reorganization,
or other proceedings affecting such securities, or any default in payments due
thereon. It is understood, however, that Custodian shall be under no
responsibility for any failure or delay in effecting such collections or giving
such notice with respect to securities of foreign issue, regardless of whether
or not the relevant information is published in any financial service available
to it unless such failure or delay is due to Custodian's own negligence.
Collections of income in foreign currency are, to the extent possible, to be
converted into United States dollars unless otherwise instructed in writing, and
in effecting such conversion Custodian may use such methods or agencies as it
may see fit, including the facilities of its own foreign division at customary
rates. All risk and expenses incident to such collection and conversion are for
the account of the Funds and Custodian shall have no responsibility for
fluctuations in exchange rates affecting any such conversions;
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(iii) Endorse and deposit for collection in the name of the
Company and each of its Funds, checks, drafts, or other orders for the payment
of money on the same day as received;
(iv) Receive and hold for the account of each of the Fund's
securities received by the Funds as a result of a stock dividend, share split-up
or reorganization, recapitalization, readjustment or other rearrangement or
distribution of rights or similar securities issued with respect to any
portfolio securities of the Funds held by Custodian hereunder;
(v) Present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed or retired, or otherwise
become payable on the date such securities become payable, but, with respect to
calls, early redemptions, or early retirements, only if Custodian either (i)
receives a written notice of the same or (ii) notice of the same appears in one
or more of the publications then listed in Schedule II hereto, which Schedule
may be amended to add other publications at any time by Custodian without prior
notice to or consent from the Company and which may be amended to delete a
publication with the prior notice and consent from the Company;
(vi) Subject to Paragraphs 28(e) and (f) hereof, take any
action which may be necessary and proper in connection with the collection and
receipt of such income and other payments and the endorsement for collection of
checks, drafts and other negotiable instructions; and
(vii) With respect to domestic securities, to exchange
securities in temporary form for securities in definitive form, to effect an
exchange of the shares where the par value of stock is changed, and to surrender
securities at maturity or when advised by the Company or the investment adviser
to the Company of an earlier call for redemption, against payment therefor in
accordance with accepted industry practice. When fractional shares of stock of a
declaring corporation are received as a stock distribution, Custodian is
authorized to sell the fraction received and credit the Company's account.
Unless specifically instructed to the contrary in writing, Custodian is
authorized to exchange securities in bearer form for securities in registered
form. If any Property registered in the name of a nominee of Custodian is called
for partial redemption by the issuer of such Property, Custodian is authorized
to allot the called portion to the respective beneficial holders of the Property
in such manner deemed to be fair and equitable by Custodian in its reasonable
discretion.
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(b) Miscellaneous Transactions. Custodian is authorized to deliver
or cause to be delivered Property against payment or other consideration or
written receipt therefor in the following cases:
(i) for examination by a broker selling for the account of the
Company in accordance with street delivery custom;
(ii) for the exchange for interim receipts or temporary
securities for definitive securities;
(iii) for transfer of securities into the name of the Funds or
Custodian or a nominee of either, or for exchange of securities for a different
number of bonds, certificates, or other evidence, representing the same
aggregate face amount or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided that, in any such case, the
new securities are to be delivered to Custodian.
11. Transactions Requiring Instructions. Upon receipt of Oral or Written
Instructions, and not otherwise, Custodian, directly or through the use of a
Securities Depository or the Book-Entry System, shall:
(a) execute and deliver to such persons as may be designated in such
Oral or Written Instructions, proxies, consents, authorizations, and any other
instruments whereby the authority of the Funds as owners of any securities may
be exercised;
(b) deliver any securities held for any Fund against receipt of
other securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege;
(c) deliver any securities held for any Fund to any protective
committee, reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization or sale of
assets of any corporation, against receipt of such certificates or deposit,
interim receipts or other instruments or documents as may be issued to it to
evidence such delivery;
(d) make such transfers or exchanges of the assets of any Fund and
take such other steps as shall be stated in said instructions to be for the
purposes of effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the Funds;
(e) subject to Paragraph 25(b) hereof, release securities belonging
to any Fund to any bank or trust company for the purpose of pledge or
hypothecation to secure any loan incurred by such Fund; provided, however, that
securities shall be released only upon payment to Custodian of the monies
borrowed, except that in cases where additional collateral is required to secure
a borrowing already made, subject to proper prior authorization, further
securities may be released for that purpose; and pay such loan upon redelivery
to it of the securities pledged or hypothecated therefor and upon surrender of
the note or notes evidencing the loan;
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(f) deliver any securities held for any Fund upon the exercise of a
covered call option written by such Fund on such securities;
(g) release and deliver securities owned by a Fund in connection
with any repurchase agreement entered into on behalf of such Fund, but subject
to Paragraph 28(m) hereof, only on receipt of payment therefor; and pay out
monies of such Fund in connection with such repurchase agreements, but only upon
the delivery of the securities;
(h) otherwise transfer, exchange or deliver securities in accordance
with Oral or Written Instructions specifying the purpose of such transfer,
including without limitation, loans of securities, short sales, or reverse
repurchase agreements, and subject to Paragraph 7(a) hereof.
12. Segregated Accounts. Custodian shall upon receipt of Written or Oral
Instructions establish and maintain a segregated account or accounts on its
records for and on behalf of any Fund, into which account or accounts shall be
credited, but only pursuant to an Officer's Certificate or Written Instructions
specifying the particular securities and/or amount of cash, cash and/or
securities, including securities in the Book-Entry System (i) for the purposes
of compliance by the Funds and the Company with the procedures required by a
securities or option exchange, (ii) for the purpose of compliance by the Funds
and the Company with the 1940 Act and Release No. 10666 or any subsequent
release or releases of the SEC relating to the maintenance of segregated
accounts by registered investment companies, and (iii) for other proper
corporate purposes.
13. Dividends and Distributions.
(a) The Company shall furnish Custodian with appropriate evidence of
action by the Company's Board of Directors declaring and authorizing the payment
of any dividends and distributions. Upon receipt by Custodian of an Officer's
Certificate with respect to dividends and distributions declared by the
Company's Board of Directors and payable to shareholders of any Fund who are
entitled to receive cash for fractional shares and those who have elected in the
proper manner to receive their distributions on dividends in cash, and in
conformance with procedures mutually agreed upon by Custodian and the Company,
and the Company's administrator or transfer agent, Custodian shall pay to the
Fund's transfer agent, as agent for the shareholders, an amount equal to the
amount indicated in said Officer's Certificate as payable by the Fund to such
shareholders for distribution in cash by the transfer agent to such
shareholders.
(b) Custodian may enter into separate custodial agreements with
various futures commission merchants ("FCMs") that the Company uses (each an
"FCM Agreement"), pursuant to which the Funds' margin deposits in any
transactions involving futures contracts and options on futures contracts will
be held by Custodian in accounts (each an "FCM Account") subject to the
disposition by the FCM involved in such contracts in accordance with the
customer contract between the FCM and the Company ("FCM Contract"), SEC rules
governing such segregated accounts, Commodity Futures Trading Commission
("CFTC") rules and the rules of the applicable commodities exchange. Such FCM
Agreements shall only be entered into by Custodian upon receipt by Custodian of
Written Instructions from the Company which state that (i) an FCM Contract has
been entered into; (ii) the Company is in compliance with all the rules and
regulations of the CFTC; and (iii) the FCM Agreement is acceptable to the
Company. Transfers of initial margin shall be made into an FCM Account only upon
Written Instructions; transfers of premium and variation margin may be made into
an FCM Account pursuant to Oral Instructions. Transfers of funds from an FCM
Account to the FCM for which Custodian holds such an account may only occur in
accordance with the terms of the FCM Agreement.
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14. Purchase of Securities. Promptly after each purchase of securities by
the Company on behalf of any Fund, the Company shall deliver to Custodian Oral
or Written Instructions specifying with respect to each such purchase: (a) the
name of the issuer and the title of the securities, (b) the number of shares of
the principal amount purchased and accrued interest, if any, (c) the dates of
purchase and settlement, (d) the purchase price per unit, (e) the total amount
payable upon such purchase, (f) the name of the person from whom or the broker
through whom the purchase was made and (g) the Fund for which the purchase was
made. Custodian shall upon receipt of securities purchased by or for the Company
pay out of the monies held for the account of the Company the total amount
payable to the person from whom or the broker through whom the purchase was
made, provided that the same conforms to the total amount payable as set forth
in such Oral or Written Instructions.
15. Sales of Securities. Promptly after each sale of securities by the
Funds or the Company shall deliver to Custodian Oral or Written Instructions,
specifying with respect to each such sale: (a) the name of the issuer and the
title of the security, (b) the number of shares or principal amount sold, and
accrued interest, if any, (c) the dates of sale, (d) the sale price per unit,
(e) the total amount payable to the Company upon such sale, (f) the name of the
broker through whom or the person to whom the sale was made and (g) the Fund for
which the sale was made. Custodian shall, subject to Paragraph 28(m) hereof,
deliver the securities against payment of the total amount payable to the
Company upon such sale, provided that the same conforms to the total amount
payable as set forth in such Oral and Written Instructions.
16. Records. The books and records pertaining to the Funds and the Company
which are in the possession of Custodian shall be the property of the Company.
Such books and records shall be prepared and maintained as required by the 1940
Act and other applicable securities laws and rules and regulations. The SEC, the
Company, or the Company's authorized representatives, shall have access to such
books and records at all times during Custodian's normal business hours. Upon
the reasonable request of the Company, copies of any such books and records
shall be provided by Custodian to the Company or the Company's authorized
representative, and the Company shall reimburse Custodian reasonable expenses
for providing such copies. Upon reasonable request of the Company, Custodian
shall provide in hard copy, tape or on micro-film, or such other medium as
agreed to among the Company and Custodian, and any books and records maintained
by Custodian.
17. Reports.
(a) Custodian shall furnish the Company the following reports:
(i) such periodic and special reports as the Company may
reasonably request from time to time;
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(ii) a monthly statement summarizing all transactions and
entries for the account of each Fund;
(iii) a monthly report of portfolio securities belonging to
each Fund showing the adjusted average cost of each issue and market value at
the end of such month;
(iv) a monthly report of the cash account of each Fund
showing disbursements;
(v) the reports to be furnished to the Company pursuant to
Rule 17f-4 under the 1940 Act; and
(vi) such other information as may be agreed upon from time to
time between the Company and Custodian.
(b) Subject to Paragraphs 5 and 27(g) hereof, Custodian shall
transmit promptly to the Company any proxy statement, proxy materials, notice of
a call or conversion or similar communications actually received by Custodian as
custodian of the Property.
(c) Custodian shall report as the market value at the end of each
month the last closing bid, offer or sale price to the extent, and as the same,
is furnished to Custodian by a pricing or similar service utilized or subscribed
to by Custodian. Custodian shall not be responsible for, have any liability with
respect to, or be under any duty to inquire into, nor deemed to make any
assurances with respect to, the accuracy or completeness of such information,
even if The Bank of New York in performing services for others, including
services similar to those performed hereunder, receives different valuations of
the same or different securities of the same issuer.
18. Cooperation with Accountants. Custodian shall cooperate with the
Company's independent certified public accountants and shall take all reasonable
action in the performance of its obligations under this Agreement, to assure
that the necessary information is made available to such accountants.
19. Confidentiality. Custodian agrees on behalf of itself and its
employees to treat all record and other information relative to the Company, its
prior, present or potential shareholders, its service providers and its prior,
present or potential customers, as confidential information, and to protect and
safeguard the same to the extent required by applicable law, provided, however,
that Custodian may make such disclosure as required by applicable law,
regulation, court order, decrees or legal process and upon receipt of any of the
foregoing requiring such disclosure, Custodian's only obligation shall be to
notify the Company thereof. Custodian further agrees not to otherwise use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Company.
20. Equipment Failures. In the event of equipment failures beyond
Custodian's control, Custodian shall take reasonable steps to minimize service
interruptions but shall not have any further liability with respect thereto.
Notwithstanding the foregoing, Custodian shall maintain sufficient back up
electronic data processing equipment to enable Custodian to fulfill its
obligations under this Agreement consistent with standard industry practices.
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21. Right to Receive Advice.
(a) Advice of Fund. If Custodian shall be in doubt as to any action
to be taken or omitted by it, either may request, and shall receive, from the
Company clarification or advice, including Oral or Written Instructions.
(b) Advice of Counsel. If Custodian shall be in doubt as to any
question of law involved in any action to be taken or omitted by Custodian, it
may request at its option advice from its own counsel, at its own expense, or
advice from the Company's counsel.
(c) Conflicting Advice. In case of conflict between directions,
advice or Oral or Written Instructions received by Custodian pursuant to
subparagraph (a) of this paragraph and advice received by Custodian pursuant to
subparagraph (b) of this paragraph, Custodian shall be entitled to rely on and
follow the advice received pursuant to subparagraph (b) alone.
(d) Protection of Custodian. Custodian shall be protected in any
action or inaction which it takes or omits to take in reliance on any
directions, advice or Oral or Written Instructions received pursuant to
subparagraphs (a) or (b) of this section which it, after receipt of any such
directions, advice or Oral or Written Instructions, in good faith reasonably
believes to be consistent with such directions, advice or Oral or Written
Instructions, as the case may be. Nothing in this Paragraph 21 shall be
construed as imposing upon Custodian any obligation (i) to seek such directions,
advice or Oral or Written Instructions, or (ii) to act in accordance with such
directions, advice or Oral or Written Instructions when received, unless, under
the terms or another provision of this Agreement, the same is a condition to
Custodian's properly taking or omitting to take such action. Nothing in this
Paragraph 21(d) shall excuse Custodian when an action or omission on the part of
Custodian constitutes willful misfeasance or bad faith, or negligence or
reckless disregard by Custodian of its duties under this Agreement.
22. Compliance with Governmental Rules and Regulations. Custodian
undertakes to comply with the laws, rules and regulations of governmental
authorities having jurisdiction over Custodian and its express duties hereunder.
23. Compensation. As compensation for the services rendered by Custodian
during the term of this Agreement, the Company shall pay to Custodian, in
addition to reimbursement of its out-of-pocket expenses, such compensation as
may be agreed upon from time to time in writing by the Company and Custodian as
set forth in Schedule III.
24. Indemnification. The Company agrees to indemnify Custodian against,
and hold harmless from all taxes, charges, expenses (including reasonable fees
and expenses of counsel), assessments, claims, losses, demands and liabilities
whatsoever (including, without limitation, liabilities arising under the 1933
Act, the 1934 Act and the 1940 Act, and any state and foreign securities laws,
all as currently in effect or as may be amended from time to time) and expenses,
including without limitation, reasonable attorney's fees and disbursements,
howsoever arising or incurred because of or in connection with this Agreement,
except for such liability, claim, loss, demand, charge, expense, tax or
assessment arising out of Custodian's, or such nominees', willful misconduct or
negligence or reckless disregard of its duties under this Agreement. For the
purposes of this Agreement, including, without limitation, for purposes of
Paragraphs 24 and 28, neither Custodian's acceptance of Instructions in
accordance with Paragraph 26A nor Custodian's use of Foreign Sub-Custodians
pursuant to agreements that do not permit actual examination by independent
public accountants, nor the denial of examination by any Foreign Sub-Custodian
as defined in Paragraph 27, shall, in and of itself, constitute, or be deemed to
constitute, a breach by Custodian of this Agreement or negligence, willful
misconduct, or reckless disregard of its duties by Custodian, provided the
relevant agreement between Custodian and a Foreign Sub-Custodian satisfies the
requirements of Rule 17f-5.
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25. Overdrafts or Indebtedness.
(a) Custodian shall advance funds under this Agreement with respect
to any Fund which results in an overdraft because the moneys held by Custodian
in the separate account for such Fund shall be insufficient to pay the total
amount payable upon a purchase of securities by such Fund, as set forth in an
Officer's Certificate or Oral or Written Instructions, or which results in an
overdraft in the separate account of such Fund for some other reason, or if the
Company is for any other reason indebted to Custodian, including any
indebtedness to The Bank of New York under the Company's Cash Management and
Related Services Agreement, (except a borrowing for investment or for temporary
or emergency purposes using securities as collateral pursuant to a separate
agreement and subject to the provisions of Paragraph 25(b) hereof), such
overdraft or indebtedness shall be deemed to be a loan made by Custodian to the
Company for such Fund payable on demand and shall bear interest from the date
incurred at a rate per annum (based on a 360-day year for the actual number of
days involved) equal to the overdraft rate specified in Schedule IV to this
Agreement. In addition, the Company hereby agrees that Custodian shall have a
continuing lien, security entitlement and security interest in and to any
property at any time held by it for the benefit of such Fund or in which the
Fund may have an interest which is then in Custodian's possession or control or
in possession or control of any third party acting on Custodian's behalf. The
Company authorizes Custodian, in its sole discretion, at any time to charge any
such overdraft or indebtedness together with interest due thereon against any
balance of account standing to such Fund's credit on Custodian's books. In
addition, the Company hereby covenants that on each Business Day on which either
it intends to enter a Reverse Repurchase Agreement and/or otherwise borrow from
a third party, or which next succeeds a Business Day on which at the close of
business the Company had outstanding a Reverse Repurchase Agreement or such a
borrowing, it shall prior to 1:00 p.m., New York City time, advise Custodian, in
writing, of each such borrowing, shall specify the Fund to which the same
relates, and shall not incur any indebtedness not so specified other than from
Custodian.
(b) The Company will cause to be delivered to Custodian by any bank
(including, if the borrowing is pursuant to a separate agreement, Custodian)
from which it borrows money for investment or for temporary or emergency
purposes using securities held by Custodian hereunder as collateral for such
borrowings, a notice or undertaking in the form currently employed by such bank
setting forth the amount which such bank will loan to the Company against
delivery of a stated amount of collateral. The Company shall promptly deliver to
Custodian Written Instruction specifying with respect to each such borrowing:
(a) the Fund to which such borrowing relates; (b) the name of the bank, (c) the
amount and terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Fund, or other loan
agreement, (d) the time and date, if known, on which the loan is to be entered
into, (e) the date on which the loan becomes due and payable, (f) the total
amount payable to the Fund on the borrowing date, (g) the market value of
securities to be delivered as collateral for such loan, including the name of
the issuer, the title and the number of shares or the principal amount of any
particular securities, and (h) a statement specifying whether such loan is for
investment purposes or for temporary or emergency purposes and that such loan is
in conformance with the 1940 Act and the Fund's prospectus. Custodian shall
deliver on the borrowing date specified in Written Instructions the specified
collateral and the executed promissory note, if any, against delivery by the
lending bank of the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in such Written Instructions.
Custodian may, at the option of the lending bank, keep such collateral in its
possession, but such collateral shall be subject to all rights therein given the
lending bank by virtue of any promissory note or loan agreement. Custodian shall
deliver such securities as additional collateral as may be specified in Written
Instructions to collateralize further any transaction described in this
Paragraph 25(b). The Company shall cause all securities released from collateral
status to be returned directly to Custodian, and Custodian shall receive from
time to time such return of collateral as may be tendered to it. In the event
that the Company fails to specify in Written Instructions the Fund, the name of
the issuer, the title and number of shares or the principal amount of any
particular securities to be delivered as collateral by Custodian, Custodian
shall not be under any obligation to deliver any securities.
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26A. Instructions
(a) It is understood and agreed that Custodian may, from time to
time, provide software to the Company for purposes of enabling a Fund to
transmit Instructions to Custodian (the "Software"). Such Software has been
designed to include password protection or other features to restrict the use of
the Software to Authorized Persons; provided, however, that the Custodian makes
no warranty or representations of any kind with respect to such protections or
features, express or implied, including, but not limited to, any implied
warranties of merchantability or fitness for a particular purpose. The Company
and the Custodian shall use commercially reasonable efforts to develop other
mechanisms (i) to enable the Company to restrict the use of the Software to
Authorized Persons, (ii) to identify transmissions from a terminal other than an
authorized terminal, and (iii) for the prompt and accurate transmission of
Instructions by Authorized Persons to Custodian. It is further understood and
agreed that Custodian may provide specialized hardware or other equipment to
enable the Company and the Funds to utilize the Software. With respect to any
such Software, Custodian grants to the Company and its service providers a
personal, nontransferable and nonexclusive license to use the Software solely
for the purpose of transmitting Instructions to, and receiving communications
from, Custodian in connection with its account(s). The Company and its service
providers agree not to sell, reproduce, lease or otherwise provide, directly or
indirectly, the Software or any portion thereof to any third party without the
prior written consent of Custodian. At no time shall the Company be obligated to
use the Software to transmit Instructions to Custodian.
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(b) The Company shall obtain and maintain at its own cost and
expense all equipment and services, including but not limited to communications
services, necessary for it to utilize the Software and transmit Instructions to
Custodian; provided, however, that the parties acknowledge and agree that if any
specialized equipment is necessary to enable the Company to utilize the
Software, Custodian shall, at its own expense, provide and maintain such
equipment.
(c) The Company acknowledges that the Software, all data bases made
available to the Company by utilizing the Software (other than data bases
relating solely to the assets of the Funds and transactions with respect
thereto), and any proprietary data, processes, information and documentation
(other than those which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the "Information"),
are the exclusive and confidential property of Custodian. The Company shall keep
the Information confidential by using the same care and discretion that the
Company uses with respect to its own confidential property and trade secrets and
shall neither make nor permit any disclosure without the prior written consent
of Custodian. Upon termination of this Agreement or the Software license granted
hereunder for any reason, the Company shall return to Custodian all copies of
the Information which are in its possession or under its control or which the
Company distributed to third parties.
(d) Custodian reserves the right to modify the Software from time to
time upon reasonable prior notice and the Company shall, if it desires in its
sole discretion to continue to use the Software, install new releases of the
Software as Custodian may direct. The Company agrees not to modify or attempt to
modify the Software without Custodian's prior written consent. The Company
acknowledges that any modifications to the Software, whether by the Company or
Custodian and whether with or without Custodian's consent, shall become the
property of Custodian.
(e) Where the method for transmitting Instructions by the Company
involves an automatic systems acknowledgment to the Company by Custodian of its
receipt of such Instructions, including any transmission of Instructions using
the Software, then (i) if an acknowledgment is not actually received by the
Company, Custodian shall not be deemed to have received any such Instructions,
and (ii) if an acknowledgment is actually received by the Company, the Custodian
shall be deemed to have received such Instructions and shall be responsible for
any error, omission, interruption or delay in connection with the transmission
of such Instructions; provided, however, that the Company shall promptly review
all acknowledgments actually received and notify the Custodian in the event of
any apparent discrepancy.
(f) (i) The Company agrees that where it delivers to Custodian
Instructions hereunder using the Software, it shall be the Company's sole
responsibility to ensure that only persons duly authorized by the Company and
the correct number of such persons transmit such Instructions to Custodian and
the Company will cause all such persons to treat applicable use and
authorization codes, passwords and authentication keys with extreme care, and
authorizes Custodian to act in accordance with and rely upon Instructions
received by it pursuant hereto using the Software.
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(ii) The Company hereby represents, acknowledges and agrees that it
is fully informed of the protections and risks associated with the various
methods of transmitting Instructions to Custodian and that there may be more
secure methods of transmitting Instructions to Custodian than the method(s)
selected by the Company.
(iii) With respect to all Oral Instructions and all Written
Instructions other than Instructions delivered to Custodian using the Software
provided by Custodian, Custodian shall exercise all commercially reasonable
efforts to form a reasonable belief that each such instruction has been given by
an Authorized Person and, where required, signed by an appropriate number of
Authorized Person(s).
(g) The Company shall notify Custodian of any errors, omissions or
interruptions in, or delay or unavailability of, its ability to send
Instructions using the Software provided by Custodian as promptly as
practicable, and in any event within 24 hours after the earliest of (i)
discovery thereof, (ii) the business day on which discovery should have occurred
through the exercise of reasonable care and (iii) in the case of any error, the
date of actual receipt of the earliest notice which reflects such error, it
being agreed that discovery and receipt of notice may only occur on a business
day. Custodian shall, as promptly as practicable, and in any event within 24
hours after the earliest of (i) discovery thereof, (ii) the business day on
which discovery should have occurred through the exercise of reasonable care and
(iii) in the case of any error, the date of actual receipt of the earliest
notice which reflects such error, it being agreed that discovery and receipt of
notice may only occur on a business day, advise the Company whenever Custodian
learns or reasonably should have learned, of any errors, omissions or
interruption in, or delay or unavailability of, the Company's ability to send
Instructions using the Software provided by Custodian.
26B. FX Transactions
(a) Whenever a Fund shall enter into an FX Transaction, the Fund
shall promptly deliver to Custodian a Certificate or Oral Instructions
specifying with respect to such FX Transaction: (a) the Series to which such FX
Transaction is specifically allocated; (b) the type and amount of Currency to be
purchased by the Fund; (c) the type and amount of Currency to be sold by the
Fund; (d) the date on which the Currency to be purchased is to be delivered; (e)
the date on which the Currency to be sold is to be delivered; and (f) the name
of the person from whom or through whom such Currencies are to be purchased and
sold. Unless otherwise instructed by a Certificate or Oral Instructions,
Custodian shall deliver, or shall instruct a Foreign Sub-Custodian to deliver,
the Currency to be sold on the date on which such delivery is to be made, as set
forth in the Certificate, and shall receive, or instruct a Foreign Sub-Custodian
to receive, the Currency to be purchased on the date as set forth in the
Certificate.
(b) Where the Currency to be sold is to be delivered on the same day
as the Currency to be purchased, as specified in the Certificate or Oral
Instructions, Custodian or a Foreign Sub-Custodian may arrange for such
deliveries and receipts to be made in accordance with the customs prevailing
from time to time among brokers or dealers in Currencies, and such receipt and
delivery may not be completed simultaneously. The Fund assumes all
responsibility and liability for all credit risks involved in connection with
such receipts and deliveries, which responsibility and liability shall continue
until the Currency to be received by the Fund has been received in full.
