Exhibit 9(f)
SUB-SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT is entered into the 1st day of April, 1998, by and
between PBHG Fund Services ("Fund Services"), a Pennsylvania business trust, and
UAM Shareholder Service Center, Inc. ("UAM SSC"), a Delaware Corporation.
WITNESSETH:
WHEREAS, Fund Services serves as Shareholder Service Agent to PBHG
Advisor Funds, Inc. (the "Fund") and each of the Fund's separate series (the
"Portfolios") and classes pursuant to a shareholder services agreement (the
"PBHG Agreement") between the Fund and Fund Services; and
WHEREAS, the Fund has retained Fund Services to provide such services
to the Fund, its Portfolios and the holders of shares thereof, which services
are supplemental and related to services provided by DST Systems, Inc. ("DST")
pursuant to a transfer agency agreement between the Fund and DST (the "DST
Agreement"); and
WHEREAS, Fund Services desires to engage UAM SSC to assist in providing
such services pursuant to this sub-shareholder services agreement (the "UAM SSC
Agreement") between Fund Services and UAM SSC.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, Fund Services and UAM SSC, intending to be legally bound,
hereby agree as follows:
1. Scope. In addition to the Portfolio and classes of shares thereof existing on
the effective date of this UAM SSC Agreement, the Fund may from time to time
hereafter create additional Portfolios and issue separate classes of its shares
of common stock or classify and reclassify shares of any Portfolio or class, and
the appointment effected hereby shall constitute appointment for the provision
of services with respect to all existing Portfolios and classes and any
additional Portfolios and classes unless the parties shall otherwise agree in
writing.
2. Appointment. UAM SSC hereby agrees to perform such services and to serve such
functions as are set forth in Appendix A hereto, which appendix is incorporated
herein by this reference. Appendix A may not be amended except by written
agreement between Fund Services and UAM SSC. UAM SSC hereby agrees to perform
such services and serve such functions as provided in Appendix A in accordance
with the terms and conditions set forth in this Agreement.
3. Obligations Under this Agreement. To the extent that the provisions or
requirements of this Agreement and any agreement related thereto including the
PBHG Agreement, may impose obligations on UAM SSC to provide services, conform
to a standard of conduct, adhere to a stipulated process or procedure, or
otherwise undertake to perform a defined duty or responsibility, or may require
Fund Services to fulfill such obligations, UAM SSC shall perform such
obligations and shall at all times use reasonable care and act in good faith in
performing such obligations.
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4. Duties and Responsibilities of Fund Services. In connection with the services
provided by UAM SSC pursuant to this Agreement, UAM SSC shall directly or
indirectly:
a. Personnel. Provide the services of personnel competent to perform
the obligations under this Agreement.
b. Facilities. Furnish, at its own expense, such office facilities,
furnishings, office equipment and other property and resources as are necessary
for the fulfillment of the obligations under this Agreement.
c. Books and Records. Maintain customary records, and particularly
shall maintain those records required to be maintained pursuant to subparagraph
(2)(iv) of paragraph (b) of Rule 31a-1 under the 1940 Act. UAM SSC may send
periodically to the Fund, or to where designated by the Secretary or an
Assistant Secretary of the Fund, all books, documents, and all records no longer
deemed needed for current purposes, upon the understanding that such books,
documents, and records, will be maintained by the Fund under and in accordance
with the requirements of Rule 17Ad-7 adopted under the Securities Exchange Act
of 1934. Such materials will not be destroyed by the Fund without the consent of
UAM SSC (which consent will not be unreasonably withheld), but will be safely
stored for possible future reference.
d. Reports to the Fund. Furnish to or place at the disposal of Fund
Services and the Fund such information, reports, evaluations, analyses, and
opinions relating to the services performed by UAM SSC under any sub-shareholder
services agreement (as provided for hereunder), as Fund Services and the Fund
may reasonably request or as Fund Services
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may deem helpful to the Fund to make an informed determination regarding the
rendering of services by UAM SSC, the continuation of this Agreement, and the
payments contemplated to be made hereunder.
