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EXHIBIT 9(d)
CONFIDENTIALITY AGREEMENT
This Agreement is made as of the 15th day of January, 1997, between
Xxxxxxx Xxxxxx & Co., Inc. ("Schwab"), a California corporation, and Xxxxxxxx
Xxxxx & Associates, Inc., ("Fund Affiliate), an affiliate of the registered
investment company(ies), listed on Schedule I of the Operating Agreement
between Schwab and Xxxxxxxx Xxxxx Funds, Inc., made as of January 15, 1997.
RECITALS
A. Fund Affiliate wishes Schwab to provide it with the names and
addresses of investment managers and retirement plan administrators, whose
clients hold positions in any of the funds (as defined in the Operating
Agreement), for purposes of Fund Affiliate's direct marketing and communication
with these investment managers and retirement plan administrators and for
purposes of tracking the demographics of sale of the Fund shares. Fund
Affiliate mailings using this confidential, proprietary information may occur
through a mailing agent for the Fund Affiliate.
B. Subject to the terms and conditions herein or as may be mutually
agreed upon in writing from time to time, Schwab is willing to provide to Fund
Affiliate such confidential, proprietary information.
AGREEMENT
THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, the parties agree as follows:
1. Definitions. As used in this Agreement, each of the following terms
will have the meaning ascribed thereto:
a. "Schwab Institutional Customer" means a Schwab customer who is an
investment manager or retirement plan administrator whose client(s) hold
position(s) in any of the Funds.
b. "Mailing Agent" means the person or entity with whom Fund Affiliate
contracts to act as its agent in performing mailings to Schwab Institutional
Customers and to whom Fund Affiliate provides names and addresses of Schwab
Institutional Customers received from Schwab under this Agreement.
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c. "Objecting Customer" means any Schwab Institutional Customer who
has made objection to the release of his or her name or address.
d. "Proprietary Information" means the lists of names and addresses of
Schwab Institutional Customers, other than Objecting Customers, together with
the opening and closing position in the Fund(s) by each master account and any
activity which has occurred in the master account subsequent to any previous
reporting, which will be provided to Fund Affiliate under this Agreement.
2. Access to Proprietary Information.
a. During the term of this Agreement, Schwab will provide to Fund
Affiliate on a monthly basis, the Proprietary Information for that month. The
Proprietary Information shall be provided together with the master accounts of
Objecting Customers - which shall be identified only by coded account number.
b. Fund Affiliate will hold the Proprietary Information in strictest
confidence and will use the Proprietary Information solely for the business
purposes set forth in Recital A above. Fund Affiliate will have in effect, and
enforce, rules and policies designed to protect against unauthorized access to
or use of the Proprietary Information including instruction of and written
agreements with their employees and Mailing Agent to insure that they protect
the confidentiality of the Proprietary Information. Fund Affiliate may disclose
Proprietary Information to its responsible employees and Mailing Agent only to
the extent necessary to carry out the purpose for which Proprietary Information
is disclosed. Fund Affiliate shall instruct its employees not to disclose
Proprietary Information to third parties, except to Mailing Agent.
c. Fund Affiliate shall not be prevented from using or disclosing any
information or material, or any element thereof, whether or not such information
or material is Proprietary Information for the purposes of this Agreement, to
the extent any such information or material, or any element thereof:
i. has been previously published or is published hereafter, unless such
publication is itself a breach of this Agreement or a similar confidential
disclosure agreement with Schwab;
ii. was already known to Fund Affiliate prior to being disclosed by Schwab
as evidenced by written records kept in the ordinary course of business of Fund
Affiliate or by proof of actual use by Fund Affiliate;
iii. has been or is hereafter rightfully received by Fund Affiliate from a
third person without restriction on disclosure and without breach of this
Agreement; or
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iv. has been independently developed by Fund Affiliate.
