ADVISER CLASS SHARES OF
TOMORROW FUNDS RETIREMENT TRUST
Tomorrow Long-Term Retirement Fund
Tomorrow Medium-Term Retirement Fund
Tomorrow Short-Term Retirement Fund
Tomorrow Post-Retirement Fund
Core Large-Cap Stock Fund
Core Small-Cap Stock Fund
Cross-Reference Sheet Showing Location in Prospectuses
and Statements of Additional Information of
Information Required by Items of the Registration Form
N-1A Item No. and Caption Location:
Part A Prospectus
1. Cover Page............................ Cover Page
2. Synopsis.............................. Expense Information
3. Condensed Financial Information....... Not Applicable
4. General Description of Registrant..... Investment Objectives
and Policies; Risk
Considerations and
Other Practices and
Policies; Management
of the Tomorrow
Funds; How Each
Tomorrow Fund's Share
Price is Determined;
How to Buy Shares;
How to Sell Shares;
How to Exchange
Shares; The Trust
5. Management of the Fund................ Management of the
Tomorrow Funds;
Additional
Information
<PAGE>
6. Capital Stock and Other Securities.... Investment Objectives
and Policies; How
Each Tomorrow Fund's
Share Price is
Determined; How to
Buy Shares; How to
Sell Shares; How to
Exchange Shares; The
Trust
7. Purchase of Securities Being
Offered............................. How Each Tomorrow
Fund's Share Price is
Determined; How to
Sell Shares; How to
Exchange Shares; The
Trust; Distribution
Plans
8. Redemption or Repurchase.............. How Each Tomorrow
Fund's Share Price is
Determined; How to
Buy Shares; How to
Sell Shares; How to
Exchange Shares; The
Trust
9. Pending Legal Proceedings.............. Not Applicable
Statement of
Part B Additional Information
10. Cover Page............................ Cover Page
11. Table of Contents..................... Table of Contents
12. General Information
and History......................... Organization
13. Investment Objectives and
Policies............................ The Funds' Investment
Objectives and
Policies; Investment
Techniques;
Investment
Restrictions
- 2 -
<PAGE>
14. Management of the Fund................ Advisory and
Administrative
Services; Trustees
and Officers;
Custodian; Transfer
Agent; Independent
Auditors
15. Control Persons and Principal
Holders of Securities............... Trustees and Officers
16. Investment Advisory and Other
Services............................ Advisory and
Administrative
Services;
Distribution Plans;
Investor Services
17. Brokerage Allocation and
Other Practices..................... Portfolio Brokerage;
Portfolio Turnover
18. Capital Stock and Other
Securities.......................... Organization
19. Purchase, Redemption and
Pricing of Securities
Being Offered....................... How to Purchase
Shares: Investor
Services; Redemption
of Shares; Net Asset
Value; Calculation of
the Funds' Returns
20. Tax Status............................ Dividends,
Distributions and Tax
Status
21. Underwriters.......................... Advisory and
Administrative
Services
22. Calculation of Performance Data....... Calculation of the
Funds' Return
23. Financial Statements.................. Statement of Assets
and Liabilities
- 3 -
<PAGE>
INSTITUTIONAL CLASS SHARES OF
TOMORROW FUNDS RETIREMENT TRUST
Tomorrow Long-Term Retirement Fund
Tomorrow Medium-Term Retirement Fund
Tomorrow Short-Term Retirement Fund
Tomorrow Post-Retirement Fund
Core Large-Cap Stock Fund
Core Small-Cap Stock Fund
Cross-Reference Sheet Showing Location in Prospectuses
and Statements of Additional Information of
Information Required by Items of the Registration Form
N-1A Item No. and Caption Location:
Part A Prospectus
1. Cover Page............................ Cover Page
2. Synopsis.............................. Expense Information
3. Condensed Financial Information....... Not Applicable
4. General Description of Registrant..... Investment Objectives
and Policies; Risk
Considerations and
Other Practices and
Policies; Management
of the Tomorrow
Funds; How Each
Tomorrow Fund's Share
Price is Determined;
How to Buy Shares;
How to Sell Shares;
How to Exchange
Shares; The Trust
5. Management of the Fund................ Management of the
Tomorrow Funds;
Additional
Information
<PAGE>
6. Capital Stock and Other Securities.... Investment Objectives
and Policies; How
Each Tomorrow Fund's
Share Price is
Determined; How to
Buy Shares; How to
Sell Shares; How to
Exchange Shares; The
Trust
7. Purchase of Securities Being
Offered............................. How Each Tomorrow
Fund's Share Price is
Determined; How to
Sell Shares; How to
Exchange Shares; The
Trust; Service Plans
8. Redemption or Repurchase.............. How Each Tomorrow
Fund's Share Price is
Determined; How to
Buy Shares; How to
Sell Shares; How to
Exchange Shares; The
Trust
9. Pending Legal Proceedings.............. Not Applicable
Statement of
Part B Additional Information
10. Cover Page............................ Cover Page
11. Table of Contents..................... Table of Contents
12. General Information
and History......................... Organization
13. Investment Objectives and
Policies............................ The Funds' Investment
Objectives and
Policies; Investment
Techniques;
Investment
Restrictions
- 2 -
<PAGE>
14. Management of the Fund................ Advisory and
Administrative
Services; Trustees
and Officers;
Custodian; Transfer
Agent; Independent
Auditors
15. Control Persons and Principal
Holders of Securities............... Trustees and Officers
16. Investment Advisory and Other
Services............................ Advisory and
Administrative
Services; Service
Plans; Investor
Services
17. Brokerage Allocation and
Other Practices..................... Portfolio Brokerage;
Portfolio Turnover
18. Capital Stock and Other
Securities.......................... Organization
19. Purchase, Redemption and
Pricing of Securities
Being Offered....................... How to Purchase
Shares: Investor
Services; Redemption
of Shares; Net Asset
Value; Calculation of
the Funds' Returns
20. Tax Status............................ Dividends,
Distributions and Tax
Status
21. Underwriters.......................... Advisory and
Administrative
Services
22. Calculation of Performance Data....... Calculation of the
Funds' Return
23. Financial Statements.................. Statement of Assets
and Liabilities
- 3 -
<PAGE>
This Pre-Effective Amendment No. 1 to the Registration
Statement on Form N-1A of Tomorrow Funds Retirement Trust consists
of the following documents and papers:
1. Cover page.
2. Cross reference sheets required by Rule 481(a) under the
Securities Act of 1933.
3. Part A - The following preliminary prospectuses, each
subject to completion dated July 3, 1995, filed with the
Registrant's initial Registration Statement on Form N-1A
on July 3, 1995 are incorporated into this Pre-Effective
Amendment No. 1 by reference:
a. Core Large-Cap Stock Fund and Core Small-Cap
Stock Fund prospectus (Institutional Class
Shares);
b. Core Large-Cap Stock Fund and Core Small-Cap
Stock Fund prospectus (Adviser Class Shares);
c. Tomorrow Long-Term Retirement Fund, Tomorrow
Medium-Term Retirement Fund, Tomorrow Short-
Term Retirement Fund and Tomorrow Post-
Retirement Fund prospectus (Institutional
Class Shares); and
d. Tomorrow Long-Term Retirement Fund, Tomorrow
Medium-Term Retirement Fund, Tomorrow Short-
Term Retirement Fund and Tomorrow Post-
Retirement Fund prospectus (Adviser Class
Shares).
4. Part B - The following statements of additional
information, each subject to completion dated July 3,
1995, filed with the Registrant's initial Registration
Statement on Form N-1A on July 3, 1995 are incorporated
into this Pre-Effective Amendment No. 1 by reference:
a. Tomorrow Long-Term Retirement Fund, Tomorrow
Medium-Term Retirement Fund, Tomorrow Short-
Term Retirement Fund, Tomorrow Post-Retirement
Fund, Core Large-Cap Stock Fund and Core
Small-Cap Stock Fund statement of additional
information (Institutional Class Shares); and
<PAGE>
b. Tomorrow Long-Term Retirement Fund, Tomorrow
Mid-Term Retirement Fund, Tomorrow Short-Term
Retirement Fund, Tomorrow Post-Retirement
Fund, Core Large-Cap Stock Fund and Core
Small-Cap Stock Fund statement of additional
information (Adviser Class Shares).
Statement of Assets and Liabilities.
5. Part C - Other Information.
6. Signature page.
7. Exhibit Index required by Rule 483(a) under the
Securities Act of 1933.
8. Exhibits.
The prospectuses and statements of additional information
incorporated herein by reference relate to the Registration
Statement on Form N-1A filed by the Registrant (Securities Act of
1933 File No. 33-60841 and Investment Company Act of 1940 File
No. 811-07315).
<PAGE>
Tomorrow Funds Retirement Trust
<TABLE>
<CAPTION>
Statement of Assets and Liabilities
September 21, 1995
<S> <C>
Core
Large-Cap
Stock
Fund
Assets:
Cash....................................... $100,000
100,000
Liabilities: 0
Total Net Assets........................... 100,000
Net Assets Represented By:
Shares of Beneficial Interest.............. 10
Paid in Surplus............................ 99,990
Net assets, at value, applicable to
10,000 outstanding shares of
beneficial interest with
$0.001 par value........................ $100,000
Net asset value, offering and redemption
price per share......................... $10.00
<FN>
NOTES:
(1) The Tomorrow Funds Retirement Trust (the "Trust") was organized as a
Delaware Business Trust and is registered under the Investment Company Act of
1940, as amended, as an open-end management investment company. The Trust has
had no operations through September 21, 1995 other than those relating
to organizational matters. The Trust is comprised of the Core Large-Cap Stock
Fund, the Core Small-Cap Stock Fund, the Tomorrow Long-Term Retirement Fund,
the Tomorrow Medium-Term Retirement Fund, the Tomorrow Short-Term Retirement
Fund and the Tomorrow Post-Retirement Fund.
(2) Each Fund in the Trust has entered into an investment advisory agreement
with Weiss, Peck & Greer, L.L.C., ("WPG") to act as investment adviser, as well
as a separate administration agreement with WPG to provide shareholder and
accounting services.
(3) WPG has advanced all organizational and start-up expenses of the Trust,
estimated to total $275,000, which will be reimbursed by the Trust. Such
expenses have been deferred and will be amortized on a straight line basis
over a sixty month period that commences the effective date of the Fund's
initial prospectus. WPG has agreed in the event that any of the initial
10,000 shares are redeemed by any holder thereof during the period of
amortization of the Fund's organizational and start-up expenses, the
redemption proceeds will be reduced by any such organizational expenses in the
same proportion as the number of initial shares being redeemed bears to the
number of the initial shares outstanding at the time of the redemption.
(4) Each Fund intends to comply in its initial year and thereafter with the
requirements of the Internal Revenue Code necessary to qualify as a regulated
investment company and as such will not be subject to Federal income taxes on
otherwise taxable income (including net realized capital gains) which is
distributed to shareholders.
(5) There are two classes in each Fund of the Trust. The Institutional Class
has a service fee of 0.25% and the Advisor Class which has a 12b-1 Fee of
0.50%. The deposit of $100,000 seed capital has been made exclusively to
the Institutional Class of shares in the Core Large-Cap Stock Fund.
</FN>
</TABLE>
<PAGE>
Peat Marwick LLP
345 Park Avenue
New York, NY 10154
Independent Auditor's Report
The Shareholder and Board of Trustees of
The Tomorrow Funds Retirement Trust:
We have audited the accompanying statement of assets and
liabilities of The Tomorrow Funds Retirement Trust (comprising,
respectively, the Core Large-Cap Stock Fund, Core Small-Cap Stock
Fund, Tomorrow Long-Term Retirement Fund, Tomorrow Medium-Term
Retirement Fund, Tomorrow Short-Term Retirement Fund and Tomorrow
Post-Retirement Fund) as of September 21, 1995. These statements
of assets and liabilities are the responsibility of the Trust's
management. Our responsibility is to express an opinion on these
statements of assets and liabilities based on our audits.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the statement of assets and liabilities are free of material
misstatement. An audit of a statement of assets and liabilities
includes examining, on a test basis, evidence supporting the
amounts and disclosures in the statement of assets and
liabilities. An audit of a statement of assets and liabilities
also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall statement of assets and liabilities presentation. We
believe that our audit of the statement of assets and liabilities
provides a reasonable basis for our opinion.
In our opinion, the statement of assets and liabilities
referred to above presents fairly, in all material respects, the
financial position of each of the respective portfolios
constituting The Tomorrow Funds Retirement Trust as of September
21, 1995 in conformity with generally accepted accounting
principles.
/s/ KPMG Peat Marwick LLP
New York, New York
September 22, 1995
<PAGE>
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits.
(a) Financial Statements:
Statement of Assets and Liabilities
Report of Independent Public Accountants
(b) Exhibits:
1.(a) Agreement and Declaration of Trust.*
1.(b) Certificate of Trust.*
2. By-Laws.*
3. None.
4. None.
5.(a) Form of Investment Advisory Agreement
between the Registrant, on behalf of
Tomorrow Long-Term Retirement Fund, and
Weiss, Peck & Greer, L.L.C. ("WPG").*
5.(b) Form of Investment Advisory Agreement
between the Registrant, on behalf of
Tomorrow Medium-Term Retirement Fund, and
WPG.*
5.(c) Form of Investment Advisory Agreement
between the Registrant, on behalf of
Tomorrow Short-Term Retirement Fund, and
WPG.*
5.(d) Form of Investment Advisory Agreement
between the Registrant, on behalf of
Tomorrow Post-Retirement Fund, and WPG.*
5.(e) Form of Investment Advisory Agreement
between the Registrant, on behalf of Core
Large-Cap Stock Fund, and WPG.*
5.(f) Form of Investment Advisory Agreement
between the Registrant, on behalf of Core
Small-Cap Stock Fund, and WPG.*
C-1
<PAGE>
5.(g) Form of Administration Agreement between
the Registrant, on behalf of Tomorrow Long-
Term Retirement Fund, and WPG.*
5.(h) Form of Administration Agreement between
the Registrant, on behalf of Tomorrow
Medium-Term Retirement Fund, and WPG.*
5.(i) Form of Administration Agreement between
the Registrant, on behalf of Tomorrow
Short-Term Retirement Fund, and WPG.*
5.(j) Form of Administration Agreement between
the Registrant, on behalf of Tomorrow Post-
Retirement Fund, and WPG.*
5.(k) Form of Administration Agreement between
the Registrant, on behalf of Core Large-Cap
Stock Fund, and WPG.*
5.(l) Form of Administration Agreement between
the Registrant, on behalf of Core Small-Cap
Stock Fund, and WPG.*
6. Form of Underwriting Agreement between the
Registrant and WPG.
7. None.
8. Form of Custodian Agreement between the
Registrant and Boston Safe Deposit and
Trust Company.
9.(a) Form of Transfer Agency Agreement between
the Registrant and The Shareholder Services
Group, Inc.
9.(b) Form of Account Administration Agreement
between the Registrant and The Shareholder
Services Group, Inc.
9.(c) Form of Institutional Class Shares Service
Plan.
10. Opinion and Consent of Counsel.*
11. Consent of Independent Public Accountants.
12. None.
13. Share Purchase Agreement.
C-2
<PAGE>
14. Not applicable.
15. Form of Adviser Class Shares Distribution
Plan.
16. None.
17. None.
18. Multiple Class Plan adopted pursuant to
Rule 18f-3.
19. Powers of Attorney.
______________
Filed herewith.