5. Fees. In consideration of the services performed by UAM SSC under this
Agreement, Fund Services shall pay such fees to UAM SSC as are set forth in
Appendix B hereto, which appendix is incorporated herein by this reference. In
addition to the fees set forth in Appendix B, UAM SSC shall be entitled to
reimbursement from Fund Services for all reasonable out-of-pocket expenses
without xxxx-up incurred by UAM SSC in connection with the performance of the
services provided for in this Agreement. UAM SSC shall conduct an evaluation of
the fees payable under this Agreement at six month intervals and shall advise
Fund Services as to any adjustments in fees that UAM SSC deems appropriate, but
in any event, Appendix B may not be amended except by the written agreement of
Fund Services and UAM SSC.
6. Third Party Service Providers. Fund Services agrees that UAM SSC may enter
into a sub-shareholder services agreement or related agreements with BFDS or
other service providers to perform certain services provided for by this
Agreement. UAM SSC obligations and the standards of care under which UAM SSC has
undertaken to fulfill such obligations, and the indemnification that UAM SSC has
agreed to provide under this Agreement may not, however, be impaired or assigned
by UAM SSC without the consent and approval of Fund Services and of the Board of
Directors of the Fund.
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7. Certain Representations and Warranties of UAM SSC. UAM SSC represents and
warrants to Fund Services that:
a. It is a corporation duly formed and validly subsisting under the
laws of the State of Delaware.
b. It is duly qualified to carry on its business in the Commonwealth of
Pennsylvania.
c. It is empowered under applicable laws and by its [Declaration of
Trust] and Bylaws to enter into and perform the services contemplated in this
Agreement.
d. It is registered as a transfer agent to the extent required under
the Securities Exchange Act of 1934.
e. All requisite proceedings of the Directors have been taken to
authorize it to enter into and perform this Agreement.
f. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
8. Certain Representations and Warranties of Fund Services. Fund Services
represents and warrants to UAM SSC that:
a. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Pennsylvania.
b. It is duly qualified to carry on its business in the Commonwealth of
Pennsylvania.
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c. It is empowered under applicable laws and by its trust agreement and
Bylaws to enter into and perform this Agreement.
d. All requisite proceedings of the Trustees have been taken to
authorize it to enter into and perform this Agreement.
9. Certain Covenants of UAM SSC Fund Services.
a. Records are Property of the Fund. To the extent required by Section
31 of the 1940 Act, and the rules thereunder, UAM SSC agrees that all records
maintained by Fund Services relating to the services to be performed by UAM SSC
under this Agreement are the property of the Fund and will be preserved and will
be surrendered promptly to the Fund on request.
b. Financial Statements. UAM SSC agrees to furnish to the Fund annual
reports of its financial condition, consisting of a balance sheet, earnings
statement and any other financial information reasonably requested by the Fund.
c. Information Concerning the Fund. Fund Services agrees to furnish or
otherwise make available to UAM SSC such information relating to the business
and affairs of the Fund as UAM SSC may reasonably require to discharge its
duties and obligations hereunder. Fund Services further agrees to provide UAM
SSC with information and updates relating to new product and service
introductions and sales and marketing efforts that may reasonably be expected to
impact on shareholder or prospective shareholder telephone call volume so that
UAM SSC can properly allocate the resources necessary to fulfill its obligations
under this Agreement.
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d. Cooperation in Shareholder Responses. Fund Services agrees that the
Fund Services will, and shall cause the Fund's investment adviser, Fund Services
parent, to, cooperate with UAM SSC to the extent necessary to formulate
appropriate responses to written inquiries from shareholders concerning
investment strategy and philosophy and market commentary.
10. Quality Control.
a. Audits. UAM SSC shall be responsible for periodically conducting
quality control audits with respect to telephone purchase, redemption and
exchange requests and account changes received and processed by UAM SSC or any
third party service provider with which UAM SSC has contracted to perform any of
the services provided for under this Agreement. UAM SSC shall promptly report
the results of such quality control audits to Fund Services.
b. Inspections. UAM SSC shall permit the Fund and Fund Services and its
authorized representatives, including, but not limited to, the Fund's
independent auditors, to have reasonable access to the personnel and records of
UAM SSC, and to make periodic inspections of the operations of UAM SSC as such
would involve the Fund at reasonable times during business hours for the purpose
of monitoring the quality of services performed by UAM SSC, and the level of
fees and reimbursements to which UAM SSC is entitled, under this Agreement.