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(c) Any foreign exchange transaction effected by Custodian in
connection with this Agreement may be entered with Custodian, any office, branch
or subsidiary of The Bank of New York, or any Foreign Sub-Custodian (as defined
below) acting as principal or otherwise through customary banking channels. The
Fund may issue a standing Certificate with respect to foreign exchange
transactions but Custodian may establish rules or limitations concerning any
foreign exchange facility made available to the Fund. The Fund shall bear all
risks of investing in securities or holding Currency. Without limiting the
foregoing, the Fund shall bear the risks that rules or procedures imposed by a
Foreign Sub-Custodian or foreign depositories, exchange controls, asset freezes
or other laws, rules, regulations or orders shall prohibit or impose burdens or
costs on the transfer to, by or for the account of the Fund of Securities or any
cash held outside the Fund's jurisdiction or denominated in Currency other than
its home jurisdiction or the conversion of cash from one Currency into another
Currency. Custodian shall not be obligated to substitute another Currency for a
Currency (including a Currency that is a component of a Composite Currency Unit)
whose transferability, convertibility or availability has been affected by such
law, regulation, rule or procedure. Neither Custodian nor any Foreign
Sub-Custodian shall be liable to the Fund for any loss resulting from any of the
foregoing events.
27. Duties of Custodian with Respect to Property of any Fund Held Outside
of the United States.
(a) Custodian is authorized and instructed to employ, as
sub-custodian for each Fund's foreign securities and other assets, the foreign
banking institutions and foreign securities depositories and clearing agencies
selected from time to time by Custodian as the Foreign Custody Manager appointed
by the Company's Board of Directors ("Foreign Sub-Custodians") to carry out
their respective responsibilities in accordance with the terms of the
sub-custodian agreement between each such Foreign Sub-Custodian and Custodian
(each such agreement, a "Foreign Sub-Custodian Agreement"). Upon receipt of an
Officer's Certificate, the Company may designate any additional foreign
sub-custodian with which Custodian has an agreement for such entity to act as
Custodian's agent, as its sub-custodian and any such additional foreign
sub-custodian shall be deemed a Foreign Sub-Custodian hereunder. Upon receipt of
an Officer's Certificate, Custodian shall cease using any one or more Foreign
Sub-Custodians for the Fund's assets.
(b) Each Foreign Sub-Custodian Agreement shall be substantially in
the form delivered to the Company herewith and will not be amended in a way that
materially adversely affects the Company without the Company's prior written
consent.
(c) Custodian shall identify on its books as belonging to each Fund
the Foreign Securities of such Fund held by each Foreign Sub-Custodian. At the
election of the Company, it shall be entitled to be subrogated to any claims by
the Company or any Fund against a Foreign Sub-Custodian as a consequence of any
loss, damage, cost, expense, liability or claim sustained or incurred by the
Company or any Fund if and to the extent that the Company or such Fund has been
made whole by Custodian for any such loss, damage, cost, expense, liability or
claim.
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(d) Upon request of the Company, Custodian will, consistent with the
terms of the applicable Foreign Sub-Custodian Agreement, use reasonable efforts
to arrange for the independent accountants of the Company to be afforded access
to the books and records of any Foreign Sub-Custodian insofar as such books and
records relate to the performance of such Foreign Sub-Custodian under its
agreement with Custodian on behalf of the Company.
(e) Custodian will supply to the Company from time to time, as
mutually agreed upon, statements in respect of the securities and other assets
of each Fund held by Foreign Sub-Custodians, including but not limited to, an
identification of entities having possession of each Fund's Foreign Securities
and other assets, and advices or notifications of any transfers of Foreign
Securities to or from each custodial account maintained by a Foreign
Sub-Custodian for Custodian on behalf of the Fund.
(f) Custodian agrees that it will use reasonable care in monitoring
compliance by each Foreign Sub-Custodian with the terms of the relevant Foreign
Sub-Custodian Agreement and that if it learns of any breach of such Foreign
Sub-Custodian Agreement believed by Custodian to have a material adverse effect
on the Company or any Fund it will promptly notify the Company in writing of
such breach. Custodian also agrees to use reasonable and diligent efforts to
enforce its rights under the relevant Foreign Sub-Custodian Agreement.
(g) Custodian shall transmit promptly to the Company all notices,
reports or other written information received pertaining to the Company's
Foreign Securities, including without limitation, notices of corporate action,
proxies and proxy solicitation materials.
(h) Notwithstanding any provision of this Agreement to the contrary,
settlement and payment for securities received for the account of the Company or
any Fund and delivery of securities maintained for the account of the Company or
any Fund may be effected in accordance with the customary or established
securities trading or securities processing practices and procedures in the
jurisdiction or market in which the transaction occurs, including, without
limitation, delivery of securities to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such securities from such purchaser
or dealer.
(i) With respect to any losses or damages arising out of or relating
to any actions or omissions of any Foreign Sub-Custodian, the sole
responsibility and liability of Custodian shall be to take all appropriate and
reasonable action at the Company's expense to recover such loss or damage from
the Foreign Sub-Custodian. It is expressly understood and agreed that
Custodian's sole responsibility and liability shall be limited to amounts so
recovered from the Foreign Sub-Custodian.
28. Concerning Custodian.
(a) (i) Custodian shall exercise care and diligence and act in good
faith and use all commercially reasonable efforts in the performance of its
duties hereunder. Custodian shall be responsible to the Company for its own
failure, or the failure of any sub-custodian that it shall appoint (other than a
foreign sub-custodian referred to in Paragraph 27 or a sub-custodian appointed
by Custodian at the specific direction of the Company) or that of its employees
or agents, to perform its duties, obligations or responsibilities in accordance
with this Agreement, but only to the extent that such failure results from acts
or omissions that constitute willful misfeasance, bad faith or negligence on the
part of Custodian, or on the part of its employees or agents, or reckless
disregard of such duties, obligations and responsibilities.
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(ii) Without limiting the generality of the foregoing or any
other provision of this Agreement, in no event shall Custodian be liable to the
Fund or any third party nor, except as otherwise provided in this subparagraph
for special, indirect or consequential damages or lost profits or loss of
business, arising under or in connection with this Agreement, even if previously
informed of the possibility of such damages and regardless of the form of
action. Custodian may, with respect to questions of law arising under any FCM
Agreement, apply for and obtain the advice and opinion of counsel to the Company
at the expense of the Company, or of its own counsel at its own expense, and
shall be fully protected with respect to anything done or omitted by it in good
faith in conformity with such advice or opinion. Custodian shall be liable to
the Company for any loss or damage resulting from the use of the Book-Entry
System or any Securities Depository arising by reason of any negligence or
willful misconduct on the part of Custodian or any of its employees or agents.
(iii) Custodian's liability pursuant to the last sentence of
subparagraph (a)(i) shall include, but not be limited to, reimbursing the
Company for court-ordered damage awards, fines, penalties, and
judicially-approved settlements (and attorney's fees and disbursements relating
thereto) arising out of or in connection with the conduct giving rise to such
liability.
(iv) If the Company receives notice of the commencement of any
action, suit, or proceeding (an "Action"), or notice that any Action may be
commenced, for which Custodian may be liable to the Company pursuant to this
Paragraph 28, the Company shall give notice to Custodian of the commencement of
the Action or of the possibility that an Action will be commenced. Any omission
to notify Custodian will not relieve Custodian from any liability which it may
have under this Paragraph, except to the extent the failure to notify Custodian
prejudices the rights of Custodian. Custodian will be entitled at its sole
expense and liability, to exercise full control of the defense, compromise or
settlement of any such Action, provided that Custodian (1) notifies the Company
in writing of Custodian's intention to assume such defense; and (2) retains
legal counsel reasonably satisfactory to the Company to conduct the defense of
such Action. If Custodian advises the Company that it does not wish to exercise
full control of any defense, compromise or settlement of any Action, Custodian
shall be responsible for the fees and expenses of counsel selected by the
Company, in addition to any other amounts for which Custodian may be liable
pursuant to this Paragraph 28. The other person will cooperate with the person
assuming the defense, compromise or settlement of any Action in accordance with
this Paragraph in any manner that such person reasonably may request. If
Custodian so assumes the defense of any such Action, the Company will have the
right to employ a separate counsel and to participate in (but not control) the
defense, compromise or settlement of the Action, but the fees and expenses of
such counsel will be at the expense of the Company unless (a) Custodian has
agreed to pay such fees and expenses, (b) any relief other than the payment of
money damages is sought against the Company, or (c) the Company has been advised
by its counsel that there may be one or more defenses available to it which are
different from or additional to those available to Custodian and that a conflict
of interest therefore exists, and in any such case that portion of the fees and
expenses of such separate counsel that are reasonably related to matters for
which Custodian is liable pursuant to this Paragraph will be paid by Custodian.
The Company will not settle or compromise any such Action for which Custodian is
liable pursuant to this Paragraph without the prior written consent of
Custodian, unless Custodian has failed, after reasonable notice, to undertake
control of such Action in the manner provided in this Paragraph. Custodian will
not settle or compromise any such Action in which any relief other than the
payment of money damages is sought against the Company without the consent of
the Company, such consent not to be unreasonably withheld. In the event that
Custodian intends to settle or compromise any Action in which solely money
damages are sought, Custodian shall give the Company fifteen (15) business days
prior written notice.
20
<PAGE>
(b) Without limiting the generality of the foregoing, Custodian
shall be under no obligation to inquire into, and shall not be liable for:
(i) the validity of the issue of any securities purchased,
sold, or written by or for the Company or any Fund, the legality of the
purchase, sale or writing thereof, or the propriety of the amount paid or
received therefor;
(ii) the legality of the sale or redemption of any Shares, or
the propriety of the amount to be received or paid therefor;
(iii) the legality of the declaration or payment of any
dividend by the Company;
(iv) the legality of any borrowing by the Company using
securities as collateral;
(v) the legality of any loan of portfolio securities, or under
any duty or obligation to see to it that any cash collateral delivered to it by
a broker, dealer, or financial institution or held by it at any time as a result
of such loan of portfolio securities is adequate collateral for or against any
loss Custodian, the Company or any Fund might sustain as a result of such loan.
Custodian specifically, but not by way of limitation, shall not be under any
duty or obligation periodically to check or notify the Company or any Fund that
the amount of such cash collateral held by Custodian for the Company is
sufficient collateral for the Company, but such duty or obligation shall be the
sole responsibility of the Company. In addition, Custodian shall be under no
duty or obligation to see that any broker, dealer or financial institution to
which portfolio securities are lent makes payment to it of any dividends or
interest which are payable to or for the account of the Company during the
period of such loan or at the termination of such loan, provided, however, that
Custodian shall promptly notify the Company in the event that such dividends or
interest are not paid and received when due; or
(vi) the sufficiency or value of any amounts of money and/or
securities held in any segregated account described in Paragraph 12(a) hereof in
connection with transactions by the Funds, or whether such segregated account
provides the compliance intended to be achieved. In addition, Custodian shall
not be under any duty or obligation to see that any broker, dealer, FCM or
Clearing Member makes payment to the Fund of any variation margin payment or
similar payment which the Fund may be entitled to receive from such broker,
dealer, FCM or Clearing Member, to see that any payment received by Custodian
from any broker, dealer, FCM or Clearing Member is the amount the Company is
entitled to receive, or to notify the Company or a Fund of Custodian's receipt
or non-receipt of any such payment.
21
<PAGE>
(c) Custodian shall not be liable for, or considered to be
sub-custodian or custodian of, any money, whether or not represented by any
check, draft, or other instrument for the payment of money, received by
Custodian on behalf of the Company until Custodian actually receives and
collects such money directly or by the final crediting of the account
representing the Fund's interest at the Book-Entry System or a Securities
Depository.
(d) Custodian shall not have any responsibility or be liable for
ascertaining or acting upon any calls, conversions, exchange offers, tenders,
interest rate changes or similar matters relating to securities held in a
Securities Depository, unless Custodian shall have actually received timely
notice from such Securities Depository. In no event shall Custodian have any
responsibility or liability for the failure of any Securities Depository to
collect, or for the late collection or late crediting by a Securities Depository
of any amount payable upon securities deposited in a Securities Depository which
may mature or be redeemed, retired, called or otherwise become payable. Upon
receipt of Written Instructions from the Company of an overdue amount on
securities held in a Securities Depository Custodian shall make a claim against
a Securities Depository on behalf of the Company, except that Custodian shall
not be under any obligation to appear in, prosecute or defend any action suit or
proceeding in respect to any securities held by a Securities Depository which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished as often as
may be required.
(e) Custodian shall not be under any duty or obligation to take
action to effect collection of any amount due to the Company from a transfer
agent of the Company nor to take any action to effect payment or distribution by
the transfer agent of the Company of any amount paid by Custodian to the
transfer agent of the Company in accordance with this Agreement.
(f) Custodian shall not be under any duty or obligation to take
action to effect collection of any amount, if the securities upon which such
amount is payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such action by
Written Instructions and (ii) it shall be assured to its reasonable satisfaction
of reimbursement of its costs and expenses in connection with any such action.
(g) Custodian may in addition to the employment of Foreign
Sub-Custodians pursuant to Paragraphs 7 and 27, hereof appoint one or more
banking institutions as Depository or Depositories, as a sub-custodian or as
sub-custodians, or as a co-custodian or as co-custodians, including, but not
limited to, banking institutions located in foreign countries, of securities and
moneys at any time owned by the Fund, upon such terms and conditions as may be
approved in an Officer's Certificate or contained in an agreement executed by
Custodian and the Company and the appointed institution.
22
<PAGE>
(h) Custodian shall not be under any duty or obligation (i) to
ascertain whether any securities at any time delivered to, or held by it or by
any Foreign Sub-Custodian, for the account of the Company and specifically
allocated to a Fund are such as properly may be held by the Company or such Fund
under the provisions of its Prospectus, or (ii) to ascertain whether any
transactions by the Fund, whether or not involving Custodian, are such
transactions as may properly be engaged in by the Fund.
(i) Custodian shall charge its compensation and any expenses with
respect to the Funds of the Company incurred by Custodian in the performance of
its duties under this Agreement only against the money of the Fund or Funds of
the Company from which such compensation or expenses is actually due and
payable, and under no circumstances shall any compensation or expenses due to
Custodian be considered to be a joint, or joint and several, obligation of the
Funds of the Company. To the extent that Custodian is entitled to recover from
the Company any loss, damage, liability or expense (including counsel fees)
under this Agreement, Custodian shall charge the amount due in respect of such
loss, damage, liability or expense (including counsel fees) only against the
money held by it for the Fund or Funds of the Company that is/are identified by
the Company in an Officer's Certificate, unless and until the Company instructs
Custodian by an Officer's Certificate to charge against money held by it for the
account of a Fund such Fund's pro rata share (based on such Fund's net asset
value at the time of the charge in proportion to the aggregate net asset value
of all Funds at that time) of the amount of such loss, damage, liability or
expense (including counsel fees).
(j) Custodian shall be entitled to rely upon any Officer's
Certificate, Written Instructions, notice or other instrument in writing
received by Custodian and reasonably believed by Custodian to be an Officer's
Certificate or Written Instructions. Custodian shall be entitled to rely upon
any Oral Instructions actually received by Custodian. The Company agrees to
forward to Custodian Written Instructions confirming such Oral Instructions in
such manner so that such Written Instructions are received by Custodian, whether
by hand delivery, telecopier or other similar device, or otherwise, by the close
of business of the same day that such Oral Instructions are received by
Custodian. The Company agrees that the fact that such confirming instructions
are not received, or that contrary instructions are received, by Custodian shall
in no way affect the validity of the transactions or enforceability of the
transactions hereby authorized by the Company. The Company agrees that Custodian
shall not incur any liability to the Company in acting upon Oral Instructions
given to Custodian hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an Authorized Person.
(k) Custodian shall be entitled to rely upon any instrument,
instruction or notice received by it and reasonably believed by it to be given
in accordance with the terms and conditions of any FCM Agreement. Without
limiting the generality of the foregoing, Custodian shall not be under any duty
to inquire into, and Custodian shall not be liable for, the accuracy of any
statements or representations contained in any such instrument or other notice
including, without limitation, any specification of any amount to be paid to a
broker, dealer, futures commission merchant or clearing member.
(l) Custodian shall provide the Company with any report obtained by
Custodian on the system of internal accounting control of the Book-Entry System,
any Securities Depository utilized hereunder the Depository or the Options
Clearing Corporation, and with such reports on its own systems of internal
accounting control as the Company may reasonably request from time to time.
23
<PAGE>
(m) Subject to the foregoing provisions of this Agreement,
including, without limitation, those contained in Paragraph 27 hereof, Custodian
may deliver and receive securities, and receipts with respect to such
securities, and arrange for payments to be made and received by Custodian in
accordance with the customs prevailing from time to time among brokers or
dealers in such securities. When Custodian is instructed to deliver securities
against payment, delivery of such securities and receipt of payment therefor may
not be completed simultaneously. The Fund assumes all responsibility and
liability for all credit risks involved in connection with Custodian's delivery
of securities pursuant to proper instructions of the Fund, which responsibility
and liability shall continue until final payment in full has been received by
Custodian.
(n) Custodian shall not have any 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 Custodian.
29. Termination. Any of the parties hereto may terminate this Agreement by
giving to the other parties a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of
giving of such notice. Upon the date set forth in such notice this Agreement
shall terminate, and Custodian shall on that date deliver directly to the
Company or a successor custodian designated by the Company all securities and
moneys then owned by the Company and held by Custodian, after deducting all
fees, expenses and other amounts for the payment or reimbursement of which it
shall then be entitled; provided, however, that transaction fees and expenses
payable by the Company in connection with a deconversion to a successor
custodian shall be limited to Custodian's actual direct cost.
30. Notices. All notices and other communications (collectively referred
to as "Notice" or "Notices" in this paragraph) hereunder shall be in writing or
by confirm in telegram, cable, telex, or facsimile sending device. Notices shall
be addressed (a) if to Custodian, at Custodian's address, 90 Washington Street,
(22nd Floor), New York, New York 10286, Attention: Frank Ajosa; (b) if to the
Company, at the address of the Company, 111 Center Street, Little Rock, Arkansas
72201, Attention: Richard H. Blank, Jr., Secretary; or (c) if to none of the
foregoing, at such other address as shall have been notified to the sender of
any such Notice or other communication. Notice shall be deemed to have been
given when actually received by the other party. All postage, cable, telegram,
telex and facsimile sending device charges arising from the sending of a Notice
hereunder shall be paid by the sender.
31. Further Actions. Each party agrees to perform such further acts and
execute such further documents as it deems necessary to effectuate the purposes
hereof.
32. Amendments. This Agreement or any part hereof may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of such change or waiver is sought.
24
<PAGE>
33. Miscellaneous.
(a) The Company agrees that Custodian may be a counterparty in any
purchase or sale of foreign currency by or for the Company on a spot or forward
basis, and on any option to buy or sell foreign currency.
(b) This Agreement embodies the entire Agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings relating to the subject matter hereof. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement shall be deemed to be a contract made in New York and
governed by New York law. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
34. Release. The names "Nations Funds" and "Directors of Nations Funds"
refer respectively to the Company created and the Directors, as Directors but
not individually or personally, acting from time to time under the Articles of
Incorporation of the Company dated December 13, 1983, which is hereby referred
to and a copy of which is on file at the office of the State Secretary of The
State of Maryland and at the principal office of the Company. The obligations of
"Nations Funds" entered into in the name or on behalf thereof by any of the
Directors, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Directors, Shareholders, or
representatives of the Company personally, but bind only the Company Property,
and all persons dealing with any class of Shares of the Company Property, and
all persons dealing with any class of Shares of the Company must look solely to
the Company Property belonging to such class for the enforcement of any claims
against the Company.
35. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the day and year first
above written.
THE BANK OF NEW YORK
By: /s/ Stephen E. Grunston
-----------------------
Stephen E. Grunston
Vice-President
NATIONS FUND, INC.
25
<PAGE>
By: /s/ Richard H. Blank, Jr.
-------------------------
Richard H. Blank, Jr.
Secretary
26
<PAGE>
SCHEDULE I
The Custody Agreement among Nations Fund, Inc. and Custodian applies to
the following funds of the Company:
Nations Prime Fund
Nations Treasury Fund
Nations Equity Income Fund
Nations Small Company Growth Fund
Nations Government Securities Fund
Nations U.S. Government Bond Fund
Nations International Equity Fund
Nations International Growth Fund
Nations International Value Fund
27
<PAGE>
SCHEDULE II
PUBLICATIONS
I, Ira Rosner, a Vice President with THE BANK OF NEW YORK do hereby
designate the following publications:
The Bond Buyer
Depository Trust Company Notices
Financial Daily Card Service
JJ Kenney Municipal Bond Service
London Financial Times
New York Times
Standard & Poor's Called Bond Record
Wall Street Journal
28
<PAGE>
SCHEDULE III
COMPENSATION
Domestic Custodian Fee Schedule
For
Nations Fund Inc.
Money Market Funds
Safekeeping/Income Collection/Reporting DTC-ID
Affirmation All Systems Development and Usage Charges
1/2 of one basis point per annum on the aggregate net assets of
all Nations' Money Market Funds.
Security Transaction Charges
$ 7 DTC/FRB/PTC
$ 15 Physicals
$ 40 Euro C/D's
Other Charges
$ 5 Bank official checks
$ 2 Money transfers in/out of the Fund's
custodian account not related to
securities transactions.
Earnings Credits on Balances/Interest on Overdrafts
Earnings credits are provided to each Fund on 80% of the daily balance in the
domestic custodian account computed at the 90-day T-bill rate on the day of the
balance.
Overdrafts, excluding bank errors, will cause a reduction of earnings credits
daily, computed at 1% above the average Federal Funds rate on the day of the
overdraft.
Credits and debits will be accumulated daily and offset monthly against the
Bank's domestic custodian fees. To the extent a net debit is accumulated, each
Fund will be billed for the expense. To the extent a net earnings credit is
generated, such excess earnings credit can be carried forward to the next
succeeding month. However, no earnings credit will be carried forward after
year-end.
<PAGE>
Out-of-Pocket Expenses
None.
Billing Cycle
The above fees are billed monthly.
Nations Fund Inc. The Bank of New York
Approved by: /s/ Richard H. Blank, Jr. Approved by: /s/ Stephen E. Grunston
------------------------- -----------------------
Title: Secretary Title: Vice President
------------------------- --------------------------
Date: 10/20/98 Date: 10/19/98
------------------------- --------------------------
<PAGE>
Domestic Custodian Fee Schedule
For
Nations Fund Inc.
Non-Money Market Funds
Safekeeping/Income Collection/Reporting/DTC-ID Affirmation
All Systems Development and Usage Charges
3/4ths of one basis point per annum on the aggregate
net assets of all Nations' Non-Money Market
Funds up to $10 billion.
1/2 of a basis point on the excess.
Security Transaction Charges/Paydowns
$ 5 Paydowns
$ 7 DTC/FRB/PTC
$ 15 Physicals, options, and futures
$ 40 Euro C/D's
Other Charges
$ 5 Bank official checks
$ 2 Money transfer in/out of the Fund's
custodian account not related to
securities transactions.
Earnings Credits on Balances/Interest on Overdrafts
Earnings credits are provided to each Fund on 80% of the daily balance in the
domestic custodian account computed at the 90-day T-bill rate on the day of the
balance.
Overdrafts, excluding bank errors, will cause a reduction of earnings credits
daily, computed at 1% above the average Federal Funds rate on the day of the
overdraft.
Credits and debits will be accumulated daily and offset monthly against the
Bank's domestic custodian fees. To the extent a net debit is accumulated, each
Fund will be billed for the expense. To the extent a net earnings credit is
generated, such excess earnings credit can be carried forward to the next
succeeding month. However, no earnings credit will be carried forward after
year-end.
Out-of-Pocket Expenses
<PAGE>
None.
Billing Cycle
The above fees are billed monthly.
Nations Fund Inc. The Bank of New York
Approved by: /s/ Richard H. Blank, Jr. Approved by: /s/ Stephen E. Grunston
------------------------- -----------------------
Title: Secretary Title: Vice President
------------------------- --------------------------
Date: 10/20/98 Date: 10/19/98
------------------------- --------------------------
<PAGE>
Domestic Custodian Services
Customer Contact
Portfolio trades are coordinated by a dedicated administrative group
reacting to instructions from your authorized persons.
The group consists of a senior officer in charge, administrators assigned
based on activity and complexity and ample backup on hand to ensure
responsiveness to your needs.
Safekeeping of Securities
We are a direct member of all major depositor systems, i.e., Depository
Trust Company, Federal Reserve Book Entry, Participants Trust Company,
etc.
Agreements are in place with sub-custodians for book-entry municipal bond
programs.
Arrangements have been completed for numerous multi-party repurchase
transactions.
Vault Operations are constantly monitored via closed-circuit security
systems.
Options/Futures
Issue escrow or depository receipts.
Collect premiums and effect closing purchase transactions for covered call
options.
Issue guarantee letters for put options.
Agreements are in place with numerous Futures Commission Merchants (FCMs),
to settle transactions and service maintenance margin requirements.
Segregated accounts are maintained to comply with collateral agreements
with contra-brokers.
Income Collection/Paydowns
Dividends and interest due to the account are pre-posted on the payable
date.
Proceeds from maturing securities are credited on the redemption date.
<PAGE>
Paydowns on GNMA, FNMA, FHLMC, and CMOs are posted on payable date and
credited in Federal Funds on the business day after payable date when the
factor is available (95% of issues held).
Securities requiring registration are held in our nominee name to
facilitate both sales and income collection.
Reports
The following reports are provided to allow your staff to monitor
portfolio cash and security transactions:
Daily Custodian Account Journal includes portfolio and cash transactions
of the previous business day.
