Exhibit 99.(h)(ii)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of September 25, 1996 by and between
Driehaus Mutual Funds, a Delaware business trust (the "Fund"), and PFPC INC., a
Delaware corporation ("PFPC"), which is an indirect wholly owned subsidiary of
PNC Bank Corp.
W I T N E S S E T H
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to provide administration and
accounting services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof, as such Exhibit A may be amended from time to
time (each a "Portfolio"), and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give
Oral Instructions and Written Instructions on behalf of the Fund
and listed on the Authorized Persons Appendix attached hereto and
made a part hereof or any amendment thereto as may be received by
PFPC. An Authorized Person's scope of authority may be limited by
the Fund by setting forth such limitation in the Authorized
Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC
to be an
Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(i) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration
and accounting services to the each of the Portfolios, in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the Fund's
Board of Trustees, approving the appointment of PFPC or its
affiliates to provide services to each Portfolio and approving
this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution agreement with respect to each class of
Shares representing an interest in a Portfolio;
(e) a copy of any additional administration agreement with respect to
a Portfolio;
(f) a copy of any shareholder servicing agreement made in respect of
the Fund or a Portfolio; and
(g) copies (certified or authenticated, where applicable) of any and
all amendments or supplements to the foregoing.
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4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with
all applicable requirements of the Securities Laws, and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund or any
Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any Oral
Instruction or Written Instruction received hereunder is not in
any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's
shareholders, unless and until PFPC receives Written Instructions
to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given
by PFPC or its affiliates) so that PFPC receives the Written
Instructions by the close of business on the same day that such
Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from
an Authorized Person, PFPC shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions
provided that PFPC's actions comply
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with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should
or should not take, PFPC may request directions or advice,
including Oral Instructions or Written Instructions, from the
Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of
law pertaining to any action it should or should not take, PFPC
may request advice at its own cost from such counsel of its own
choosing (who may be counsel for the Fund, the Fund's investment
adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives
from the Fund and the advice PFPC receives from counsel, PFPC may
rely upon and follow the advice of counsel. In the event PFPC so
relies on the advice of counsel, PFPC remains liable for any
action or omission on the part of PFPC which constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard by
PFPC of any duties, obligations or responsibilities set forth in
this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it takes
or does not take in reliance upon directions, advice or Oral
Instructions or Written Instructions it receives from the Fund or
from counsel and which PFPC believes, in good faith, to be
consistent with those directions, advice and Oral Instructions or
Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon PFPC (i) to seek such
directions, advice or Oral Instructions or Written Instructions,
or (ii) to act in accordance with such directions, advice or Oral
Instructions or Written Instructions unless, under the terms of
other provisions of this Agreement,
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the same is a condition of PFPC's properly taking or not taking
such action. Nothing in this subsection shall excuse PFPC when an
action or omission on the part of PFPC constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard by
PFPC of any duties, obligations or responsibilities set forth in
this Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the Portfolios
which are in the possession or under the control of PFPC shall be
the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable
laws, rules and regulations. The Fund and Authorized Persons shall
have access to such books and records at all times during PFPC's
normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PFPC to
the Fund or to an Authorized expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books
of account;
(ii) records of each Portfolio's securities transactions;
(iii) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with
the services provided hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the Fund
and information relating to the Fund and its shareholders, unless the release of
such records or information is otherwise consented to, in writing, by the Fund.
The Fund agrees that such consent shall not be unreasonably withheld and may not
be withheld where PFPC may be exposed to civil or criminal contempt proceedings
or when required to divulge such information or records to duly constituted
authorities.
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9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal year
summaries, and other audit-related schedules with respect to each Portfolio.
PFPC shall take all reasonable action in the performance of its duties under
this Agreement to assure that the necessary information is made available to
such accountants for the expression of their opinion, as required by the Fund.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, PFPC shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions. PFPC shall have no liability with respect to the loss of data or
service interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties or obligations under this
Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund, on behalf of each Portfolio, will pay to PFPC
a fee or fees as may be agreed to in writing by the Fund and PFPC.
12. INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without limitation,
liabilities arising under the Securities Laws and any state or foreign
securities and blue sky laws, and amendments thereto), and expenses, including
(without limitation) attorneys' fees and disbursements arising directly or
indirectly from any action or omission to act which PFPC takes (i) at the
request or on the direction of or in reliance on the advice of the Fund'or (ii)
upon oral Instructions or Written Instructions. Neither PFPC, nor any of its
affiliates', shall be indemnified against any liability (or any expenses
incident to such liability) arising out of PFPC's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement. Any amounts payable by the Fund hereunder
shall be satisfied only against the relevant Portfolio's assets and
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not against the assets of any other investment portfolio of the Fund.