* Filed with the Registrant's initial registration statement on
Form N-1A on July 3, 1995.
Item 25. Persons Controlled By or Under
Common Control With Registrant.
Just prior to the effective date of this Registration
Statement, it is expected that WPG will own all of the issued and
outstanding shares of the Registrant.
Item 26. Number of Holders of Securities.
Just prior to the effective date of this Registration
Statement, it is expected that there will be one record holder,
WPG, of the Registrant's shares of beneficial interest.
Number of
Record Holders As
Title of Class of September 15, 1995
Tomorrow Long-Term Retirement Fund
Institutional Class 0
Adviser Class 0
Tomorrow Medium-Term Retirement Fund
Institutional Class 0
Adviser Class 0
C-3
<PAGE>
Tomorrow Short-Term Retirement Fund
Institutional Class 0
Adviser Class 0
Tomorrow Post-Retirement Fund
Institutional Class 0
Adviser Class 0
Core Large-Cap Stock Fund
Institutional Class 0
Adviser Class 0
Core Small-Cap Stock Fund
Institutional Class 0
Adviser Class 0
Item 27. Indemnification.
Except for the Agreement and Declaration of Trust dated
June 21, 1995, establishing the Registrant as a Trust under
Delaware law, there is no contract, arrangement or statute under
which any trustee, officer, underwriter or affiliated person of
the Registrant is insured or indemnified. The Agreement and
Declaration of Trust provides that no Trustee or officer will be
indemnified against any liability to which the Registrant would
otherwise be subject by reason of or for willful misfeasance, bad
faith, gross negligence or reckless disregard of such person's
duties.
Insofar as indemnification for liability arising under
the Securities Act of 1933, as amended (the "Act"), may be
available to trustees, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
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 of the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling
person in connection with the securities being registered, the
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.
C-4
<PAGE>
Item 28. Business and Other Connections of Investment Adviser.
All of the information required by this item is set
forth in the Form ADV, as currently amended, of WPG (File
No. 801-6604). The following sections of such Form ADV are
incorporated herein by reference:
(a) Items 1 and 2 of Part 2;
(b) Section 6, Business Background, of each
Schedule D.
Item 29. Principal Underwriter
(a) WPG serves as the investment adviser to each
investment company in the Weiss, Peck & Greer Investments Group of
Mutual Funds. These mutual funds include: Weiss, Peck & Greer
Funds Trust, which consists of WPG Government Money Market Fund,
WPG Tax-Free Money Market Fund, WPG Government Securities Fund,
WPG Municipal Bond Fund and WPG Quantitative Equity Fund; Weiss,
Peck & Greer International Fund; WPG Tudor Fund; WPG Growth Fund;
WPG Growth and Income Fund; and U.S. Large Stock Fund. WPG also
serves as the investment adviser or subadviser to SEI PA Tax
Exempt Money Market Fund, SEI MuniBond Fund, Bullock American Fund
and Bullock Optimization USA Fund.
(b) Principals and Officers of WPG:
Positions and Offices Positions and Offices
Name* with WPG with Registrant
Samuel H. Armacost Principal
Annette Bianchi Principal
John P. Callaghan Principal
Gill Cogan Principal
Candice Eggerss Principal
Ellen M. Feeney Principal
Janet Fiorenza Principal
Margery Z. Flicker Principal
Anthony J. Giammalva Principal
Philip Greer Senior Managing
Principal
Ronald M. Hoffner Principal
Steven N. Hutchinson Principal
James W. Kiley Principal
A. Roy Knutsen Principal
Alan D. Kohn Principal
Wesley W. Lang, Jr. Principal
Steven Lear Principal
C-5
<PAGE>
Gary R. Lisk Principal
Marvin B. Markowitz Principal
Howard G. Mattsson Principal
Kathleen A. McCarragher Principal
John Murabito Principal
Jay C. Nadel Principal Executive Vice
President and
Secretary
Joseph N. Pappo Principal
Bradford R. Peck Principal
Peter B. Pfister Principal
Steven Pomerantz Principal
McGehee Porter Principal
Stuart W. Porter Principal
Francis H. Powers Principal Executive Vice
President and
Treasurer
R. Scott Richter Principal
Nelson Schaenen, Jr. Principal
James S. Schainuck Principal
Gary E. Scheier Principal
David J. Schilder Principal
Arthur L. Schwarz Principal
Melville Straus Principal
Daniel S. Vandivort Principal
Robert D. Weiss Principal
Roger J. Weiss Senior Managing Chairman and President
Principal
Stephen H. Weiss Chairman of the
Executive Committee/
Senior Managing Principal
Ellen P. Welsh Principal
Hugh S. Zurkuhlen Principal
____________
* The principal business address of each principal and officer of
WPG is One New York Plaza, New York, New York 10004
(c) Not applicable.
Item 30. Location of Accounts and Records
All account, books and other documents required to be
maintained by Section 31(a) of the 1940 Act and the rules
thereunder will be maintained (1) at the offices of the Registrant
at One New York Plaza, New York, New York 10004 (2) at the offices
of the Registrant's Custodian, Boston Safe Deposit and Trust
Company, at One Boston Place, Boston, MA 02109 and (3) at the
C-6
<PAGE>
offices of the Registrant's Transfer Agent, The Shareholder
Services Group, Inc., P.O. Box 9037, Boston, MA 02205.
Item 31. Management Services
The Registrant is not a party to any management-related
service contract, except as described in the prospectuses and the
statements of additional information.
Item 32. Undertakings
(a) Not applicable.
(b) The Registrant undertakes to file a post-effective
amendment, using financial statements which need not be certified,
within four to six months from the later of the effective date of
this Registration Statement or the commencement of operations of
the series of the Registrant to which the financial statements
relate.
(c) The Registrant undertakes to deliver, or cause to
be delivered with the each prospectus, to each person to whom such
prospectus is sent or given a copy of the Registrant's report to
shareholders furnished pursuant to and meeting the requirements of
Rule 30d-1 from which the specified information is incorporated by
reference, unless such person currently holds securities of the
Registrant and otherwise has received a copy of such report, in
which case the Registrant shall state in each prospectus that it
will furnish, without charge, a copy of such report on request,
and the name, address and telephone number of the person to whom
such a request should be directed.
C-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933
and the Investment Company Act of 1940, the Registrant has duly
caused this Pre-Effective Amendment No. 1 to its Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City and State of New York, on the 22nd
day of September, 1995.
TOMORROW FUNDS RETIREMENT TRUST
/s/ Roger J. Weiss
Roger J. Weiss, President
Pursuant to the requirements of the Securities Act of 1933,
this Pre-Effective Amendment No. 1 to the Registrant's
Registration Statement has been signed below by the following
persons in the capacities and on the date indicated:
Signature Title
/s/ Roger J. Weiss Chairman of the Board,)
Roger J. Weiss Trustee and President )
(Principal Executive )
Officer) )
)
)
/s/ Raymond R. Herrmann, Jr. Trustee )
Raymond R. Herrmann, Jr. ) September 22, 1995
)
)
)
/s/ Lawrence J. Israel Trustee )
Lawrence J. Israel )
)
)
)
/s/ Harvey E. Sampson Trustee )
Harvey E. Sampson )
)
)
)
/s/ Francis H. Powers Executive Vice President )
Francis H. Powers and Treasurer (Principal )
Financial and Accounting )
Officer) )
<PAGE>
________________
*By:/s/ Jay C. Nadel______ September 22, 1995
Jay C. Nadel
Attorney-in-fact
<PAGE>
Exhibit Index
Exhibit
Number Document Title
6. Form of Underwriting Agreement between the Registrant and
WPG.
8. Form of Custodian Agreement between the Registrant and
Boston Safe Deposit and Trust Company.
9.(a) Form of Transfer Agency Agreement between the Registrant
and The Shareholder Services Group, Inc.
9.(b) Form of Account Administration Agreement between the
Registrant and The Shareholder Services Group, Inc.
9.(c) Form of Institutional Class Shares Service Plan.
11. Consent of Independent Public Accountants.
13. Share Purchase Agreement.
15. Form of Adviser Class Shares Distribution Plan.
18. Multiple Class Plan adopted pursuant to Rule 18f-3.
FORM OF UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT, dated this ____ day of
September, 1995, by and between Tomorrow Funds Retirement Trust, a
Delaware business trust (the "Trust"), and Weiss, Peck & Greer,
L.L.C., a New York limited liability company (the "Underwriter").
W I T N E S S E T H
WHEREAS, the Trust is registered as an open-end, diversified,
management investment company under the Investment Company Act of
1940, as amended (the "1940 Act"), and has filed a registration
statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") for the purpose of
registering shares of beneficial interest for offering under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Underwriter engages in the purchase and sale of
securities both as a broker and a dealer and is registered as a
broker-dealer with the Commission and is a member in good standing
of the National Association of Securities Dealers, Inc. (the
"NASD");
WHEREAS, the parties hereto deem it mutually advantageous
that the Underwriter should act as Principal Underwriter, as
defined in the 1940 Act, for the sale to insurance company
separate accounts and certain other qualified investors ("eligible
investors") of the shares of beneficial interest of the securities
portfolio of each class of each series of the Trust which the
Trustees may establish from time to time (individually, a
"Portfolio" and collectively, the "Portfolios"); and
NOW, THEREFORE, in consideration of the mutual covenants and
benefits set forth herein, the Trust and the Underwriter do hereby
agree as follows:
1. The Trust does hereby grant to the Underwriter the right
and option to purchase shares of beneficial interest of each class
of each Portfolio of the Trust (the "Shares") for sale to eligible
investors, either directly or indirectly through other broker-
dealers. The Underwriter is not required to purchase any
specified number of Shares, but will purchase from the Trust only
a sufficient number of Shares as may be necessary to fill
unconditional orders received from time to time by the Underwriter
for the benefit of eligible investors.
2. The Underwriter shall offer Shares at an offering price
based upon the net asset value of the Shares, to be calculated for
<PAGE>
each class of Shares as described in the Registration Statement,
including the Prospectus, filed with the Commission and in effect
at the time of the offering, plus any sales charges as approved by
the Underwriter and the Trustees of the Trust and as further
outlined in the Trust's Prospectus. The offering price shall be
subject to any provisions set forth in the Prospectus from time to
time with respect thereto, including, without limitation, rights
of accumulation, letters of intention, exchangeability of shares,
reinstatement privileges, net asset value purchases by certain
persons and reinvestments of dividends and capital gain
distributions.
3. This Agreement shall terminate on any anniversary hereof
if its terms and renewal have not been approved by a majority vote
of the Trustees of the Trust voting in person, including a
majority of its Trustees who are not "interested persons" of the
Trust and who have no direct or indirect financial interest in the
operation of the Underwriting Agreement (the "Qualified
Trustees"), at a meeting of Trustees called for the purpose of
voting on such approval. This Agreement may also be terminated at
any time, without payment of any penalty, by the Trust on 60 days'
written notice to the Underwriter, or by the Underwriter upon
similar notice to the Trust. This Agreement may also be
terminated by a party upon five (5) days' written notice to the
other party in the event that the Commission has issued an order
or obtained an injunction or other court order suspending
effectiveness of the Registration Statement covering the Shares of
the Trust. Finally, this Agreement may also be terminated by the
Trust upon five (5) days' written notice to the Underwriter
provided either of the following events has occurred: (i) the
NASD has expelled the Underwriter or suspended its membership in
that organization; or (ii) the qualification, registration,
license or right of the Underwriter to sell Shares in a particular
state has been suspended or cancelled in a state in which sales of
the Shares of the Trust during the most recent 12 month period
exceeded 10% of all Shares of the Trust sold by the Underwriter
during such period.
3. In the case of all Shares sold to investors through
other broker-dealers, a portion of applicable sales charges, if
any, will be reallowed to such broker-dealers who are members of
the NASD or, in the case of certain sales by banks, exempt from
registration with the Commission. The concession reallowed to
broker-dealers shall be set forth in a written sales agreement and
shall be generally the same for broker-dealers providing
comparable levels of sales and service.
4. The parties to this Agreement acknowledge and agree that
all liabilities arising hereunder, whether direct or indirect, of
any nature whatsoever, including without limitation, liabilities
-2-
<PAGE>
arising in connection with any agreement of the Trust or its
Trustees as set forth herein to indemnify any party to this
Agreement or any other person, if any, shall be satisfied out of
the assets of the Trust and that no Trustee, officer or holder of
shares of beneficial interest of the Trust shall be personally
liable for any of the foregoing liabilities. The Trust's
Certificate of Trust, as amended from time to time, is on file in
the Office of Secretary of State of the State of Delaware, and a
copy of the Trust's Declaration of Trust, as amended from time to
time, has been provided to the Underwriter. The Declaration of
Trust describes in detail the respective responsibilities and
limitations on liability of the Trustees, officers, and holders of
Shares of the Trust.
5. The compensation for the services of the Underwriter as
a principal underwriter under this Agreement shall be (i) that
part of the sales charge which is retained by the Underwriter
after allowance of discounts to dealers as set forth in the
Registration Statement, including the Prospectus, filed with the
Commission and in effect at the time of the offering, as amended,
and (ii) those amounts payable to the Underwriter as reimbursement
of expenses pursuant to any applicable distribution plan for the
Trust which may be in effect. Nothing contained herein shall
relieve the Trust of any obligation under its investment advisory
agreement or administration agreement or any other contract with
the Underwriter or any of its affiliates.
5. This Agreement shall automatically terminate in the
event of its assignment (as that term is defined in the 1940 Act).
6. In the event of any dispute between the parties, this
Agreement shall be construed according to the laws of The
Commonwealth of Massachusetts provided that nothing herein shall
be construed in a manner inconsistent with the 1940 Act, 1933 Act
or any rule or order of the Securities and Exchange Commission
thereunder.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their duly authorized officers as of
day and year first above written.
ATTEST: TOMORROW FUNDS RETIREMENT TRUST
By:____________________________ By:____________________________
Its:___________________________ Its:___________________________
ATTEST: WEISS, PECK & GREER, L.L.C.
By:____________________________ By:____________________________
Its:___________________________ Its:___________________________
-4-
FORM OF
CUSTODY AGREEMENT
AGREEMENT dated as of XXXXXXXXXXX, 199X, between
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, [a business trust/
corporation] organized under the laws of the [Commonwealth of
Massachusetts/State of Maryland] (the "Fund"), having its
principal office and place of business at
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and BOSTON SAFE DEPOSIT
AND TRUST COMPANY (the "Custodian"), a Massachusetts trust
company with its principal place of business at One Boston Place,
Boston, Massachusetts 02108.
W I T N E S S E T H:
That for and in consideration of the mutual promises
hereinafter set forth, the Fund and the Custodian agree as
follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this
Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
(a) "Affiliated Person" shall have the meaning of the term
within Section 2(a)3 of the 1940 Act.
(b) "Authorized Person" shall be deemed to include the Chairman
of the Board of [Directors/Trustees], the President, and any Vice
President, the Secretary, the Treasurer or any other person,
whether or not any such person is an officer or employee of the
Fund, duly authorized by the Board of [Directors/Trustees] of the
Fund to give Oral Instructions and Written Instructions on behalf
of the Fund and listed in the certification annexed hereto as
Appendix A or such other certification as may be received by the
Custodian from time to time.
(c) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency
Securities, its successor or successors and its nominee or
nominees.
(d) "Business Day" shall mean any day on which the Fund, the
Custodian, the Book-Entry System and appropriate clearing
corporation(s) are open for business.