Cash Balance Projection Report includes all trades reported to us that
have not settled through the previous business day. Pending dividends,
interest, maturities and called bonds are also listed on this report.
Daily report of affirmed/unaffirmed trades.
List of Assets reflects securities and cash held in the custodian account
available daily, weekly, monthly, etc.
Monthly Cash Statement - summary of all Daily Custodian Account Journal
activity for the previous month.
Workstation
Our workstation will afford you the ability to review, edit, enter, and
transmit all trade settlement instructions to the Bank for processing.
Easily accessed via a PC, using a local telephone number, it increases
your flexibility to input and retrieve information while significantly
reducing your communication costs. The system is accessible 24 hours a
day, 7 days a week.
Our Cash Management Report is another of our on-line systems capabilities
providing real-time settlement data regarding the current day's activity
in your account. The activity would include pending and settled trades,
income, paydowns and maturity payments as well as cash balances. This
information puts effective cash management in your hands.
Another of our dynamic on-line systems is called Q-TRAK. This on-line
module of our system can be used to notify the bank of any inquiries
regarding securities related problems. You can use Q-TRAK to route your
inquiries directly to your Custody Administrative Team. Q-TRAK allows for
prioritization of each inquiry and response, and permits you to monitor
progress on each item as it is being researched. Many of the Bank's
clients have found Q-TRAK to be an excellent tool in achieving timely
resolutions to their questions.
<PAGE>
General Servicing
Prompt notification of corporate actions.
Corporate literature directly forwarded upon receipt.
Proxies for securities held in our nominee are executed and forwarded to
the Fund for voting.
Payment of your authorized corporate expenses.
<PAGE>
SCHEDULE IV
OVERDRAFT RATE
EX-99.B9(a)
TRANSFER AGENCY AGREEMENT
Agreement made as of the 1st day of October, 1991, between Hatteras Funds,
Inc., a Maryland corporation (the "Company"), on behalf of each one of the
Institutional Classes of the Prime, Treasury, Tax-Exempt Money Market, Equity
Income, Government Securities and International Equity Portfolios (the
"Portfolios"), (hereinafter collectively referred to as the "Fund"), having its
principal office and place of business at 11 Greenway Plaza, Suite 1919,
Houston, Texas 77046, and NCNB Texas National Bank, a national banking
association, having its principal office and place of business at 901 Main
Street, Dallas, Texas 75202 (hereinafter referred to as the "Transfer Agent").
WITNESSETH:
That for and 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.
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
Company.
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 institutions appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Fund, a Portfolio, or its successor(s).
5. "Fund" shall mean the Institutional Classes of Hatteras Funds, Inc.,
and all the portfolios thereunder, Prime, Treasury, Tax-Exempt Money Market,
Government Securities, Equity Income, and International Equity Portfolios.
1
<PAGE>
6. "Fund Business Day" shall be deemed as is set forth in the Fund
Prospectus.
7. "Officer" shall be deemed to be the Company's Chairman of the Board,
the Company's President, and any Vice President of the Company, the Company's
Secretary, the Company's Treasurer, the Company's Controller, any Assistant
Controller of the Company, any Assistant Treasurer of the Company, and any other
person duly authorized by the Board of Directors of the Company to execute any
Certificate, instruction, notice or other instrument on behalf of the Fund and
named in the Certificate, as such Certificate may be amended from time to time,
and any person reasonably believed by the Transfer Agent to be such a person.
8. "Prospectus" shall mean the last Fund or Portfolio prospectus actually
received by the Transfer Agent from the Fund with respect to which the Fund has
indicated a registration statement under the Federal Securities Act of 1933 has
become effective, including the Statement of Additional Information,
incorporated by reference therein.
9. "Shares" shall mean all or any part of each Institutional class of the
shares of common stocks of the Fund or Portfolio listed in the Certificate, as
may be amended from time to time, which are authorized and/or issued by the
Fund.
10. "Transfer Agent" shall mean NCNB Texas National Bank, as transfer
agent and dividend disbursing agent under the terms and conditions of this
Agreement, its permitted successor(s) or assign(s).
11. "Out-of-Pocket Expenses" means amounts reasonably necessary and
actually paid to third parties by Transfer Agent in the provision of Transfer
Agent services or not specifically stated in this agreement or the attached
Schedule I.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Company hereby constitutes and appoints the Transfer Agent as
transfer agent of the Shares of the Fund as indicated above and as dividend
disbursing agent for such shares during the period of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform the 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 Company's Charter and all amendments thereto
certified by the Secretary of the Company;
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(ii) A copy of the By-Laws of the Company certified by the Secretary of
the Company;
(iii) A copy of a resolution of the Board of Directors of the Company
certified by the Secretary of the Company appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Company 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 Company; and the name and address
of the legal counsel for the Company;
(v) 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
(vi) Opinion of counsel for the Company with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid and
non-assessable 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 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. 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 Company's Charter giving
effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for the Company
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 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 Company increasing the authority of the Transfer
Agent.
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2. Prior to the issuance of any additional Shares of the Fund pursuant to
share dividends or share splits, etc., and prior to any reduction in the number
of shares outstanding, 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 of the Company and/or the shareholders of the Fund authorizing such
issuance of additional Shares of the Fund or such reduction, as the case may be,
and
(b) An opinion of counsel for the Company 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 of regulation (i.e.,
if subject to registration, that they have been registered and that the
Registration Statement has become effective, or, if exempt, the specific grounds
therefor).
ARTICLE IV
ISSUANCE, REDEMPTION, AND TRANSFER OF SHARES
1. The Transfer Agent shall 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, each (i) purchase order received from a purchaser, or shareholder, whether
or not an Approved Institution, and (ii) redemption request either received from
a shareholder, whether or not an Approved Institution, or contained in a
Certificate, provided, that (A) such purchase order or redemption request, as
the case may be, is reasonably believed by the Transfer Agent to be in
conformity with the Fund's purchase and redemption procedures described in the
Prospectus, and (B) the Transfer Agent has agreed to accept and act in
accordance with such type of purchase order or redemption request, as the case
may be.
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 or redemption request, 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.
3. In connection with a reinvestment of a dividend or distribution on
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 and
the Custodian 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
preceding paragraph 2 of this Article; the total number of Shares of the Fund
redeemed for Shareholders by the Transfer Agent on such day; the total number of
Shares of the Fund, if any, sold on such day pursuant to preceding paragraph 3
of this Article, and the total number of Shares of the Fund issued and
outstanding. On the same day such statement is received by the Fund, the Fund
shall confirm the information contained therein by delivering to the Transfer
Agent a Certificate with respect to the same.
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<PAGE>
5. As of each Fund Business Day the Transfer Agent shall furnish the
Custodian 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.
6. 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 in the case of a
redemption of Shares pursuant to a redemption described in preceding paragraph 1
of this Article, make payment in accordance with the Fund's redemption and
payment procedures described in the Prospectus.
7. The Transfer Agent shall not be required to issue any Shares after it
has received from an Officer of the Company 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.
8. 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.
9. (a) Except as otherwise provided in sub-paragraph (b) of this paragraph
and in paragraph 10 of this Article, Shares will be transferred or redeemed upon
presentation to the Transfer Agent of instructions 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 share transfer taxes. The Transfer Agent
reserves the right to refuse to transfer or redeem Shares until it is satisfied
that instructions are valid and genuine. 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 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 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.
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<PAGE>
(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.
10. 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 10 of this
Article, evidence of 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.
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a resolution of
the Company's Board of Directors, certified by the Secretary or any Assistant
Secretary, authorizing the declaration of dividends and distributions on a daily
or other periodic basis and authorizing the Transfer Agent to rely on such
Certificate.
2. Upon the payment 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 pay to the Transfer Agent an amount of cash, if any,
sufficient for the Transfer Agent to make the payment, if any, specified in such
Certificate or resolution, as the case may be, to the shareholders of record as
of such payment 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 designed by an Approved
Institution, as the case may be. The Transfer Agent shall not be liable for any
improper payments made 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
distribution 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, reasonably incurred in such corrective work as necessary
to remedy such error.
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<PAGE>
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividends 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.
ARTICLE VI
CONCERNING THE COMPANY
1. The Company 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 Charter and
By-laws to enter into and perform this Agreement.
(c) All requisite 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
registration has been terminated or a stop order has been entered with respect
to the Shares.
2. Each copy of the Company's Charter 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 Charter 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 Company, shall be
certified by the Secretary of the Company 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, 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 Shares 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.
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<PAGE>
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 it is actually received by the
Transfer Agent.
ARTICLE VII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Company that:
(a) It is a national banking association duly organized and existing
under the laws of the United States of America.
(b) It is empowered under applicable law and by its Charter 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 fully protected in
acting upon any writing or document reasonably believed by it to be genuine and
to have been signed or made by the proper person or persons 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.
3. The Transfer Agent may, with the written consent of the Fund, employ
agents or attorneys in fact to provide non-essential services at the expense of
the Fund, and shall not be liable for any reasonable loss or expense arising out
of, or in connection with, the actions or omissions to act of its agents or
attorneys-in-fact so long as the Transfer Agent acts in good faith and without
negligence or willful misconduct in connection with the selection of such agents
or attorneys-in-fact.
4. The Transfer Agent shall keep such records in the form and manner, and
for such period, as it may deem advisable 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 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 or other 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 or other document so returned, if and
when required. The records specified in Schedule I hereto maintained by the
Transfer Agent pursuant to 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 VIII 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.
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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,
negligence or willful misconduct.
6. 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 attorney's 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 and without negligence or willful misconduct or in
reliance upon (i) any provision of this Agreement; (ii) the Prospectus; (iii)
any instrument or order reasonably believed by it to be genuine and to be
signed, countersigned or executed by any duly authorized Officer of the Fund;
(iv) any Certificate or other instructions of an Officer; or (v) any opinion of
legal counsel for the Fund or the Transfer Agent. 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 attorney's 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.
7. Specifically, but not by way of limitation, 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 attorney's 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 in connection with the genuineness of a Share
certificate, the Transfer Agent's capacity and authorization to issue Shares and
the form and amount of authorized Shares.
8. The Transfer Agent shall not be liable to the Fund with respect to any
redemption check on which the signature of the drawer is forged and which the
Fund's Custodian or Cash Management bank has advised the Transfer Agent to honor
the redemption.
9. There shall be excluded from the calculation of the service levels and
from the consideration of whether the Transfer Agent has been negligent or has
breached this Agreement, 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 (except as provided below), (a) 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. The
Transfer Agent shall not be responsible for delays or failures to supply any
services where such delays or failures are caused by the delays or failures of
the Fund to supply necessary instructions, approvals or information in the time
periods agreed upon and all service levels shall again be measured from the date
of the receipt by the Transfer Agent of any necessary instructions, approvals or
information. There shall not be included within the definition of causes any
failure of equipment or services occasioned by any software defect or problem,
with the exception of defects or problems in operation system software.
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<PAGE>
10. At any time the Transfer Agent may apply to an Officer of the Company
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 instruction from an Officer of the Company 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 to the Company, or upon
prior written notice to the Company, its own counsel, and the Fund shall
reimburse the Transfer Agent for reasonable attorney's fees incurred in
connection with such consultation. The Transfer Agent 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 Company or its own counsel.
11. The Transfer Agent will supply shareholder lists to the Fund upon
receiving a request therefor from an Officer of the Company.
12. 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 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.
13. At the request of an Officer the Transfer Agent will address and mail
such appropriate notices to shareholders as the Fund may direct.
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<PAGE>
14. 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 Share dividend; or
(d) The legality of any recapitalization or readjustment of the Shares.
15. The Transfer Agent shall be entitled to receive and the Fund hereby
agrees to pay to the Transfer Agent for its performance hereunder, including its
performance of the duties and functions set forth in Schedule I hereto, (i) its
reasonable out-of-pocket expenses (including reasonable legal expenses and
attorney's fees) incurred in connection with this Agreement and its performance
hereunder and (ii) such compensation as may be agreed upon in writing from time
to time by the Transfer Agent and the Fund.
16. The Transfer Agent shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, as the same may be amended from time to time, and no covenant or
obligation shall be implied in this Agreement against the Transfer Agent.
17. 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 herein after, the Services
set forth in Schedule I.
(b) The current unit prices for the Services are set forth in Schedule
I (the "Schedule I Prices"). At least ninety (90) days prior to the end of each
calendar year Transfer Agent may negotiate with Fund or Fund may negotiate with
Transfer Agent, to adjust the Schedule I Prices for services to be performed in
the following calendar year. Any increases in prices or one-time charges due to
changes in the legal or regulatory requirements will be subject to the approval
of the Board of Directors, which approval shall not be unreasonably withheld.
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<PAGE>
18. Billing and Payment.
(a) The Transfer Agent shall bill the Fund monthly in arrears for
Accounts maintained and for any Out-of-Pocket Expenses incurred by the Transfer
Agent.
(b) The Fund shall pay the Transfer Agent within thirty (30) days of
the date of the bill.
ARTICLE VIII
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 60 days after the date of receipt of such notice. In the
event such notice is given by the Company, it shall be accompanied by a copy of
a resolution of the Board of Directors of the Company, 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 Company 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 Company, the Transfer Agent may designate a successor
transfer agent. If the Company fails to designate a successor transfer agent and
if the Transfer Agent is unable to find a successor transfer agent, the Company
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.
ARTICLE IX
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
30 days prior to the intended date of the same, and shall proceed with such a
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 or Company shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its office at the address
first above written, or at such other place as the Fund or Company 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 it at its office at
1401 Elm Street, 11th Floor, Dallas, Texas 75202 or at such place as the
Transfer Agent may from time to time designate in writing.
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4. This Agreement may not be amended or modified in any manner except by a
written agreement 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; provided, however, that
this agreement shall not be assignable by either party without the written
consent of the other party.
6. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
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, the Fund and the Company, and no rights shall be granted to any
other person by virtue of this Agreement.
9. (a) The Transfer Agent is the successor to American Transtech, Inc. as
Transfer Agent to the Fund. The Transfer Agent shall not be liable or
responsible and shall be indemnified as provided in Section VII herein for any
losses, claims or damages arising from any inaccuracy of the records provided to
the Transfer Agent at the time of conversion.
(b) The Transfer Agent will endeavor to assist in resolving shareholder
inquiries and errors relating to the period during which American Transtech,
Inc. acted as Transfer Agent. Any such inquiries or errors which cannot be
expediently resolved by Transfer Agent will be referred to the Fund.
(c) In the event Share records are presented to the Transfer Agent
which are in conflict with records provided to the Transfer Agent by American
Transtech, Inc. at the time of conversion, the Transfer Agent will notify the
Fund and American Transtech, Inc.
(d) The Transfer Agent shall not be responsible for the safekeeping and
maintenance of transfer agency records, canceled certificates and correspondence
of the Fund generated prior to the time of conversion including, but not limited
to, shareholder inquiry, regulatory compliance and audits.
10. The obligation of this Agreement are not binding upon any of the
Directors or shareholders of the Company individually but are binding only upon
the Fund. It is further understood and agreed that the Transfer Agent shall look
solely to the assets and property of a particular class of a Fund with respect
to the enforcement of any claim with respect to that class.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
NCNB TEXAS NATIONAL BANK HATTERAS FUNDS, INC.
/s/ Joseph T. Brady /s/ Carol F. Relihan
By: _____________________________ By: _____________________________
(Signature) (Signature)
Joseph T. Brady Carol F. Relihan
- --------------------------------- ------------------------------------
(Name Typed) (Name Typed)
Vice President, Trust Operations Vice President & Assistant Secretary
- --------------------------------- ------------------------------------
(Title) (Title)
September 26, 1991 October 7, 1991
- --------------------------------- ------------------------------------
(Date) (Date)
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Schedule I
NCNB TEXAS NATIONAL BANK
MUTUAL FUND TRANSFER AGENCY
SERVICES AND FEE SCHEDULE
SCHEDULE OF FEES:
* Annual charge of $20,000 per fund for the first 100 accounts.
* Each additional shareholder account over 100 per fund would be charged
an additional $200.00 annually.
* The price of $20,000 per year is based on transfer agency for five or
more funds.
* Less than five funds would cost $25,000 annually per fund, with each
additional shareholder over 100 being charged $250.00 annually.
TRANSFER AGENCY SERVICES:
* Maintaining all institutional shareholder information and records.
* Responding to all institutional shareholder inquiries.
* Processing of institutional shareholder trades.
* Providing telephone staff from 8:00 a.m. CST to 4:30 p.m. CST to answer
shareholder calls (during NYSE days of business).
* Providing necessary tax reporting for shareholder accounts.
* Providing Blue Sky reports.
* Preparing and mailing daily trade confirmations.
* Preparing and mailing monthly statements.
* Assisting with implementation and conversion.
* Processing dividends for reinvestment or cash distribution.
1
EX-99.B9(b)
TRANSFER AGENCY AND REGISTRAR AGREEMENT
AGREEMENT, dated as of June 1, 1992, between HATTERAS FUNDS, INC. d/b/a
NATIONS FUND PORTFOLIOS (the "Company"), a corporation organized under the laws
of Maryland on behalf of the Investor A Shares and Investor B Shares (the
"Investor Shares") of Nations Prime, Treasury, Tax-Exempt Money Market, Equity
Income, Government Securities and International Equity Portfolios and having its
principal place of business at Bellevue Park Corporation Center, 103 Bellevue
Parkway, Wilmington, Delaware 19809, and THE SHAREHOLDER SERVICES GROUP, INC.
(MA) (the "Transfer Agent"), a Massachusetts corporation with principal offices
at One Exchange Place, 53 State Street, Boston, Massachusetts 02109.
W I T N E S S E T H
That for and in consideration of the mutual covenants and promises
hereinafter set forth, the Company and the Transfer Agent agree as follows:
1. Definitions. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, Partnership Agreement, or similar
organizational document as the case may be, of the Company as the same may be
amended from time to time.
(b) "Authorized Person" shall be deemed to include any person, whether
or not such person is an officer or employee of the Company, duly authorized to
give Oral Instructions or Written Instructions on behalf of the Company as
indicated in a certificate furnished to the Transfer Agent pursuant to Section
4(c) hereof as may be received by the Transfer Agent from time to time.
(c) "Board of Directors" shall mean the Board of Directors, Board of
Trustees or, if the Company is a limited partnership, the General Partner(s) of
the Company, as the case may be.
<PAGE>
2
(d) "Commission" shall mean the Securities and Exchange Commission.
(e) "Custodian" refers to any custodian or subcustodian of securities
and other property which the Company may from time to time deposit, or cause to
be deposited or held under the name or account of such a custodian pursuant to a
Custodian Agreement.
(f) "Company" shall mean the entity executing this Agreement.
(g) "1940 Act" shall mean the Investment Company Act of 1940.
(h) "Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by the Transfer Agent from a person reasonably
believed by the Transfer Agent to be an Authorized Person;
(i) "Prospectus" shall mean the most recently dated Company Prospectus
and Statement of Additional Information, including any supplements thereto if
any, which has become effective under the Securities Act of 1933 and the 1940
Act.
(j) "Shareholder" shall mean a holder of shares of capital stock,
beneficial interest or any other class or series, and also refers to partners of
limited partnerships.
(k) "Written Instructions" shall mean a written communication signed by
a person reasonably believed by the Transfer Agent to be an Authorized Person
and actually received by the Transfer Agent. Written Instructions shall include
manually executed originals and authorized electronic transmissions, including
telefacsimile of a manually executed original or other process.
2. Appointment of the Transfer Agent. The Company hereby appoints and
constitutes the Transfer Agent as transfer agent, registrar and dividend
disbursing agent for Investor Shares of the Company and as shareholder servicing
agent for the Company. The Transfer Agent accepts such appointments and agrees
to perform the duties hereinafter set forth.
3. Compensation.
<PAGE>
3
(a) The Company will compensation or cause the Transfer Agent to be
compensated for the performance of its obligations hereunder in accordance with
the fees set forth in the written schedule of fees annexed hereto as Schedule A
and incorporated herein. The Transfer Agent will transmit an invoice to the
Company as soon as practicable after the end of each calendar month which will
be detailed in accordance with Schedule A, and the Company will pay to the
Transfer Agent the amount of such invoice within fifteen (15) days after the
Company's receipt of the invoice.
In addition, the Company agrees to pay, and will be billed separately
for, reasonable out-of-pocket expenses incurred by the Transfer Agent in the
performance of its duties hereunder. Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written schedule of
out-of-pocket charges annexed hereto as Schedule B and incorporated herein.
Schedule B may be modified by the Transfer Agent upon not less than 30 days'
prior written notice to the Company. Unspecified out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred by the Transfer
Agent in the performance of it obligations hereunder. Reimbursement by the
Company for expenses incurred by the Transfer Agent in any month shall be made
as soon as practicable but no later than 30 days after the receipt of an
itemized bill from the Transfer Agent.
(b) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule A, a revised fee schedule executed and dated by
the parties hereto.
4. Documents. In connection with the appointment of the Transfer Agent the
Company shall deliver or cause to be delivered to the Transfer Agent the
following documents on or before the date this Agreement goes into effect, but
in any case within a reasonable period of time for the Transfer Agent to prepare
to perform its duties hereunder:
(a) If applicable, specimens of the certificates for Investor Shares of
the Company;
(b) All account applications forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by the Company;
<PAGE>
4
(c) A signature card bearing the signatures of any officer of the
Company or other Authorized Person who will sign Written Instructions or is
authorized to give Oral Instructions.
(d) A certified copy of the Articles of Incorporation, as amended;
(e) A certified copy of the By-laws of the Company, as amended;
(f) A copy of the resolution of the Board of Directors authorizing the
execution and delivery of this Agreement;
(g) A certified list of Shareholders of the Company with the name,
address and taxpayer identification number of each Shareholder, and the number
of Investor Shares of the Company held by each, certificate numbers and
denominations (if any certificates have been issued), lists of any accounts
against which stop transfer orders have been placed, together with the reasons
therefore, and the number of Investor Shares redeemed by the Company; and
(h) An opinion of counsel for the Company with respect to the validity
of the Investor Shares and the status of such Investor Shares under the
Securities Act of 1933, as amended.
5. Further Documentation. The Company will also furnish the Transfer Agent
with copies of the following documents promptly after the same shall become
available:
(a) each resolution of the Board of Directors authorizing the issuance
of Investor Shares;
(b) any registration statements filed on behalf of the Company and all
pre-effective and post-effective amendments thereto filed with the Commission;
(c) a certified copy of each amendment to the Articles of Incorporation
or the By-laws of the Company;
(d) certified copies of each resolution of the Board of Directors or
other authorization designating Authorized Persons; and
<PAGE>
5
(e) such other certificates, documents or opinions as the Transfer
Agent may reasonably request in connection with the performance of its duties
hereunder.
6. Representations of the Company. The Company represents to the Transfer
Agent that all outstanding Investor Shares are validly issued, fully paid and
non-assessable. When Investor Shares are hereafter issued in accordance with the
terms of the Company's Articles of Incorporation and its Prospectus, such
Investor Shares shall be validly issued, fully paid and non-assessable.
7. Distributions Payable in Investor Shares. In the event that the Board
of Directors of the Company shall declare a distribution payable in Investor
Shares, the Company shall deliver or cause to be delivered to the Transfer Agent
written notice of such declaration signed on behalf of the Company by an officer
thereof, upon which the Transfer Agent shall be entitled to rely for all
purposes, certifying (i) the identity of the Investor Shares involved, (ii) the
number of Investor Shares involved, and (iii) that all appropriate action has
been taken.
8. Duties of the Transfer Agent. The Transfer Agent shall be responsible
for administering and/or performing those functions typically performed by a
transfer agent; for acting as service in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance, transfer and
redemption or repurchase (including coordination with the Custodian) of Investor
Shares in accordance with the terms of the Prospectus and applicable law. The
operating standards and procedures to be followed shall be determined from time
to time by agreement between the Company and the Transfer Agent and shall
initially be as described in Schedule C attached hereto. In addition, the
Company shall deliver to the Transfer Agent all notices issued by the Company
with respect to the Investor Shares in accordance with and pursuant to the
Articles of Incorporation or By-laws of the Company or as required by law and
shall perform such other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or annual meetings
of shareholders and any other notices required thereby.
9. Record Keeping and Other Information. The Transfer Agent shall create
and maintain all records required of it pursuant to its duties hereunder and as
set forth in Schedule C in accordance with all applicable laws, rules and
regulations, including records required by Section 31(a) of the 1940 Act. All
records shall be available during regular business hours for inspection and use
by the Company. Where applicable, such records shall be maintained by the
Transfer Agent for the periods and in the places required by Rule 31a-2 under
the 1940 Act.
<PAGE>
6
Upon reasonable notice by the Company, the Transfer Agent shall make
available during regular business hours such of its facilities and premises
employed in connection with the performance of its duties under this Agreement
for reasonable visitation by the Company, or any person retained by the Company
as may be necessary for the Company to evaluate the quality of the services
performed by the Transfer Agent pursuant hereto.
10. Other Duties. In addition to the duties set forth in Schedule C, the
Transfer Agent shall perform such other duties and functions, and shall be paid
such amounts therefor, as may from time to time be agreed upon in writing
between the Company and the Transfer Agent. The compensation for such other
duties and functions shall be reflected in a written amendment to Schedule A or
B and the duties and functions shall be reflected in a amendment to Schedule C,
both dated and signed by authorized persons of the parties hereto.
11. Reliance by Transfer Agent; Instructions
(a) The Transfer Agent will have no liability when acting upon Written
or Oral Instructions believed to have been executed or orally communicated by an
Authorized Person and will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from the
Company pursuant to Section 4(c). The Transfer Agent will also have no liability
when processing Share certificates which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the Company and the
proper countersignature of the Transfer Agent.