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c. Monitoring of Exchange Privileges. UAM SSC shall use its reasonable
efforts to detect and prevent shareholder violations of telephone exchange
privileges as described in the Fund's prospectuses.
d. Service Improvement. UAM SSC shall use its reasonable efforts to
keep current on the trends of the investment company industry relating to
shareholder services and to continue to modernize and improve its service
delivery mechanisms.
e. Year 2000 Compliance. UAM SSC represents that its Information
Systems (as defined in Appendix C) will be Year 2000 Compliant as set forth in
Appendix C, attached hereto.
11. Liability and Indemnification.
a. Indemnification by Fund Services. UAM SSC shall not be responsible
for, and Fund Services shall indemnify and hold UAM SSC harmless from and
against, any and all losses, liabilities, claims, demands, suits, costs and
expenses (including reasonable attorneys' fees) which may be asserted against
UAM SSC or for which UAM SSC may be held to be liable, arising out of, or are
attributable to, the Fund Services' failure to comply with the terms of this
Agreement, or arising out of or attributable to, Fund Services' negligence or
willful misconduct or breach of any representation or warranty of Fund Services
hereunder.
b. Indemnification by UAM SSC. The Fund and Fund Services shall not be
responsible for, and UAM SSC shall indemnify the Fund and Fund Services, its
officers and directors and hold them harmless from and against, any and all
losses, liabilities, claims,
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demands, suits, costs and expenses (including reasonable attorneys' fees) which
may be asserted against the Fund and Fund Services or for which the Fund and
Fund Services may be held to be liable, arising out of, or attributable to, UAM
SSC's failure to comply with the terms of this Agreement, or arising out of, or
are attributable to, any negligence or willful misconduct or breach of any
representation or warranty of UAM SSC hereunder.
c. Notice of Potential Claims; Defense of Claims. Fund Services and UAM
SSC agree that each shall promptly notify the other in writing of any situation
which represents or appears to involve a claim which may be the subject of
indemnification hereunder, although the failure to provide such notification
shall not relieve the indemnifying party of its liability pursuant to this
Section 11. The indemnifying party shall have the option to defend against any
such claim. In the event the indemnifying party so elects, it will notify the
indemnified party and shall assume the defense of such claim, and the
indemnified party shall cooperate fully with the indemnifying party, at the
indemnifying party's expense, in the defense of such claim. If the indemnifying
party elects not to defend against such claim, the indemnified party shall be
entitled to advance of reasonable expenses to defend such claim. Notwithstanding
the foregoing, the indemnified party shall not enter into any settlement of such
matter without the written consent of the indemnifying party, which consent
shall not be withheld unreasonably. The indemnifying party shall not be
obligated to indemnify the indemnified party for any settlement entered into
without the written consent of the indemnifying party. If the consent of the
indemnified party is required to effectuate any settlement and the indemnified
party refuses to consent to any settlement negotiated by the
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indemnifying party, the liability of the indemnifying party for losses arising
out of or due to such matter shall be limited to the amount to the rejected
proposed settlement.
d. Except for violations of Section 17c. hereunder, in no event and
under no circumstances shall either party to this Agreement be liable to anyone,
including, without limitation, to the other party, for consequential damages for
any act or failure to act under any provision of this Agreement even if advised
of the possibility thereof.
e. Survival of Provisions. The obligations of Fund Services and UAM SSC
pursuant to this Section 11 shall survive the termination of this Agreement.
12. Limitations on Liability
a. Subcontractors. Nothing herein shall impose any duty upon UAM SSC in
connection with or make UAM SSC liable for the actions or omissions to act of
unaffiliated third parties such as, by way of example and not limitation,
Airborne Services, the U.S. mails and telecommunication companies, provided, if
UAM SSC selected such company, UAM SSC shall have exercised reasonable care in
selecting the same. The foregoing limitation of liability with respect to
actions or omissions of unaffiliated third parties shall not be construed to
relieve UAM SSC of any obligations under Section 6 hereof with respect to any
services that UAM SSC has agreed to perform under this agreement that are
ultimately performed by other parties.
b. Portfolios as Separate Parties. Each Portfolio shall be regarded for
all purposes hereunder as a separate party apart from each other Portfolio.