(e) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement
to be given to the Custodian, which is actually received by the
Custodian and signed on behalf of the Fund by any two Authorized
Persons or any two officers thereof.
(f) ["Articles of Incorporation"/ "Master Trust Agreement"]
shall mean the [Articles of Incorporation Master Trust Agreement]
of the Fund dated XXXXXXXXXX, 199X as the same may be amended
from time to time.
(g) "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and
Exchange Commission under Section 17(a) of the Securities
<PAGE>
Exchange Act of 1934, as amended, its successor or successors and
its nominee or nominees, in which the Custodian is hereby
specifically authorized to make deposits. The term "Depository"
shall further mean and include any other person to be named in a
Certificate authorized to act as a depository under the 1940 Act,
its successor or successors and its nominee or nominees.
(h) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principal by the government of the United States or agencies
or instrumentalities thereof ("U.S. government securities"),
commercial paper, bank certificates of deposit, bankers'
acceptances and short-term corporate obligations, where the
purchase or sale of such securities normally requires settlement
in federal funds on the same day as such purchase or sale, and
repurchase and reverse repurchase agreements with respect to any
of the foregoing types of securities.
(i) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by
the Custodian to be an Authorized Person.
(j) "Prospectus" shall mean the Fund's current prospectus and
statement of additional information relating to the registration
of the Fund's Shares under the Securities Act of 1933, as
amended.
(k) "Shares" refers to shares of common stock, $ par value
per share, of the Fund.
(l) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities, commodities interests and investments from
time to time owned by the Fund.
(m) "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Fund.
(n) "Written Instructions" shall mean a written communication
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person by any
system, including, without limitation, electronic transmissions,
facsimile and telex.
(o) The "1940 Act" refers to the Investment Company Act of 1940,
and the Rules and Regulations thereunder, all as amended from
time to time.
2. Appointment of Custodian.
(a) The Fund hereby constitutes and appoints the Custodian as
custodian of all the Securities and monies at the time owned by
or in the possession of the Fund during the period of this
Agreement.
(b) The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set
forth.
<PAGE>
3. Compensation.
(a) The Fund will compensate the Custodian for its services
rendered under this Agreement in accordance with the fees set
forth in the Fee Schedule annexed hereto as Schedule A and
incorporated herein. Such Fee Schedule does not include
out-of-pocket disbursements of the Custodian for which the
Custodian shall be entitled to bill separately. Out-of-pocket
disbursements shall include, but shall not be limited to, the
items specified in the Schedule of Out-of-Pocket charges annexed
hereto as Schedule B and incorporated herein, which schedule may
be modified by the Custodian upon not less than thirty days prior
written notice to the Fund.
(b) Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule A of this Agreement a
revised Fee Schedule, dated and signed by an Authorized Officer
or authorized representative of each party hereto.
(c) The Custodian will bill the Fund as soon as practicable
after the end of each calendar month, and said billings will be
detailed in accordance with Schedule A, as amended from time to
time. The Fund will promptly pay to the Custodian the amount of
such billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets.
The Fund will deliver or cause to be delivered to the Custodian
all Securities and monies owned by it at any time during the
period of this Agreement. The Custodian will not be responsible
for such Securities and monies until actually received by it.
The Fund shall instruct the Custodian from time to time in its
sole discretion, by means of Written Instructions, or, in
connection with the purchase or sale of Money Market Securities,
by means of Oral Instructions confirmed in writing in accordance
with Section 11(i) hereof or Written Instructions, as to the
manner in which and in what amounts Securities and monies are to
be deposited on behalf of the Fund in the Book-Entry System or
the Depository; provided, however, that prior to the deposit of
Securities of the Fund in the Book-Entry System or the
Depository, including a deposit in connection with the settlement
of a purchase or sale, the Custodian shall have received a
Certificate specifically approving such deposits by the Custodian
in the Book-Entry System or the Depository. Securities and
monies of the Fund deposited in the Book-Entry System or the
Depository will be represented in accounts which include only
assets held by the Custodian for customers, including but not
limited to accounts for which the Custodian acts in a fiduciary
or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish
and maintain a separate account for the Fund and shall credit to
the separate account all monies received by it for the account of
such Fund and shall disburse the same only:
1. In payment for Securities purchased for the Fund, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with respect to the
Shares, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to
the Shares, as provided in Section 8 hereof;
<PAGE>
4. In payment for Shares which have been redeemed by the Fund,
as provided in Section 8 hereof;
5. Pursuant to Written Instructions setting forth the name and
address of the person to whom the payment is to be made, the
amount to be paid and the purpose for which payment is to be
made, provided that in the event of disbursements pursuant to
this Sub-section 4(b)(5), the Fund shall indemnify and hold the
Custodian harmless from any claims or losses arising out of such
disbursements in reliance on such Written Instructions which it,
in good faith, believes to be received from duly Authorized
Persons; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as
provided in Sections 11(h) and 11(j).
(c) Confirmation and Statements. Promptly after the close of
business on each day, the Custodian shall furnish the Fund with
confirmations and a summary of all transfers to or from the
account of the Fund during said day. Where securities purchased
by the Fund are in a fungible bulk of securities registered in
the name of the Custodian (or its nominee) or shown on the
Custodian's account on the books of the Depository or the
Book-Entry System, the Custodian shall by book entry or otherwise
identify the quantity of those securities belonging to the Fund.
At least monthly, the Custodian shall furnish the Fund with a
detailed statement of the Securities and monies held for the Fund
under this Agreement.
(d) Registration of Securities and Physical Separation. All
Securities held for the Fund which are issued or issuable only in
bearer form, except such Securities as are held in the Book-Entry
System, shall be held by the Custodian in that form; all other
Securities held for the Fund may be registered in the name of the
Fund, in the name of the Custodian, in the name of any duly
appointed registered nominee of the Custodian as the Custodian
may from time to time determine, or in the name of the Book-Entry
System or the Depository or their successor or successors, or
their nominee or nominees. The Fund reserves the right to
instruct the Custodian as to the method of registration and
safekeeping of the Securities. The Fund agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to hold
or deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of the Book-Entry
System or the Depository, any Securities which it may hold for
the account of the Fund and which may from time to time be
registered in the name of the Fund. The Custodian shall hold all
such Securities specifically allocated to the Fund which are not
held in the Book-Entry System or the Depository in a separate
account for the Fund in the name of the Fund physically
segregated at all times from those of any other person or
persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction
the Custodian will establish segregated accounts on behalf of the
Fund to hold liquid or other assets as it shall be directed by a
Written Instruction and shall increase or decrease the assets in
such segregated accounts only as it shall be directed by
subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by a Written
Instruction, the Custodian by itself, or through the use of the
Book-Entry System or the Depository with respect to Securities
therein deposited, shall with respect to all Securities held for
the Fund in accordance with this Agreement:
<PAGE>
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Fund for monitoring
or ascertaining any call, redemption or retirement dates with
respect to put bonds which are owned by the Fund and held by the
Custodian or its nominees. Nor shall the Custodian have any
responsibility or liability to the Fund for any loss by the Fund
for any missed payments or other defaults resulting therefrom;
unless the Custodian received timely notification from the Fund
specifying the time, place and manner for the presentment of any
such put bond owned by the Fund and held by the Custodian or its
nominee. The Custodian shall not be responsible and assumes no
liability to the Fund for the accuracy or completeness of any
notification the Custodian may furnish to the Fund with respect
to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter in
effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the
account of the Fund all rights and similar Securities issued with
respect to any Securities held by the Custodian hereunder for the
Fund.
(g) Delivery of Securities and Evidence of Authority. Upon
receipt of a Written Instruction and not otherwise, except for
subparagraphs 5, 6, 7, and 8 of this section 4(g) which may be
effected by Oral or Written Instructions, the Custodian, directly
or through the use of the Book-Entry System or the Depository,
shall:
1. Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorizations, and any other instruments
whereby the authority of the Fund as owner of any Securities may
be exercised;
2. Deliver or cause to be delivered any Securities held for the
Fund in exchange for 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;
3. Deliver or cause to be delivered any Securities held for the
Fund to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of
any corporation, and receive and hold under the terms of this
Agreement in the separate account for the Fund such certificates
of deposit, interim receipts or other instruments or documents as
may be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of the Fund
and take such other steps as shall be stated in
<PAGE>
Written Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for the
account of the Fund pursuant to Section 5;
6. Deliver Securities upon the receipt of payment in connection
with any repurchase agreement related to such Securities entered
into by the Fund;
7. Deliver Securities owned by the Fund to the issuer thereof
or its agent when such Securities are called, redeemed, retired
or otherwise become payable; provided, however, that in any such
case the cash or other consideration is to be delivered to the
Custodian. Notwithstanding the foregoing, the Custodian shall
have no responsibility to the Fund for monitoring or ascertaining
any call, redemption or retirement dates with respect to the put
bonds which are owned by the Fund and held by the Custodian or
its nominee. Nor shall the Custodian have any responsibility or
liability to the Fund for any loss by the Fund for any missed
payment or other default resulting therefrom; unless the
Custodian received timely notification from the Fund specifying
the time, place and manner for the presentment of any such put
bond owned by the Fund and held by the Custodian or its nominee.
The Custodian shall not be responsible and assumes no liability
to the Fund for the accuracy or completeness of any notification
the Custodian may furnish to the Fund with respect to put bonds;
8. Deliver Securities for delivery in connection with any loans
of Securities made by the Fund but only against receipt of
adequate collateral as agreed upon from time to time by the
Custodian and the Fund which may be in the form of cash or U.S.
government securities or a letter of credit;
9. Deliver Securities for delivery as security in connection
with any borrowings by the Fund requiring a pledge of Fund
assets, but only against receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions from
the Fund for delivery to the Transfer Agent or to the holders of
Shares in connection with distributions in kind, as may be
described from time to time in the Fund's Prospectus, in
satisfaction of requests by holders of Shares for repurchase or
redemption;
11. Deliver Securities as collateral in connection with short
sales by the Fund of common stock for which the Fund owns the
stock or owns preferred stocks or debt securities convertible or
exchangeable, without payment or further consideration, into
shares of the common stock sold short;
12. Deliver Securities for any purpose expressly permitted by
and in accordance with procedures described in the Fund's
Prospectus; and
13. Deliver Securities for any other proper business purpose,
but only upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Directors signed
by an Authorized Person and certified by the Secretary of the
Fund, specifying the Securities to be delivered, setting forth
the purpose for which such delivery is to be made, declaring such
<PAGE>
purpose to be a proper business purpose, and naming the person or
persons to whom delivery of such Securities shall be made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is
hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received by the Custodian
for the account of the Fund.
5. Purchase and Sale of Investments of the Fund.
(a) Promptly after each purchase of Securities for the Fund, the
Fund shall deliver to the Custodian (i) with respect to each
purchase of Securities which are not Money Market Securities, a
Written Instruction, and (ii) with respect to each purchase of
Money Market Securities, either a Written Instruction or Oral
Instruction, in either case specifying with respect to each
purchase: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or the principal amount
purchased and accrued interest, if any; (3) the date of purchase
and settlement; (4) the purchase price per unit; (5) the total
amount payable upon such purchase; (6) the name of the person
from whom or the broker through whom the purchase was made, if
any; (7) whether or not such purchase is to be settled through
the Book-Entry System or the Depository; and (8) whether the
Securities purchased are to be deposited in the Book-Entry System
or the Depository. The Custodian shall receive the Securities
purchased by or for the Fund and upon receipt of Securities shall
pay out of the monies held for the account of the Fund the total
amount payable upon such purchase, provided that the same
conforms to the total amount payable as set forth in such Written
or Oral Instruction.
(b) Promptly after each sale of Securities of the Fund, the Fund
shall deliver to the Custodian (i) with respect to each sale of
Securities which are not Money Market Securities, a Written
Instruction, and (ii) with respect to each sale of Money Market
Securities, either Written Instruction or Oral Instructions, in
either case specifying with respect to such sale: (1) the name
of the issuer and the title of the Securities; (2) the number of
shares or principal amount sold, and accrued interest, if any;
(3) the date of sale; (4) the sale price per unit; (5) the total
amount payable to the Fund upon such sale; (6) the name of the
broker through whom or the person to whom the sale was made; and
(7) whether or not such sale is to be settled through the
Book-Entry System or the Depository. The Custodian shall deliver
or cause to be delivered the Securities to the broker or other
person designated by the Fund upon receipt of the total amount
payable to the Fund upon such sale, provided that the same
conforms to the total amount payable to the Fund as set forth in
such Written or Oral Instruction. Subject to the foregoing, the
Custodian may accept payment in such form as shall be
satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers
in Securities.
6. Lending of Securities.
If the Fund is permitted by the terms of the [Articles of
Incorporation/Master Trust Agreement] and as disclosed in its
Prospectus to lend securities, within 24 hours after each loan of
Securities, the Fund shall deliver to the Custodian a Written
Instruction specifying with respect to each such loan: (a) the
name of the issuer and the title of the Securities; (b) the
number of shares or the principal amount loaned; (c) the date of
loan and delivery; (d) the total amount to be delivered to the
Custodian, and specifically allocated against the loan of the
Securities, including the amount of cash collateral and the
premium, if any, separately identified; (e) the name of the
broker, dealer or financial institution to
<PAGE>
which the loan was made; and (f) whether the Securities loaned are to be
delivered through the Book-Entry System or the Depository.
Promptly after each termination of a loan of Securities, the
Fund shall deliver to the Custodian a Written Instruction
specifying with respect to each such loan termination and return
of Securities: (a) the name of the issuer and the title of the
Securities to be returned; (b) the number of shares or the
principal amount to be returned; (c) the date of termination; (d)
the total amount to be delivered by the Custodian (including the
cash collateral for such Securities minus any offsetting credits
as described in said Written Instruction); (e) the name of the
broker, dealer or financial institution from which the Securities
will be returned; and (f) whether such return is to be effected
through the Book-Entry System or the Depository. The Custodian
shall receive all Securities returned from the broker, dealer or
financial institution to which such Securities were loaned and
upon receipt thereof shall pay the total amount payable upon such
return of Securities as set forth in the Written Instruction.
Securities returned to the Custodian shall be held as they were
prior to such loan.
7. Payment of Dividends or Distributions.
(a) The Fund shall furnish to the Custodian the vote of the
Board of [Directors/Trustees] of the Fund certified by the
Secretary (i) authorizing the declaration of distributions on a
specified periodic basis and authorizing the Custodian to rely on
Oral or Written Instructions specifying the date of the
declaration of such distribution, 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 the record date and the total amount
payable to the Transfer Agent on the payment date, or (ii)
setting forth the date of declaration of any distribution by the
Fund, 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 the record
date and the total amount payable to the Transfer Agent on the
payment date.
(b) Upon the payment date specified in such vote, Oral
Instructions or Written Instructions, as the case may be, the
Custodian shall pay out the total amount payable to the Transfer
Agent of the Fund.
8. Sale and Redemption of Shares of the Fund.
(a) Whenever the Fund shall sell any Shares, the Fund shall
deliver or cause to be delivered to the Custodian a Written
Instruction duly specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the
sale of such Shares.
The Custodian understands and agrees that Written
Instructions may be furnished subsequent to the purchase of
Shares and that the information contained therein will be derived
from the sales of Shares as reported to the Fund by the Transfer
Agent.
(b) Upon receipt of money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Fund.