(b) At any time, the Transfer Agent may apply to any Authorized Person
of the company for Written Instructions and may seek advice from legal counsel
for the Company, or its own legal counsel, with respect to any matter arising in
connection with this Agreement, and it shall not be liable for any action taken
or not taken or suffered by it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Company or for
the Transfer Agent. Written Instructions requested by the Transfer Agent will be
provided by the Company within a reasonable period of time. In addition, the
Transfer Agent, its officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person representing or
acting on behalf of the Company only if said representative is an Authorized
Person. The Company agrees that all Oral Instructions shall be followed within
one business day by confirming Written Instructions, and that the Company's
failure to so confirm shall not impair in any respect the Transfer Agent's right
to rely on Oral Instructions. The Transfer Agent shall have no duty or
obligation to inquire into, nor shall the Transfer Agent be responsible for, the
legality of any act done by it upon the request or direction of a person
reasonably believed by the Transfer Agent to be an Authorized Person.
<PAGE>
7
(c) Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation to inquire into, and
shall not be liable for: (i) the legality of the issuance or sale of any
Investor Shares or the sufficiency of the amount to be received therefor; (ii)
the legality of the redemption of any Investor Shares, or the propriety of the
amount to be paid therefor; (iii) the legality of the declaration of any
dividend by the Board of Directors, or the legality of the issuance of any
Investor Shares in payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Investor Shares.
12. Acts of God, etc. The Transfer Agent will not be liable or responsible
for delays or errors by acts of God or by reason of circumstances beyond its
control, including acts of civil or military authority, national emergencies,
labor difficulties, mechanical breakdown, insurrection, war, riots, or failure
or unavailability of transportation, communication or power supply, fire, flood
or other catastrophe.
13. Duty of Care and Indemnification. The Company will indemnify the
Transfer Agent against and hold it harmless from any and all losses, claims,
damages, liabilities or expenses of any sort or kind (including reasonable
counsel fees and expenses) ("Losses") resulting from any claim, demand, action
or suit or other proceeding unless such Losses has been determined to have
resulted from a negligent failure to act or omission to act or bad faith of the
Transfer Agent in the performance of its duties hereunder. In addition, the
Company will indemnify the Transfer Agent against and hold it harmless from any
Losses that do not arise from a negligent failure to act or omission to act or
bad faith of the Transfer Agent in the performance of its duties hereunder and
arise from: (i) any action taken in accordance with Written or Oral
Instructions, or any other instructions, or share certificates reasonably
believed by the Transfer Agent to be genuine and to be signed, countersigned or
executed, or orally communicated by an Authorized Person; (ii) any action taken
in accordance with written or oral advice reasonably believed by the Transfer
Agent to have been given by counsel for the Company or its own counsel; or (iii)
any action taken as a result of any error or omission in any record (including
but not limited to magnetic tapes, computer printouts, hard copies and microfilm
copies) delivered, or caused to be delivered by the Company to the Transfer
Agent in connection with this Agreement.
<PAGE>
8
In any case in which the Company may be asked to indemnify or hold the
Transfer Agent harmless, the Company shall be advised of all pertinent facts
concerning the situation in question. The Transfer Agent will notify the Company
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification against the Company although the
failure to do so shall not prevent recovery by the Transfer Agent. The Company
shall have the option to defend the Transfer Agent against any Claim which may
be the subject of this Indemnification, and, in the event that the Company so
elects, such defense shall be conducted by counsel chosen by the Company and
satisfactory to the Transfer Agent, and thereupon the Company shall take over
complete defense of the Claim and the Transfer Agent shall sustain no further
legal or other expenses in respect of such Claim. The Transfer Agent will not
confess any Claim or make any compromise in any case in which the Company will
be asked to provide indemnification, except with the Company's prior written
consent. The obligations of the parties hereto under this Section shall survive
the termination of this Agreement.
14. Consequential Damages. In no event and under no circumstances shall
either party under this Agreement be liable to the other party for consequential
or indirect loss of profits, reputation or business or any other special damages
under any provision of this Agreement or for any act or failure to act
hereunder.
15. Term and Termination.
<PAGE>
9
(a) This Agreement shall be effective on the date first written above
and shall continue until June 1, 1993, and thereafter shall automatically
continue for successive annual periods ending on the anniversary of the date
first written above, provided that it may be terminated at any time by either
party upon 180 days prior written notice.
(b) In the event a termination notice is given by the Company, the
Company shall designate to the Transfer Agent a successor transfer agent or
transfer agents. Upon such termination and at the expense of the Company, the
Transfer Agent will deliver to such successor a certified list of shareholders
of the Company (with names and addresses), and all other relevant books,
records, correspondence and other Company records or data in the possession of
the Transfer Agent, and the Transfer Agent will cooperate with the Company and
any successor transfer agent or agents in the substitution process.
16. Confidentiality. Both parties hereto agree that any non public
information obtained hereunder concerning the other party is confidential and
may not be disclosed to any other person without the consent of the other party,
except as may be required by applicable law or at the request of the Commission
or other governmental agency. The parties further agree that a breach of this
provision would irreparably damage the other party and accordingly agree that
each of them is entitled, without bond or other security, to an injunction or
injunctions to prevent breaches of this provision.
17. Amendment. This Agreement may only be amended or modified by a written
instrument executed by both parties.
18. Subcontracting. The Company agrees that the Transfer Agent may, in its
discretion, subcontract for certain of the services described under this
Agreement or the Schedule hereto; provided that the appointment of any such
Transfer Agent shall not relieve the Transfer Agent of its responsibilities
hereunder. The Transfer Agent may, in its discretion, request the approval of
any subcontractors by the Trust.
19. Miscellaneous.
(a) Notices. Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Company or the Transfer Agent,
shall be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
<PAGE>
10
To the Company:
HATTERAS FUNDS, INC.
d/b/a Nations Fund Portfolios
Bellevue Park Corporate Center
103 Bellevue Parkway
Wilmington, Delaware 19809
To the Transfer Agent:
The Shareholder Services Group
One Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: Robert F. Radin, President
with a copy to TSSG Counsel
(b) Successors. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns, provided,
however, that this Agreement shall not be assigned to any person other than a
person controlling, controlled by or under common control with the assignor
without the written consent of the other party, which consent shall not be
unreasonably withheld.
(c) Governing Law. This Agreement shall be governed exclusively by the
laws of the State of New York without reference to the choice of law provisions
thereof. Each party hereto hereby agrees that (i) the Supreme Court of New York
sitting in New York County shall have exclusive jurisdiction over any and all
disputes arising hereunder; (ii) hereby consents to the personal jurisdiction of
such court over the parties hereto, hereby waiving any defense of lack of
personal jurisdiction; and (iii) appoints the person to whom notices hereunder
are to be sent as agent for service of process.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
<PAGE>
11
(e) Captions. The captions of this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
(f) Use of Transfer Agent's Name. Other than internal use by the Company,
the Company shall not use the name of the Transfer Agent in any Prospectus,
Statement of Additional Information, shareholders' report, sales literature or
other material relating to the Company in a manner not approved prior thereto in
writing; provided, that the Transfer Agent need only receive notice of all
reasonable uses of its name which merely refer in accurate terms to its
appointment hereunder or which are required by any government agency or
applicable law or rule. Notwithstanding the foregoing, any reference to the
Transfer Agent shall include a statement to the effect that it is a wholly owned
subsidiary of First Data Corporation.
(g) Use of Company's Name. The Transfer Agent shall not use the name of
the Company or material relating to the Company on any documents or forms for
other than internal use in a manner not approved prior thereto in writing;
provided, that the Company need only receive notice of all reasonable uses of
its name which merely refer in accurate terms to the appointment of the Transfer
Agent or which are required by any government agency or applicable law or rule.
(h) Independent Contractors. The parties agree that they are independent
contractors and not partners or co-ventures.
(i) Entire Agreement; Severability. This Agreement and the Schedules
attached hereto constitute the entire agreement of the parties hereto relating
to the matters covered hereby and supersede any previous agreements. If any
provision is held to be illegal, unenforceable or invalid for any reason, the
remaining provisions shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers, as of the day and year first
above written.
<PAGE>
12
HATTERAS FUNDS, INC.
d/b/a NATIONS FUND PORTFOLIOS
By: /s/ A. Max Walker
----------------------------------
Title:
THE SHAREHOLDER SERVICES GROUP, INC.
By: /s/ Harold R. Groom, Jr.
----------------------------------
Title: Senior Vice President
Harold R. Groom, Jr.
<PAGE>
A-1
Transfer Agent Fee
Schedule A
The Company shall pay the Transfer Agent an annualized fee as set forth
herein, for each shareholder account that is open at any time during any monthly
period. Such fee shall be billed by the Transfer Agent monthly in arrears on a
prorated basis of 1/12 of the annualized fee for all accounts that are open
during such month.
In addition, on the first anniversary date of this Agreement after the
expiration of the initial term and each subsequent anniversary date, the per
account fee shall be increased by a percentage amount equal to one percent more
than the percentage increase in the then current Consumer Price Index (all urban
consumers) or its successors index.
PORTFOLIO FEE
- --------- ---
Nations Prime Portfolio $ 15.00
Nations Treasury Portfolio $ 15.00
Nations Tax-Exempt Portfolio $ 15.00
Nations Government Securities Portfolio $ 12.50
Nations Equity Income Portfolio $ 10.00
<PAGE>
B-1
Schedule B-1
OUT-OF-POCKET EXPENSES
The Company shall reimburse the Transfer Agent monthly for reasonable
out-of-pocket expenses, including, but not limited to the following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes, checks and
stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct
pass through to the Company
- Due diligence mailings
- Telephone and telecommunication costs, including all lease,
maintenance and line costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other equipment and
any expenses incurred in connection with such terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve charges for check clearance
- Overtime, as approved by the Company
- Temporary staff, as approved by the Company
- Travel and entertainment, as approved by the Company
- Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record keeping
vendors
- Third party audit reviews
- All conversion costs in excess of $250,00
- All System enhancements after the conversion at the rate of $95.00
per hour
- Insurance
- Such other miscellaneous expenses reasonably incurred by the
Transfer Agent in performing its duties and responsibilities under
this Agreement.
<PAGE>
B-2
The Company agrees that postage and mailing expenses will be paid on the
day of or prior to mailing as agreed with the Transfer Agent. In addition, the
Company will promptly reimburse the Transfer Agent for any other unscheduled
expenses incurred by the Transfer Agent whenever the Company and the Transfer
Agent mutually agree that such expenses are not otherwise properly borne by the
Transfer Agent as part of its duties and obligations under the Agreement.
<PAGE>
C-1
Schedule C
DUTIES OF THE TRANSFER AGENT
1. Shareholder Information. The Transfer Agent or its agent shall maintain
a record of the number of Investor Shares held by each holder of record which
shall include name, address, taxpayer identification and which shall indicate
whether such Investor Shares are held in certificates or uncertificated form.
2. Shareholder Services. The Transfer Agent or its agent will investigate
all inquires from shareholders of the Company relating to Shareholder accounts
and will respond to all communications from Shareholders and others relating to
its duties hereunder and such other correspondence as may from time to time be
mutually agreed upon between the Transfer Agent and the Company.
3. Share Certificates.
(a) At the expense of the Company, it shall supply the Transfer Agent
or its agent with an adequate supply of blank share certificates to meet the
Transfer Agent or its agent's requirements therefor. Such Share Certificates
shall be properly signed by facsimile. The Company agrees that, notwithstanding
the death, resignation, or removal of any officer of the Company whose signature
appears on such certificates, the Transfer Agent or its agent may continue to
countersign certificates which bear such signatures until otherwise directed by
Written Instructions.
(b) The Transfer Agent or its agent shall issue replacement Share
certificates in lieu of certificates which have been lost, stolen or destroyed,
upon receipt by the Transfer Agent or its agent or properly executed affidavits
and lost certificate bonds, in form satisfactory to the Transfer Agent or its
agent, with the Company and the Transfer Agent or its agent as obligees under
the bond.
(c) The Transfer Agent or its agent shall also maintain a record of
each certificate issued, the number of Investor Shares represented thereby and
the holder of record. With respect to Investor Shares held in open accounts or
uncertificated form, i.e., no certificate being issued with respect thereto, the
Transfer Agent or its agent shall maintain comparable records of the record
holders thereof, including their names, addresses and taxpayer identification.
The Transfer Agent or its agent shall further maintain a stop transfer record on
lost and/or replaced certificates.
<PAGE>
C-2
4. Mailing Communications to Shareholders; Proxy Materials. The Transfer
Agent or its agent will address and mail to Shareholders of the Company, all
reports to Shareholders, dividend and distribution notices and proxy material
for the Company's meetings of Shareholders. In connection with meetings of
Shareholders, the Transfer Agent or its Agent will prepare Shareholder lists,
mail and certify as to the mailing of proxy materials, process and tabulate
returned proxy cards, report on proxies voted prior to meetings, act as
inspector of election at meetings and certify Investor Shares voted at meetings.
5. Sales of Investor Shares
(a) Suspension of Sale of Investor Shares. The Transfer Agent or its
agent shall not be required to issue any Investor Shares of the Company where it
has received a Written Instruction from the Company or official notice from any
appropriate authority that the sale of the Investor Shares of the Company has
been suspended or discontinued. The existence of such Written Instruction or
such official notice shall be conclusive evidence of the right of the Transfer
Agent or its agent to rely on such Written Instructions or official notice.
(b) Returned Checks. In the event that any check or other order for the
payment of money is returned unpaid for any reason, the Transfer Agent or its
agent will: (i) give prompt notice of such return to the Company or its
designee; (ii) place a stop transfer order against all Investor Shares issued as
a result of such check or order; and (iii) take such actions as the Transfer
Agent may from time to time deem appropriate.
6. Transfer and Repurchase
(a) Requirements for Transfer or Repurchase of Investor Shares. The
Transfer Agent or its agent shall process all requests to transfer or redeem
Investor Shares in accordance with the transfer or repurchase procedures set
forth in the Company's Prospectus.
<PAGE>
C-3
The Transfer Agent or its agent will transfer or repurchase Investor
Shares upon receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Shares certificates, if any, properly endorsed for transfer or
redemption, accompanied by such documents as the Transfer Agent or its agent
reasonably may deem necessary.
The Transfer Agent or its agent reserves the right to refuse to
transfer or repurchase Investor Shares until it is satisfied that the
endorsement on the instructions is valid and genuine. The Transfer Agent or its
agent also reserves the right to refuse to transfer or repurchase Investor
Shares until it is satisfied that the requested transfer or repurchase is
legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or repurchases which the Transfer Agent or its agent,
in its good judgment, deems improper or unauthorized, or until it is reasonably
satisfied that there is no basis to any claims adverse to such transfer or
repurchase.
(b) Notice to Custodian and Company. When Investor Shares are redeemed,
the Transfer Agent or its agent shall, upon receipt of the instructions and
documents in proper form, deliver to the Custodian and the Company or its
designee a notification setting forth the number of Investor Shares to be
repurchased. Such repurchased shares shall be reflected on appropriate accounts
maintained by the Transfer Agent or its agent reflecting outstanding Investor
Shares of the Company and Investor Shares attributed to individual accounts.
(c) Payment of Repurchase Proceeds. The Transfer Agent or its agent shall,
upon receipt of the moneys paid to it by the Custodian for the repurchase of
Investor Shares, pay such moneys as are received from the Custodian, all in
accordance with the procedures described in the written instruction received by
the Transfer Agent or its agent from the Company.
The Transfer Agent or its agent shall not process or effect any
repurchase with respect to Investor Shares of the Company after receipt by the
Transfer Agent or its agent of notification of the suspension of the
determination of the net asset value of the Company.
7. Dividends
(a) Notice to Agent and Custodian. Upon the declaration of each dividend
and each capital gains distribution by the Board of Directors of the Company
with respect to Investor Shares of the Company, the Company shall furnish or
cause to be furnished to the Transfer Agent or its agent a copy of a resolution
of the Company's Board of Directors certified by the Secretary of the Company
setting forth the date of the declaration of such dividend or distribution, the
ex-dividend date, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable per
Share to the shareholders of record as of that date, the total amount payable to
the Transfer Agent or its agent on the payment date and whether such dividend or
distribution is to be paid in Investor Shares of such class at net asset value.
<PAGE>
C-4
On or before the payment date specified in such resolution of the
Board of Directors, the Custodian of the Company will pay to the Transfer Agent
sufficient cash to make payment to the shareholders of record as of such payment
date.
(b) Insufficient Funds for Payments. If the Transfer Agent or its agent
does not receive sufficient cash from the Custodian to make accurately
determined total dividend and/or distribution payments to all shareholders of
the Company as of the record date, the Transfer Agent or its agent will, upon
notifying the Company, withhold payment to all Shareholders of record as of the
record date until sufficient cash is provided to the Transfer Agent or its
agent, unless such insufficient cash is a result of the Transfer Agent's
negligence.
<PAGE>
C-5
Exhibit 1
to
Schedule C
Summary of Services
The services to be performed by the Transfer Agent or its agent shall be
as follows:
A. DAILY RECORDS
Maintain daily the following information with respect to each
Shareholder account as received:
o Name and Address (Zip Code)
o Class of Investor Shares
o Taxpayer Identification Number
o Balance of Investor Shares held by Agent
o Beneficial owner code: i.e., male, female, joint tenant, etc.
o Dividend code (reinvestment)
o Number of Investor Shares held in certificate form
B. OTHER DAILY ACTIVITY
o Answer written inquires relating to Shareholder accounts (matters
relating to portfolio management, distribution of Investor Shares
and other management policy questions will be referred to the
Fund).
o Process additional payments into established Shareholder accounts
in accordance with Written Instruction from the Agent.
<PAGE>
C-6
o Upon receipt of proper instructions and all required
documentation, process requests for repurchase of Investor
Shares.
o Identify redemption requests made with respect to accounts in
which Investor Shares have been purchased within an agreed-upon
period of time for determining whether good funds have been
collected with respect to such purchase and process as agreed by
the Agent in accordance with written instructions set forth by
the Company.
o Examine and process all transfer of Investor Shares, ensuring
that all transfer requirements and legal documents have been
supplied.
o Issue and mail replacement checks.
o Open new accounts and maintain records of exchanges between
accounts.
C. DIVIDEND ACTIVITY
o Calculate and process Share dividends and distributions as
instructed by the Company.
o Compute, prepare and mail all necessary reports to Shareholders
or various authorities as requested by the Company. Report to the
Company reinvestment plan share purchases and determination of
the reinvestment price.
D. MEETINGS OF SHAREHOLDERS
o Cause to be mailed proxy and related material for all meetings of
Shareholders. Tabulate returned proxies (proxies must be
adaptable to mechanical equipment of the Agent or its agents) and
supply daily reports when sufficient proxies have been received.
o Prepare and submit to the Company an Affidavit of Mailing.
<PAGE>
C-7
o At the time of the meeting, furnish a certified list of
Shareholders, hard copy, microfilm or microfiche and, if
requested by the Company, Inspection of Election.
E. PERIODIC ACTIVITIES
o Cause to be mailed reports, Prospectuses, and any other
enclosures requested by the Company (material must be adaptable
to mechanical equipment of Agent or its agents).
o Receive all notices issued by the Company with respect to the
Investor Shares in accordance with and pursuant to the Article of
Incorporation and perform such other specific duties as are set
forth in the Articles of Incorporation including a giving of
notice of a special meeting and notice of redemption in the
circumstances and otherwise in accordance with all relevant
provisions of the Articles of Incorporation.
F. DISASTER RECOVERY
o Maintain a disaster recovery plan reasonably designed to keep the
records and adequate systems available to the Trust.
EX-99.B9(d)
Amendment No. 2 to the
Transfer Agency and Registrar Agreement
This Amendment is made as of _______, 1993, to the Transfer Agency and
Registrar Agreement between Nations Fund, Inc. (the "Company") and The
Shareholder Services Group, Inc. (MA) (the "Transfer Agent") dated as of April
25, 1992, as amended (the "Agreement").
WHEREAS, the Agreement provides for the Transfer Agent to act as transfer
agent, registrar and dividend disbursing agent for Investor Shares (as therein
defined) of five portfolios of the Company; and
WHEREAS, the Company desires that the Transfer Agent serve in such
capacities with respect to an additional class of shares known as Investor C
Shares for the Nations Prime Fund and Nations Treasury Fund (referred to herein
as the "Money Market Funds").
NOW, THEREFORE, the parties agree as follows:
1. The Company hereby appoints and constitutes the Transfer Agent as
transfer agent, registrar and dividend disbursing agent for Investor C
Shares of the Money Market Funds and the Transfer Agent accepts such
appointments and agrees to perform the duties set forth in the
Agreement.
2. In all other respects the Agreement is confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
Very truly yours,
NATIONS FUND, INC.
By /s/ A. Max Walker
----------------------
A. Max Walker
Chairman of the Board
THE SHAREHOLDER SERVICES GROUP, INC.
By _______________________
Name:
Title:
EX-99.B(e)
NATIONS FUND, INC.
SHAREHOLDER SERVICING
PLAN ("PLAN") FOR PRIMARY B SHARES
Section 1. Each of the proper officers of Nations Fund, Inc. (the
"Company") is authorized to execute and deliver, in the name and on behalf of
the Company, written agreements based substantially on the form attached hereto
as Appendix A or any other form duly approved by the Company's Board of
Directors ("Agreements") with broker/dealers, banks and other financial
institutions that are dealers of record or holders of record or which have a
servicing relationship with the beneficial owners of Primary B Shares (formerly
Trust B Shares ) ("Servicing Agents") in any of the Company's Funds (as defined
on Exhibit I) offering such shares provided that any material modifications of
services listed in the Agreement shall be presented for approval or ratification
by the Directors at the next regularly scheduled Board Meeting. Pursuant to such
Agreements, Servicing Agents shall provide shareholder support services as set
forth therein to their clients who beneficially own Primary B Shares of the
Funds in consideration of a fee, computed monthly in the manner set forth in the
applicable Fund's then current prospectus, at an annual rate of up to 0.25% of
the average daily net asset value of the Primary B Shares beneficially owned by
or attributable to-such clients. Affiliates of the Company's distributor,
administrator, co-administrator and adviser are eligible to become Servicing
Agents and to receive fees under this Plan. All expenses incurred by a Fund in
connection with the Agreements and the implementation of this Plan shall be
borne entirely by the holders of the Primary B Shares of the particular Fund
involved. If more than one Fund is involved and these expenses are not directly
attributable to Primary B Shares of a particular Fund, then the expenses may be
allocated between or among the Primary B Shares of the Funds in a fair and
equitable manner.
Section 2. The Company`s administrator and/or co-administrator shall
monitor the arrangements pertaining to the Company's Agreements with Servicing
Agents. The Company's administrator and co-administrator shall not, however, be
obligated by this Plan to recommend, and the Company shall not be obligated to
execute, any Agreement with any qualifying Servicing Agents.
Section 3. So long as this Plan is in effect, the Company's distributor
shall provide to the Company's Board of Directors, and the Directors shall
review, at least quarterly, a written report of the amounts expended pursuant to
this Plan and the Purposes for which such expenditures were made.
Section 4. Unless sooner terminated, this Plan shall continue in effect
for a period of one year from its date of execution and shall continue
thereafter for successive annual periods, provided that such continuance is
specifically approved by a majority of the Board of Directors, including a
majority of the Directors who are not "interested persons," as defined in the
Investment Company Act of 1940, of the Company and have no direct or indirect
financial interest in the operation of this Plan or in any Agreement related to
this Plan (the "Disinterested Directors") cast in person at a meeting called for
the purpose of voting on this Plan.
<PAGE>
Section 5. This Plan may be amended at any time with respect to any Fund
by the Company's Board of Directors, provided that any material amendment of the
terms of this Plan (including a material increase of the fee payable hereunder)
shall become effective only upon the approvals set forth in Section 4.
Section 6. This Plan is terminable at any time with respect to any Fund by
vote of a majority of the Disinterested Directors.
Section 7. While this Plan is in effect, the selection and nomination of
the Disinterested Directors shall be committed to the discretion of such
Disinterested Directors.
Section 8. The Company will preserve copies of this Plan, Agreements, and
any written reports regarding this Plan presented to the Board of Directors for
a period of not less than six years.
<PAGE>
EXHIBIT I
Nations Prime Fund
Nations Treasury Fund
Nations Equity Income Fund
Nations International Equity Fund
Nations Government Securities Fund
Nations International Growth Fund
Nations Small Company Growth Fund
Nations U.S. Government Bond Fund
Nations International Value Fund
Amended: February 5, 1997
February 4, 1998
EX-99.B9(f)
NATIONS FUND, INC.
SHAREHOLDER SERVICING AGREEMENT
PRIMARY B SHARES
Ladies and Gentlemen:
We wish to enter into this Shareholder Servicing Agreement
("Agreement") with you concerning the provision of administrative support
services to your clients ("Customers") who may from time to time beneficially
own Primary B Shares in one or more of the portfolios (the "Funds") of Nations
Fund, Inc. (the "Company").
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide the following administrative support
services to your Customers who may from time to time beneficially own Primary B
Shares: (i) aggregating and processing purchase and redemption requests for
Primary B Shares from Customers and transmitting promptly net purchase and
redemption orders to our distributor or transfer agent; (ii) providing Customers
with a service that invests the assets of their accounts in Primary B Shares
pursuant to specific or pre-authorized instructions; (iii) processing dividend
and distribution payments from the Company on behalf of Customers; (iv)
providing information periodically to Customers showing their positions in
Primary B Shares; (v) arranging for bank wires; (vi) responding to Customers'
inquiries concerning their investment in Primary B Shares; (vii) providing
subaccounting with respect to Primary B Shares beneficially owned by Customers
or providing the information to us necessary for subaccounting; (viii) providing
general shareholder liaison services; (ix) providing the shareholder services
described in Appendix I hereto (the "Supplemental Support Services"); and (x)
providing such other similar services as we may reasonably request to the extent
you are permitted to do so under applicable statutes, rules or regulations (all
of the above services are collectively referred to as the "Support Services").