Unless the context otherwise requires, with respect to every transaction covered
by this Agreement, every
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reference herein to the Fund shall be deemed to relate solely to the particular
Portfolio to which such transaction relates. Under no circumstances shall the
rights, obligations or remedies with respect to a particular Portfolio
constitute a right, obligation or remedy applicable to any other Portfolio. The
use of this single document to memorialize the separate agreement each Portfolio
is understood to be for clerical convenience only and shall not constitute any
basis for joining the Portfolios for any reason.
13. Term of Agreement. This Agreement shall become effective on the day and year
first written above and, unless sooner terminated as hereinafter provided, shall
continue in effect for an initial period that will expire on December 31, 1998,
and thereafter shall continue in effect from year to year.
14. Termination.
a. Material Breach. This Agreement may be terminated by either party in
the event of a material breach of the Agreement by the other party upon thirty
(30) days' prior written notice to the other party; provided, however, that the
Agreement shall not terminate if such material breach is cured within such
thirty (30) day period.
b. Termination by Fund Services. Fund Services may, without payment of
penalty, terminate this Agreement upon 90 days' written notice to UAM SSC.
c. Termination by UAM. UAM SSC may, without payment of penalty,
terminate this Agreement upon 90 days' written notice to Fund Services.
d. Assignment. No assignment of this Agreement by either party shall
occur without the written consent of the other party.
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15. Notices. All notices to be given hereunder shall be deemed properly given if
given in writing, delivered in person, or if sent by U.S. mail, first class,
postage prepaid, or if sent by facsimile and thereafter confirmed by mail, (i)
if to Fund Services, to PBHG Fund Services Inc., 000 Xxxxxxxxx Xxxx, Xxxxx, XX
00000, Attn: Xxxxx Xxxxxxxx, and (ii) if to the UAM SSC, to UAM Shareholder
Service Center, 000 Xxxxxxxxxxx Xxxx, Xxxxx 000 Xxxx Xxxxxxx, XX 00000, Attn:
Xxxxxx X. Xxxxxx, or to such other address as shall have been specified in
writing by the party to whom such notice is to be given.
16. Force Majeure. In the event UAM SSC is unable to perform its obligations or
duties under the terms of this Agreement because of any act of God, strike,
riot, act of war, equipment failure, power failure or damage or other causes
reasonably beyond its control, UAM SSC shall not be liable for any losses,
damages, costs, charges, counsel fees, payments, expenses or liability to any
other party (whether or not a party to this Agreement) resulting from such
failure to perform its obligations or duties under this Agreement or otherwise
from such causes. This provision, however, shall in no way excuse UAM SSC from
being liable to the Fund or Fund Services for any and all losses, damages,
costs, charges, counsel fees, payments and expenses incurred by the Fund or Fund
Services due to the non-performance or delay in performance by UAM SSC of its
duties and obligation under this Agreement if such non-performance or delay in
performance could have been reasonably prevented by UAM SSC through back-up
systems and other procedures commonly employed by other persons in the mutual
fund industry who provide services similar to those to be provided by UAM SSC
under this Agreement, provided that UAM SSC shall have the right,
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at all times, to mitigate or cure any losses, including by making adjustments or
corrections to any current or former shareholder accounts.
17. Miscellaneous.
a. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the Commonwealth of Pennsylvania,
except as such laws may conflict with the 1940 Act and the rules thereunder or
other applicable federal laws or regulations.
b. Severability. If any provision of this Agreement shall be held or
made invalid in whole or in part by a court decision, statute, rule, or
otherwise, the remaining provisions of the Agreement shall not be affected
thereby. Invalid provisions shall, in accordance with the intent and purpose of
this Agreement, be replaced by mutual consent of the parties with such valid
provisions which in their economic effect come as closely as legally possible to
such invalid provisions.
c. Confidentiality. UAM SSC agrees on behalf of itself and its
employees to treat confidentially all records and other information relative to
the Fund and its prior, present, or prospective shareholders, except, after
prior notification to and approval in writing by Fund Services and the Fund,
which approval shall not be withheld unreasonably and may not be withheld where
UAM SSC may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities.