<PAGE>
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay all
original issue or other taxes required to be paid in connection
with such issuance upon the receipt of a Written Instruction
specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are
redeemed, the Fund shall cause the Transfer Agent to promptly
furnish to the Custodian Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information
contained in such Written Instructions will be derived from the
redemption of Shares as reported to the Fund by the Transfer
Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth
the number of Shares received by the Transfer Agent for
redemption and that such Shares are valid and in good form for
redemption, the Custodian shall make payment to the Transfer
Agent of the total amount specified in a Written Instruction
issued pursuant to paragraph (d) of this Section 8.
(f) Notwithstanding the above provisions regarding the
redemption of Shares, whenever such Shares are redeemed pursuant
to any check redemption privilege which may from time to time be
offered by the Fund, the Custodian, unless otherwise instructed
by a Written Instruction shall, upon receipt of advice from the
Fund or its agent stating that the redemption is in good form for
redemption in accordance with the check redemption procedure,
honor the check presented as part of such check redemption
privilege out of the monies specifically allocated to the Fund in
such advice for such purpose.
9. Indebtedness.
(a) The Fund will cause to be delivered to the Custodian by any
bank (excluding the Custodian) from which the Fund borrows money
for temporary administrative or emergency purposes using
Securities as collateral for such borrowings, a notice or
undertaking in the form currently employed by any such bank
setting forth the amount which such bank will loan to the Fund
against delivery of a stated amount of collateral. The Fund
shall promptly deliver to the Custodian Written Instructions
stating with respect to each such borrowing: (1) the name of the
bank; (2) 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; (3) the time
and date, if known, on which the loan is to be entered into (the
"borrowing date"); (4) the date on which the loan becomes due and
payable; (5) the total amount payable to the Fund on the
borrowing date; (6) 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; (7) whether the Custodian is
to deliver such collateral through the Book-Entry System or the
Depository; and (8) a statement that such loan is in conformance
with the 1940 Act and the Fund's Prospectus.
(b) Upon receipt of the Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the
borrowing date the specified collateral and the executed
promissory note, if any,
<PAGE>
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 the Written Instruction. The 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. The Custodian
shall deliver as additional collateral in the manner directed by
the Fund from time to time such Securities as may be specified in
Written Instruction to collateralize further any transaction
described in this Section 9. The Fund shall cause all Securities
released from collateral status to be returned directly to the
Custodian, and the Custodian shall receive from time to time such
return of collateral as may be tendered to it. In the event that
the Fund fails to specify in Written Instruction all of the
information required by this Section 9, the Custodian shall not
be under any obligation to deliver any Securities. Collateral
returned to the Custodian shall be held hereunder as it was prior
to being used as collateral.
10. Persons Having Access to Assets of the Fund.
(a) No trustee or agent of the Fund, and no officer, director,
employee or agent of the Fund's investment adviser, of any
sub-investment adviser of the Fund, or of the Fund's
administrator, shall have physical access to the assets of the
Fund held by the Custodian or be authorized or permitted to
withdraw any investments of the Fund, nor shall the Custodian
deliver any assets of the Fund to any such person. No officer,
director, employee or agent of the Custodian who holds any
similar position with the Fund's investment adviser, with any
sub-investment adviser of the Fund or with the Fund's
administrator shall have access to the assets of the Fund.
(b) Nothing in this Section 10 shall prohibit any duly
authorized officer, employee or agent of the Fund, or any duly
authorized officer, director, employee or agent of the investment
adviser, of any sub-investment adviser of the Fund or of the
Fund's administrator, from giving Oral Instructions or Written
Instructions to the Custodian or executing a Certificate so long
as it does not result in delivery of or access to assets of the
Fund prohibited by paragraph (a) of this Section 10.
11. Concerning the Custodian.
(a) Standard of Conduct. Notwithstanding any other provision of
this Agreement, neither the Custodian nor its nominee shall be
liable for any loss or damage, including counsel fees, resulting
from its action or omission to act or otherwise, except for any
such loss or damage arising out of the gross negligence or
willful misconduct of the Custodian or any of its employees,
Sub-Custodians or agents. The Custodian may, with respect to
questions of law, apply for and obtain the advice and opinion of
counsel to the Fund or of its own counsel, at the expense of the
Fund, and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice or
opinion. The Custodian shall not be liable to the Fund for any
loss or damage resulting from the use of the Book-Entry System or
the Depository.
(b) Limit of Duties. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation to
inquire into, and shall not be liable for:
1. The validity of the issue of any Securities purchased by the
Fund, the legality of the purchase thereof, or the propriety of
the amount paid therefor;
<PAGE>
2. The legality of the sale of any Securities by the Fund or
the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
distribution of the Fund;
6. The legality of any borrowing for temporary or emergency
administrative purposes.
(c) No Liability Until Receipt. The Custodian shall not be
liable for, or considered to be the Custodian of, any money,
whether or not represented by any check, draft, or other
instrument for the payment of money, received by it on behalf of
the Fund until the Custodian actually receives and collects such
money directly or by the final crediting of the account
representing the Fund's interest in the Book-Entry System or the
Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be
under any duty or obligation to take action to effect collection
of any amount due to the Fund from the Transfer Agent nor to take
any action to effect payment or distribution by the Transfer
Agent of any amount paid by the Custodian to the Transfer Agent
in accordance with this Agreement.
(e) Collection Where Payment Refused. The 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 (a) it shall be
directed to take such action by a Certificate and (b) it shall be
assured to its satisfaction of reimbursement of its costs and
expenses in connection with any such action.
(f) Appointment of Agents and Sub-Custodians. The Custodian may
appoint one or more banking institutions, including but not
limited to banking institutions located in foreign countries, to
act as Depository or Depositories or as Sub-Custodian or as
Sub-Custodians of Securities and monies at any time owned by the
Fund. The Custodian shall use reasonable care in selecting a
Depository and/or Sub-Custodian located in a country other than
the United States ("Foreign Sub-Custodian"), and shall oversee
the maintenance of any Securities or monies of the Fund by any
Foreign Sub-Custodian. In addition, the Custodian shall hold the
Fund harmless from, and indemnify the Fund against, any loss that
occurs as a result of the failure of any Foreign Sub-Custodian to
exercise reasonable care with respect to the safekeeping of
Securities and monies of the Fund. Notwithstanding the
generality of the foregoing, however, the Custodian shall not be
liable for any losses resulting from or caused by events or
circumstances beyond its reasonable control, including, but not
limited to, losses resulting from nationalization, expropriation,
devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de
facto or de jure; or enactment, promulgation, imposition or
enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges
affecting the Fund's property; or acts of war, terrorism,
insurrection or revolution; or any other similar act or event
beyond the Custodian's control.
<PAGE>
(g) No Duty to Ascertain Authority. The Custodian shall not be
under any duty or obligation to ascertain whether any Securities
at any time delivered to or held by it for the Fund are such as
may properly be held by the Fund under the provisions of the
[Articles of Incorporation/Master Trust Agreement] and the
Prospectus.
(h) Compensation of the Custodian. The Custodian shall be
entitled to receive, and the Fund agrees to pay to the Custodian,
such compensation as may be agreed upon from time to time between
the Custodian and the Fund. The Custodian may charge against any
monies held on behalf of the Fund pursuant to this Agreement such
compensation and any expenses incurred by the Custodian in the
performance of its duties pursuant to this Agreement. The
Custodian shall also be entitled to charge against any money held
on behalf of the Fund pursuant to this Agreement the amount of
any loss, damage, liability or expense incurred with respect to
the Fund, including counsel fees, for which it shall be entitled
to reimbursement under the provisions of this Agreement.
The expenses which the Custodian may charge against such
account include, but are not limited to, the expenses of
Sub-Custodians and foreign branches of the Custodian incurred in
settling transactions outside of Boston, Massachusetts or New
York City, New York involving the purchase and sale of
Securities.
(i) Reliance on Certificates and Instructions. The Custodian
shall be entitled to rely upon any Certificate, notice or other
instrument in writing received by the Custodian and reasonably
believed by the Custodian to be genuine and to be signed by an
officer or Authorized Person of the Fund. The Custodian shall be
entitled to rely upon any Written Instructions or Oral
Instructions actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by
the Custodian to be genuine and to be given by an Authorized
Person. The Fund agrees to forward to the Custodian Written
Instructions from an Authorized Person confirming such Oral
Instructions in such manner so that such Written Instructions are
received by the Custodian, whether by hand delivery, telex or
otherwise, by the close of business on the same day that such
Oral Instructions are given to the Custodian. The Fund agrees
that the fact that such confirming instructions are not received
by the Custodian shall in no way affect the validity of the
transactions or enforceability of the transactions hereby
authorized by the Fund. The Fund agrees that the Custodian shall
incur no liability to the Fund in acting upon Oral Instructions
given to the Custodian hereunder concerning such transactions
provided such instructions reasonably appear to have been
received from a duly Authorized Person.
(j) Overdraft Facility and Security for Payment. In the event
that the Custodian is directed by Written Instruction (or Oral
Instructions confirmed in writing in accordance with Section
11(i) hereof) to make any payment or transfer of monies on behalf
of the Fund for which there would be, at the close of business on
the date of such payment or transfer, insufficient monies held by
the Custodian on behalf of the Fund, the Custodian may, in its
sole discretion, provide an overdraft (an "Overdraft") to the
Fund in an amount sufficient to allow the completion of such
payment or transfer. Any Overdraft provided hereunder: (a) shall
be payable on the next Business Day, unless otherwise agreed by
the Fund and the Custodian; and (b) shall accrue interest from
the date of the Overdraft to the date of payment in full by the
Fund at a rate agreed upon in writing, from time to time, by the
Custodian and the Fund. The Custodian and the Fund acknowledge
that the purpose of such Overdraft is to temporarily finance the
purchase of Securities for prompt delivery in accordance with the
terms hereof, to meet unanticipated or unusual redemption, to
allow the settlement of foreign exchange contracts or to meet
other emergency expenses not reasonably foreseeable by the Fund.
The Custodian shall promptly notify the Fund in writing (an
"Overdraft Notice") of any Overdraft by facsimile transmission or
in such other manner as
<PAGE>
the Fund and the Custodian may agree in writing. To secure payment of
any Overdraft, the Fund hereby grants to the Custodian a continuing
security interest in and right of setoff against the Securities and cash
in the Fund's account from time to time in the full amount of such Overdraft.
Should the Fund fail to pay promptly any amounts owed hereunder,
the Custodian shall be entitled to use available cash in the
Fund's account and to liquidate Securities in the account as is
necessary to meet the Fund's obligations under the Overdraft. In
any such case, and without limiting the foregoing, the Custodian
shall be entitled to take such other actions(s) or exercise such
other options, powers and rights as the Custodian now or
hereafter has as a secured creditor under the Massachusetts
Uniform Commercial Code or any other applicable law.
(k) Inspection of Books and Records. The books and records of
the Custodian shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Fund and by the
appropriate employees of the Securities and Exchange Commission.
The Custodian shall provide the Fund with any report
obtained by the Custodian on the system of internal accounting
control of the Book-Entry System or the Depository and with such
reports on its own systems of internal accounting control as the
Fund may reasonably request from time to time.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set
forth above (the "Effective Date") and shall continue in effect
thereafter until such time as this Agreement may be terminated in
accordance with the provisions hereof.
(b) 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 Fund, it shall be accompanied by a certified vote of
the Board of [Directors/Trustees] of the Fund, electing to
terminate this Agreement and designating a successor custodian or
custodians, which shall be a person qualified to so act under the
1940 Act.
In the event such notice is given by the Custodian, the Fund
shall, on or before the termination date, deliver to the
Custodian a certified vote of the Board of [Directors/Trustees]
of the Fund, designating a successor custodian or custodians. In
the absence of such designation by the Fund, the Custodian may
designate a successor custodian, which shall be a person
qualified to so act under the 1940 Act. If the Fund fails to
designate a successor custodian, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon
the delivery by the Custodian of all Securities (other than
Securities held in the Book-Entry System which cannot be
delivered to the Fund) and monies then owned by the Fund, be
deemed to be its own custodian and the Custodian shall thereby be
relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities held in
the Book-Entry System which cannot be delivered to the Fund.
(c) Upon the date set forth in such notice under paragraph (b)
of this Section 12, this Agreement shall terminate to the extent
specified in such notice, and the Custodian shall upon receipt of
a notice of acceptance by the successor custodian on that date
deliver directly to the successor custodian all Securities and
monies then held by the Custodian on behalf of the Fund, after
deducting all fees, expenses and other amounts for the payment or
reimbursement of which it shall then be entitled.
<PAGE>
13. Limitation of Liability.
The Fund and the Custodian agree that the obligations of the
Fund under this Agreement shall not be binding upon any of the
[Directors/Trustees], shareholders, nominees, officers, employees
or agents, whether past, present or future, of the Fund,
individually, but are binding only upon the assets and property
of the Fund, as provided in the [Articles of Incorporation/Master
Trust Agreement]. The execution and delivery of this Agreement
have been authorized by the [Directors/Trustees] of the Fund, and
signed by an authorized officer of the Fund, acting as such, and
neither such authorization by such [Directors/Trustees] nor such
execution and delivery by such officer shall be deemed to have
been made by any of them or any shareholder of the Fund
individually or to impose any liability on any of them or any
shareholder of the Fund personally, but shall bind only the
assets and property of the Fund as provided in the [Articles of
Incorporation/Master Trust Agreement].
14. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by
the Secretary of the Fund setting forth the names and the
signatures of the present Authorized Persons. The Fund agrees to
furnish to the Custodian a new certification in similar form in
the event that any such present Authorized Person ceases to be
such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until
such new certification shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the present Authorized
Persons as set forth in the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by
the Secretary of the Fund setting forth the names and the
signatures of the present officers of the Fund. The Fund agrees
to furnish to the Custodian a new certification in similar form
in the event any such present officer ceases to be an officer of
the Fund or in the event that other or additional officers are
elected or appointed. Until such new certification shall be
received, the Custodian shall be fully protected in acting under
the provisions of this Agreement upon the signature of an officer
as set forth in the last delivered certification.
(c) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be
sufficiently given if addressed to the Custodian and mailed or
delivered to it at its offices at One Boston Place, Boston,
Massachusetts 02108 or at such other place as the Custodian may
from time to time designate in writing.
(d) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund, shall be
sufficiently given if addressed to the Fund and mailed or
delivered to it at its offices at XXXXXXXXXXXXXXX or at such
other place as the Fund may from time to time designate in
writing.
(e) This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the
same formality as this Agreement, (i) authorized, or ratified and
approved by a vote of the Board of [Directors/Trustees] of the
Fund, including a majority of the members of the Board of
[Directors/Trustees] of the Fund who are not "interested persons"
of the Fund (as defined in the 1940 Act), or (ii) authorized, or
ratified and approved by such other procedures as may be
permitted or required by the 1940 Act.
<PAGE>
(f) 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
the Fund without the written consent of the Custodian, or by the
Custodian without the written consent of the Fund authorized or
approved by a vote of the Board of [Directors/Trustees] of the
Fund provided, however, that the Custodian may assign the
Agreement to an Affiliated Person and any attempted assignment
without such written consent shall be null and void. Nothing in
this Agreement shall give or be construed to give or confer upon
any third party any rights hereunder.
(g) The Fund represents that a copy of the [Articles of
Incorporation/Master Trust Agreement] is on file with the
Secretary of the [State of Maryland/Commonwealth of
Massachusetts] [and with the Boston City Clerk].
(h) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
(i) The captions of the 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.