All Support Services rendered hereunder by you shall be performed in a
professional, competent and timely manner.
Section 2. You will perform only those activities which are consistent
with statutes and regulations applicable to you. You will act solely as agent
or, upon the order of, and for the account of, your Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the Support
Services contemplated hereby.
Section 4. Neither you nor any of your officers, employees or agents
are authorized to make any representations concerning the Company or the Primary
B Shares except those contained in our then current prospectuses and statements
of additional information, as amended or supplemented from time to time, copies
of which will be supplied by the Company to you, or in such supplemental
literature or advertising as may be authorized by the distributor or the Company
in writing.
<PAGE>
Section 5. For all purposes of this Agreement you will be deemed to be
an independent contractor, and will have no authority to act as agent for us in
any matter or in any respect, except as provided herein. By your written
acceptance of this Agreement, you agree to and do release, indemnify and hold us
harmless from and against any and all direct or indirect liabilities or losses
resulting from requests, directions, actions or inactions of or by you or your
officers, employees or agents regarding your responsibilities hereunder or the
purchase, redemption, transfer or registration of Primary B Shares (or orders
relating to the same) by or on behalf of Customers. In addition, you agree to
provide further indemnification as specified in Appendix II. You and your
employees and agents will, upon request, be available during normal business
hours to consult with us or our designees concerning the performance of your
responsibilities under this Agreement.
Section 6. In consideration of the provision of the Support Services,
we will pay to you, and you will accept as full payment therefor, a fee as
described in the applicable then current prospectuses. The fee rate payable to
you may be prospectively increased or decreased by us, in our sole discretion,
at any time upon notice to you. Further, we may, in our discretion and without
notice, suspend or withdraw the sale of Primary B Shares of any and all Funds,
including the sale of Primary B Shares to you for the account of any Customer or
Customers. Compensation payable under this Agreement is subject to, among other
things, the National Association of Securities Dealers, Inc. ("NASD") Rules of
Fair Practice governing receipt by NASD members of service fees from registered
investment companies (the "NASD Service Fee Rule"). Such compensation shall only
be paid if permissible under the NASD Service Fee Rule and shall not be payable
for services that are deemed to be distribution-related services.
Section 7. You agree to provide to us at least quarterly, a written
report of the amounts expended by you in connection with the provision of the
Support Services hereunder and the purposes for which such expenditures were
made. In addition, you will furnish us or our designees with such information as
we or they may reasonably request (including, without limitation, periodic
certifications confirming the provision to Customers of the services described
herein), and will otherwise cooperate with us and our designees (including,
without limitation, any auditors or legal counsel designated by us), in
connection with the preparation of reports to our Board of Directors concerning
this Agreement and the monies paid or payable by us pursuant hereto, as well as
any other reports or filings that may be required by law.
Section 8. We may enter into other similar Agreements with any other
person or persons without your consent.
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that: (i) in no event will any of the services provided by you
hereunder be primarily intended to result in the sale of any shares issued by
us; (ii) the compensation payable to you hereunder, together with any other
compensation you receive in connection with the investment of your Customers'
assets in Primary B Shares of the Funds, will be disclosed by you to your
Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not result in an excessive or unreasonable
fee to you and (iii) in the event an issue pertaining to this Agreement is
submitted for shareholder approval, and you have the authority from your
Customer to do so, you will vote any Primary B Shares held for your own account
in the same proportion as the vote of the Primary B Shares held for your
Customers' benefit.
<PAGE>
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
series of Primary B Shares, without penalty, at any time by us (which
termination may be by a vote of a majority of the disinterested Directors of the
Company) or by you upon written notice to the other party hereto.
Section 12. All notices and other communications to either you or us
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a confirming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the
internal laws of the State of Maryland without giving effect to principles of
conflict of laws, and is nonassignable by the parties hereto.
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to us, at the following address: 111 Center Street, Little Rock, Arkansas 72201;
fax number (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
NATIONS FUND, INC.
Date:______________ By:________________________
Name:______________________
Title:_____________________
<PAGE>
Accepted and Agreed to:
Servicing Agent
-----------------------------
(Firm Name)
-----------------------------
(Address)
-----------------------------
(City) (State) (County)
Fax #_____________________
Attention:_________________
Date:_____________________ By:______________________
Name:_____________________
Title:_______________________
<PAGE>
APPENDIX I
NATIONS FUND, INC.
PRIMARY B SHARES
(a) Transaction Processing Procedures.
(1) NationsSecurities shall provide and maintain a computer link (the
"Link") between it and The Shareholder Services Group, Inc.
("TSSG"), the Company's transfer agent for Primary B Shares,
through Dean Witter Financial Services.
(2) NationsSecurities shall have the ability to override the hold on
"uncollected" Primary B Shares purchased by Customers through the
Link.
(3) NationsSecurities shall process changes in legal ownership of
Primary B Shares beneficially owned by its Customers through the
Link and shall collect and maintain all legal documentation
required for effecting such legal transfers. If requested,
NationsSecurities also shall provide research support services to
the Company, its distributor or TSSG in connection with the legal
ownership of Primary B Shares processed through the Link.
(4) NationsSecurities shall process changes to Customer account
registrations and options through the Link. If requested,
NationsSecurities also shall provide research support services to
the Company, its distributor or TSSG in connection with account
registrations and options processed through the Link.
(5) NationsSecurities understands and agrees that the Company, its
distributor and TSSG may rely on instructions received from
NationsSecurities or its agents through the Link, which
instructions are believed to be genuine.
(b) Tax Reporting Procedures.
(1) NationsSecurities shall be responsible for determining whether
backup withholding is required for Customer accounts and shall
provide to TSSG backup withholding instructions regarding each
Customer account. In this regard, NationsSecurities shall be
responsible for, among other things, confirming and maintaining
records of Form W-8 certifications and expirations and taxpayer
identification numbers ("TINs") for Customer accounts.
(2) NationsSecurities shall provide to TSSG the Residence Country
Code (the "Code") for non-resident alien ("NRA") withholding
Customer accounts, if applicable. NationsSecurities also shall
provide to TSSG any changes in the Code applicable to an NRA
Customer account.
<PAGE>
(3) NationsSecurities shall prepare and file all necessary reports
with the Internal Revenue Service ("IRS") for retirement accounts
maintained by its Customers.
(4) If TSSG informs NationsSecurities that a Customer TIN or
withholding instructions provided by NationsSecurities are
invalid, NationsSecurities shall promptly investigate the
information provided and notify TSSG of the results of such
investigation. TSSG will impose withholding on such Customer
accounts unless and until instructions to the contrary are
received from NationsSecurities.
(5) NationsSecurities shall perform the Reasonable Cause Forms W-9
and W-8 mailings for Customer accounts and shall provide to TSSG
appropriate withholding instructions upon receipt of the
responses to such mailings.
(6) Upon receipt from TSSG of an IRS C-Notice relating to a Customer
account, NationsSecurities shall provide withholding instructions
to TSSG for such account.
(7) Upon receipt from TSSG of an IRS B-Notice relating to a Customer
account, NationsSecurities shall track the B-Notice and perform
the Customer mailing required by Section 3406 of the Internal
Revenue Code and the regulations thereunder. NationsSecurities
also shall provide appropriate withholding instructions to TSSG
with respect to a Customer account that is the subject of an IRS
B-Notice.
(8) NationsSecurities shall perform all IRS reporting and withholding
for Customer accounts traded through the National Securities
Clearing Corporation network.
(9) NationsSecurities shall research any assessment made by the IRS
against the Company, its distributor or TSSG that is deemed to
have resulted from (i) the performance by NationsSecurities, its
employees, contractors or agents of the Supplemental Support
Services described in this Appendix I, or (ii) NationsSecurities'
failure to perform, or to cause to have performed, the
Supplemental Support Services described in this Appendix I.
(c) Right to Delegate. NationsSecurities shall have the right to delegate to
Dean Witter Financial Services the performance of any and all of the
Supplemental Support Services described in this Appendix I. Any such delegation
shall not relieve NationsSecurities of its obligations under this Appendix I.
<PAGE>
APPENDIX II
INDEMNIFICATION
NationsSecurities shall indemnify the Company, its distributor, TSSG
and their respective officers, trustees/directors, agents, employees and
affiliates from and against any and all claims, demands, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and costs)
that result, directly or indirectly, from (i) the performance by
NationsSecurities, its employees, contractors, or agents of the Supplemental
Support Services described in Appendix I, or (ii) NationsSecurities' failure to
perform, or cause to have performed, the Supplemental Support Services described
in Appendix I. The obligations set forth in this Appendix II shall survive the
termination of the Shareholder Servicing Agreement. Without limiting the
liability of NationsSecurities under this Appendix II, NationsSecurities shall:
(a) Indemnify a Fund from and against any liability or loss that
results, directly or indirectly, from "uncollected" Primary B
Shares purchased by Customers through the Link, including,
without limitation, any loss of principal, overdraft charges,
charge for returned checks or any combination thereof.
(b) Indemnify the Company, its distributor and TSSG from and against
any all liability or loss that results, directly or indirectly,
from the processing of legal ownership of Primary B Shares and
account registrations and options for Customers through the Link.
(c) Pay any and all levies or penalties assessed against a Fund by
the IRS that result, directly or indirectly, from the
responsibilities assumed by NationsSecurities under Appendix I.
NationsSecurities shall make such payment within 10 business days
of the Fund's receipt of a final assessment from the IRS.
EX-99.B9(g)
NATIONS FUND, INC.
SHAREHOLDER SERVICING PLAN ("PLAN")
FOR INVESTOR A SHARES
Section 1. Each of the proper officers of Nations Fund, Inc. (the
"Company") is authorized to execute and deliver, in the name and on behalf of
the Company, written agreements based substantially on the form attached hereto
as Appendix A or any other form that is (a) duly approved by the Company's Board
of Directors or (b) approved and entered into by the officers of the Company
with advice of counsel, and ratified by the Board of Directors ("Agreements")
with broker/dealers, banks and other financial institutions that are dealers of
record or holders of record or which have a servicing relationship with the
beneficial owners of Investor A Shares ("Servicing Agents") in any of the
Company's Funds set forth on Exhibit I attached hereto, provided that any
material modifications of services listed in the Agreement shall be presented
for approval or ratification by the Directors at the next regularly scheduled
Board Meeting. Pursuant to such Agreements, Servicing Agents shall provide
shareholder support services as set forth therein to their clients who
beneficially own Investor A Shares of the Funds in consideration of a fee,
computed monthly in the manner set forth in the applicable Fund's then current
prospectus, at an annual rate of up to 0.25% of the average daily net asset
value of the Investor A Shares beneficially owned by or attributable to such
clients. Affiliates of the Company's distributor, administrator,
co-administrator and adviser are eligible to become Servicing Agents and to
receive fees under this Plan. All expenses incurred by a Fund in connection with
the Agreements and the implementation of this Plan shall be borne entirely by
the holders of the Investor A Shares of the particular Fund involved. If more
than one Fund is involved and these expenses are not directly attributable to
Investor A Shares of a particular Fund, then the expenses may be allocated
between or among the Investor A Shares of the Funds in a fair and equitable
manner.
Section 2. The Company's administrator and/or co-administrator shall
monitor the arrangements pertaining to the Company's Agreements with Servicing
Agents. The Company's administrator and co-administrator shall not, however, be
obligated by this Plan to recommend, and the Company shall not be obligated to
execute, any Agreement with any qualifying Servicing Agents.
Section 3. So long as this Plan is in effect, the Company's administrator
and/or co-administrator shall provide to the Company's Board of Directors, and
the Directors shall review, at least quarterly, a written report of the amounts
expended pursuant to this Plan and the purposes for which such expenditures were
made.
Section 4. This Plan may be amended at any time with respect to any Fund
by the Company's Board of Directors, provided that any material amendment of the
terms of this Plan (including a material increase of the fee payable hereunder)
shall become effective only upon approval by a majority of the Board of
Directors, including a majority of the Directors who are not "interested
persons," as defined in the Investment Company Act of 1940, of the Company and
have no direct or indirect financial interest in the operation of this Plan or
in any Agreement related to this Plan (the "Disinterested Directors") cast in
person at a meeting called for the purpose of voting on this Plan.
<PAGE>
Section 5. This Plan is terminable at any time with respect to any Fund by
vote of a majority of the Disinterested Directors.
Section 6. While this Plan is in effect, the selection and nomination of
the Disinterested Directors shall be committed to the discretion of such
Disinterested Directors.
Section 7. The Company will preserve copies of this Plan, Agreements, and
any written reports regarding this Plan presented to the Board of Directors for
a period of not less than six years.
Adopted, as revised, on July __, 1996.
2
<PAGE>
EXHIBIT I
Nations Prime Fund
Nations Treasury Fund
3
EX-99.B9(h)
NATIONS FUND, INC.
SHAREHOLDER SERVICING AGREEMENT
INVESTOR A SHARES
Ladies and Gentlemen:
We wish to enter into this Shareholder Servicing Agreement
("Agreement") with you concerning the provision of administrative support
services to your clients ("Customers") who may from time to time beneficially
own Investor A Shares in one or more of the portfolios (the "Funds") of Nations
Fund, Inc. (the "Company").
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide the following administrative support
services to your Customers who may from time to time beneficially own Investor A
Shares: (i) aggregating and processing purchase and redemption requests for
Investor A Shares from Customers and transmitting promptly net purchase and
redemption orders to our distributor or transfer agent; (ii) providing Customers
with a service that invests the assets of their accounts in Investor A Shares
pursuant to specific or pre-authorized instructions; (iii) processing dividend
and distribution payments from the Company on behalf of Customers; (iv)
providing information periodically to Customers showing their positions in
Investor A Shares; (v) arranging for bank wires; (vi) responding to Customers'
inquiries concerning their investment in Investor A Shares; (vii) providing
subaccounting with respect to Investor A Shares beneficially owned by Customers
or providing the information to us necessary for subaccounting; (viii) providing
general shareholder liaison services; (ix) providing the shareholder services
described in Appendix I hereto (the "Supplemental Support Services"); and (x)
providing such other similar services as we may reasonably request to the extent
you are permitted to do so under applicable statutes, rules or regulations (all
of the above services are collectively referred to as the "Support Services").
All Support Services rendered hereunder by you shall be performed in a
professional, competent and timely manner.
Section 2. You will perform only those activities which are consistent
with statutes and regulations applicable to you. You will act solely as agent
or, upon the order of, and for the account of, your Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the Support
Services contemplated hereby.
Section 4. Neither you nor any of your officers, employees or agents
are authorized to make any representations concerning the Company or the
Investor A Shares except those contained in our then current prospectuses and
statements of additional information, as amended or supplemented from time to
time, copies of which will be supplied by the Company to you, or in such
supplemental literature or advertising as may be authorized by the distributor
or the Company in writing.
<PAGE>
Section 5. For all purposes of this Agreement you will be deemed to be
an independent contractor, and will have no authority to act as agent for us in
any matter or in any respect, except as provided herein. By your written
acceptance of this Agreement, you agree to and do release, indemnify and hold us
harmless from and against any and all direct or indirect liabilities or losses
resulting from requests, directions, actions or inactions of or by you or your
officers, employees or agents regarding your responsibilities hereunder or the
purchase, redemption, transfer or registration of Investor A Shares (or orders
relating to the same) by or on behalf of Customers. In addition, you agree to
provide further indemnification as specified in Appendix II. You and your
employees and agents will, upon request, be available during normal business
hours to consult with us or our designees concerning the performance of your
responsibilities under this Agreement.
Section 6. In consideration of the provision of the Support Services,
we will pay to you, and you will accept as full payment therefor, a fee as
described in the applicable then current prospectuses. The fee rate payable to
you may be prospectively increased or decreased by us, in our sole discretion,
at any time upon notice to you. Further, we may, in our discretion and without
notice, suspend or withdraw the sale of Investor A Shares of any and all Funds,
including the sale of Investor A Shares to you for the account of any Customer
or Customers. Compensation payable under this Agreement is subject to, among
other things, the National Association of Securities Dealers, Inc. ("NASD")
Rules of Fair Practice governing receipt by NASD members of service fees from
registered investment companies (the "NASD Service Fee Rule"). Such compensation
shall only be paid if permissible under the NASD Service Fee Rule and shall not
be payable for services that are deemed to be distribution-related services.
Section 7. You agree to provide to us at least quarterly, a written
report of the amounts expended by you in connection with the provision of the
Support Services hereunder and the purposes for which such expenditures were
made. In addition, you will furnish us or our designees with such information as
we or they may reasonably request (including, without limitation, periodic
certifications confirming the provision to Customers of the services described
herein), and will otherwise cooperate with us and our designees (including,
without limitation, any auditors or legal counsel designated by us), in
connection with the preparation of reports to our Board of Directors concerning
this Agreement and the monies paid or payable by us pursuant hereto, as well as
any other reports or filings that may be required by law.
Section 8. We may enter into other similar Agreements with any other
person or persons without your consent.
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that: (i) in no event will any of the services provided by you
hereunder be primarily intended to result in the sale of any shares issued by
us; (ii) the compensation payable to you hereunder, together with any other
compensation you receive in connection with the investment of your Customers'
assets in Investor A Shares of the Funds, will be disclosed by you to your
Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not result in an excessive or unreasonable
fee to you and (iii) in the event an issue pertaining to this Agreement is
submitted for shareholder approval, and you have the authority from your
Customer to do so, you will vote any Investor A Shares held for your own account
in the same proportion as the vote of the Investor A Shares held for your
Customers' benefit.
<PAGE>
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
series of Investor A Shares, without penalty, at any time by us (which
termination may be by a vote of a majority of the disinterested Directors of the
Company) or by you upon written notice to the other party hereto.
Section 12. All notices and other communications to either you or us
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a confirming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the
internal laws of the State of Maryland without giving effect to principles of
conflict of laws, and is nonassignable by the parties hereto.
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to us, at the following address: 111 Center Street, Little Rock, Arkansas 72201;
fax number (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
NATIONS FUND, INC.
Date:_________________________ By:__________________________________
Name:________________________________
Title:_________________________________
<PAGE>
Accepted and Agreed to:
Servicing Agent
--------------------------------------
(Firm Name)
--------------------------------------
(Address)
--------------------------------------
(City) (State) (County)
Fax #__________________________________
Attention:_______________________________
Date:_____________________ By:____________________________________
Name:__________________________________
Title:___________________________________
<PAGE>
APPENDIX I
NATIONS FUND, INC.
INVESTOR A SHARES
(a) Transaction Processing Procedures.
(1) NationsSecurities shall provide and maintain a computer link (the
"Link") between it and The Shareholder Services Group, Inc.
("TSSG"), the Company's transfer agent for Investor A Shares,
through Dean Witter Financial Services.
(2) NationsSecurities shall have the ability to override the hold on
"uncollected" Investor A Shares purchased by Customers through
the Link.
(3) NationsSecurities shall process changes in legal ownership of
Investor A Shares beneficially owned by its Customers through the
Link and shall collect and maintain all legal documentation
required for effecting such legal transfers. If requested,
NationsSecurities also shall provide research support services to
the Company, its distributor or TSSG in connection with the legal
ownership of Investor A Shares processed through the Link.
(4) NationsSecurities shall process changes to Customer account
registrations and options through the Link. If requested,
NationsSecurities also shall provide research support services to
the Company, its distributor or TSSG in connection with account
registrations and options processed through the Link.
(5) NationsSecurities understands and agrees that the Company, its
distributor and TSSG may rely on instructions received from
NationsSecurities or its agents through the Link, which
instructions are believed to be genuine.
(b) Tax Reporting Procedures.
(1) NationsSecurities shall be responsible for determining whether
backup withholding is required for Customer accounts and shall
provide to TSSG backup withholding instructions regarding each
Customer account. In this regard, NationsSecurities shall be
responsible for, among other things, confirming and maintaining
records of Form W-8 certifications and expirations and taxpayer
identification numbers ("TINs") for Customer accounts.
(2) NationsSecurities shall provide to TSSG the Residence Country
Code (the "Code") for non-resident alien ("NRA") withholding
Customer accounts, if applicable. NationsSecurities also shall
provide to TSSG any changes in the Code applicable to an NRA
Customer account.
<PAGE>
(3) NationsSecurities shall prepare and file all necessary reports
with the Internal Revenue Service ("IRS") for retirement accounts
maintained by its Customers.
(4) If TSSG informs NationsSecurities that a Customer TIN or
withholding instructions provided by NationsSecurities are
invalid, NationsSecurities shall promptly investigate the
information provided and notify TSSG of the results of such
investigation. TSSG will impose withholding on such Customer
accounts unless and until instructions to the contrary are
received from NationsSecurities.
(5) NationsSecurities shall perform the Reasonable Cause Forms W-9
and W-8 mailings for Customer accounts and shall provide to TSSG
appropriate withholding instructions upon receipt of the
responses to such mailings.
(6) Upon receipt from TSSG of an IRS C-Notice relating to a Customer
account, NationsSecurities shall provide withholding instructions
to TSSG for such account.
(7) Upon receipt from TSSG of an IRS B-Notice relating to a Customer
account, NationsSecurities shall track the B-Notice and perform
the Customer mailing required by Section 3406 of the Internal
Revenue Code and the regulations thereunder. NationsSecurities
also shall provide appropriate withholding instructions to TSSG
with respect to a Customer account that is the subject of an IRS
B-Notice.
(8) NationsSecurities shall perform all IRS reporting and withholding
for Customer accounts traded through the National Securities
Clearing Corporation network.
(9) NationsSecurities shall research any assessment made by the IRS
against the Company, its distributor or TSSG that is deemed to
have resulted from (i) the performance by NationsSecurities, its
employees, contractors or agents of the Supplemental Support
Services described in this Appendix I, or (ii) NationsSecurities'
failure to perform, or to cause to have performed, the
Supplemental Support Services described in this Appendix I.
(c) Right to Delegate. NationsSecurities shall have the right to delegate to
Dean Witter Financial Services the performance of any and all of the
Supplemental Support Services described in this Appendix I. Any such delegation
shall not relieve NationsSecurities of its obligations under this Appendix I.
<PAGE>
APPENDIX II
INDEMNIFICATION
NationsSecurities shall indemnify the Company, its distributor, TSSG
and their respective officers, trustees/directors, agents, employees and
affiliates from and against any and all claims, demands, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and costs)
that result, directly or indirectly, from (i) the performance by
NationsSecurities, its employees, contractors, or agents of the Supplemental
Support Services described in Appendix I, or (ii) NationsSecurities' failure to
perform, or cause to have performed, the Supplemental Support Services described
in Appendix I. The obligations set forth in this Appendix II shall survive the
termination of the Shareholder Servicing Agreement. Without limiting the
liability of NationsSecurities under this Appendix II, NationsSecurities shall:
(a) Indemnify a Fund from and against any liability or loss that
results, directly or indirectly, from "uncollected" Investor A
Shares purchased by Customers through the Link, including,
without limitation, any loss of principal, overdraft charges,
charge for returned checks or any combination thereof.
(b) Indemnify the Company, its distributor and TSSG from and against
any all liability or loss that results, directly or indirectly,
from the processing of legal ownership of Investor A Shares and
account registrations and options for Customers through the Link.
(c) Pay any and all levies or penalties assessed against a Fund by the IRS
that result, directly or indirectly, from the responsibilities assumed by
NationsSecurities under Appendix I. NationsSecurities shall make such payment
within 10 business days of the Fund's receipt of a final assessment from the
IRS.
EX-99.B9(i)
NATIONS FUND, INC.
AMENDED AND RESTATED
SHAREHOLDER SERVICING PLAN ("PLAN")
INVESTOR B SHARES -- MONEY MARKET FUNDS
INVESTOR C SHARES -- NON-MONEY MARKET FUNDS
Section 1. Each of the proper officers of Nations Fund, Inc. (the
"Company") is authorized to execute and deliver, in the name and on behalf of
the Company, written agreements based substantially on the form attached hereto
as Appendix A or any other form duly approved by the Company's Board of
Directors ("Agreements") with broker/dealers, banks and other financial
institutions that are dealers of record or holders of record or which have a
servicing relationship ("Servicing Agents") with the beneficial owners of
Investor B Shares of the Money Market Funds of the Company or Investor C Shares
of the Non-Money Market Funds of the Company (as listed on Schedule 1 hereto)
(collectively, the "Shares") in any of the Company's portfolios listed on
Schedule 1 (the "Funds") provided that any material modifications of services
listed in the Agreement shall be presented for approval or ratification by the
Directors at the next regularly scheduled Board Meeting. Pursuant to such
Agreements, Servicing Agents shall provide shareholder support services as set
forth therein to their clients who beneficially own Shares of the Funds in
consideration of a fee, computed monthly in the manner set forth in the
applicable Fund's then current prospectus, at an annual rate of up to 0.25% of
the average daily net asset value of the Shares beneficially owned by or
attributable to such clients. Affiliates of the Company's distributor,
administrator, co-administrator and adviser are eligible to become Servicing
Agents and to receive fees under this Plan. All expenses incurred by a Fund in
connection with the Agreements and the implementation of this Plan shall be
borne entirely by the holders of the Shares of the particular Fund involved. If
more than one Fund is involved and these expenses are not directly attributable
to Shares of a particular Fund, then the expenses may be allocated between or
among the Shares of the Funds in a fair and equitable manner.
Section 2. The Company's administrator and/or co-administrator shall
monitor the arrangements pertaining to the Company's Agreements with Servicing
Agents. The Company's administrator and co-administrator shall not, however, be
obligated by this Plan to recommend, and the Company shall not be obligated to
execute, any Agreement with any qualifying Servicing Agents.
Section 3. So long as this Plan is in effect, the Company's
distributor shall provide to the Company's Board of Directors, and the Directors
shall review, at least quarterly, a written report of the amounts expended
pursuant to this Plan and the purposes for which such expenditures were made.