It shall be presumed that any Proprietary Information in Fund Affiliate's
possession is not within exceptions (iii) or (iv) above, and the burden is on
Fund Affiliate to prove otherwise by records and documentation.
d. Fund Affiliate may release Proprietary Information if required by
law or by order or requirement of any court or governmental authority; provided
that prior to releasing Proprietary Information pursuant to any such requirement
or order, Fund Affiliate shall so notify Schwab. If feasible, such notice shall
be provided not less than five (5) business days prior to the required
disclosure. Fund Affiliate will use reasonable efforts not to release the
Proprietary Information pending the outcome of any measures taken by Schwab to
contest the requirement or order.
e. Fund Affiliate acknowledges and agrees that it or its agent's
breach of any part of this Agreement will result in irreparable harm to Schwab
for which an adequate remedy is not available at law. Accordingly, in such
event, Schwab shall be entitled, in addition to any other remedies available, to
equitable relief, including preliminary injunction and restraining order.
f. Fund Affiliate shall receive Proprietary Information back from any
Mailing Agent, and destroy all tangible and non-tangible representations of
Proprietary Information, within thirty (30) days of its receipt, upon receipt of
Proprietary Information for a more recent month, or at termination of this
Agreement, whichever is sooner. Fund Affiliate shall, if so requested by
Schwab, deliver a letter to Schwab confirming the return and the destruction of
the Proprietary Information.
x. Xxxxxx reserves all rights in the Proprietary Information pursuant
to any patents and copyrights contained therein. Fund Affiliate recognizes and
agrees that nothing contained in this Agreement shall be construed as granting
any rights, license or otherwise, to any Proprietary Information disclosed
pursuant to this Agreement.
h. Fund Affiliate shall, at its own expense, take all reasonable
steps, including the initiation and prosecution of actions at law or in equity,
necessary to prevent disclosure of any Proprietary Information by any
representative or employee of Fund Affiliate or Mailing Agent and to prevent the
unauthorized use or disclosure of any Proprietary Information by any other
person who gained such Proprietary Information from Fund Affiliate or its agent,
representatives, or employee in violation of the terms of this Agreement.
3. Responsibility for Communications. Fund Affiliate acknowledges its
sole responsibility for any communication made with or mailings sent to Schwab
Institutional Customers hereunder, and the compliance of such communications and
mailings with all applicable laws and regulations.
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4. Indemnification. Fund Affiliate shall indemnify and hold harmless
Schwab and each director, officer, employee and agent of Schwab from and
against any and all claims, liabilities, losses, damages, and expenses of any
nature, including counsel fees ("Losses") arising out of (i) any use made by
Fund Affiliate or Mailing Agent of the Proprietary Information, (ii) any
failure by Fund Affiliate or Mailing Agent to comply with any applicable laws
and regulations, and (iii) any action taken or omitted to be taken by Schwab in
observance of the terms of this Agreement.
5. Liability. Fund Affiliate shall cause Mailing Agent to enter into a
contract with Fund Affiliate, in which Schwab shall be named as an express
third party beneficiary, requiring that the Proprietary Information be kept
confidential as provided in this Agreement and not used for any other purpose
than envisioned under this Agreement. Fund Affiliate understands and agrees
that it shall be liable for any failure of the Mailing Agent to keep the
Proprietary Information confidential to the extent provided in this Agreement.
6. Assignability. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties and their respective successors and assigns.
Any assignment (within the meaning of Section 2(a)(4) of the Investment Company
Act of 1940, as amended) of this Agreement by Fund Affiliate is prohibited
without Xxxxxx'x prior written consent.
7. Termination. Schwab may terminate this Agreement by giving Fund
Affiliate ten (10) days prior written notice. The termination of the Agreement
shall not affect Fund Affiliate's obligations or rights with respect to
Proprietary Information disclosed prior to the effective date of termination.
8. Choice of Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California applicable to agreements
made and performed in California by California residents. If any provision of
this Agreement is determined to be illegal or unenforceable by competent
judicial authority, all other terms and provisions shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by law.
9. Single Agreement. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
10. Waiver. No delay or omission by a party in exercising any rights
under this Agreement will operate as a waiver of that or any other right. A
waiver or consent given by a party on one occasion is effective only in that
instance and will not be construed as bar to or waiver of any right on any
other occasion.
11. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof. Any
modification to this Agreement must be in writing and signed by both parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Xxxxxxxx Plumb & Associates, Inc. XXXXXXX XXXXXX & CO., INC.
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Name of Fund Affiliate
By: /s/ Xxxxxx X. Xxxxx By:_______________________
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Name: Xxxxxx X. Xxxxx Name:_____________________
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Title: President Title:____________________
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Date: January 15, 1997 Date:_____________________
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