(j) 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective representatives duly
authorized as of the day and year first above written.
XXXXXXXXXXXXXXXXXXXXXXXX
By: _______________________
Name:
Title:
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
By: _______________________
Name:
Title:
<PAGE>
APPENDIX A
XXXXXXXXXXXX, the Secretary, of XXXXXXXXXXXXXXXXX, a
[corporation/business trust] organized under the laws of the
[State of Maryland/Commonwealth of Massachusetts] (the "Fund"),
do hereby certify that:
The following individuals have been duly authorized as
Authorized Persons to give Oral Instructions and Written
Instructions on behalf of the Fund and the specimen signatures
set forth opposite there respective names are their true and
correct signatures:
Name Signature
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
________________________________
Secretary
Dated:
<PAGE>
APPENDIX B
XXXXXXXXXXXXXXXX, the Secretary of XXXXXXXXXXXXXXXXXXXXXX, a
[corporation/business trust] organized under the laws of the
[State of Maryland/Commonwealth of Massachusetts] (the "Fund"),
do hereby certify that:
The following individuals serve in the following positions
with the Fund and each individual has been duly elected or
appointed to each such position and qualified therefor in
conformity with the Fund's [Articles of Incorporation/Master
Trust Agreement] and the specimen signatures set forth opposite
their respective names are their true and correct signatures:
Name Position Signature
Chairman of the Board ______________________________
President ______________________________
Treasurer ______________________________
Secretary ______________________________
Vice President and
Investment Officer ______________________________
Vice President and
Investment Officer ______________________________
________________________________________
Secretary
Dated:
<PAGE>
SCHEDULE A
BOSTON SAFE DEPOSIT AND TRUST COMPANY
CUSTODY FEE SCHEDULE
A. Domestic Safekeeping:
B. PLUS $5/security holding charge per month
C. PLUS Transaction charges:
DTC eligible $
Non-DTC eligible $
Fed Book Entry $
Options $
Futures $
GNMA Paydowns $
Repo - depository $
- non-deposit $
Physical - Govt $
Physical - Corp/Muni $
Commercial Paper $
Euro-CDs (London) $
<PAGE>
BOSTON SAFE DEPOSIT AND TRUST COMPANY
GLOBAL CUSTODY FEE SCHEDULE
A. Global Safekeeping:
Group I Assets BP
* Group II Assets
First $50 million BP
Next $50 million BP
Next $200 million BP
Excess BP
Group III Assets BP
Group IV Assets BP
Group V Assets BP
Group VI Assets BP
B. PLUS Transaction Charges:
Group I Transactions $
Group II Transactions $
Group III Transactions $
Group IV Transactions $
Group V Transactions $
Group VI Transactions $
* * Third Party F/X $
* The breakpoint levels are based upon assets within each
category.
* * A Third Party F/X is one in which Boston Safe is not the
currency broker. This charge will be assessed only on
transactions where funds are actually transferred.
Reimbursable out-of-pocket expenses will be added to each monthly
invoice and will include, but not be limited to, such customary
items as telephone, wire charges ($5.25 per wire), stamp duties,
securities registration, postage, courier services and
duplication charges.
<PAGE>
COUNTRY GROUPS
Group I Group II Group III Group IV Group V Group VI
Japan Euroclear Austria Australia Brazil Mexico
Cedel Canada Belgium Denmark Spain
Germany Luxembourg Finland Sweden
Netherlands France Greece
New Zealand Hong Kong Indonesia
Switzerland Ireland Jordan
Italy Philippines
Malaysia Turkey
Norway Venezuela
Pakistan Argentina
Peru
Poland
Portugal
Shanghai
Shenzen
Singapore
Thailand
United Kingdom
Uruguay
<PAGE>
SCHEDULE B
The Fund will pay to the Custodian as soon as possible after
the end of each month all out-of-pocket expenses reasonably
incurred in connection with the assets of the Fund.
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 24th day of August, 1995 between THE
TOMORROW FUNDS (the "Fund"), organized under the laws of Massachusetts and
having its principal place of business at One New York Plaza, New York,
New York, and THE SHAREHOLDER SERVICES GROUP, INC. (the "Transfer Agent"),
a Massachusetts corporation with principal offices at One Exchange Place,
53 State Street, Boston, Massachusetts 02109.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Fund initially intends to offer shares in those Portfolios
identified in the attached Exhibit 1, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to
this Agreement in accordance with Article 15;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint the
Transfer Agent as its transfer agent, dividend disbursing agent and agent
in connection with certain other activities and the Transfer Agent desires
to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and the Transfer Agent agree as follows:
Article 1 Definitions
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not such
person is an officer or employee of the Fund, duly authorized to give
Oral Instructions or Written Instructions on behalf of the Fund as
indicated in writing to the Transfer Agent from time to time.
(c) "Board of Directors" shall mean the Board of Directors or Board
of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange Commission.
<PAGE>
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(g) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by the Transfer Agent from a
person reasonably believed by the Transfer Agent to be an Authorized
Person;
(i) "Portfolio" shall mean each separate series of shares offered
by the Fund representing interest in a separate portfolio of
securities and other assets;
(j) "Prospectus" shall mean the most recently dated Fund Prospectus
and Statement of Additional Information, including any supplements
thereto if any, which has become effective under the Securities Act
of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of capital stock
or beneficial interest, as the case may be, or class thereof, of each
respective Portfolio of the Fund as may be issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(m) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by the Transfer Agent to be an
Authorized Person and actually received by the Transfer Agent. Written
Instructions shall include manually executed originals and authorized
electronic transmissions, including telefacsimile of a manually
executed original or other process.
Article 2 Appointment of the Transfer Agent
2.1 The Fund, on behalf of the Portfolios, hereby appoints and
constitutes the Transfer Agent as transfer agent and dividend disbursing
agent for Shares of each respective Portfolio of the Fund and as shareholder
servicing agent for the Fund and the Transfer Agent hereby accepts such
appointments and agrees to perform the duties hereinafter set forth.
<PAGE>
Article 3 Duties of the Transfer Agent
3.1 The Transfer Agent shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance, transfer
and redemption or repurchase (including coordination with the Custodian)
of Shares of each Portfolio, as more fully described in the written
schedule of Duties of the Transfer Agent annexed hereto as Schedule A
and incorporated herein, and in accordance with the terms of the
Prospectus of the Fund on behalf of the applicable Portfolio, applicable
law and the procedures established from time to time between the
Transfer Agent and the Fund.
(b) Recording the issuance of Shares and maintaining pursuant to
Rule 17Ad-10(e) of the 1934 Act a record of the total number of Shares
of each Portfolio which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. The Transfer Agent shall provide
the Fund on a regular basis with the total number of Shares of each
Portfolio which are authorized and issued and outstanding and shall have
no obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to the
issue or sale of such Shares, which functions shall be the sole
responsibility of the Fund.
(c) Notwithstanding any of the foregoing provisions of this
Agreement, the Transfer Agent shall be under no duty or obligation to
inquire into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares, or
the propriety of the amount to be paid therefor; (iii) the legality of
the declaration of any dividend by the Board of Directors, or the
legality of the issuance of any Shares in payment of any dividend; or (iv)
the legality of any recapitalization or readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to the Transfer Agent
in writing those transactions and assets to be treated as exempt from blue
sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and thereafter
monitor the daily activity for each State. The responsibility of the Transfer
Agent for the Fund's blue sky State registration status is solely limited to
the initial establishment of transactions subject to blue sky compliance by
the Fund and the reporting of such transactions to the Fund as provided above.
3.3 In addition to the duties set forth herein, the Transfer Agent
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the
Fund and the Transfer Agent.
<PAGE>
Article 4 Recordkeeping and Other Information
4.1 The Transfer Agent shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in Schedule A in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. All records shall be available
during regular business hours for inspection and use by the Fund. Where
applicable, such records shall be maintained by the Transfer Agent for the
periods and in the places required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, the Transfer
Agent agrees that all such records prepared or maintained by the Transfer
Agent relating to the services to be performed by the Transfer Agent hereunder
are the property of the Fund and will be preserved, maintained and made
available in accordance with such section, and will be surrendered promptly
to the Fund on and in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection of Shareholder
records of the Fund, the Transfer Agent will endeavor to notify the Fund of
such request and secure Written Instructions as to the handling of such
request. The Transfer Agent reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to comply with such request.
Article 5 Fund Instructions
5.1 The Transfer Agent will have no liability when acting upon Written
or Oral Instructions believed to have been executed or orally communicated by
an Authorized Person and will not be held to have any notice of any change
of authority of any person until receipt of a Written Instruction thereof
from the Fund. 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 Fund and the proper
countersignature of the Transfer Agent.
5.2 At any time, the Transfer Agent may request Written Instructions
from the Fund and may seek advice from legal counsel for the Fund, or its own
legal counsel, with respect to any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or
in accordance with the opinion of counsel for the Fund or for the Transfer
Agent. Written Instructions requested by the Transfer Agent will be provided
by the Fund within a reasonable period of time.
5.3 The Transfer Agent, its officers, agents or employees, shall accept
Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is
an Authorized Person. The Fund agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and that
the Fund's failure to so confirm shall not impair in any respect the Transfer
Agent's right to rely on Oral Instructions.
<PAGE>
Article 6 Compensation
6.1 The Fund on behalf of each of the Portfolios will compensate the
Transfer Agent for the performance of its obligations hereunder in accordance
with the fees set forth in the written Fee Schedule annexed hereto as
Schedule B and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund
on behalf of each of the Portfolios agrees to pay, and will be billed
separately for, out-of-pocket expenses incurred by the Transfer Agent in the
performance of its duties hereunder. Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written schedule of out-
of-pocket charges annexed hereto as Schedule C and incorporated herein.
Schedule C may be modified by written agreement between the parties.
Unspecified out-of-pocket expenses shall be limited to those out-of-pocket
expenses reasonably incurred by the Transfer Agent in the performance of its
obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to pay all fees
and out-of-pocket expenses within fifteen (15) days following the receipt of
the respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule executed and dated
by the parties hereto.
Article 7 Documents
7.1 In connection with the appointment of the Transfer Agent, the Fund
shall, on or before the date this Agreement goes into effect, but in any
case within a reasonable period of time for the Transfer Agent to prepare to
perform its duties hereunder, deliver or caused to be delivered to the
Transfer Agent the documents set forth in the written schedule of Fund
Documents annexed hereto as Schedule D.
Article 8 Transfer Agent System
8.1 The Transfer Agent shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by the Transfer Agent
in connection with the services provided by the Transfer Agent to the Fund
herein (the "Transfer Agent System").
8.2 The Transfer Agent hereby grants to the Fund a limited license to
the Transfer Agent System for the sole and limited purpose of having the
Transfer Agent provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and
such license shall immediately terminate with the termination of this Agreement.
<PAGE>
Article 9 Representations and Warranties of the Transfer Agent
9.1 The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized an existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) All requisite corporate proceedings have been taken to
authorized it to enter into this Agreement;
(d) It is duly registered with its appropriate regulatory agency
as a transfer agent and such registration will remain in effect for
the duration of this Agreement;
(e) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
Article 10 Representations and Warranties of the Fund
10.1 The Fund represents and warrants to the Transfer Agent that:
(a) It is duly organized and existing and in good standing under
the laws of the jurisdiction in which it is organized;
(b) It is empowered under applicable laws and by its Article of
Incorporation and By-Laws to enter into this Agreement;
(c) All corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to
authorized it to enter into this Agreement;
(d) A registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios is
currently effective and will remain effective, and all appropriate
state securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale;
(e) All outstanding Shares are validly issued, fully paid and
non-assessable. When Shares are hereafter issued in accordance with the
terms of the Fund's Articles of Incorporation and its Prospectus with
respect to each Portfolio, such Shares shall be validly issued, fully
paid and non-assessable.
<PAGE>
Article 11 Indemnification
11.1 The Transfer Agent shall not be responsible for and the Fund on
behalf of each Portfolio shall indemnify and hold the Transfer Agent
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and
liabilities of any sort or kind which may be asserted against the Transfer
Agent or for which the Transfer Agent may be held to be liable (a "Claim")
arising out of or attributable to any of the following:
(a) Any actions of the Transfer Agent required to be taken pursuant
to this Agreement unless such Claim resulted from a negligent act or
omission to act or bad faith by the Transfer Agent in the performance of
its duties hereunder.
(b) The Transfer Agent's reasonable reliance on, or reasonable use
of information, data, records and documents (including but not limited
to magnetic tapes, computer printouts, hard copies and microfilm copies)
received by the Transfer Agent from the Fund, or any authorized third
party acting on behalf of the Fund, including but not limited the prior
transfer agent for the Fund, in the performance of the Transfer Agent's
duties and obligations hereunder.
(c) The reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund on behalf
of the applicable Portfolio.
(d) The offer or sales of shares in violation of any requirement
under the securities laws or regulations of any state that such shares
be registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of
such shares in such state.
(e) The Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's negligence or
misconduct or the breach of any representation or warranty of the Fund
made herein.
11.2 In any case in which the Fund may be asked to indemnify or hold the
Transfer Agent harmless, the Transfer Agent will notify the Fund promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Fund although the failure to
do so shall not prevent recovery by the Transfer Agent and shall keep the
Fund advised with respect to all developments concerning such situation.
The Fund shall have the option to defend the Transfer Agent against any Claim
which may be the subject of this indemnification, and, in the event that the
Fund so elects, such defense shall be conducted by counsel chosen by the Fund
and satisfactory to the Transfer Agent, and thereupon the Fund shall take over
complete defense of the Claim and the Transfer Agent shall sustain no further
legal or other expenses in respect of such Claim. The Transfer Agent will not
confess any Claim or make any compromise in any case in which the Fund will
be asked to provide indemnification, except with the Fund's prior written
consent. The obligations of the parties hereto under this Article 11 shall
survive the termination of this Agreement.
<PAGE>
Article 12 Standard of Care
12.1 The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused
by the Transfer Agent's own negligence, bad faith or willful misconduct or
that of its employees.
12.2 Notwithstanding the foregoing Section 12.1 or anything else
contained in this Agreement to the contrary, the Transfer Agent's entire
liability to the Fund for any loss or damage, direct or indirect for any
cause whatsoever (including but not limited to those arising out of this
Agreement), and regardless of the form of action, shall be limited to the
Fund's actual direct out-of-pocket expenses which are reasonably incurred
by the Fund, but shall not under any circumstances exceed the lesser of
(i) an amount equivalent to the average of twelve month's fees paid to the
Transfer Agent under this Agreement; or (ii) five-hundred thousand dollars
($500,000).
Article 13 Consequential Damages
13.1 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential or indirect loss
of profits, reputation or business or any other special damages under any
provision of this Agreement or for any act or failure to act hereunder.
Article 14 Term and Termination
14.1 This Agreement shall be effective on the date first written above
and shall continue for a period of five (5) years (the "Initial Term"),
unless earlier terminated pursuant to the terms of this Agreement.
Thereafter, this Agreement shall automatically be renewed for successive
terms of three (3) years ("Renewal Terms") each.
14.2 Either party may terminate this Agreement at the end of the Initial
Term or any subsequent Renewal Term upon not less than ninety (90) days or
more than one-hundred eighty (180) days prior written notice to the
other party.
14.3 In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and conversion
thereof to a successor transfer agent will be borne by the Fund.