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d. Amendments in Writing. Any part of this Agreement or any appendix
hereto may be amended or waived only by an instrument in writing signed by the
parties hereto.
e. Headings and Captions. The headings and captions contained in this
Agreement are included for convenience of reference only and in no way define or
delineate any of the provisions hereof or otherwise affect their construction or
effect.
f. Interpretation. Nothing herein contained shall be deemed to require
the Fund to take any action contrary to its Articles of Incorporation or Bylaws,
or any applicable statutory or regulatory requirement to which it is subject or
by which it is bound, or to relieve or deprive the Board of Directors of its
responsibility for and control of the conduct of the affairs of the Fund.
g. Enforceability by Successors and Assigns. All terms and provisions
of this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
h. Survival of Representations, Warranties and Indemnification. The
representations and warranties, and the indemnification extended hereunder, if
any, are intended to and shall continue after and survive the expiration,
termination or cancellation of this Agreement.
i. No Joint Venture. Neither the execution nor performance of this
Agreement shall be deemed to create a partnership or joint venture by and
between the Fund, Fund Services and UAM SSC. It is understood and agreed that
all services performed hereunder by UAM SSC shall be as an independent
contractor. While this Agreement is between Fund Services and the UAM SSC, the
Parties agree that this Agreement and the performance of
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the services provided for herein shall be performed for the benefit of the Fund,
and the Parties also agree that the Fund shall be a third party beneficiary to
this Agreement.
j. No Waiver. The failure of either party to insist upon the
performance of any terms or conditions of this Agreement or to enforce any
rights resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed as a
continuing or permanent waiver of any such terms, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, to be effective as of the
day and year first above written.
PBHG FUND SERVICES
By: /s/ Xxx X. Xxxxxxxx
-------------------------------
Title: Treasurer
----------------------------
UAM SHAREHOLDER SERVICE
CENTER, INC.
By: /s/
-------------------------------
Title: Vice President - Gen. Mgr.
----------------------------
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APPENDIX A
Services
UAM SSC shall be responsible for receiving telephone calls, faxes,
letters and transmissions from shareholders and institutions and processing
transactions generated by such telephone calls, faxes, letters and
transmissions. The general categories of services UAM SSC will be responsible
for performing include but are not limited to:
1. Purchase, redemption and exchange of shares
2. Addition or deletion of services for an account
3. Explanation of fund or market conditions and performance
4. Research account inquiries, respond to such inquiries, and make any
required account corrections
5. Change account address or distribution option
6. Correct registration or account error
7. Send additional account statements or other requested materials or
forms
Without limitation of the foregoing, UAM SSC shall at a minimum perform
the following specific services:
1. Provide Shareholder Support
2. Process "Phone" Transactions
ACH Buys
ACH Sells
Purchase Orders (Settle by Wire or Check)
Redemption Orders (Settle by Wire or Check)
Account Exchanges
3. Process Account Maintenance
4. Problem Research and Resolution
5. Prepare Research Documentation for DST
6. All Correspondence Services except for Correspondence Requiring the
Return of Original Documentation received at DST
7. Institutional Desk Servicing, included but not limited to:
Dealer Servicing
Account Maintenance
Dealer File Maintenance
Transaction Processing
Order Settlement Support
Adjustment Processing Support
NSCC Networking Support
Fund Info/Data Dissemination
8. Redemption by ACH to bank of record
9. Redemption by check to address of record
10. Redemption by wire to bank of record
11. Exchange between funds
12. ACH purchase from bank of record
13. Process purchase order (a.k.a. confirmed purchase)
14. Request stop/replace redemption checks to address of record
15. Research/document/request corrective processing
16. Account Maintenance
Non-Signature Guaranteed address change
Stop/restart/defer a Systematic Monthly Investment (SIP)
Increase/decrease a Systematic Monthly Investment (SIP)
Increase/decrease/defer/discontinue a systematic withdrawal plan (SWP)
Add a beneficiary birth date
Change dividend/capital gains distribution method
Stop dividend mail
Add/change a dividend move
Combine identical accounts within the same funds
Add or delete stop mail from the account
Request stop or replace a redemption check after fifteen (15) days
Add/change/delete systematic exchanges (SYSEXCH) with the same
registration
Correct minor errors in names on registration if clearly indicated on the
application
Reissue checkwriting drafts on a Cash Reserve account where the
privilege has been established
Link/unlink accounts for the INVESTOR statement product (managers
only)
APPENDIX B
Fees
A. Minimum Fee:
For each operational class of shares for each
Portfolio of the Fund: $3,333 per year minimum.