13. RESPONSIBILITY OF PPPC.
(a) PFPC shall be under no duty to take any action on behalf of the
Fund or any Portfolio except as specifically set forth herein or
as may be specifically agreed to by PFPC in writing. PFPC shall be
obligated to exercise care and diligence in the performance of its
duties hereunder, to act in good faith, and to use its best
efforts, within reasonable limits, in performing services provided
for under this Agreement. PFPC shall be liable for any damages
arising out of PFPC's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC's willful
misfeasance, bad faith, gross negligence or reckless disregard of
such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for
losses beyond its control, provided that PFPC has acted in
accordance with the standard of care set forth above; and (ii)
PFPC shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine; or (B) subject to Section 10,
delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, including acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood, catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication or power
supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Fund or to
any Portfolio for any
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consequential, special or indirect losses or damages which the
Fund or any Portfolio may incur or suffer by or as a consequence
of PFPC's or any affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or damages
was known by PFPC or its affiliates.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following accounting
services with respect to each Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for a Portfolio (the "Adviser") and transmit
trades (as applicable) to the Fund's custodian (the
"Custodian") for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and
the Statement of operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses and foreign exchange gains
and losses;
(xii) Determine net income;
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(xiii) Obtain security market quotes and exchange rates from
independent pricing services approved by the Adviser,
or if such quotes are unavailable, then obtain such
prices from the Adviser, and in either case calculate
the market value of each Portfolio's Investments;
(xiv) Transmit or mail copies of the various portfolio
management reports to the Adviser;
(xv) Compute net asset value;
(xvi) Determine the Fund's periodic dividend distribution;
(xvii) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required,
portfolio average dollar-weighted maturity; and
(xviii) Communicate certain statistical information reporting
services, as agreed by the parties;
(xix) Prepare a monthly financial statement, which will
include the following items:
- Schedule of Investments
- Statement of Assets and Liabilities
- Statement of Operations
- Statement of Changes in Net Assets
- Cash Statement
- Schedule of Capital Gains and Losses.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS. PFPC
will perform the following administration services with respect to each
Portfolio:
(i) Prepare quarterly broker security transactions
summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary, Portfolio and
Fund statistical data as requested on an ongoing
basis;
(iv) Prepare regular reports for the Fund's Board of
Trustees;
(v) Prepare for execution and file the Fund's Federal and
state tax returns;
(vi) Prepare and file the Fund's Semi-Annual Reports with
the SEC on Form N-SAR;
(vii) Prepare and file with the SEC the Fund's annual and
semi-annual
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shareholder reports and coordinate their printing;
(viii) Assist in the preparation of registration statements
and other filings relating to the federal and state
registration of Shares;
(ix) Monitor each Portfolio's status as a regulated
investment company under Sub-chapter M of the
Internal Revenue Code of 1986, as amended;
(x) Coordinate contractual relationships and
communications between the Fund and its contractual
service providers;
(xi) Assist the Fund in obtaining a fidelity bond and
Directors and Officers Errors & Omissions insurance;
and
(xii) Monitor the Fund's. compliance with the amounts and
conditions of each state qualification.
16. DURATION AND TERMINATION. This Agreement shall continue until
terminated by either party on sixty (60) days' prior written notice to the other
party.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. If notice is sent by confirming telegram, cable, telex
or facsimile sending device, it shall be deemed to have been given immediately.
If notice is sent by first-class mail, it shall be deemed to have been given
three days after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered. Notices shall be addressed
(a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to
the Fund, at 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000; or (c) if to neither
of the foregoing, at such other address as shall have been provided by like
notice to the sender of any such notice or other communication by the other
party.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any wholly-owned direct or indirect subsidiary of PNC Bank,
National Association
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or PNC Bank Corp., provided that (i) PFPC gives the Fund sixty (60) days' prior
written notice; (ii) the delegate (or assignee) agrees with PFPC and the Fund to
comply with all relevant provisions of the 1940 Act; and (iii) PFPC and such
delegate (or assignee) promptly provide such information as the Fund may
request, and respond to such questions as the Fund may ask, relative to the
delegation (or assignment), including (without limitation) the capabilities of
the delegate (or assignee).
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
22. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties and
supersedes all prior agreements and understandings
relating to the subject matter hereof, provided that
the parties may embody in one or more separate
documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are included
for convenience of reference only and in no way
define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be deemed to be a
contract made in Delaware and governed by Delaware
law, without regard to principles of conflicts of
law.
(d) Partial Invalidity. If any provision of this
Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
(e) Successors and Assigns. This Agreement shall be
binding upon and shall
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inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any
party to this Agreement shall constitute the valid
and binding execution hereof by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Xxxxxx Xxx Xxxx
-------------------
Title: Vice President
DRIEHAUS MUTUAL FUNDS
By: /s/ Xxxxxx X. Xxxxx
-------------------
Title: Trustee
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EXHIBIT A
THIS EXHIBIT A, dated as of September 25, 1996, is Exhibit A to that
certain Administration and Accounting Services Agreement dated as of September
25, 1996 between PFPC Inc. and Driehaus Mutual Funds.
PORTFOLIOS
----------
Driehaus International Growth Fund
Driehaus Asia Pacific Growth Fund
Driehaus Emerging Markets Growth Fund
Driehaus European Opportunity Fund
Driehaus International Discovery Fund
PFPC INC.
By:/s/ Xxxxxx X. Xxx Xxxx
------------------------
Xxxxxx X. Xxx Xxxx
Vice President
DRIEHAUS MUTUAL FUNDS
By:/s/ Xxxxx Xxxxxxx
------------------------
Xxxxx Xxxxxxx
Vice President
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
----------- ---------
Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- -------------------------------
Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------- -------------------------------
Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
------------------------------- -------------------------------
Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
------------------------------- -------------------------------
Xxxxxxxx Xxxxxxxxxxx /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------- -------------------------------
Xxxxx X. X'Xxxxx /s/ Xxxxx X. X'Xxxxx
------------------------------- -------------------------------
Xxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxxx
------------------------------- -------------------------------
Xxxxxxxx Xxxx /s/ Xxxxxxxx Xxxx
------------------------------- -------------------------------
Xxx Xxxxxx /s/ Xxx Xxxxxx
------------------------------- -------------------------------
Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
------------------------------- -------------------------------
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
------------------------------- -------------------------------
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