14.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party
(the "Non-Defaulting Party") may give written notice thereof to the Defaulting
Party, and if such material breach shall not have been remedied within thirty
(30) days after such written notice is given, then the Non-Defaulting Party
may terminate this Agreement by giving thirty (30) days written notice of
such termination to the Defaulting Party. If
<PAGE>
the Transfer Agent is the Non-Defaulting Party, its termination of this
Agreement shall not constitute a waiver of any other rights or remedies of the
Transfer Agent with respect to services performed prior to such termination
or rights of the Transfer Agent to be reimbursed for out-of-pocket expenses.
In all cases, termination by the Non-Defaulting Party shall not constitute
a waiver by the Non-Defaulting Party of any other rights it might have under
this Agreement or otherwise against the Defaulting Party.
Article 15 Additional Portfolios
15.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1, with respect to which the Fund
desires to have the Transfer Agent render services as transfer agent under
the terms hereof, the Fund shall so notify the Transfer Agent in writing,
and if the Transfer Agent agrees in writing to provide such services,
Exhibit 1 shall be amended to include such additional Portfolios.
Article 16 Confidentiality
16.1 In connection with the services provided by the Transfer Agent
hereunder, certain confidential and proprietary information regarding the
Transfer Agent and the Fund may be disclosed to the other. In connection
therewith, the parties agree as follows:
(a) Confidential Information disclosed under this Agreement
shall mean:
(i) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles,
sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the
Transfer Agent or the Fund, their respective parent corporation,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of the foregoing;
(ii) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the
Transfer Agent or the Fund a competitive advantage over its
competitors; and
(iii) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, show-how
and trade secrets, whether or not patentable or copyrightable.
(b) Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment,
prototypes and models, and any other tangible manifestation of the
foregoing which now exist or come into the control or possession of the
party.
<PAGE>
16.2 Except as expressly authorized by prior written consent of the
disclosing party ("Discloser"), the party receiving Confidential Information
("Recipient") shall:
(a) limit access to Discloser's Confidential Information to
Recipient's employees who have a need-to-know in connection with the
subject matter thereof;
(b) advise those employees who have access to the Confidential
Information of the proprietary nature thereof and of the obligations
set forth in this Confidentiality Agreement;
(c) take appropriate action by instruction or agreement with the
employees having access to Discloser's Confidential Information to
fulfill Recipient's obligations under this Confidentiality Agreement;
(d) safeguard all of Discloser's Confidential Information by using
a reasonable degree of care, but not less than that degree of care used
by Recipient in safeguarding its own similar information or material;
(e) use all of Discloser's Confidential Information solely for
purposes that it was intended;
(f) not disclose any of Discloser's Confidential Information to
third parties; and
(g) not disclose the existence of the discussions to any third party.
16.3 Upon Discloser's request, Recipient shall surrender to Discloser
all memoranda, notes, records, drawings, manuals, records, and other documents
or materials (and all copies of same) relating to or containing Discloser's
Confidential Information. When Recipient returns the materials, Recipient
shall certify in writing that it has returned all materials containing or
relating to the Confidential Information.
16.4 The obligations of confidentiality and restriction on use in this
Article 16 shall not apply to any Confidential Information that
Recipient proves:
(a) was in the public domain prior to the date of this Agreement
or subsequently came into the public domain through no fault of
Recipient; or
(b) was lawfully received by Recipient from a third party free of
any obligation of confidence to the third party; or
(c) was already in Recipient's possession prior to receipt from
Discloser; or
<PAGE>
(d) is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not limited
to, giving Discloser as much advance notice as practical of the
possibility of disclosure to allow Discloser to stop such disclosure or
obtain a protective order concerning such disclosure; or
(e) is subsequently and independently developed by Recipient's
employees, consultants or agents without reference to Confidential
Information.
16.5 The Fund and the Transfer Agent agree that money damages would not
be a sufficient remedy for breach of this Article 16. Accordingly, in
addition to all other remedies that either party may have, a party shall be
entitled to specific performance and injunctive or other equitable relief as
a remedy for any breach of this Agreement. The parties agree to waive any
requirement for a bond in connection with any such injunctive or other
equitable relief.
Article 17 Force Majeure
17.1 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, labor
difficulties, mechanical breakdowns, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond its
control, such party shall not be liable for damages to the other for any
damages resulting from such failure to perform or otherwise from such causes.
Article 18 Amendments
18.1 This Agreement may only be amended or modified by a written
instrument executed by both parties.
Article 19 Subcontracting
19.1 The Fund agrees that the Transfer Agent may, in its discretion,
subcontract for certain of the services described under this Agreement or
the Schedules hereto; provided that the appointment of any such Transfer
Agent shall not relieve the Transfer Agent of its responsibilities hereunder.
Article 20 Arbitration
20.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered
by the American Arbitration Association in Boston, Massachusetts in
accordance with its applicable rules, except that the Federal Rules of
Evidence and the Federal Rules of Civil Procedure with respect to the
discovery process shall apply.
20.2 The parties hereby agree that judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction.
<PAGE>
20.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities
of interstate commerce and, notwithstanding other general choice of law
provisions in this Agreement, the parties agree that the Federal Arbitration
Act shall govern and control with respect to the provisions of this Article 20.
Article 21 Notice
21.1 Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or the Transfer Agent, shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to
time designate in writing.
To the Fund:
The Tomorrow Funds
c/o Weiss, Peck & Greer
One New York Plaza
New York, New York
Attention: __________________
To the Transfer Agent:
The Shareholder Services Group, Inc.
One Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: President
with a copy to the Transfer Agent's General Counsel
<PAGE>
Article 22 Successors
22.1 This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns, provided, however,
that this Agreement shall not be assigned to any person other than a person
controlling, controlled by or under common control with the assignor without
the written consent of the other party, which consent shall not be
unreasonably withheld.
Article 23 Governing Law
23.1 This Agreement shall be governed exclusively by the laws of the
Commonwealth of Massachusetts without reference to the choice of law
provisions thereof. Each party hereto hereby (i) consents to the personal
jurisdiction of the Commonwealth of Massachusetts courts over the parties
hereto, hereby waiving any defense of lack of personal jurisdiction; and
(iii) appoints the person to whom notices hereunder are to be sent as
agent for service of process.
Article 24 Counterparts
24.1 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts
shall, together, constitute only one instrument.
Article 25 Captions
25.1 The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof
or otherwise affect their construction or effect.
Article 26 Use of Transfer Agent/Fund Name
26.1 The Fund shall not use the name of the Transfer Agent in any
Prospectus, Statement of Additional Information, Shareholders' report,
sales literature or other material relating to the Fund in a manner not
approved prior thereto in writing; provided, that the Transfer Agent need
only receive notice of all reasonable uses of its name which merely refer
in accurate terms to its appointment hereunder or which are required by
any government agency or applicable law or rule.
26.2 The Transfer Agent shall not use the name of the Fund or material
relating to the Fund on any documents or forms for other than internal use
in a manner not approved prior thereto in writing; provided, that the Fund
need only receive notice of all reasonable uses of its name which merely
refer in accurate terms to the appointment of the Transfer Agent or which
are required by any government agency or applicable law or rule.
<PAGE>
Article 27 Relationship of Parties
27.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted
or construed otherwise.
Article 28 Entire Agreement; Severability
28.1 This Agreement and the Exhibits and Schedules attached hereto
constitute the entire agreement of the parties hereto relating to the
matters covered hereby and supersede any previous agreements. If any
provision is held to be illegal, unenforceable or invalid for any reason, the
remaining provisions shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first
above written.
THE TOMORROW FUNDS:
By: _______________________________________
Title: ____________________________________
THE SHAREHOLDER SERVICES GROUP, INC.
By: _______________________________________
Title: ____________________________________
<PAGE>
Exhibit 1
<PAGE>
Schedule A
DUTIES OF THE TRANSFER AGENT
1. Shareholder Information. The Transfer Agent shall maintain a record
of the number of Shares held by each Shareholder of record which shall include
name, address, taxpayer identification and which shall indicate whether such
Shares are held in certificates or uncertificated form.
2. Shareholder Services. The Transfer Agent shall respond as
appropriate to all inquiries and communications from Shareholders relating
to Shareholder accounts with respect to its duties hereunder and as may be
from time to time mutually agreed upon between the Transfer Agent and the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply the Transfer
Agent with an adequate supply of blank share certificates to meet the Transfer
Agent requirements therefor. Such Share certificates shall be properly
signed by facsimile. The Fund agrees that, notwithstanding the death,
resignation, or removal of any officer of the Fund 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 shall issue replacement Share certificates
in lieu of certificates which have been lost, stolen or destroyed, upon
receipt by the Transfer Agent of properly executed affidavits and lost
certificate bonds, in form satisfactory to the Transfer Agent, with the Fund
and the Transfer Agent as obligees under the bond.
(c) The Transfer Agent shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with respect thereto)
the Transfer Agent shall maintain comparable records of the Shareholders
thereof, including their names, addresses and taxpayer identification.
The Transfer Agent shall further maintain a stop transfer record on lost
and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials.
The Transfer Agent will address and mail to Shareholders of the Fund,
all reports to Shareholders, dividend and distribution notices and proxy
material for the Fund's meetings of Shareholders. In connection with
meetings of Shareholders, the Transfer Agent will prepare Shareholder lists,
mail and certify as to the mailing of proxy materials, process and tabulate
returned proxy cards, report on proxies voted prior to meetings, act as
inspector of election at meetings and certify Shares voted at meetings.
<PAGE>
5. Sales of Shares
(a) The Transfer Agent shall not be required to issue any Shares
of the Fund where it has received a Written Instruction from the Fund or
official notice from any appropriate authority that the sale of the Shares
of the Fund has been suspended or discontinued. The existence of such Written
Instructions or such official notice shall be conclusive evidence of the right
of the Transfer Agent to rely on such Written Instructions or official notice.
(b) In the event that any check or other order for the payment of
money is returned unpaid for any reason, the Transfer Agent will endeavor to:
(i) give prompt notice of such return to the Fund or its designee; (ii) place
a stop transfer order against all Shares issued as a result of such check
or order; and (iii) take such actions as the Transfer Agent may from time to
time deem appropriate.
6. Transfer and Repurchase
(a) The Transfer Agent shall process all requests to transfer or
redeem Shares in accordance with the transfer or repurchase procedures set
forth in the Fund's Prospectus.
(b) The Transfer Agent will transfer or repurchase Shares upon
receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for transfer
or redemption, accompanied by such documents as the Transfer Agent reasonably
may deem necessary.
(c) The Transfer Agent reserves the right to refuse to transfer
or repurchase Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. The Transfer Agent also reserves the
right to refuse to transfer or repurchase 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, in its good judgement, deems improper
or unauthorized, or until it is reasonably satisfied that there is no basis
to any claims adverse to such transfer or repurchase.
(d) When Shares are redeemed, the Transfer Agent shall, upon
receipt of the instructions and documents in proper form, deliver to the
Custodian and the Fund or its designee a notification setting forth the number
of Shares to be repurchased. Such repurchased shares shall be reflected
on appropriate accounts maintained by the Transfer Agent reflecting
outstanding Shares of the Fund and Shares attributed to individual accounts.
(e) The Transfer Agent, upon receipt of the monies paid to it by
the Custodian for the repurchase of Shares, pay such monies as are received
from the Custodian, all in accordance with the procedures described in the
written instruction received by the Transfer Agent from the Fund.
(f) The Transfer Agent shall not process or effect any
repurchase with respect to Shares of the Fund after receipt by the Transfer
Agent or its agent of notification of the suspension of the determination
of the net asset value of the Fund.
<PAGE>
7. Dividends
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to Shares
of the Fund, the Fund shall furnish or cause to be furnished to the
Transfer Agent Written Instructions setting forth the date of the declaration
of such dividend or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall
be determined, the amount payable per Share to the Shareholders of record as
of that date, the total amount payable to the Transfer Agent on the payment
date and whether such dividend or distribution is to be paid in Shares at
net asset value.
(b) On or before the payment date specified in such resolution of
the Board of Directors, the Fund will pay to the Transfer Agent sufficient
cash to make payment to the Shareholders of record as of such payment date.
(c) If the Transfer Agent does not receive sufficient cash from
the Fund to make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, the Transfer Agent will, upon
notifying the Fund, withhold payment to all Shareholders of record as of
the record date until sufficient cash is provided to the Transfer Agent.
8. In addition to and neither in lieu nor in contravention of the
services set forth above, the Transfer Agent shall: (i) perform all the
customary services of a transfer agent, registrar, dividend disbursing agent
and agent of the dividend reinvestment and cash purchase plan as described
herein consistent with those requirements in effect as at the date of this
Agreement. The detailed definition, frequency, limitations and associated
costs (if any) set out in the attached fee schedule, include but are not
limited to: maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, tabulating proxies, mailing Shareholder
reports to current Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts where applicable, preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms required with
respect to dividends and distributions by federal authorities for
all Shareholders.
<PAGE>
Schedule B
Fee Schedule
<PAGE>
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes, checks and
stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all lease,
maintenance 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 and other fund related
banking charges
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record
keeping vendors
- Third party audit reviews
- All conversion costs: including System start up costs
- All Systems enhancements after the conversion at the rate of
$100.00 per hour
- Insurance
- Such other miscellaneous expenses reasonably incurred by the Transfer
Agent in performing its duties and responsibilities under this
Agreement.
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with the Transfer Agent. In addition, the
Fund will promptly reimburse the Transfer Agent for any other unscheduled
expenses incurred by the Transfer Agent whenever the Fund and the Transfer
Agent mutually agree that such expenses are not otherwise properly borne by
the Transfer Agent as part of its duties and obligations under the Agreement.
<PAGE>
Schedule D
Fund Documents
- Certified copy of the Articles of Incorporation of the Fund,
as amended
- Certified copy of the By-laws of the Fund, as amended,
- Copy of the resolution of the Board of Directors authorizing the
execution and delivery of this Agreement
- Specimens of the certificates for Shares of the Fund, if applicable,
in the form approved by the Board of Directors of the Fund, with a
certificate of the Secretary of the Fund as to such approval
- All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered
by the Fund
- Certified list of Shareholders of the Fund with the name, address
and taxpayer identification number of each Shareholder, and the
number of Shares of the Fund held by each, certificate numbers and
denominations (if any certificates have been issued), lists of any
accounts against which stop transfer orders have been placed,
together with the reasons therefore, and the number of Shares
redeemed by the Fund
- All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Fund or as required by law and shall perform such
other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required
thereby.
DRAFT FORM OF
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT is made as of ______________, 1995 by and
between THE SHAREHOLDER SERVICES GROUP, INC., a Massachusetts corporation
("TSSG"), and [ ], a
Massachusetts business trust (the "Trust").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust desires to retain TSSG to render certain administrative
services to those series of the Trust described in Schedule A hereto, as from
time to time amended (each a "Fund" and,
collectively, the "Funds"), and TSSG is willing to render such services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints TSSG to act as Administrator
of the Trust on the terms set forth in this Agreement. TSSG accepts such
appointment and agrees to render the services herein set forth for the
compensation provided for in Schedule B, annexed hereto and incorporated
herein.
In the event that the Trust establishes additional series with respect to
which the Trust decides to retain TSSG to act as administrator and accounting
services provider, the Trust shall so notify TSSG in writing. If TSSG is
willing to render such services, TSSG shall notify the Trust in writing
whereupon such portfolio shall be deemed to be a Fund hereunder and shall be
subject to the provisions of this Agreement except to the extent that said
provisions (including those relating to the compensation payable by the Funds
to TSSG) are modified with respect to such Fund in writing by the Tru
st and TSSG at the time. Without limiting the foregoing, it is understood
that the Trust will from time to time issue separate series or classes of
shares and may classify and reclassify shares of any such series or class.