Section 4. Unless sooner terminated, this Plan shall continue in
effect for a period of one year from its date of execution and shall continue
thereafter for successive annual periods, provided that such continuance is
specifically approved by a majority of the Board of Directors, including a
majority of the Directors who are not "interested persons," as defined in the
Investment Company Act of 1940, of the Company and have no direct or indirect
financial interest in the operation of this Plan or in any Agreement related to
this Plan (the "Disinterested Directors") cast in person at a meeting called for
the purpose of voting on this Plan.
<PAGE>
Section 5. This Plan may be amended at any time with respect to any
Fund by the Company's Board of Directors, provided that any material amendment
of the terms of this Plan (including a material increase of the fee payable
hereunder) shall become effective only upon the approvals set forth in Section
4.
Section 6. This Plan is terminable at any time with respect to any
Fund by vote of a majority of the Disinterested Directors.
Section 7. While this Plan is in effect, the selection and
nomination of the Disinterested Directors shall be committed to the discretion
of such Disinterested Directors.
Section 8. The Company will preserve copies of this Plan,
Agreements, and any written reports regarding this Plan presented to the Board
of Directors for a period of not less than six years.
<PAGE>
SCHEDULE 1
The term "Money Market Funds" used in the Plan shall refer to the
following Funds of the Company:
Nations Prime Fund
Nations Treasury Fund
The term "Non-Money Market Funds" used in the Plan shall refer to
the following Funds of the Company:
Nations Equity Income Fund
Nations Government Securities Fund
Nations International Equity Fund
Nations International Growth Fund
Nations Small Company Growth Fund
Nations U.S. Government Bond Fund
Nations International Value Fund
Amended: February 5, 1997
February 4, 1998
EX-99.B9(j)
NATIONS FUND, INC.
SHAREHOLDER SERVICING AGREEMENT
INVESTOR B SHARES- MONEY MARKET FUNDS
INVESTOR C SHARES-NON-MONEY MARKET FUNDS
Ladies and Gentlemen:
We wish to enter into this Shareholder Servicing Agreement
("Agreement") with you concerning the provision of administrative support
services to your clients ("Customers") who may from time to time beneficially
own Investor B Shares of the Money Market Funds and Investor C Shares of the
Non-Money Market Funds Shares in one or more of the portfolios (the "Funds") of
Nations Fund, Inc. (the "Company").
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide the following administrative support
services to your Customers who may from time to time beneficially own Investor
B\Investor C Shares: (i) aggregating and processing purchase and redemption
requests for Investor B\Investor C Shares from Customers and transmitting
promptly net purchase and redemption orders to our distributor or transfer
agent; (ii) providing Customers with a service that invests the assets of their
accounts in Investor B\Investor C Shares pursuant to specific or pre-authorized
instructions; (iii) processing dividend and distribution payments from the
Company on behalf of Customers; (iv) providing information periodically to
Customers showing their positions in Investor B\Investor C Shares; (v) arranging
for bank wires; (vi) responding to Customers' inquiries concerning their
investment in Investor B\Investor C Shares; (vii) providing subaccounting with
respect to Investor B\Investor C Shares beneficially owned by Customers or
providing the information to us necessary for subaccounting; (viii) providing
general shareholder liaison services; (ix) providing the shareholder services
described in Appendix I hereto (the "Supplemental Support Services"); and (x)
providing such other similar services as we may reasonably request to the extent
you are permitted to do so under applicable statutes, rules or regulations (all
of the above services are collectively referred to as the "Support Services").
All Support Services rendered hereunder by you shall be performed in a
professional, competent and timely manner.
Section 2. You will perform only those activities which are consistent
with statutes and regulations applicable to you. You will act solely as agent
or, upon the order of, and for the account of, your Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the Support
Services contemplated hereby.
<PAGE>
Section 4. Neither you nor any of your officers, employees or agents
are authorized to make any representations concerning the Company or the
Investor B\Investor C Shares except those contained in our then current
prospectuses and statements of additional information, as amended or
supplemented from time to time, copies of which will be supplied by the Company
to you, or in such supplemental literature or advertising as may be authorized
by the distributor or the Company in writing.
Section 5. For all purposes of this Agreement you will be deemed to be
an independent contractor, and will have no authority to act as agent for us in
any matter or in any respect, except as provided herein. By your written
acceptance of this Agreement, you agree to and do release, indemnify and hold us
harmless from and against any and all direct or indirect liabilities or losses
resulting from requests, directions, actions or inactions of or by you or your
officers, employees or agents regarding your responsibilities hereunder or the
purchase, redemption, transfer or registration of Investor B\Investor C Shares
(or orders relating to the same) by or on behalf of Customers. In addition, you
agree to provide further indemnification as specified in Appendix II. You and
your employees and agents will, upon request, be available during normal
business hours to consult with us or our designees concerning the performance of
your responsibilities under this Agreement.
Section 6. In consideration of the provision of the Support Services,
we will pay to you, and you will accept as full payment therefor, a fee as
described in the applicable then current prospectuses. The fee rate payable to
you may be prospectively increased or decreased by us, in our sole discretion,
at any time upon notice to you. Further, we may, in our discretion and without
notice, suspend or withdraw the sale of Investor B\Investor C Shares of any and
all Funds, including the sale of Investor B\Investor C Shares to you for the
account of any Customer or Customers. Compensation payable under this Agreement
is subject to, among other things, the National Association of Securities
Dealers, Inc. ("NASD") Rules of Fair Practice governing receipt by NASD members
of service fees from registered investment companies (the "NASD Service Fee
Rule"). Such compensation shall only be paid if permissible under the NASD
Service Fee Rule and shall not be payable for services that are deemed to be
distribution-related services.
Section 7. You agree to provide to us at least quarterly, a written
report of the amounts expended by you in connection with the provision of the
Support Services hereunder and the purposes for which such expenditures were
made. In addition, you will furnish us or our designees with such information as
we or they may reasonably request (including, without limitation, periodic
certifications confirming the provision to Customers of the services described
herein), and will otherwise cooperate with us and our designees (including,
without limitation, any auditors or legal counsel designated by us), in
connection with the preparation of reports to our Board of Directors concerning
this Agreement and the monies paid or payable by us pursuant hereto, as well as
any other reports or filings that may be required by law.
<PAGE>
Section 8. We may enter into other similar Agreements with any other
person or persons without your consent.
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that: (i) in no event will any of the services provided by you
hereunder be primarily intended to result in the sale of any shares issued by
us; (ii) the compensation payable to you hereunder, together with any other
compensation you receive in connection with the investment of your Customers'
assets in Investor B\Investor C Shares of the Funds, will be disclosed by you to
your Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not result in an excessive or unreasonable
fee to you and (iii) in the event an issue pertaining to this Agreement is
submitted for shareholder approval, and you have the authority from your
Customer to do so, you will vote any _Investor B\Investor C Shares held for your
own account in the same proportion as the vote of the Investor B\Investor C
Shares held for your Customers' benefit.
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
series of Investor B\Investor C Shares, without penalty, at any time by us
(which termination may be by a vote of a majority of the disinterested Directors
of the Company) or by you upon written notice to the other party hereto.
Section 12. All notices and other communications to either you or us
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a confirming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the
internal laws of the State of Maryland without giving effect to principles of
conflict of laws, and is nonassignable by the parties hereto.
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to us, at the following address: 111 Center Street, Little Rock, Arkansas 72201;
fax number (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
NATIONS FUND, INC.
Date:_________________________ By:__________________________________
<PAGE>
Name:________________________________
Title:_________________________________
Accepted and Agreed to:
Servicing Agent
--------------------------------------
(Firm Name)
--------------------------------------
(Address)
--------------------------------------
(City) (State) (County)
Fax #__________________________________
Attention:_______________________________
Date:_____________________ By:____________________________________
Name:__________________________________
Title:___________________________________
<PAGE>
APPENDIX I
NATIONS FUND, INC.
INVESTOR B\INVESTOR C SHARES
(a) Transaction Processing Procedures.
(1) NationsSecurities shall provide and maintain a computer link (the
"Link") between it and The Shareholder Services Group, Inc.
("TSSG"), the Company's transfer agent for Investor B\Investor C,
through Dean Witter Financial Services.
(2) NationsSecurities shall have the ability to override the hold on
"uncollected" Investor B\Investor C Shares purchased by Customers
through the Link.
(3) NationsSecurities shall process changes in legal ownership of
Investor B\Investor C Shares beneficially owned by its Customers
through the Link and shall collect and maintain all legal
documentation required for effecting such legal transfers. If
requested, NationsSecurities also shall provide research support
services to the Company, its distributor or TSSG in connection
with the legal ownership of Investor B\Investor C Shares
processed through the Link.
(4) NationsSecurities shall process changes to Customer account
registrations and options through the Link. If requested,
NationsSecurities also shall provide research support services to
the Company, its distributor or TSSG in connection with account
registrations and options processed through the Link.
(5) NationsSecurities understands and agrees that the Company, its
distributor and TSSG may rely on instructions received from
NationsSecurities or its agents through the Link, which
instructions are believed to be genuine.
(b) Tax Reporting Procedures.
(1) NationsSecurities shall be responsible for determining whether
backup withholding is required for Customer accounts and shall
provide to TSSG backup withholding instructions regarding each
Customer account. In this regard, NationsSecurities shall be
responsible for, among other things, confirming and maintaining
records of Form W-8 certifications and expirations and taxpayer
identification numbers ("TINs") for Customer accounts.
(2) NationsSecurities shall provide to TSSG the Residence Country
Code (the "Code") for non-resident alien ("NRA") withholding
Customer accounts, if applicable. NationsSecurities also shall
provide to TSSG any changes in the Code applicable to an NRA
Customer account.
<PAGE>
(3) NationsSecurities shall prepare and file all necessary reports
with the Internal Revenue Service ("IRS") for retirement accounts
maintained by its Customers.
(4) If TSSG informs NationsSecurities that a Customer TIN or
withholding instructions provided by NationsSecurities are
invalid, NationsSecurities shall promptly investigate the
information provided and notify TSSG of the results of such
investigation. TSSG will impose withholding on such Customer
accounts unless and until instructions to the contrary are
received from NationsSecurities.
(5) NationsSecurities shall perform the Reasonable Cause Forms W-9
and W-8 mailings for Customer accounts and shall provide to TSSG
appropriate withholding instructions upon receipt of the
responses to such mailings.
(6) Upon receipt from TSSG of an IRS C-Notice relating to a Customer
account, NationsSecurities shall provide withholding instructions
to TSSG for such account.
(7) Upon receipt from TSSG of an IRS B-Notice relating to a Customer
account, NationsSecurities shall track the B-Notice and perform
the Customer mailing required by Section 3406 of the Internal
Revenue Code and the regulations thereunder. NationsSecurities
also shall provide appropriate withholding instructions to TSSG
with respect to a Customer account that is the subject of an IRS
B-Notice.
(8) NationsSecurities shall perform all IRS reporting and withholding
for Customer accounts traded through the National Securities
Clearing Corporation network.
(9) NationsSecurities shall research any assessment made by the IRS
against the Company, its distributor or TSSG that is deemed to
have resulted from (i) the performance by NationsSecurities, its
employees, contractors or agents of the Supplemental Support
Services described in this Appendix I, or (ii) NationsSecurities'
failure to perform, or to cause to have performed, the
Supplemental Support Services described in this Appendix I.
(c) Right to Delegate. NationsSecurities shall have the right to delegate to
Dean Witter Financial Services the performance of any and all of the
Supplemental Support Services described in this Appendix I. Any such delegation
shall not relieve NationsSecurities of its obligations under this Appendix I.
<PAGE>
APPENDIX II
INDEMNIFICATION
NationsSecurities shall indemnify the Company, its distributor, TSSG
and their respective officers, trustees/directors, agents, employees and
affiliates from and against any and all claims, demands, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and costs)
that result, directly or indirectly, from (i) the performance by
NationsSecurities, its employees, contractors, or agents of the Supplemental
Support Services described in Appendix I, or (ii) NationsSecurities' failure to
perform, or cause to have performed, the Supplemental Support Services described
in Appendix I. The obligations set forth in this Appendix II shall survive the
termination of the Shareholder Servicing Agreement. Without limiting the
liability of NationsSecurities under this Appendix II, NationsSecurities shall:
(a) Indemnify a Fund from and against any liability or loss that
results, directly or indirectly, from "uncollected" Investor
B\Investor C Shares purchased by Customers through the Link,
including, without limitation, any loss of principal, overdraft
charges, charge for returned checks or any combination thereof.
(b) Indemnify the Company, its distributor and TSSG from and against
any all liability or loss that results, directly or indirectly,
from the processing of legal ownership of Investor B\Investor C
Shares and account registrations and options for Customers
through the Link.
(c) Pay any and all levies or penalties assessed against a Fund by
the IRS that result, directly or indirectly, from the
responsibilities assumed by NationsSecurities under Appendix I.
NationsSecurities shall make such payment within 10 business days
of the Fund's receipt of a final assessment from the IRS.
EX-99.B9(k)
NATIONS FUND, INC.
SHAREHOLDER SERVICING PLAN ("PLAN")
INVESTOR C SHARES -- MONEY MARKET FUNDS
INVESTOR B SHARES -- NON-MONEY MARKET FUNDS
Section 1. Each of the proper officers of Nations Fund, Inc. (the
"Company") is authorized to execute and deliver, in the name and on behalf of
the Company, written agreements based substantially on the form attached hereto
as Appendix A or any other form duly approved by the Company's Board of
Directors ("Agreements") with broker/dealers, banks and other financial
institutions that are dealers of record or holders of record or which have a
servicing relationship ("Servicing Agents") with the beneficial owners of
Investor C Shares in any of the Company's Money Market Funds or Investor B
Shares (formerly Investor N Shares) of the Company's Non-Money Market Funds (as
defined on Exhibit I) (collectively, "Shares") provided that any material
modifications of services listed in the Agreement shall be presented for
approval or ratification by the Directors at the next regularly scheduled Board
Meeting. Pursuant to such Agreements, Servicing Agents shall provide shareholder
support services as set forth therein to their clients who beneficially own
Shares of the portfolios listed on Exhibit I (the "Funds") in consideration of a
fee, computed monthly in the manner set forth in the applicable Fund's then
current prospectus, at an annual rate of up to 0.25% of the average daily net
asset value of the Shares beneficially owned by or attributable to such clients.
Affiliates of the Company's distributor, administrator, co-administrator and
adviser are eligible to become Servicing Agents and to receive fees under this
Plan. All expenses incurred by a Fund in connection with the Agreements and the
implementation of this Plan shall be borne either by the holders of the Shares
of the particular Fund involved. If more than one Fund is involved and these
expenses are not directly attributable to Shares of a particular Fund, then the
expenses may be allocated between or among the Shares of the Funds in a fair and
equitable manner.
Section 2. The Company's administrator and/or co-administrator shall
monitor the arrangements pertaining to the Company's Agreements with Servicing
Agents. The Company's administrator and co-administrator shall not, however, be
obligated by this Plan to recommend, and the Company shall not be obligated to
execute, any Agreement with any qualifying Servicing Agents.
Section 3. So long as this Plan is in effect, the Company's
distributor shall provide to the Company's Board of Directors, and the Directors
shall review, at least quarterly, a written report of the amounts expended
pursuant to this Plan and the purposes for which such expenditures were made.
Section 4. Unless sooner terminated, this Plan shall continue in
effect for a period of one year from its date of execution and shall continue
thereafter for successive annual periods, provided that such continuance is
specifically approved by a majority of the Board of Directors, including a
majority of the Directors who are not "interested persons," as defined in the
Investment Company Act of 1940, of the Company and have no direct or indirect
financial interest in the operation of this Plan or in any Agreement related to
this Plan (the "Disinterested Directors") cast in person at a meeting called for
the purpose of voting on this Plan.
<PAGE>
Section 5. This Plan may be amended at any time with respect to any
Fund by the Company's Board of Directors, provided that any material amendment
of the terms of this Plan (including a material increase of the fee payable
hereunder) shall become effective only upon the approvals set forth in Section
4.
Section 6. This Plan is terminable at any time with respect to any
Fund by vote of a majority of the Disinterested Directors.
Section 7. While this Plan is in effect, the selection and
nomination of the Disinterested Directors shall be committed to the discretion
of such Disinterested Directors.
Section 8. The Company will preserve copies of this Plan,
Agreements, and any written reports regarding this Plan presented to the Board
of Directors for a period of not less than six years.
<PAGE>
EXHIBIT I
NATIONS FUND, INC.
The term "Money Market Funds" shall refer to the following Funds of
the Company:
Nations Prime Fund
Nations Treasury Fund
The term "Non-Money Market Funds" shall refer to the following Funds
of the Company:
Nations Equity Income Fund
Nations International Equity Fund
Nations Government Securities Fund
Nations International Growth Fund
Nations Small Company Growth Fund
Nations U.S. Government Bond Fund
Nations International Value Fund
Amended: February 5, 1997
February 4, 1998
EX-99.B9(l)
NATIONS FUND, INC.
SHAREHOLDER SERVICING AGREEMENT
INVESTOR C SHARES-MONEY MARKET FUNDS
INVESTOR B SHARES-NON-MONEY MARKET FUNDS
Ladies and Gentlemen:
We wish to enter into this Shareholder Servicing Agreement
("Agreement") with you concerning the provision of administrative support
services to your clients ("Customers") who may from time to time beneficially
own Investor C Shares of the money market funds and Investor B Shares of the
non-money market funds in one or more of the portfolios (the "Funds") of Nations
Fund, Inc. (the "Company").
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide the following administrative support
services to your Customers who may from time to time beneficially own Investor
Shares: (i) aggregating and processing purchase and redemption requests for
Investor C\Investor B Shares from Customers and transmitting promptly net
purchase and redemption orders to our distributor or transfer agent; (ii)
providing Customers with a service that invests the assets of their accounts in
Investor C\Investor B Shares pursuant to specific or pre-authorized
instructions; (iii) processing dividend and distribution payments from the
Company on behalf of Customers; (iv) providing information periodically to
Customers showing their positions in Investor C\Investor B Shares; (v) arranging
for bank wires; (vi) responding to Customers' inquiries concerning their
investment in Investor C\Investor B Shares; (vii) providing subaccounting with
respect to Investor C\Investor B Shares beneficially owned by Customers or
providing the information to us necessary for subaccounting; (viii) providing
general shareholder liaison services; (ix) providing the shareholder services
described in Appendix I hereto (the "Supplemental Support Services"); and (x)
providing such other similar services as we may reasonably request to the extent
you are permitted to do so under applicable statutes, rules or regulations (all
of the above services are collectively referred to as the "Support Services").
All Support Services rendered hereunder by you shall be performed in a
professional, competent and timely manner.
Section 2. You will perform only those activities which are consistent
with statutes and regulations applicable to you. You will act solely as agent
or, upon the order of, and for the account of, your Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the Support
Services contemplated hereby.
<PAGE>
Section 4. Neither you nor any of your officers, employees or agents
are authorized to make any representations concerning the Company or the
Investor C\Investor B Shares except those contained in our then current
prospectuses and statements of additional information, as amended or
supplemented from time to time, copies of which will be supplied by the Company
to you, or in such supplemental literature or advertising as may be authorized
by the distributor or the Company in writing.
Section 5. For all purposes of this Agreement you will be deemed to be
an independent contractor, and will have no authority to act as agent for us in
any matter or in any respect, except as provided herein. By your written
acceptance of this Agreement, you agree to and do release, indemnify and hold us
harmless from and against any and all direct or indirect liabilities or losses
resulting from requests, directions, actions or inactions of or by you or your
officers, employees or agents regarding your responsibilities hereunder or the
purchase, redemption, transfer or registration of Investor C\Investor B Shares
(or orders relating to the same) by or on behalf of Customers. In addition, you
agree to provide further indemnification as specified in Appendix II. You and
your employees and agents will, upon request, be available during normal
business hours to consult with us or our designees concerning the performance of
your responsibilities under this Agreement.
Section 6. In consideration of the provision of the Support Services,
we will pay to you, and you will accept as full payment therefor, a fee as
described in the applicable then current prospectuses. The fee rate payable to
you may be prospectively increased or decreased by us, in our sole discretion,
at any time upon notice to you. Further, we may, in our discretion and without
notice, suspend or withdraw the sale of Investor C\Investor B Shares of any and
all Funds, including the sale of Investor C\Investor B Shares to you for the
account of any Customer or Customers. Compensation payable under this Agreement
is subject to, among other things, the National Association of Securities
Dealers, Inc. ("NASD") Rules of Fair Practice governing receipt by NASD members
of service fees from registered investment companies (the "NASD Service Fee
Rule"). Such compensation shall only be paid if permissible under the NASD
Service Fee Rule and shall not be payable for services that are deemed to be
distribution-related services.
Section 7. You agree to provide to us at least quarterly, a written
report of the amounts expended by you in connection with the provision of the
Support Services hereunder and the purposes for which such expenditures were
made. In addition, you will furnish us or our designees with such information as
we or they may reasonably request (including, without limitation, periodic
certifications confirming the provision to Customers of the services described
herein), and will otherwise cooperate with us and our designees (including,
without limitation, any auditors or legal counsel designated by us), in
connection with the preparation of reports to our Board of Directors concerning
this Agreement and the monies paid or payable by us pursuant hereto, as well as
any other reports or filings that may be required by law.
Section 8. We may enter into other similar Agreements with any other
person or persons without your consent.
<PAGE>
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that: (i) in no event will any of the services provided by you
hereunder be primarily intended to result in the sale of any shares issued by
us; (ii) the compensation payable to you hereunder, together with any other
compensation you receive in connection with the investment of your Customers'
assets in Investor C\Investor B Shares of the Funds, will be disclosed by you to
your Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not result in an excessive or unreasonable
fee to you and (iii) in the event an issue pertaining to this Agreement is
submitted for shareholder approval, and you have the authority from your
Customer to do so, you will vote any Investor C\Investor B Shares held for your
own account in the same proportion as the vote of the Investor C\Investor B
Shares held for your Customers' benefit.
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
series of Investor C\Investor B Shares, without penalty, at any time by us
(which termination may be by a vote of a majority of the disinterested Directors
of the Company) or by you upon written notice to the other party hereto.
Section 12. All notices and other communications to either you or us
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a confirming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the
internal laws of the State of Maryland without giving effect to principles of
conflict of laws, and is nonassignable by the parties hereto.
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to us, at the following address: 111 Center Street, Little Rock, Arkansas 72201;
fax number (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
NATIONS FUND, INC.
Date:_________________________ By:__________________________________
Name:________________________________
Title:_________________________________
<PAGE>
Accepted and Agreed to:
Servicing Agent
--------------------------------------
(Firm Name)
--------------------------------------
(Address)
--------------------------------------
(City) (State) (County)
Fax #__________________________________
Attention:_______________________________
Date:_____________________ By:____________________________________
Name:__________________________________
Title:___________________________________
<PAGE>
APPENDIX I
NATIONS FUND, INC.
INVESTOR C\INVESTOR B SHARES
(a) Transaction Processing Procedures.
(1) NationsSecurities shall provide and maintain a computer link (the
"Link") between it and The Shareholder Services Group, Inc.
("TSSG"), the Company's transfer agent for _Investor C\Investor B
Shares, through Dean Witter Financial Services.
(2) NationsSecurities shall have the ability to override the hold on
"uncollected" Investor C\Investor B Shares purchased by Customers
through the Link.
(3) NationsSecurities shall process changes in legal ownership of
Investor C\Investor B Shares beneficially owned by its Customers
through the Link and shall collect and maintain all legal
documentation required for effecting such legal transfers. If
requested, NationsSecurities also shall provide research support
services to the Company, its distributor or TSSG in connection
with the legal ownership of Investor C\Investor B Shares
processed through the Link.
(4) NationsSecurities shall process changes to Customer account
registrations and options through the Link. If requested,
NationsSecurities also shall provide research support services to
the Company, its distributor or TSSG in connection with account
registrations and options processed through the Link.
(5) NationsSecurities understands and agrees that the Company, its
distributor and TSSG may rely on instructions received from
NationsSecurities or its agents through the Link, which
instructions are believed to be genuine.
(b) Tax Reporting Procedures.
(1) NationsSecurities shall be responsible for determining whether
backup withholding is required for Customer accounts and shall
provide to TSSG backup withholding instructions regarding each
Customer account. In this regard, NationsSecurities shall be
responsible for, among other things, confirming and maintaining
records of Form W-8 certifications and expirations and taxpayer
identification numbers ("TINs") for Customer accounts.
(2) NationsSecurities shall provide to TSSG the Residence Country
Code (the "Code") for non-resident alien ("NRA") withholding
Customer accounts, if applicable. NationsSecurities also shall
provide to TSSG any changes in the Code applicable to an NRA
Customer account.
<PAGE>
(3) NationsSecurities shall prepare and file all necessary reports
with the Internal Revenue Service ("IRS") for retirement accounts
maintained by its Customers.
(4) If TSSG informs NationsSecurities that a Customer TIN or
withholding instructions provided by NationsSecurities are
invalid, NationsSecurities shall promptly investigate the
information provided and notify TSSG of the results of such
investigation. TSSG will impose withholding on such Customer
accounts unless and until instructions to the contrary are
received from NationsSecurities.
(5) NationsSecurities shall perform the Reasonable Cause Forms W-9
and W-8 mailings for Customer accounts and shall provide to TSSG
appropriate withholding instructions upon receipt of the
responses to such mailings.
(6) Upon receipt from TSSG of an IRS C-Notice relating to a Customer
account, NationsSecurities shall provide withholding instructions
to TSSG for such account.
(7) Upon receipt from TSSG of an IRS B-Notice relating to a Customer
account, NationsSecurities shall track the B-Notice and perform
the Customer mailing required by Section 3406 of the Internal
Revenue Code and the regulations thereunder. NationsSecurities
also shall provide appropriate withholding instructions to TSSG
with respect to a Customer account that is the subject of an IRS
B-Notice.