However, if the aggregate minimum per class fee
calculated for all Portfolios of the Fund is less
than the aggregate per account fee calculated for all
Portfolios of the Fund, each class will pay only the
per account fee for its open accounts.
B. Per account Fee:
Open Accounts - $8.00 per open account per year.
APPENDIX C
Year 2000 Compliance
Definitions:
"Embedded Control" shall mean any microprocessor, microcontroller,
smart instrumentation or other sensor, driver, monitor, robotic or other device
containing a semiconductor, memory circuit, BIOS, PROM or other microchip,
whether it is part of or operates in conjunction with any mainframes, midrange
computers, personal computers, notebooks, servers, switches, printers, modems,
drives or peripherals ("Hardware") or any other electronic or mechanical device
that operates, controls or monitors any function of any real or personal
property, including but not limited to any security, access control or
telecommunications devices or systems.
"Information System" shall mean any combination of any Hardware,
software, databases or Embedded Controls employed primarily for the creation,
manipulation, storage, retrieval, display and use of information in electronic
form or media.
"Year 2000 Compliant": shall mean:
(a) that each component of an Information System or any Embedded
Control:
(i) is designed (or has been modified) to be used prior to and
after January 1, 2000; and
(ii) will operate without error arising from the creation,
recognition, acceptance, calculation, display, storage, retrieval, accessing,
comparison, sorting, manipulation, processing or other use of dates or
date-based, date-dependent or date-related data, including but not limited to
century recognition, day-of-the-week recognition, leap years, date values and
interfaces of the date functionalities; and
(iii) will not be adversely affected by the advent of the year
2000, the advent of the twenty-first century or the transition from the
twentieth century through the year 2000 and into the twenty-first century.
(b) that the design architectures and functionalities embodying,
reflecting or affecting the criteria set forth in subparagraph (a), above, of
all components of an Information System (or the methods used to modify them) are
compatible and, when operated in, on or in conjunction with any other component
of such Information System, will not
cause it or any of its components to fail to satisfy the criteria set forth in
subparagraph (a), above.
(c) that an Information System does not receive data from or
communicate with any component or Information System external to itself (whether
or not such external component or Information System is UAM SSC's or any third
party's) that does not conform to the criteria set forth in subparagraphs (a)
and (b), above.
UAM SSC represents and warrants that all Information Systems of UAM SSC
used in the performance of UAM SSC's obligations under this Agreement are Year
2000 Compliant.
UAM SSC covenants that it will take all actions necessary to ensure:
(a) that all Information Systems of UAM SSC and the databases used
therewith or created thereby:
(i) shall remain Year 2000 Compliant at all times during the
term of this Agreement;
(ii) shall be adequately protected from contamination by non-
Year 2000 Compliant third-party communications received by any
electro-mechanical or electronic devices of UAM SSC; and
UAM SSC acknowledges and agrees that for the purposes of this
Agreement:
(a) the Fund may request, and UAM SSC will provide a detailed
summary of the Year 2000 Compliant status of UAM SSC's Information Systems and
Embedded Controls; and
(b) UAM SSC shall not be relieved of any liability or
responsibility for any losses to the Fund pursuant to paragraph 11 of this
Agreement in respect of any breach of UAM SSC's obligations pursuant to this
Appendix C.