TSSG shall identify to each such series or class property belonging to suc
h series or class and in such reports, confirmations and notices to the Trust
called for under this Agreement shall identify the series or class to which
such report, confirmation or notice pertains.
2. Delivery of Documents. The Trust has furnished TSSG with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Trust's Board of Trustees authorizing the
appointment of TSSG to provide certain administrative services to the Fund and
approving this Agreement;
<PAGE>
(b) The Trust's Declaration of Trust filed with the Secretary of
State of the Commonwealth of Massachusetts on [ ] and
all amendments thereto (the "Declaration of Trust");
(c) The Trust's By-Laws and all amendments thereto (the "By-Laws");
(d) The Investment Advisory Agreement between [ ]
(the "Adviser") and the Trust dated [ ], 1995;
(e) The Custody Agreement between [ ] (the
"Custodian") and the Trust dated [ ], 1995;
(f) The Transfer Agency and Services Agreement between The
Shareholder Services Group, Inc. (the "Transfer Agent") and the Trust dated
August __, 1995;
(g) The Trust's Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 and under the 1940
Act (File Nos. [ ] and [ ]), as filed with the
Securities and Exchange Commission ("SEC") on [ ], 1995 and
declared effective by the SEC on [ ], 1995, relating to the
Trust's shares of beneficial ownership, $.[ ] par value per share, and all
amendments thereto; and
(h) The Trust's most recent prospectus and statement of additional
information (together, the "Prospectus").
The Trust will furnish TSSG from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing. Furthermore, the Trust will provide TSSG with any other documents
that TSSG may reasonably request and will notify TSSG as soon as possible of
any matter materially affecting the performance by TSSG of its services under
this Agreement.
3. Duties as Administrator. Subject to the supervision and direction of
the Board of Trustees of the Trust, TSSG, as Administrator, will assist in
supervising various aspects of the Trust's administrative operations and
undertakes to perform the following specific services:
(a) Maintaining office facilities (which may be in the offices of
TSSG or a corporate affiliate);
(b) Furnishing statistical and research data, data processing
services, clerical services, and internal legal, executive and administrative
services and stationery and office supplies in connection with its services
hereunder;
(c) Furnishing corporate secretarial services including preparation
and distribution of materials for Board of Trustees meetings;
<PAGE>
(d) Assisting in the preparation of any Post-Effective Amendments
to the Trust's Registration Statement, Notices of Annual or Special Meetings
of Shareholders and Proxy materials relating to such Meetings;
(e) Assisting in the determination of the jurisdictions in which
the Trust's shares will be registered or qualified for sale and, in connection
therewith, shall be responsible for the initial registration or qualification
and the maintenance of such registration or qualification of such shares fo
r sale under the securities laws of any state. Payment of share registration
fees and any fees for qualifying or continuing the qualification of the Fund
as a dealer or broker shall be made by the Fund;
(f) Providing the services of certain persons who may be appointed
as officers of the Trust by the Trust's Board of Trustees;
(g) Providing legal advice and counsel to the Trust with respect to
regulatory matters, including monitoring regulatory and legislative
developments which may affect the Trust and assisting in the strategic
response to such developments, counseling and assisting the Trust in routine
regulatory examinations or investigations of the Trust, and working closely
with outside counsel to the Trust in response to any litigation or non-routine
regulatory matters;
(h) Accounting and bookkeeping services (including the maintenance
of such accounts, books and records of the Trust as may be required by Section
31(a) of the 1940 Act and the rules thereunder);
(i) Internal auditing services;
(j) Valuing the Trust's assets and calculating the net asset value
of the shares of the Fund at the close of regular trading on the New York
Stock Exchange on each business day (as set forth in the Trust's Prospectus);
(k) Accumulating information for and, subject to approval by the
Trust's Treasurer, preparing reports to the Trust's shareholders of record and
the SEC including, but not necessarily limited to, Annual and Semi-Annual
Reports, Semi-Annual Reports on Form N-SAR and Notices pursuant to Rule 24f-2;
(l) Reviewing and providing advice and counsel on all sales and
advertising materials prepared on behalf of the Trust;
(m) Preparing and filing the Trust's tax returns;
(n) Assisting the Adviser, at the Adviser's request, in monitoring
and developing compliance procedures for the Trust which will include, among
other matters, procedures to assist the Adviser in monitoring compliance with
the Fund's investment objective, policies, restrictions, tax matters and ap
plicable laws and regulations and performing certain monthly compliance tests;
and
<PAGE>
(o) Preparing and furnishing the Trust (at the Trust's request)
with performance information (including yield and total return information)
calculated in accordance with applicable U.S. securities laws and reporting to
external databases such information as may reasonably be requested.
In performing its duties as Administrator of the Trust, TSSG will act in
accordance with the Declaration of Trust, By-Laws, Prospectus and with the
instructions and directions of the Board of Trustees of the Trust and will
conform to and comply with the requirements of the 1940 Act and all other
applicable federal or state laws and regulations.
4. Allocation of Expenses. TSSG shall bear all expenses in connection
with the performance of its services under this Agreement, except as noted
below.
(a) TSSG will from time to time employ or associate with itself
such person or persons as TSSG may believe to be particularly suited to assist
it in performing services under this Agreement. Such person or persons may be
officers and employees who are employed by both TSSG and the Trust. The co
mpensation of such person or persons shall be paid by TSSG and no obligation
shall be incurred on behalf of the Trust in such respect.
(b) TSSG shall not be required to pay any of the following expenses
incurred by the Trust: membership dues in the Investment Company Institute or
any similar organization; investment advisory expenses; costs of printing and
mailing stock certificates, prospectuses, reports and notices; interest
on borrowed money; brokerage commissions; taxes and fees payable to Federal,
state and other governmental agencies; fees of Trustees of the Trust who are
not affiliated with TSSG; outside auditing expenses; outside legal expenses;
or other expenses not specified in this Section 4 which may be prope
rly payable by the Trust.
(c) For the services to be rendered, the facilities to be furnished
and the payments to be made to TSSG, as provided for in this Agreement, the
Trust shall compensate TSSG for its services rendered pursuant to this
Agreement in accordance with the fees set forth in Schedule B, annexed hereto
and incorporated herein. Such fees do not include out-of-pocket disbursements
of TSSG for which TSSG will be entitled to bill separately. Out-of-pocket
disbursements shall include, but shall not be limited to, the items specified
in Schedule C, annexed hereto and incorporated herein, which schedule m
ay be modified by TSSG upon not less than thirty days' prior written notice to
the Trust.
(d) TSSG will bill the Trust as soon as practicable after the end
of each calendar month, and said billings will be detailed in accordance with
the out-of-pocket schedule. The Trust will promptly pay to TSSG the amount of
such billing.
5. Limitation of Liability.
(a) TSSG shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Trust in connection with the
<PAGE>
performance of its obligations and duties under this Agreement, except a loss
resulting from TSSG's willful misfeasance, bad faith or gross negligence in
the performance of such obligations and duties, or by reason of its reckless
disregard thereof. The Trust will indemnify TSSG against and hold it harmless
from any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand, act
ion or suit not resulting from the willful misfeasance, bad faith or gross
negligence of TSSG in the performance of such obligations and duties or by
reason of its reckless disregard thereof. The Trust and TSSG agree that the
obligations of the Trust under this Agreement shall not be binding upon
any of the members of the Trust's Board of Trustees, shareholders, nominees,
officers, employees or agents, whether past, present or future, of the Trust,
individually, but are binding only upon the assets and property of the Trust,
as provided in the Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the Board of Trustees and signed by an
authorized officer of the Trust, acting as such, and neither such
authorization by such members of the Board of Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the assets and property of the Trust as provided in the Declaration
of Trust.
(b) Notwithstanding the foregoing paragraph or anything else
contained in this Agreement to the contrary, TSSG's entire liability to the
Trust for any loss or damage, direct or indirect, for any cause whatsoever
(including but not limited to those arising out of this Agreement), and
regardless of the form of action, shall be limited to the Trust's actual
direct out-of-pocket expenses which are reasonably incurred by the Trust, but
shall not under any circumstances exceed two million dollars ($2,000,000).
(c) In no event and under no circumstances shall either party to
this Agreement be liable to the other party for consequential or indirect loss
of profits, reputation or business or any other special damages under any
provision of this Agreement or for any act or failure to act hereunder.
6. Termination of Agreement.
(a) This Agreement shall become effective on the date hereof and
shall continue for a period of three (3) years (the "Initial Term") unless
earlier terminated pursuant to the terms of this Agreement. Thereafter this
Agreement shall automatically be renewed for successive terms of three (3)
years ("Renewal Term") each.
(b) Either party may terminate this Agreement at the end of the
Initial Term or at the end of any subsequent Renewal Term upon not than less
than ninety (90) days' or more than one hundred-eighty (180) days' prior
written notice to the other party.
(c) In the event a termination notice is given by the Trust, all
expenses associated with movement of records and materials and conversion
thereof will be borne by the Trust.
<PAGE>
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party") resulting in a
material loss to the other party (the "Non-Defaulting Party"), the
Non-Defaulting Party may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30)
days after such written notice is given, then the Non-Defaulting Party may
terminate this Agreement by giving thirty (30) days' written notice of such
termination to the Defaulting Party. If TSSG is the Non-Defaulting Party, its
termination of this Agreement shall not constitute a waiver of any other
rights or remedies of TSSG with respect to services performed prior to such
termination or rights of TSSG to be reimbursed for out-of-pocket expenses. In
all cases, termination by the Non-Defaulting Party shall not constitute a
waiver by the Non-Defaulting Party of any other rights it might have under
this Agreement or otherwise against the Defaulting Party.
7. Amendment to this Agreement. No provision of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Trust or TSSG shall be sufficiently
given if addressed to the party and received by it at its office set forth
below or at such other place as it may from time to time designate in writing.
To the Trust:
[ ]
To TSSG:
The Shareholder Services Group, Inc.
53 State Street - BOS425
Boston, Massachusetts 02109
Attention: Patricia L. Bickimer, Esq.
(b) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns, provided that this
Agreement shall not be assignable without the written consent of the other
party.
<PAGE>
(c) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
(d) This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and which collectively shall
be deemed to constitute only one instrument.
(e) 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) This Agreement and the fee schedule hereto constitute the
entire agreement between the parties hereto with respect to the matters
described herein.
9. Confidentiality. All books, records, information and data
pertaining to the business of the Trust that are exchanged or received
pursuant to the performance of TSSG's duties under this Agreement shall remain
confidential and shall not be voluntarily disclosed to any other person,
except as spe
cifically authorized by the Trust or as may be required by law.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
THE SHAREHOLDER SERVICES GROUP, INC.
By: ________________________________
Name:[ ]
Title: Vice President and Division Manager
[ ]
By: ________________________________
Name:
Title:
<PAGE>
SCHEDULE A
SERIES OF THE TRUST
<PAGE>
SCHEDULE B
FEE SCHEDULE FOR
ADMINISTRATION AND
FUND ACCOUNTING SERVICES
FEES FOR ADMINISTRATION SERVICES
<PAGE>
SCHEDULE C
OUT-OF- POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, the following:
TOMORROW FUNDS RETIREMENT TRUST
(INSTITUTIONAL CLASS)
SERVICE PLAN
_______________, 1995
WHEREAS, Tomorrow Funds Retirement Trust (the "Trust")
engages in business as an open-end management investment company
and is registered as such under the Investment Company Act of
1940, as amended;
WHEREAS, the trust has six series of Funds, each of which is
a separate pool of assets with its own investment policies (the
"Funds") and each Fund is divided into two separate classes: the
Institutional Class and the Administration Class;
WHEREAS, the Trust, on behalf of the Institutional Class of
each Fund, desires to adopt a Service Plan and the Board of
Trustees of the Trust has determined that there is a reasonable
likelihood that adoption of this Service Plan will benefit each
Fund and its Institutional Class shareholders; and
WHEREAS, the Trust, on behalf of the Institutional Class of
each Fund, employs institutions, including fiduciaries of
qualified retirement plans and insurance companies with respect to
their separate accounts (the "Service Organizations"), to act as
nominees and record holders of Institutional Class Shares for
their respective customers or plan participants who are or may
become beneficial owners of Institutional Class Shares or to the
holders of variable life and variable annuity products for which
the insurance company separate accounts serve as funding vehicles
(the "Customers") and to perform certain account administration
and shareholder liaison services with respect to the Customers
pursuant to Service Agreements between the Trust, on behalf of the
Institutional Class of each Fund, and such Service Organizations
(the "Agreements").
NOW THEREFORE, the Trust, on behalf of the Institutional
Class of each Fund, hereby adopts this Service Plan (the "Plan")
on the following terms and conditions:
1. (a) The Trust, on behalf of each Institutional Class of
each Fund, is authorized to pay each Service Organization the
monthly or quarterly service fee specified in the Agreement with
such Service Organization for (1) administration services and (2)
personal and account maintenance services performed and expenses
incurred by the Service Organization in connection with such
<PAGE>
Fund's Institutional Class Shares. The fee paid for such services
during any one year shall not exceed 0.25% of the average daily
net asset value of the Institutional Class Shares of such Fund
which are owned beneficially by or attributable to the Customers
of such Service Organization during the period.
(b) Administration services and expenses for which a
Service Organization may be compensated under this Plan include,
without limitation, (i) acting as record holder and nominee of all
Institutional Class Shares beneficially owned by Customers or
beneficial holder of all Institutional Class Shares attributable
to Customers; (ii) establishing and maintaining individual
accounts and records with respect to Institutional Class Shares
owned by or attributable to each Customer; (iii) processing and
issuing confirmations concerning Customer orders to purchase,
redeem and exchange Institutional Class Shares; (iv) receiving and
transmitting funds representing the purchase price or redemption
proceeds of such Institutional Class Shares; (v) providing such
statistical and other information as may be reasonably requested
by the Trust or necessary for the Trust to comply with applicable
federal or state law; (vi) responding to investor requests for
prospectuses; (vii) displaying and making prospectuses available
on the Service Organization's premises and (viii) assisting
Customers in completing application forms, selecting dividend and
other account options and opening custody accounts with the
Service Organization.
(c) Personal and account maintenance services and
expenses for which a Service Organization may be compensated under
this Plan include, without limitation, (i) providing facilities to
answer inquiries and respond to correspondence with Customers and
other investors about the status of their accounts or about other
aspects of the Trust or the applicable Fund; and (ii) acting as
liaison between Customers and the Trust, including obtaining
information from the Trust and assisting the Trust in correcting
errors and resolving problems.
(d) Appropriate adjustments to payments made pursuant
to clause (a) of this paragraph 1 shall be made whenever necessary
to ensure that no payment is made by the Trust on behalf of a Fund
in excess of the applicable maximum cap imposed on asset based
sales charges by subsection (d) of Section 26 of Article III of
the Rules of Fair Practice of the National Association of
Securities Dealers, Inc.
2. This Plan shall not take effect as to any Fund until the
Plan, together with any related agreements, has been approved for
such Fund by votes of a majority of both (a) the Board of Trustees
of the Trust and (b) those Trustees of the Trust who are not
"interested persons" of the Trust and who have no direct or
-2-
<PAGE>
indirect financial interest in the operation of the Plan or any
agreements related to it (the "non-interested Trustees") cast in
person at a meeting (or meetings) called for the purpose of voting
on the Plan and such related agreements.