(8) NationsSecurities shall perform all IRS reporting and withholding
for Customer accounts traded through the National Securities
Clearing Corporation network.
(9) NationsSecurities shall research any assessment made by the IRS
against the Company, its distributor or TSSG that is deemed to
have resulted from (i) the performance by NationsSecurities, its
employees, contractors or agents of the Supplemental Support
Services described in this Appendix I, or (ii) NationsSecurities'
failure to perform, or to cause to have performed, the
Supplemental Support Services described in this Appendix I.
(c) Right to Delegate. NationsSecurities shall have the right to delegate to
Dean Witter Financial Services the performance of any and all of the
Supplemental Support Services described in this Appendix I. Any such delegation
shall not relieve NationsSecurities of its obligations under this Appendix I.
<PAGE>
APPENDIX II
INDEMNIFICATION
NationsSecurities shall indemnify the Company, its distributor, TSSG
and their respective officers, trustees/directors, agents, employees and
affiliates from and against any and all claims, demands, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and costs)
that result, directly or indirectly, from (i) the performance by
NationsSecurities, its employees, contractors, or agents of the Supplemental
Support Services described in Appendix I, or (ii) NationsSecurities' failure to
perform, or cause to have performed, the Supplemental Support Services described
in Appendix I. The obligations set forth in this Appendix II shall survive the
termination of the Shareholder Servicing Agreement. Without limiting the
liability of NationsSecurities under this Appendix II, NationsSecurities shall:
(a) Indemnify a Fund from and against any liability or loss that
results, directly or indirectly, from "uncollected" Investor
C\Investor B Shares purchased by Customers through the Link,
including, without limitation, any loss of principal, overdraft
charges, charge for returned checks or any combination thereof.
(b) Indemnify the Company, its distributor and TSSG from and against
any all liability or loss that results, directly or indirectly,
from the processing of legal ownership of Investor C\Investor B
Shares and account registrations and options for Customers
through the Link.
(c) Pay any and all levies or penalties assessed against a Fund by the IRS
that result, directly or indirectly, from the responsibilities assumed by
NationsSecurities under Appendix I. NationsSecurities shall make such payment
within 10 business days of the Fund's receipt of a final assessment from the
IRS.
EX-99.B9(n)
CROSS INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the 27th day of June, 1995, by and among
Nations Fund, Inc. (the "Company"), a Maryland corporation, Nations Fund Trust
(the "Trust"), a Massachusetts business trust and Nations Fund Portfolios, Inc.
("Nations Portfolios"), a Maryland corporation.
WHEREAS, the Company is an open-end management investment company
registered as such under the Investment Company Act of 1940 (the "1940 Act"),
currently consisting of five operating investment portfolios, but which may from
time to time consist of a greater or lesser number of investment portfolios; and
WHEREAS, the Trust is an open-end management investment company registered
as such under the 1940 Act, currently consisting of thirty-four operating
investment portfolios, but which may from time to time consist of a greater or
lesser number of investment portfolios; and
WHEREAS, Nations Portfolios is an open-end management investment company
registered as such under the 1940 Act, currently consisting of three operating
investment portfolios, but which may from time to time consist of a greater or
lesser number of investment portfolios; and
WHEREAS, the Company, the Trust and Nations Portfolios plan to offer, on a
continuous basis, shares of common stock, units of beneficial interest and
shares of common stock, respectively, in their investment portfolios
("Securities") in a combined set of prospectuses ("Prospectuses") and/or
preliminary prospectuses ("Preliminary Prospectuses") (such offering of
Securities to be hereinafter referred to as the "Joint Offering") and plan to
file, from time to time, such combined set of prospectuses and other materials
with the Securities and Exchange Commission ("SEC") (such filings with the SEC
to be referred to herein as the "Registration Statements");
NOW THEREFORE, the Company, the Trust and Nations Portfolios hereby agree
as follows:
(1) (a) The Company will indemnify and hold harmless the Trust and
Nations Portfolios against any losses, claims, damages or
liabilities, to which the Trust or Nations Portfolios may become
subject under the Securities Act of 1933 (the "Act"), the 1940 Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Prospectuses, any Preliminary Prospectuses, the
Registration Statements, any other Prospectuses relating to the
Securities, or any amendments or supplements to the foregoing
(hereinafter referred to collectively as the "Offering Documents"),
or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in the Offering Documents in reliance upon and in
conformity with written information furnished to the Trust or
Nations Portfolios by the Company expressly for use therein; and
will reimburse the Trust and Nations Portfolios for any legal or
other expenses reasonably incurred by the Trust or Nations
Portfolios in connection with investigating or defending any such
action or claim; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in the Offering Documents in reliance upon and in
conformity with written information furnished to the Company by the
Trust or Nations Portfolios expressly for use in the Offering
Documents.
1
<PAGE>
(b) The Trust will indemnity and hold harmless the Company and
Nations Portfolios against any losses, claims, damages or
liabilities to which the Company or Nations Portfolios may become
subject under the Act, the 1940 Act, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Offering Documents or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in the Offering Documents in reliance upon and in
conformity with written information furnished to the Company or
Nations Portfolios by the Trust expressly for use therein; and will
reimburse the Company and Nations Portfolios for any legal or other
expenses reasonably incurred by the Company or Nations Portfolios in
connection with investigating or defending any such action or claim;
provided, however, that the Trust shall not be liable in any such
case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering
Documents in reliance upon and in conformity with written
information furnished to the Trust by the Company or Nations
Portfolios expressly for use in the Offering Documents.
(c) Nations Portfolios will indemnify and hold harmless the Company
and the Trust against any losses, claims, damages or liabilities to
which the Company or the Trust may become subject under the Act, the
1940 Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Offering Documents or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Offering
Documents in reliance upon and in conformity with written
information furnished to the Company or the Trust by Nations
Portfolios expressly for use therein; and will reimburse the Company
and the Trust for any legal or other expenses reasonably incurred by
the Company or the Trust in connection with investigating or
defending any such action or claim; provided, however, that Nations
Portfolios shall not be liable in any such case to the extent that
any such loss, claim, damage, or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Offering Documents in reliance upon and
in conformity with written information furnished to Nations
Portfolios by the Company or the Trust for use in the Offering
Documents.
2
<PAGE>
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party or parties under such subsection,
notify the indemnifying party or parties in writing of the
commencement thereof; but the omission to so notify the indemnifying
party or parties shall not relieve it or them from any liability
which it or they may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party or parties of the commencement thereof, the indemnifying party
or parties shall be entitled to participate therein and, to the
extent that either indemnifying party or both shall wish, to assume
the defense thereof, with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party or parties to
such indemnified party of its or their election so to assume the
defense thereof, the indemnifying party or parties shall not be
liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(2) This agreement may be executed simultaneously in three or more
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed by their authorized officers designated below as of the day and
year first written above.
NATIONS FUND, INC.
By: /s/ A. Max Walker
---------------------
A. Max Walker
Chairman of the Board of
Directors
NATIONS FUND TRUST
By: /s/ A. Max Walker
---------------------
A. Max Walker
Chairman of the Board of
Trustees
NATIONS FUND PORTFOLIOS, INC.
By: /s/ A. Max Walker
---------------------
A. Max Walker
Chairman of the Board of
Directors
4
EX-99.B15(a)
NATIONS FUND, INC.
SHAREHOLDER SERVICING AND DISTRIBUTION PLAN
INVESTOR A SHARES
This amended and restated Investor A Shareholder Servicing and
Distribution Plan (the "Plan") has been adopted by the Board of Directors of
Nations Fund, Inc. (the "Company") in conformance with Rule 12b-1 under the
Investment Company Act of 1940 (the "1940 Act").
Section 1. Payments for Services. Under the terms of this Plan, the
Company may act as a distributor of the Shares of which a Fund is the issuer,
pursuant to Rule 12b-1 under the 1940 Act. The Company may incur as a
distributor of the Investor A Shares of each Fund ("Shares") expenses of up to
(A) twenty-five one-hundredths of one percent (0.25%) per annum of the average
daily net assets of the Company attributable to the Shares of the Non-Money
Market Funds (as defined on Exhibit A) or (B) ten one-hundredths of one percent
(0.10%) attributable to the Shares of the Money Market Funds (as defined on
Exhibit A).
Section 2. Expenses Covered by the Plan. Amounts set forth in Section 1
may be expended when and if authorized in advance by the Company's Board of
Directors. Such amounts may be used to finance any activity which is primarily
intended to result in the sale of the Shares, including, but not limited to,
expenses of organizing and conducting sales seminars, printing of prospectuses
and statements of additional information (and supplements thereto) and reports
for other than existing shareholders, preparation and distribution of
advertising material and sales literature, supplemental payments to the
Company's distributor (the "Distributor") and the cost of administering this
Plan, as well as, with respect to payments made under Section 1(A), above, the
shareholder servicing activities described below. All amounts expended pursuant
to this Plan shall be paid:
(i) to the Distributor for reimbursements of distribution-related expenses
actually incurred by the Distributor, including, but not limited to, expenses
of organizing and conducting sales seminars, printing of prospectuses and
statements of additional information (and supplements thereto) and reports
for other than existing shareholders, preparation and distribution of
advertising material and sales literature and costs of administering this
Plan, or
(ii)to certain broker/dealers and other financial institutions ("Agents")
who offer shares to their customers and who have entered into (A) Shareholder
Servicing Agreements substantially in the form of Exhibit C with respect to
the Non-Money Market Funds, and (B) Sales Support Agreements substantially in
the form of Exhibit B with respect to any of the Funds, for providing the
services contemplated thereunder.
1
<PAGE>
The shareholder servicing activities for which compensation may be
received under this Plan may include, among other things: (i) aggregating and
processing purchase and redemption requests and transmitting promptly net
purchase and redemption orders to the Distributor or transfer agent; (ii)
providing customers with a service that invests the assets of their accounts in
Shares pursuant to specific or pre-authorized instructions; (iii) processing
dividend and distribution payments; (iv) providing information periodically to
customers showing their positions in Shares; (v) arranging for bank wires; (vi)
responding to customers' inquiries concerning their investment in Shares; (vii)
providing subaccounting with respect to Shares beneficially owned by customers
or the information to the Company necessary for subaccounting; (viii) if
required by law, forwarding shareholder communications (such as proxies,
shareholder reports, annual and semi-annual financial statements and dividend,
distribution and tax notices) to customers; (ix) forwarding to customers proxy
statements and proxies containing any proposals regarding the Shareholder
Servicing Agreement; (x) general shareholder liaison services; and (xi)
providing such other similar services as the Company may reasonably request to
the extent such firms are permitted to do so under applicable statutes, rules or
regulations.
Section 3. Money Market Funds -- Expenses under the Plan.
Notwithstanding any of the foregoing, with respect to the Money Market Funds,
payments under Section 1, above, shall not be made for personal services and/or
the maintenance of shareholder accounts as such terms are interpreted by the
National Association of Securities Dealers, Inc.
Section 4. Limitations on Payments. No additional payments are to be
made by the Company on behalf of the Funds with respect to the Shares under this
Plan, provided that the Funds shall not be precluded from making the payments
such Fund is otherwise obligated to make (i) to NationsBank of North Carolina,
N.A. ("NationsBank") and/or NationsBank Panmure Investment Management Limited
("NationsBank Panmure") pursuant to the Investment Advisory Agreement and the
Sub-Investment Advisory Agreement, (ii) to NationsBank of Texas, N.A.
("NationsBank Texas") pursuant to the Custody Agreement, (iii) to First Data
Investor Services Group, Inc. ("First Data"), formerly The Shareholder Services
Group, Inc., pursuant to the Transfer Agency and Registrar Agreement, (iv) to
Stephens Inc. ("Stephens"), pursuant to the Administration Agreement, (v) to
First Data pursuant to the Co-Administration Agreement, (vi) to Servicing Agents
pursuant to Shareholder Servicing Agreements and (vii) for the expenses
otherwise incurred by a Fund and the Company on behalf of the Shares in the
normal conduct of such Fund's business pursuant to the Investment Advisory
Agreement (and/or Sub-Investment Advisory Agreement), the Custody Agreement, the
Transfer Agency and Registrar Agreement, the Administration Agreement, the
Co-Administration Agreement and the Shareholder Servicing Agreements. However,
to the extent any payments by the Company on behalf of a Fund to NationsBank,
NationsBank Panmure, NationsBank Texas, First Data, Stephens or Servicing
Agents; by NationsBank, NationsBank Panmure, NationsBank Texas, First Data,
Stephens or Servicing Agents or any affiliate thereof, to any party, pursuant to
any agreement; or, generally, by the Company on behalf of a Fund to any party,
are deemed to be payments for the financing of any activity primarily intended
to result in the sale of the Shares within the context of Rule 12b-1 under the
1940 Act, then such payments shall be deemed to be approved pursuant to this
Plan as set forth herein.
2
<PAGE>
Section 5. Reports of Distributor. The officers of the Company shall
report quarterly in writing to the Board of Directors on the amounts and purpose
of payments for any of the activities in Section 2 and shall furnish the Board
of Directors with such other information as the Board may reasonably request in
connection with such payments in order to enable the Board to make an informed
determination on the nature and value of such expenditures.
Section 6. Approval of Plan. This Plan shall continue in effect for a
period of more than one year from the date written below only so long as such
continuance is specifically approved at least annually by the Company's Board of
Directors, including the Directors who are not interested persons of the Company
and have no direct or indirect financial interest in the operation of this Plan
or in any Agreements related to this Plan ("Disinterested Directors"), by vote
cast in person at a meeting called for the purpose of voting on this Plan.
Section 7. Termination. This Plan may be terminated at any time by vote
of a majority of the Disinterested Directors or with respect to a particular
Fund by vote of a majority of the outstanding voting securities of the Shares of
such Fund, on not more than sixty (60) days' written notice to any other party
to the Plan, and shall terminate automatically in the event of any act that
constitutes an assignment of the Distribution Agreement or the Investment
Advisory Agreement (or with respect to a Fund sub-advised by NationsBank
Panmure, the Sub-Investment Advisory Agreement).
Section 8. Amendments. This Plan may be amended at any time by the
Board of Directors provided that (a) any amendments to increase materially the
costs which a Fund's Investor A Shares may bear for distribution pursuant to
this Plan shall be effective only upon approval by a vote of a majority of the
outstanding Investor A Shares of such Fund, and (b) any material amendments of
the terms of this Plan shall become effective only upon approval as provided in
Section 6 hereof.
Section 9. Selection/Nomination of Directors. So long as this Plan is
in effect, the selection and nomination of the Company's Disinterested Directors
shall be committed to the discretion of such Disinterested Directors.
Section 10. Governing Law. This Plan shall be subject to the laws of
The State of Maryland and shall be interpreted and construed to further promote
the operation of the Company as an open-end management investment company. As
used herein the terms "open-end management investment company," "assignment,"
"principal underwriter," "interested person," and "majority of the outstanding
voting securities" shall have the meanings set forth in the Securities Act of
1933, as amended or the 1940 Act, and the rules and regulations thereunder.
Section 11. Scope of Liability. Nothing herein shall be deemed to
protect the parties to any Agreement entered into pursuant to this Plan against
any liability to the Company or its shareholders to which they would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of their duties hereunder, or by reason of their reckless
disregard of their obligations and duties hereunder.
3
<PAGE>
Section 12. Records. The Company will preserve copies of this Plan,
Agreements and any written reports regarding this Plan presented to the Board of
Directors for a period of not less than six years.
4
<PAGE>
EXHIBIT A
NATIONS FUND, INC.
The term "Non-Money Market Funds" used in the Plan shall refer to the
following Funds of the Company:
Nations Equity Income Fund
Nations International Equity Fund
Nations Government Securities Fund
Nations International Growth Fund
Nations Small Company Growth Fund
Nations U.S. Government Bond Fund
Nations International Value Fund
The term "Money Market Funds" used in the Plan shall refer to the
following Funds of the Company:
Nations Prime Fund
Nations Treasury Fund
Amended: February 5, 1997
February 4, 1998
5
EX-99.B15(b)
SALES SUPPORT AGREEMENT
NATIONS FUND, INC.
INVESTOR A SHARES
Ladies and Gentlemen:
We wish to enter into this Sales Support Agreement ("Agreement") with
you concerning the provision of sales support assistance relating to Investor A
Shares of the Nations investment portfolios (the "Funds") of Nations Fund, Inc.
(the "Company"), of which we are the principal underwriter as defined in the
Investment Company Act of 1940 (the "1940 Act") and the exclusive agent for the
continuous distribution of said shares.
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide reasonable sales support assistance in
connection with the sale of Investor A Shares to your customers ("Customers"),
which assistance may include forwarding sales literature and advertising
provided by the Company or by us to Customers and providing such other sales
support assistance as may be requested by us from time to time. All services
rendered hereunder by you shall be performed in a professional, competent and
timely manner.
Section 2. We recognize that you may be subject to the provisions of
the Glass-Steagall Act and other laws governing, among other things, the conduct
of activities by federally chartered and supervised banks and other banking
organizations. As such, you may be restricted in the activities you may
undertake and for which you may be paid. You will perform only those activities
which are consistent with statutes and regulations applicable to you. You will
act solely as agent for, upon the order of, and for the account of your
Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the sales support
services contemplated hereby.
Section 4. Neither you nor any of your officers, employees or agents
are authorized to make any representations concerning us, the Company or the
Investor A Shares except those contained in the Company's applicable then
current prospectuses and statements of additional information, as amended or
supplemented from time to time, copies of which will be supplied by us to you,
or in such supplemental literature or advertising as may be authorized by us or
the Company in writing.
1
<PAGE>
Section 5. For all purposes of this Agreement you will be deemed to be
an independent contractor, and will have no authority to act as agent for us or
the Company in any matter or in any respect, except as provided herein. By your
written acceptance of this Agreement, you agree to and do release, indemnify and
hold us and the Company harmless from and against any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or inactions
of or by you or your officers, employees or agents regarding your
responsibilities hereunder or the purchase, redemption, transfer or registration
of Investor A Shares (or orders relating to the same) by or on behalf of
Customers. You and your employees will, upon request, be available during normal
business hours to consult with us or the Company or our respective designees
concerning the performance of your responsibilities under this Agreement.
Section 6. In consideration of the services and facilities provided by
you hereunder, we will pay to you, and you will accept as full payment therefor,
a fee as described in the applicable then current prospectuses. The fees payable
under this Section 6 shall be used primarily for sales support services
provided, and related expenses incurred, by you. By your acceptance of this
Agreement, you agree to and do waive such portion of any fee payable to you
hereunder to the extent necessary to assure that such fee and other expenses
required to be accrued hereunder with respect to the Investor A Shares owned by
or on behalf of Customers on any day does not exceed the income to be accrued by
the Company to such shares on that day. The fee rate payable to you may be
prospectively increased or decreased by us or by the Company, in our or its sole
discretion, at any time upon notice to you. Further, we or the Company may, in
our or its discretion and without notice, suspend or withdraw the sale of
Investor A Shares of any or all Funds, including the sale of Investor A Shares
for the account of any Customer or Customers.
Section 7. You agree to provide to us and the Company, at least
quarterly, a written report of amounts expended by you in connection with the
provision of sales support services hereunder and the purposes for which such
expenditures were made. In addition, you will furnish us or the Company or our
respective designees with such information as we or they may reasonably request
(including, without limitation, periodic certifications confirming the provision
to Customers of the services described herein), and will otherwise cooperate
with us and the Company and our respective designees (including, without
limitation, any auditors or legal counsel designated by us or the Company), in
connection with the preparation of reports to the Company's Board of Directors
concerning this Agreement and the monies paid or payable by us pursuant hereto,
as well as any other reports or filings that may be required by law.
Section 8. We may enter into other similar Agreements with any other
person or persons without your consent.
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that the compensation payable to you hereunder, together with
any other compensation you receive in connection with the investment of your
Customers' assets in Investor A Shares of the Funds, will be disclosed by you to
your Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not be excessive or unreasonable under the
laws and instruments governing your relationships with Customers. By your
written acceptance of this Agreement, you represent and warrant that: (i) in the
event an issue pertaining to this Agreement or the Investor A Shares'
Distribution Plan related hereto is submitted for shareholder approval, and you
have the authority to do so, you will vote any Investor A Shares held for your
own account in the same proportion as the vote of the Investor A Shares held for
your Customers' benefit; and (ii) you will not engage in activities pursuant to
this Agreement which constitute acting as a broker or dealer under state law
unless you have obtained any licenses required by such law. In addition, you
understand that this Agreement has been entered into pursuant to Rule 12b-1
under the Act, and is subject to the provisions of said Rule, as well as any
other applicable rules or regulations promulgated by the Securities and Exchange
Commission.
2
<PAGE>
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
Fund's Investor A Shares, without penalty, at any time by the Company (which
termination may be by a vote of a majority of the disinterested Directors of the
Company or by vote of the holders of a majority of the outstanding Investor A
Shares of such Fund) or by us or you upon notice to the other party hereto.
Section 12. All notices and other communications to either you or us
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a conforming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the
laws of The State of Arkansas without giving effect to principles of conflict of
laws, and is nonassignable by the parties hereto.
3
<PAGE>
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to us, at the following address: 111 Center Street, Little Rock, Arkansas
72201; Fax No. (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
STEPHENS INC.
Date: ________________ By:____________________________
Name:__________________________
Title:_________________________
Accepted and Agreed to:
Selling Agent
------------------------------
(Firm Name)
------------------------------
(Address)
------------------------------
(City) (State)
Fax # ________________________
Attention: ___________________
Date: __________________ By: __________________________
Name: ________________________
Title: _______________________
4
EX-99.B15(c)
NATIONS FUND, INC.
DISTRIBUTION PLAN
INVESTOR B SHARES -- MONEY MARKET FUNDS
INVESTOR C SHARES -- NON-MONEY MARKET FUNDS
This amended and restated Distribution Plan (this "Plan") has been adopted
by the Board of Directors of Nations Fund, Inc. (the "Company") in conformance
with Rule 12b-1 under the Investment Company Act of 1940 (the "1940 Act").
Section 1. Payments for Distribution-Related Services. The Company may pay
its Distributor for certain expenses that are incurred in connection with the
support and distribution of Investor B Shares of the Company's Money Market
Funds and Investor C Shares of the Company's Non-Money Market Funds
(collectively, "Shares"), as listed in Exhibit A (collectively, the "Funds").
Payments by the Company under the Plan will be calculated daily and paid monthly
at a rate or rates set from time to time by the Company's Board of Directors,
provided that no rate set by the Board for any Fund may exceed the annual rate
of: 0.10% of the average daily net asset value of Investor B Shares of the Money
Market Funds; and 0.75% of the average daily net asset value of Investor C
Shares of the Non-Money Market Funds. For purposes of determining the payments
payable under this Plan, the net asset value of the outstanding Shares of the
respective Funds shall be computed in the manner specified in the Company's then
current prospectuses and statement of additional information as amended or
supplemented from time to time for such Shares.
Section 2. Expenses Covered by Plan. Payments to the Distributor under
Section 1 of this Plan will be used by the Distributor (i) to compensate banks,
broker/dealers or other financial institutions that have entered into Sales
Support Agreements with the Distributor ("Selling Agents") for providing
distribution assistance relating to Shares, (ii) for promotional activities
intended to result in the sale of Shares such as by paying for the preparation,
printing and distribution of prospectuses for other than current Shareholders,
and (iii) to compensate Selling Agents for providing distribution services with
regard to their Customers who are, from time to time, beneficial, and record
owners of Shares.
Section 3. Distribution and Sales Support Agreements. Any officer of the
Company is authorized to execute and deliver, in the name and on behalf of the
Company, a written agreement with the Distributor in a form duly approved from
time to time by the Company's Board of Directors. Such agreement shall authorize
the Distributor to enter into written Sales Support Agreements, in substantially
the form attached hereto as Exhibit B ("Agreements"), with Selling Agents.
As used herein, promotional activities include, but are not limited to,
advertising via radio, television, newspapers, magazines and otherwise;
preparing, printing and mailing sales materials, brochures and prospectuses
(except for prospectuses used for regulatory purposes or for distribution to
existing shareholders).
1
<PAGE>
Section 4. Limitations on Payments. Payment made by a particular Fund under
Section 1 must be for distribution or sales support services rendered for or on
behalf of such Fund. However, joint distribution or sales support financing with
respect to the Funds (which financing may also involve other investment
portfolios or companies that are affiliated persons of such a person, or
affiliated persons of the Distributor) shall be permitted in accordance with
applicable regulations of the Securities and Exchange Commission ("SEC") as in
effect from time to time.
Upon proper authorization by the Company's Directors in accordance with Rule
12b-1 under the Act, expenses covered by this Plan may also include other
expenses the Distributor (or any other person) may incur in connection with the
distribution of the Company's Shares including, without limitation, expenditures
for telephone facilities and in-house telemarketing, or in connection with
shareholder servicing. Distribution service fees will not be used to pay any
interest expenses, carrying charges or other financing costs (except to the
extent permitted by the SEC). Distribution service fees will not be used to pay
any general or administrative expenses of the Distributor.
Except for the payments specified in Section 1, no additional payments are
to be made by the Company under this Plan, provided that nothing herein shall be
deemed to preclude the payments such Funds are otherwise obligated to make to
(i) NationsBank of North Carolina, N.A. ("NationsBank"), pursuant to the
Investment Advisory Agreement (ii) NationsBank of Texas, N.A. ("NationsBank
Texas"), pursuant to the Custody Agreement, (iii) First Data Investor Services
Group, Inc. ("First Data"), formerly The Shareholder Services Group, Inc.,
pursuant to the Transfer Agency and Registrar Agreement, (iv) Stephens Inc.
("Stephens"), pursuant to the Administration Agreement, (v) First Data, pursuant
to the Co-Administration Agreement, (vi) Servicing Agents, pursuant to
Shareholder Servicing Agreements and (vii) for the expenses otherwise incurred
by a Fund and the Company on behalf of the Shares in the normal conduct of such
Fund's business pursuant to the Investment Advisory Agreement, the Custody
Agreement, the Transfer Agency and Registrar Agreement, the Administration
Agreement, the Co-Administration Agreement and the Shareholder Servicing
Agreements. To the extent any such payments by the Company on behalf of a Fund
to NationsBank, NationsBank Texas, First Data, Stephens or Servicing Agents; by
NationsBank, NationsBank Texas, First Data, Stephens or Servicing Agents, or any
affiliate thereof, to any party pursuant to any agreement; or, generally, by the
Company on behalf of a Fund to any party, are deemed to be payments for the
financing of any activity primarily intended to result in the sale of the Shares
within the context of Rule 12b-1 under the 1940 Act, then such payments shall be
deemed to have been approved pursuant to this Plan without regard to Section 1.
With respect to Shares, actual distribution expenses incurred by the
Distributor (or sales support expenses incurred by the Selling Agents) in a
given year may exceed the sum of the fees received by the Distributor pursuant
to this Plan and payments received by the Distributor pursuant to contingent
deferred sales charges. Any such excess may be recovered by the Distributor, and
retained by it or paid over to the Selling Agents, as applicable, in future
years as long as this Plan is in effect. If this Plan is terminated or not
continued, the Company shall not be obligated to pay the Distributor (or Selling
Agents) for any expenses not previously reimbursed by the Company or recovered
through contingent deferred sales charges.
2
<PAGE>
Notwithstanding anything herein to the contrary, no Fund shall be obligated
to make any payments under this Plan that exceed the maximum amounts payable
under Article III, Section 26 of the Rules of Fair Practice of the National
Association of Securities Dealers, Inc.
Section 5. Reports of Distributor. So long as this Plan is in effect, the
Distributor shall provide to the Company's Officers and Board of Directors, and
the Directors shall review, at least quarterly, a written report of the amounts
expended by it pursuant to the Distribution Agreement, or by Selling Agents
pursuant to Sales Support Agreements, and the purposes for which such
expenditures were made.
Section 6. Approval of Plan. The Plan will become effective immediately, as
to any Fund's Shares, upon its approval by (a) a majority of the outstanding
Shares of such Fund, and (b) a majority of the Board of Directors, including a
majority of the Directors who are not "interested persons" (as defined in the
1940 Act) of the Company and who have no direct or indirect financial interest
in the operation of this Plan or in any agreements entered into in connection
with this Plan, pursuant to a vote cast in person at a meeting called for the
purpose of voting on the approval of this Plan.
Section 7. Continuance of Plan. The Plan shall continue in effect for so
long as its continuance is specifically approved at least annually by the
Company's Board of Directors in the manner described in Section 6.
Section 8. Amendments. The Plan may be amended at any time by the Board of
Directors provided that (a) any amendment to increase materially the costs which
a Fund's Shares may bear for distribution pursuant to this Plan shall be
effective only upon approval by a vote of a majority of the outstanding Shares
of such Fund, and (b) any material amendments of the terms of this Plan shall
become effective only upon approval as provided in Section 6 hereof.
Section 9. Termination. The Plan is terminable, as to a Fund's Shares,
without penalty at any time by (a) a vote of a majority of the Directors who are
not "interested persons" (as defined in the 1940 Act) of the Company and who
have no direct or indirect financial interest in the operation of this Plan or
in any agreements entered into in connection with this Plan, or (b) a vote of a
majority of the outstanding Shares of such Fund.
Section 10. Selection/Nomination of Directors. While this Plan is in effect,
the selection and nomination of those Directors who are not "interested persons"
(as defined in the 1940 Act) of the Company shall be committed to the discretion
of such non-interested Directors.
Section 11. Records. The Company will preserve copies of this Plan,
Agreements, and any written reports regarding this Plan presented to the Board
of Directors for a period of not less than six years.
3
<PAGE>
Section 12. Miscellaneous. The captions in this Plan are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
4
<PAGE>
EXHIBIT A
NATIONS FUND, INC.
The term "Non-Money Market Funds" used in the Plan shall refer to the following
Funds of the Company:
Nations Equity Income Fund
Nations Government Securities Fund
Nations International Equity Fund
Nations International Growth Fund
Nations Small Company Growth Fund
Nations U.S. Government Bond Fund
Nations International Value Fund
The term "Money Market Funds" used in the Plan shall refer to the following
Funds of the Company:
Nations Prime Fund
Nations Treasury Fund
Amended: February 5, 1997
February 4, 1998
5
EX-99.B15(d)
SALES SUPPORT AGREEMENT
NATIONS FUND, INC.
INVESTOR B SHARES -- MONEY MARKET FUNDS
INVESTOR C SHARES -- NON-MONEY MARKET FUNDS
Ladies and Gentlemen:
We wish to enter into this Sales Support Agreement ("Agreement") with you
concerning the provision of sales support assistance relating to Investor B
Shares of the money market investment portfolios and Investor C Shares of the
non-money market investment portfolios (collectively, the "Funds") of Nations
Fund, Inc. (the "Company"), of which we are the principal underwriter as defined
in the Investment Company Act of 1940 (the "1940 Act") and the exclusive agent
for the continuous distribution of said shares (the "Shares").
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide reasonable sales support assistance in
connection with the sale of Shares to your customers ("Customers"), which
assistance may include forwarding sales literature and advertising provided by
the Company or by us to Customers and providing such other sales support
assistance as may be requested by us from time to time. All services rendered
hereunder by you shall be performed in a professional, competent and timely
manner.
Section 2. We recognize that you may be subject to the provisions of the
Glass-Steagall Act and other laws governing, among other things, the conduct of
activities by federally chartered and supervised banks and other banking
organizations. As such, you may be restricted in the activities you may
undertake and for which you may be paid. You will perform only those activities
which are consistent with statutes and regulations applicable to you. You will
act solely as agent for, upon the order of, and for the account of your
Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the sales support
services contemplated hereby.
Section 4. Neither you nor any of your officers, employees or agents are
authorized to make any representations concerning us, the Company or the Shares
except those contained in the Company's applicable then current prospectuses and
statements of additional information, as amended or supplemented from time to
time, copies of which will be supplied by us to you, or in such supplemental
literature or advertising as may be authorized by us or the Company in writing.
1
<PAGE>
Section 5. For all purposes of this Agreement you will be deemed to be an
independent contractor, and will have no authority to act as agent for us or the
Company in any matter or in any respect, except as provided herein. By your
written acceptance of this Agreement, you agree to and do release, indemnify and
hold us and the Company harmless from and against any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or inactions
of or by you or your officers, employees or agents regarding your
responsibilities hereunder or the purchase, redemption, transfer or registration
of Shares (or orders relating to the same) by or on behalf of Customers. You and
your employees will, upon request, be available during normal business hours to
consult with us or the Company or our respective designees concerning the
performance of your responsibilities under this Agreement.
Section 6. In consideration of the services and facilities provided by you
hereunder, we will pay to you, and you will accept as full payment therefor, a
fee as described in the applicable then current prospectuses. The fees payable
under this Section 6 shall be used primarily for sales support services
provided, and related expenses incurred, by you. By your acceptance of this
Agreement, you agree to and do waive such portion of any fee payable to you
hereunder to the extent necessary to assure that such fee and other expenses
required to be accrued hereunder with respect to the Shares owned by or on
behalf of Customers on any day does not exceed the income to be accrued by the
Company to such shares on that day. The fee rate payable to you may be
prospectively increased or decreased by us or by the Company, in our or its sole
discretion, at any time upon notice to you. Further, we or the Company may, in
our or its discretion and without notice, suspend or withdraw the sale of Shares
of any or all Funds, including the sale of Shares for the account of any
Customer or Customers.
Section 7. You agree to provide to us and the Company, at least quarterly, a
written report of amounts expended by you in connection with the provision of
sales support services hereunder and the purposes for which such expenditures
were made. In addition, you will furnish us or the Company or our respective
designees with such information as we or they may reasonably request (including,
without limitation, periodic certifications confirming the provision to
Customers of the services described herein), and will otherwise cooperate with
us and the Company and our respective designees (including, without limitation,
any auditors or legal counsel designated by us or the Company), in connection
with the preparation of reports to the Company's Board of Directors concerning
this Agreement and the monies paid or payable by us pursuant hereto, as well as
any other reports or filings that may be required by law.
Section 8. We may enter into other similar Agreements with any other person
or persons without your consent.
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that the compensation payable to you hereunder, together with
any other compensation you receive in connection with the investment of your
Customers' assets in Shares of the Funds, will be disclosed by you to your
Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not be excessive or unreasonable under the
laws and instruments governing your relationships with Customers. By your
written acceptance of this Agreement, you represent and warrant that: (i) in the
event an issue pertaining to this Agreement or the Shares' Distribution Plan
related hereto is submitted for shareholder approval, and you have the authority
to do so, you will vote any Shares held for your own account in the same
proportion as the vote of the Shares held for your Customers' benefit; and (ii)
you will not engage in activities pursuant to this Agreement which constitute
acting as a broker or dealer under state law unless you have obtained any
licenses required by such law. In addition, you understand that this Agreement
has been entered into pursuant to Rule 12b-1 under the 1940 Act, and is subject
to the provisions of said Rule, as well as any other applicable rules or
regulations promulgated by the Securities and Exchange Commission.
2
<PAGE>
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
Fund's Shares, without penalty, at any time by the Company (which termination
may be by a vote of a majority of the disinterested Directors of the Company or
by vote of the holders of a majority of the outstanding Shares of such Fund) or
by us or you upon notice to the other party hereto.
Section 12. All notices and other communications to either you or us will be
duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a conforming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the laws of
The State of Arkansas without giving effect to principles of conflict of laws,
and is nonassignable by the parties hereto.
3
<PAGE>
If you agree to be legally bound by the provisions of this Agreement, please
sign a copy of this letter where indicated below and promptly return it to us,
at the following address: 111 Center Street, Little Rock, Arkansas 72201; Fax
No. (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
STEPHENS INC.
Date: ________________ By:____________________________
Name:__________________________
Title:_________________________
Accepted and Agreed to:
Selling Agent
------------------------------
(Firm Name)
------------------------------
(Address)
------------------------------
(City) (State)
Fax # ________________________
Attention: ___________________
Date: __________________ By: __________________________
Name: ________________________
Title: _______________________
4
EX-99.B15(e)
NATIONS FUND, INC.
INVESTOR B DISTRIBUTION PLAN
This Investor B Distribution Plan (the "Plan"), formerly the Investor N
Distribution Plan, has been adopted by the Board of Directors of Nations Fund,
Inc. (the "Company") in conformance with Rule 12b-1 under the Investment Company
Act of 1940 (the "1940 Act").
Section 1. Payments for Distribution-Related Services. The Company may
compensate or reimburse its Distributor for any activities or expenses primarily
intended to result in the sale of Investor B Shares of the Company's Funds, as
listed on Exhibit A (collectively, the "Funds" or, individually, a "Fund").
Payments by the Company under this Section of this Plan will be calculated daily
and paid monthly at a rate or rates set from time to time by the Company's Board
of Directors, provided that no rate set by the Board for any Fund may exceed, on
an annual basis, 0.75% of the average daily net asset value of a Fund's Investor
B Shares.
Section 2. Expenses Covered by Plan. The fees payable under Section 1 of
this Plan shall be used primarily to compensate or reimburse the Distributor for
distribution services provided by it, and related expenses incurred, including
payments by the Distributor to compensate or reimburse banks, broker/dealers or
other financial institutions that have entered into Sales Support Agreements
with the Distributor ("Selling Agents"), for sales support services provided,
and related expenses incurred, by such Selling Agents. Payments under Section 1
of this Plan may be made with respect to: preparation, printing and distribution
of prospectuses, sales literature and advertising materials by the Distributor
or, as applicable, Selling Agents, attributable to distribution or sales support
activities, respectively; commissions, incentive compensation or other
compensation to, and expenses of, account executives or other employees of the
Distributor or Selling Agents, attributable to distribution or sales support
activities, respectively; overhead and other office expenses of the Distributor
or Selling Agents, attributable to distribution or sales support activities,
respectively; opportunity costs relating to the foregoing (which may be
calculated as a carrying charge on the Distributor's or Selling Agents'
unreimbursed expenses incurred in connection with distribution or sales support
activities, respectively); and any other costs and expenses relating to
distribution or sales support activities. The overhead and other office expenses
referenced in this Section 2 may include, without limitation, (i) the expenses
of operating the Distributor's or Selling Agents' offices in connection with the
sale of Fund shares, including lease costs, the salaries and employee benefit
costs of administrative, operations and support personnel, utility costs,
communication costs and the costs of stationery and supplies, (ii) the costs of
client sales seminars and travel related to distribution and sales support
activities, and (iii) other expenses relating to distribution and sales support
activities.
Section 3. Distribution and Sales Support Agreements. Any officer of the
Company is authorized to execute and deliver, in the name and on behalf of the
Company, a written agreement with the Distributor in a form duly approved from
time to time by the Company's Board of Directors. Such agreement shall authorize
the Distributor to enter into written Sales Support Agreements, in substantially
the form attached hereto as Exhibit B ("Agreements"), with Selling Agents.
1
<PAGE>
Section 4. Limitations on Payments. Payment made by a particular Fund under
Section 1 must be for distribution or sales support services rendered for or on
behalf of such Fund. However, joint distribution or sales support financing with
respect to the Funds (which financing may also involve other investment
portfolios or companies that are affiliated persons of such a person, or
affiliated persons of the Distributor) shall be permitted in accordance with
applicable regulations of the Securities and Exchange Commission as in effect
from time to time.
Except for the payments specified in Section 1, no additional payments are
to be made by the Company under this Plan, provided that nothing herein shall be
deemed to preclude the payments such Funds are otherwise obligated to make (i)
to NationsBank of North Carolina, N.A. ("NationsBank") pursuant to the
Investment Advisory Agreement, (ii) to NationsBank of Texas, N.A. ("NationsBank
Texas"), pursuant to the Custody Agreement, (iii) to First Data Investor
Services Group, Inc. ("First Data"), formerly The Shareholders Services Group,
Inc., pursuant to the Transfer Agency and Registrar Agreement, (iv) to Stephens
Inc. ("Stephens"), pursuant to the Administration Agreement, (v) to First Data,
pursuant to the Co-Administration Agreement, (vi) to Servicing Agents pursuant
to Shareholder Servicing Agreements and (vii) for the expenses otherwise
incurred by a Fund and the Company on behalf of the Investor B Shares in the
normal conduct of such Fund's business pursuant to the Investment Advisory
Agreement, the Custody Agreement, the Transfer Agency and Registrar Agreement,
the Administration Agreement, the Co-Administration Agreement and the
Shareholder Servicing Agreements. To the extent any such payments by the Company
on behalf of a Fund to NationsBank, NationsBank Texas, First Data, Stephens or
Servicing Agents; by NationsBank, NationsBank Texas, First Data, Stephens or
Servicing Agents, or any affiliate thereof, to any party pursuant to any
agreement; or, generally, by the Company on behalf of a Fund to any party, are
deemed to be payments for the financing of any activity primarily intended to
result in the sale of the Investor B Shares within the context of Rule 12b-1
under the 1940 Act, then such payments shall be deemed to have been approved
pursuant to this Plan without regard to Section 1.
With respect to Investor B Shares, actual distribution expenses incurred by
the Distributor (or sales support expenses incurred by Selling Agents) in a
given year may exceed the sum of the fees received by the Distributor pursuant
to this Plan and payments received by the Distributor pursuant to contingent
deferred sales charges. Any such excess may be recovered by the Distributor, and
retained by it or paid over to Selling Agents, as applicable, in future years as
long as this Plan is in effect. If this Plan is terminated or not continued, the
Company shall not be obligated to pay the Distributor (or Selling Agents) for
any expenses not previously reimbursed by the Company or recovered through
contingent deferred sales charges.
Notwithstanding anything herein to the contrary, no Fund shall be obligated
to make any payments under this Plan that exceed the maximum amounts payable
under Article III, Section 26 of the Rules of Fair Practice of the National
Association of Securities Dealers, Inc.
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Section 5. Reports of Distributor. So long as this Plan is in effect, the
Distributor shall provide to the Company's Officers and Board of Directors, and
the Directors shall review at least quarterly, a written report of the amounts
expended by it pursuant to the Distribution Agreement, or by Selling Agents
pursuant to Sales Support Agreements, and the purposes for which such
expenditures were made.
Section 6. Approval of Plan. This Plan will become effective immediately, as
to any Fund's Investor B Shares, upon its approval by (a) a majority of the
outstanding Investor B Shares of such Fund, and (b) a majority of the Board of
Directors, including a majority of the Directors who are not "interested
persons" (as defined in the 1940 Act) of the Company and who have no direct or
indirect financial interest in the operation of this Plan or in any agreements
entered into in connection with this Plan, pursuant to a vote cast in person at
a meeting called for the purpose of voting on the approval of this Plan.
Section 7. Continuance of Plan. This Plan shall continue in effect for so
long as its continuance is specifically approved at least annually by the
Company's Board of Directors in the manner described in Section 6.
Section 8. Amendments. This Plan may be amended at any time by the Board of
Directors provided that (a) any amendment to increase materially the costs which
a Fund's Investor B Shares may bear for distribution pursuant to this Plan shall
be effective only upon approval by a vote of a majority of the outstanding
Investor B Shares of such Fund, and (b) any material amendments of the terms of
this Plan shall become effective only upon approval as provided in Section 6
hereof.
Section 9. Termination. This Plan is terminable, as to a Fund's Investor B
Shares, without penalty at any time by (a) a vote of a majority of the Directors
who are not "interested persons" (as defined in the 1940 Act) of the Company and
who have no direct or indirect financial interest in the operation of this Plan
or in any agreements entered into in connection with this Plan, or (b) a vote of
a majority of the outstanding Investor B Shares of such Fund.
Section 10. Selection/Nomination of Directors. While this Plan is in effect,
the selection and nomination of those Directors who are not "interested persons"
(as defined in the 1940 Act) of the Company shall be committed to the discretion
of such non-interested Directors.
Section 12. Records. The Company will preserve copies of this Plan, and any
Agreements and written reports regarding this Plan presented to the Board of
Directors for a period of not less than six years.
Section 13. Miscellaneous. The captions in this Plan are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
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<PAGE>
EXHIBIT A
NATIONS FUND, INC.
Nations Equity Income Fund
Nations International Equity Fund
Nations Government Securities Fund
Nations International Growth Fund
Nations Small Company Growth Fund
Nations U.S. Government Bond Fund
Nations International Value Fund
Amended: February 5, 1997
February 4, 1998
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EX-99.B15(f)
SALES SUPPORT AGREEMENT
NATIONS FUND, INC.
INVESTOR B SHARES
Ladies and Gentlemen:
We wish to enter into this Sales Support Agreement ("Agreement") with you
concerning the provision of sales support assistance relating to Investor B
Shares of the portfolios (the "Funds") of Nations Fund, Inc. (the "Company"), of
which we are the principal underwriter as defined in the Investment Company Act
of 1940 (the "1940 Act") and the exclusive agent for the continuous distribution
of said shares.
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide reasonable sales support assistance in
connection with the sale of Investor B Shares to your customers ("Customers"),
which assistance may include forwarding sales literature and advertising
provided by the Company or by us to Customers and providing such other sales
support assistance as may be requested by us from time to time. All services
rendered hereunder by you shall be performed in a professional, competent and
timely manner.
Section 2. We recognize that you may be subject to the provisions of the
Glass-Steagall Act and other laws governing, among other things, the conduct of
activities by federally chartered and supervised banks and other banking
organizations. As such, you may be restricted in the activities you may
undertake and for which you may be paid. You will perform only those activities
which are consistent with statutes and regulations applicable to you. You will
act solely as agent for, upon the order of, and for the account of your
Customers.
Section 3. You will provide such office space and equipment, telephone
facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the sales support
services contemplated hereby.
Section 4. Neither you nor any of your officers, employees or agents are
authorized to make any representations concerning us, the Company or the
Investor B Shares except those contained in the Company's applicable then
current prospectuses and statements of additional information, as amended or
supplemented from time to time, copies of which will be supplied by us to you,
or in such supplemental literature or advertising as may be authorized by us or
the Company in writing.
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Section 5. For all purposes of this Agreement you will be deemed to be an
independent contractor, and will have no authority to act as agent for us or the
Company in any matter or in any respect, except as provided herein. By your
written acceptance of this Agreement, you agree to and do release, indemnify and
hold us and the Company harmless from and against any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or inactions
of or by you or your officers, employees or agents regarding your
responsibilities hereunder or the purchase, redemption, transfer or registration
of Investor B Shares (or orders relating to the same) by or on behalf of
Customers. You and your employees will, upon request, be available during normal
business hours to consult with us or the Company or our respective designees
concerning the performance of your responsibilities under this Agreement.
Section 6. In consideration of the services and facilities provided by you
hereunder, we will pay to you, and you will accept as full payment therefor, a
fee as described in the applicable then current prospectuses. The fees payable
under this Section 6 shall be used primarily for sales support services
provided, and related expenses incurred, by you. Payments may be applied to
commissions, incentive compensation or other compensation to, and expenses of,
your account executives or other employees; overhead and other office expenses
attributable to sales support activities; preparation, printing and distribution
of sales literature and advertising materials attributable to sales support
activities; and opportunity costs relating to the foregoing (which may be
calculated as a carrying charge on your unreimbursed expenses incurred in
connection with your sales support services). The overhead and other office
expenses referenced in this Section 6 may include, without limitation, (i) the
expenses of operating your offices in connection with the sale of Fund shares,
including lease costs, the salaries and employee benefits of administrative,
operations and support personnel, utility costs, communication costs and the
costs of stationery and supplies, (ii) the costs of client sales seminars and
travel related to the provision of sales support services and (iii) other
expenses relating to the provision of sales support services. By your acceptance
of this Agreement, you agree to and do waive such portion of any fee payable to
you hereunder to the extent necessary to assure that such fee and other expenses
required to be accrued hereunder with respect to the Investor B Shares owned by
or on behalf of Customers on any day does not exceed the income to be accrued by
the Company to such shares on that day. The fee rate payable to you may be
prospectively increased or decreased by us or by the Company, in our or its sole
discretion, at any time upon notice to you. Further, we or the Company may, in
our or its discretion and without notice, suspend or withdraw the sale of
Investor B Shares of any or all Funds, including the sale of Investor B Shares
for the account of any Customer or Customers.
Section 7. You agree to provide to us and the Company, at least quarterly, a
written report of amounts expended by you in connection with the provision of
sales support services hereunder and the purposes for which such expenditures
were made. In addition, you will furnish us or the Company or our respective
designees with such information as we or they may reasonably request (including,
without limitation, periodic certifications confirming the provision to
Customers of the services described herein), and will otherwise cooperate with
us and the Company and our respective designees (including, without limitation,
any auditors or legal counsel designated by us or the Company), in connection
with the preparation of reports to the Company's Board of Directors concerning
this Agreement and the monies paid or payable by us pursuant hereto, as well as
any other reports or filings that may be required by law.
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<PAGE>
Section 8. We may enter into other similar Agreements with any other person
or persons without your consent.
Section 9. By your written acceptance of this Agreement, you represent,
warrant and agree that the compensation payable to you hereunder, together with
any other compensation you receive in connection with the investment of your
Customers' assets in Investor B Shares of the Funds, will be disclosed by you to
your Customers to the extent required by applicable laws or regulations, will be
authorized by your Customers and will not be excessive or unreasonable under the
laws and instruments governing your relationships with Customers. By your
written acceptance of this Agreement, you represent and warrant that: (i) in the
event an issue pertaining to this Agreement or the Investor B Shares'
Distribution Plan related hereto is submitted for shareholder approval, and you
have the authority to do so, you will vote any Investor B Shares held for your
own account in the same proportion as the vote of the Investor B Shares held for
your Customers' benefit; and (ii) you will not engage in activities pursuant to
this Agreement which constitute acting as a broker or dealer under state law
unless you have obtained any licenses required by such law. In addition, you
understand that this Agreement has been entered into pursuant to Rule 12b-1
under the 1940 Act, and is subject to the provisions of said Rule, as well as
any other applicable rules or regulations promulgated by the Securities and
Exchange Commission.
Section 10. You agree to conform to compliance standards adopted by the
Company or its distributor as to when a class of shares in a Fund may be
appropriately sold to particular investors.
Section 11. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by us or our designee and continues
in effect until terminated. This Agreement is terminable with respect to any
Fund's Investor B Shares, without penalty, at any time by the Company (which
termination may be by a vote of a majority of the disinterested Directors of the
Company or by vote of the holders of a majority of the outstanding Investor B
Shares of such Fund) or by us or you upon notice to the other party hereto.
Section 12. All notices and other communications to either you or us will be
duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address or number stated herein
(with a conforming copy by mail), or to such other address as either party shall
so provide in writing to the other.
Section 13. This Agreement will be construed in accordance with the laws of
The State of Arkansas without giving effect to principles of conflict of laws,
and is nonassignable by the parties hereto.
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If you agree to be legally bound by the provisions of this Agreement, please
sign a copy of this letter where indicated below and promptly return it to us,
at the following address: 111 Center Street, Little Rock, Arkansas 72201; Fax
No. (501) 377-2331; Attention: Mr. Richard H. Blank, Jr.
Very truly yours,
STEPHENS INC.
Date: ________________ By:____________________________
Name:__________________________
Title:_________________________
Accepted and Agreed to:
Selling Agent
------------------------------
(Firm Name)
------------------------------
(Address)
------------------------------
(City) (State)
Fax # ________________________
Attention: ___________________
Date: __________________ By: __________________________
Name: ________________________
Title: _______________________
4