3. This Plan shall remain in effect until and
shall continue in effect thereafter so long as such continuance is
specifically approved at least annually in the manner provided for
approval of this Plan in paragraph 2.
4. The officers of the Trust shall provide the Board of
Trustees of the Trust and the Board shall review, at least
quarterly, a written report of services performed by and fees paid
to each Service Organization under the Agreements and this Plan.
5. This Plan may be terminated as to the Institutional
Class of any Fund at any time by vote of a majority of the non-
interested Trustees.
6. No material amendment to the Plan shall be made unless
approved in the manner provided in paragraph 2 hereof.
7. The Trust shall preserve copies of this Plan and any
related agreements and all reports made pursuant to paragraph 4
hereof, for a period of not less than six years from the date of
the Plan, any such agreement or any such report, as the case may
be, the first two years in an easily accessible place.
IN WITNESS WHEREOF, the Trust, on behalf of the Institutional
Class of each Fund, has executed this Service Plan as of the day
and year first written above.
TOMORROW FUNDS RETIREMENT TRUST
(on behalf of the Institutional Class of
each Fund)
By: _____________________________________
Its: ____________________________________
- 3 -
Independent Auditors' Consent
The Shareholder and Board of Trustees of
The Tomorrow Funds Retirement Trust:
We consent to the use of our report dated September 22, 1995
included in this Registration Statement on Form N-1A and to the
reference to our firm under the heading "Independent Accountants"
in the Statement of Additional Information.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
September 22, 1995
New York, New York
SHARE PURCHASE AGREEMENT
This Agreement is made as of the 20th day of September, 1995
between Weiss, Peck & Greer, L.L.C., a Delaware liability company
("WPG"), and Tomorrow Funds Retirement Trust, a Delaware business
trust (the "Trust").
WHEREAS, the Trust wishes to sell to, and WPG wishes to
purchase from the Trust, $100,000 worth of Institutional Class
shares of beneficial interest of Core Large-Cap Stock Fund (the
"Fund") (10,000 Institutional Class shares) at a purchase price of
$10.00 per Institutional Class share (the "Shares"); and
WHEREAS, WPG is purchasing the Shares for the purpose of
providing the initial capitalization of the Trust as required by
the Investment Company Act of 1940;
NOW, THEREFORE, the parties hereto agree as follows:
1. Simultaneously with the execution of this Agreement, WPG
is delivering to the Trust, on behalf of the Fund, proceeds in the
amount of $100,000 in full payment for the Shares.
2. WPG agrees that it is purchasing the Shares for
investment and has no present intention of redeeming or reselling
the Shares.
3. WPG further agrees that it may not withdraw the Shares
from the Fund at a rate, which at any time during the Fund's first
five years of operations, exceeds in the aggregate $1,666.67 per
month.
Executed as of the date first set forth above.
WEISS, PECK & GREER, L.L.C.
By:
Its:
TOMORROW FUNDS RETIREMENT TRUST
By:
Its:
FORM OF ADVISER CLASS DISTRIBUTION PLAN
[Name of Tomorrow Fund]
ADVISER CLASS DISTRIBUTION PLAN, dated as of ________, 1995,
of [Name of Fund] (the "Fund"), a series of Tomorrow Funds
Retirement Trust, a Delaware business trust (the "Trust").
WITNESSETH
WHEREAS, the Fund is a series of the Trust, which is engaged
in business as an open-end management investment company and is
registered under the Investment Company Act of 1940, as amended
(collectively with the rules and regulations promulgated
thereunder, the "1940 Act");
WHEREAS, the Trust intends to distribute shares of beneficial
interest (the "Adviser Class Shares") of the Fund in accordance
with Rule 12b-1 promulgated by the Securities and Exchange
Commission under the 1940 Act ("Rule 12b-1"), and desires to adopt
this Adviser Class distribution plan (the "Adviser Class Plan") as
a plan of distribution pursuant to such Rule;
WHEREAS, the Trust desires that Weiss, Peck & Greer, L.L.C.,
a New York limited liability company ("WPG"), provide certain
distribution services for the Fund's Adviser Class Shares in
connection with the Adviser Class Plan;
WHEREAS, the Trust, on behalf of the Fund has entered into an
underwriting agreement (in a form approved by the Trust's Board of
Trustees in a manner specified in Rule 12b-1) with WPG, whereby
WPG provides facilities and personnel and renders services to the
Fund in connection with the offering and distribution of Adviser
Class Shares (the "Underwriting Agreement");
WHEREAS, the Fund also recognizes and agrees that (a) WPG may
retain the services of firms or individuals to act as dealers or
wholesalers (collectively, the "Dealers") of the Adviser Class
Shares in connection with the offering of Adviser Class Shares,
(b) WPG may compensate any Dealer that sells Adviser Class Shares
in the manner and at the rate or rates to be set forth in an
agreement between WPG and such Dealer and (c) WPG may make such
payments to the Dealers for distribution services out of the fee
paid to WPG hereunder, its profits or any other source available
to it; and
WHEREAS, the Board of Trustees of the Trust, in considering
whether the Trust should adopt and implement this Adviser Class
Plan with respect to the Fund, has evaluated such information as
it deemed necessary to make an informed determination whether this
<PAGE>
Adviser Class Plan should be adopted and implemented and has
considered such pertinent factors as it deemed necessary to form
the basis for a decision to use assets of the Fund for such
purposes, and has determined that there is a reasonable likelihood
that the adoption and implementation of this Adviser Class Plan
will benefit the Fund and its Adviser Class shareholders;
NOW, THEREFORE, the Board of Trustees of the Fund hereby
adopts this Adviser Class Plan for the Fund as a plan of
distribution of Adviser Class Shares in accordance with Rule 12b-
1, on the following terms and conditions:
1. (a) The Fund is authorized to compensate WPG for
(1) distribution services and (2) personal and account
maintenance services performed and expenses incurred by
WPG in connection with the Fund's Adviser Class Shares.
Such compensation shall be calculated and accrued daily
and paid monthly or at such other intervals as the Board
of Trustees may determine.
(b) The amount of compensation paid during any one
year for distribution services shall be 0.25% of the
average daily net assets of the Adviser Class Shares of
the Fund attributable to such year.
(c) Distribution services and expenses for which
WPG may be compensated pursuant to this Plan include,
without limitation: compensation to and expenses
(including allocable overhead, travel and telephone
expenses) of (i) Dealers, brokers and other dealers who
are members of the National Association of Securities
Dealers, Inc. ("NASD") or their officers, sales
representatives and employees, (ii) WPG and any of its
affiliates and any of their respective officers, sales
representatives and employees, (iii) banks and their
officers, sales representatives and employees, who
engage in or support distribution of the Fund's Adviser
Class Shares; printing of reports and prospectuses
relating to the Adviser Class Shares for other than
existing shareholders, and (iv) preparation, printing
and distribution of sales literature and advertising
materials relating to the Adviser Class Shares.
(d) The amount of compensation paid for personal
and account maintenance services and expenses shall be
0.25% of the average daily net assets of the Adviser
Class Shares of the Fund attributable to such year. As
partial consideration for personal services and/or
account maintenance services provided by WPG to the
Adviser Class shareholders, WPG shall be entitled to be
-2-
<PAGE>
paid any fees payable under this clause (d) with respect
to Adviser Class Shares for which no dealer of record
exists, where less than all consideration has been paid
to a dealer of record or where qualification standards
have not been met.
(e) Personal and account maintenance services for
which WPG or any of its affiliates, banks or Dealers may
be compensated pursuant to this Plan include, without
limitation: payments made to or on account of WPG or
any of its affiliates, banks, other brokers and dealers
who are members of the NASD, or their officers, sales
representatives and employees, who respond to inquiries
of, and furnish assistance to, shareholders regarding
their ownership of Adviser Class Shares or their
accounts or who provide similar services not otherwise
provided by or on behalf of the Fund.
(f) Appropriate adjustments to payments made
pursuant to clauses (b) and (d) of this paragraph 1
shall be made whenever necessary to ensure that no
payment is made by the Fund in excess of the applicable
maximum cap imposed on asset based, front-end and
deferred sales charges by subsection (d) of Section 26
of Article III of the Rules of Fair Practice of the
NASD.
2. The Trust understands that agreements between WPG and
Dealers may provide for payment of fees to Dealers in connection
with the sale of the Fund's Adviser Class Shares and the provision
of services to shareholders of the Fund. Nothing in this Adviser
Class Plan shall be construed as requiring the Trust to make any
payment to any Dealer or to have any obligations to any Dealer in
connection with services as a dealer of the Fund's Adviser Class
Shares. WPG shall agree and undertake that any agreement entered
into between WPG and any Dealer shall provide that such Dealer
shall look solely to WPG for compensation for its services
thereunder and that in no event shall such Dealer seek any payment
from the Trust or the Fund except as otherwise expressly agreed by
the Trust.
3. Nothing herein contained shall be deemed to require the
Trust to take any action contrary to its Agreement and Declaration
of Trust, as it may be amended or restated from time to time, or
By-Laws or any applicable statutory or regulatory requirement to
which it is subject or by which it is bound, or to relieve or
deprive the Trust's Board of Trustees of the responsibility for
and control of the conduct of the affairs of the Trust or the
Fund.
-3-
<PAGE>
4. This Adviser Class Plan shall become effective upon
approval by a vote of the Board of Trustees and a vote of a
majority of the Trustees who are not "interested persons" of the
Fund and who have no direct or indirect financial interest in the
operation of the Fund's Adviser Class Plan or in any agreements
related to the Fund's Adviser Class Plan (the "Qualified
Trustees"), such votes to be cast in person at a meeting called
for the purpose of voting on this Adviser Class Plan.
5. This Adviser Class Plan will remain in effect
indefinitely, provided that such continuance is "specifically
approved at least annually" by a vote of both a majority of the
Trustees of the Trust and a majority of the Qualified Trustees.
If such annual approval is not obtained, this Adviser Class Plan
shall expire on __________, 1996.
6. This Adviser Class Plan may be amended at any time by
the Board of Trustees, provided that this Adviser Class Plan may
not be amended to increase materially the limitations on the
annual percentage of average net assets which may be expended
hereunder without the approval of holders of a "majority of the
outstanding voting securities" of Adviser Class of the Fund and
may not be materially amended in any case without a vote of a
majority of both the Trustees and the Qualified Trustees. This
Adviser Class Plan may be terminated at any time by a vote of a
majority of the Qualified Trustees or by a vote of the holders of
a "majority of the outstanding voting securities" of Adviser Class
of the Fund.
7. The Trust and WPG shall provide to the Trust's Board of
Trustees, and the Board of Trustees shall review, at least
quarterly, a written report of the amounts expended under this
Adviser Class Plan and the purposes for which such expenditures
were made.
8. While this Adviser Class Plan is in effect, the
selection and nomination of Qualified Trustees shall be committed
to the discretion of the Trustees who are not "interested persons"
of the Fund.
9. For the purposes of this Adviser Class Plan, the terms
"interested persons," "majority of the outstanding voting
securities" and "specifically approved at least annually" are used
as defined in the 1940 Act.
10. The Trust shall preserve copies of this Adviser Class
Plan, and each agreement related hereto and each report referred
to in Paragraph 7 hereof (collectively, the "Records"), for a
period of not less than six (6) years from the end of the fiscal
year in which such Records were made and for a period of two (2)
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<PAGE>
years, each of such Records shall be kept in an easily accessible
place.
11. This Adviser Class Plan shall be construed in accordance
with the laws of The State of Delaware and the applicable
provisions of the 1940 Act.
12. If any provision of this Adviser Class Plan shall be
held or made invalid by a court decision, statute, rule or
otherwise, the remainder of the Adviser Class Plan shall not be
affected thereby.
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TOMORROW FUNDS RETIREMENT TRUST
Tomorrow Long-Term Retirement Fund
Tomorrow Mid-Term Retirement Fund
Tomorrow Short-Term Retirement Fund
Tomorrow Post-Retirement Fund
Core Large-Cap Stock Fund
Core Small-Cap Stock Fund
Multiple Class Plan Pursuant to Rule 18f-3
Adopted July 19, 1995
Each class of shares of Tomorrow Long-Term Retirement Fund,
Tomorrow Mid-Term Retirement Fund, Tomorrow Short-Term Retirement
Fund, Tomorrow Post-Retirement Fund, Core Large-Cap Stock Fund and
Core Small-Cap Stock Fund (each, a "Fund"), each a series of
Tomorrow Funds Retirement Trust, a Delaware business trust (the
"Trust"), will have the same relative rights and privileges and be
subject to the same fees and expenses, except as set forth below.
The Board of Trustees may determine in the future that other
distribution arrangements, allocations of sales charges (if any),
expenses (whether ordinary or extraordinary) or services to be
provided to a class of shares are appropriate and amend this Plan
accordingly without the approval of shareholders of any class.
Shares of a class of a Fund may be exchanged only for shares of
the same class of another Fund. Shares of a class of a Fund shall
have no rights to convert into shares of any other class of any
Fund.
Article I. Adviser Class Shares
Adviser Class shares of the Funds are sold at net asset value
without the imposition of any sales charge (initial, contingent,
deferred or otherwise). Adviser Class shares shall be entitled to
the shareholder services set forth from time to time in the Funds'
prospectuses with respect to Adviser Class shares. Adviser Class
shares of the Funds are subject to distribution and service fees
calculated upon a stated percentage of a Funds' net assets
attributable to Adviser Class shares on the terms set forth in the
Funds' Adviser Class Rule 12b-1 Distribution Plans. The Adviser
Class shareholders of a particular Fund have exclusive voting
rights, if any, with respect to such Fund's Adviser Class
Distribution Plan. Transfer agency fees are allocated to Adviser
Class shares on a per account basis except to the extent, if any,
such an allocation would cause a Fund to fail to satisfy any
requirements necessary to obtain and rely on a private letter
ruling from the Internal Revenue Service relating to the issuance
of multiple classes of shares.
<PAGE>
Article II. Institutional Class Shares
Institutional Class shares of the Funds are sold at net asset
value without the imposition of any sales charge (initial,
contingent, deferred or otherwise). Institutional Class shares
shall be entitled to the shareholder services set forth from time
to time in the Funds' prospectuses with respect to Institutional
Class shares. Institutional Class shares of the Funds are subject
to service fees calculated upon a stated percentage of a Fund's
net assets attributable to Institutional Class shares on the terms
set forth in the Funds' Institutional Class Service Plans. The
Institutional Class shareholders of a particular Fund have
exclusive voting rights, if any, with respect to such Fund's
Institutional Class Service Plan. Transfer agency fees are
allocated to Institutional Class shares on a per account basis
except to the extent, if any, such an allocation would cause a
Fund to fail to satisfy any requirements necessary to obtain and
rely on a private letter ruling from the Internal Revenue Service
relating to the issuance of multiple classes of shares.
Article III. Approval by Board of Trustees
This Plan shall not take effect until it has been approved
with respect to each Fund by the vote of a majority (or whatever
greater percentage may, from time to time, be required under Rule
18f-3 under the Investment Company Act of 1940, as amended (the
"Act")) of (a) all of the Trustees of the Trust and (b) the
Trustees who are not "interested persons" (as such term is defined
under the Act) of the Trust.
Article IV. Amendments
No material amendment to this Plan shall be effective unless
it is approved by the Board of Trustees in the same manner
provided in Article III.
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