Exhibit (e)(3)
ADMINISTRATIVE SERVICES AGREEMENT FOR
THE GOVETT FUNDS
TO: FIRST DATA DISTRIBUTORS, INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
FROM:
-----------------------------------
Name of Firm
-----------------------------------
Address of Principal Office
-----------------------------------
City, State, Zip Code
Ladies and Gentlemen:
For the mutual promises contained herein and other good and valuable
consideration, we enter into this Agreement with you for the provision of
administrative support services to your Customers ("Customers") who from time
to time may beneficially own shares (the "Shares") of The GOVETT Funds (the
"Fund") (including Shares of any and all series or portfolios thereof
(individually, a "Portfolio" and collectively, the "Portfolios") and any
classes thereof) of which you are the Distributor. The terms and conditions of
this Administrative Services Agreement are as follows.
1. We understand that we will be compensated by you as set forth in the
applicable current Prospectus for each Portfolio for services that we
provide pursuant to this Agreement. The term "Prospectus" herein refers to
the prospectus on file with the Securities and Exchange Commission (the
"SEC") which is part of the registration statement of the Fund under the
Securities Act of l933, as amended. We acknowledge that any compensation
paid to us is subject to the terms of the Distribution and Services Plan
adopted by the Portfolios (the "Plan").
2. We will provide one or more of the following support services to Customers:
(i) aggregating and processing purchase and redemption requests for Shares
from Customers and placing net purchase and redemption orders with the
Distributor; (ii) providing Customers with a service that invests the
assets of their accounts in Shares pursuant to specific or pre-authorized
instructions; (iii) processing dividend payments from the Fund on behalf of
Customers; (iv) providing information periodically to Customers showing
their positions in the Fund's Shares; (v) arranging for bank wire transfer
of funds to or from a Customer's account; (vi) responding to inquiries from
Customers relating to the services performed under this Agreement; (vii)
forwarding to Customers proxy statements and proxies containing any
proposals regarding the Fund or a Portfolio; (viii) rendering ongoing
advice respecting the suitability of particular investment opportunities
offered by the Fund in light of the Customer's needs; and (ix) providing
such other similar services as the Distributor may reasonably request to
the extent that we are permitted to do so under applicable statutes, rules,
or regulations. It is understood that not all Customers may require or
wish to avail themselves of any or all of these services. We will provide
such office space and equipment, telephone facilities, and personnel (which
may be any part of the space, equipment, and facilities currently used in
our business, or any personnel employed by us) as may be reasonably
necessary or beneficial in order to provide such services to Customers.
3. We will act solely as an agent for, upon the order of, and for the account
of, our Customers. In no transaction shall we have any authority to act as
agent for the Fund or for you.
4. Neither we nor any of our officers, employees or agents are authorized to
make any representations concerning the Fund or the Shares except those
contained in the Fund's then current prospectus or statement of additional
information, copies of which will be supplied to you, or in such
supplemental sales literature or advertising as may be authorized by you
in writing.
5. We acknowledge that you are required under the Plan to provide to the Board
of Trustees of the Fund, and the Board will review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made. We agree to furnish you with such information as
may reasonably be requested (including, without limitation, periodic
certifications confirming the provision to Customers of the services
described herein), and will otherwise cooperate with you in connection with
preparation of reports to the Board of Trustees concerning this Agreement
and the monies paid or payable by you pursuant hereto, as well as any other
reports or filings that may be required by law.
6. We represent, warrant and agree that: (I) in no event will any of the
services provided by us hereunder be primarily intended to result in the
sale of Shares; (ii) the compensation payable to us hereunder, together
with any other compensation payable to us by Customers in connection with
the investment of their assets in Shares will be disclosed by us to our
Customers, will be authorized by our Customers and will not result in an
excessive or unreasonable fee to us; (iii) we will not advertise or
otherwise promote our Customer accounts primarily as a means of investing
in Shares or establish or maintain Customer accounts for the primary
purpose of investing in Shares; (iv) in the event an issue pertaining to
this Agreement or the Plan is submitted for shareholder approval, we will
vote any Shares held for our own account in the same proportion as the vote
of the Shares held for our Customers' accounts; and (v) we will not engage
in activities pursuant to this Agreement which constitute acting as a
broker or dealer under state law unless we have obtained the licenses
required by such law.
7. We hereby represent and warrant that: (a) we are a corporation,
partnership, national association or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in
which we are organized; (b) the execution and delivery of this Agreement
and the performance of the transactions contemplated hereby have been duly
authorized by all necessary action and all other authorizations and
approvals (if any) required for our lawful execution and delivery of this
Agreement and our performance hereunder have been obtained; and (c) upon
execution and delivery by us, and assuming due and valid execution and
delivery by you, this Agreement will constitute a valid and binding
agreement, enforceable against us in accordance with its terms.
8. We agree that you, your directors, officers, employees, shareholders and
agents shall not be liable for any error of judgment or mistake of law or
for any loss suffered by us in connection with the performance of your
obligations and duties under this Agreement, except a loss resulting from
your willful misfeasance, bad faith or negligence in the performance of
such obligations and duties, or by your reckless disregard thereof.
Neither party may assert any cause of action against the other party
under this Agreement that accrued more than two years prior to the filing
of the suit (or commencement of arbitration proceedings) alleging such
cause of action.
Each party shall have the duty to mitigate damages for which the other
party may become responsible.
Notwithstanding anything in this Agreement to the contrary, in no event
shall you, your affiliates or any of your or their directors, officers,
employees agents or subcontractors be liable to us under any theory of
tort, contract, strict liability or other legal or equitable theory for
lost profits, exemplary, punitive, special, incidental, indirect or
consequential damages, each of which is hereby excluded by agreement of
the parties regardless of whether such damages were foreseeable or
whether either party or any entity has been advised of the possibility of
such damages.
9. We agree to indemnify you and hold you, your affiliates and the Fund and
its affiliates (including all officers, trustees, directors, employees and
agents thereof) (an "Indemnified Party") harmless from and against any and
all claims, losses, demands, liabilities or expenses (including reasonable
attorney's fees) of any sort or kind which may be asserted against an
Indemnified Party for which an Indemnified Party may be held liable in
connection with this Agreement (a "Claim") unless such Claim resulted from
a negligent act or omission to act or bad faith by you in the performance
of your duties hereunder. All expenses which we incur in connection with
our activities under this Agreement shall be borne by us.
10. We may terminate this Agreement by notice in writing to you, which
termination shall become effective sixty (60) days after the date of
mailing such notice to you. We agree that you have and reserve the right,
in your sole discretion, to modify, amend or cancel this Agreement upon
written notice to us of such modification, amendment or cancellation, which
shall be effective on the date stated in such notice. This Agreement may
be terminated with respect to a Fund or a class of Shares thereof at any
time, without payment of any penalty, by vote of a majority of the
Disinterested Trustees (as defined in the Plan), or by vote of a majority
of the class of Shares of such Fund for which services are provided
hereunder, on not more than 60 days' written notice. This Agreement shall
terminate automatically in the event of its assignment (as such term is
defined in the Investment Company Act of 1940, as amended). Without
limiting the foregoing, you may terminate this Agreement for cause on
violation by us of any of the provisions of this Agreement, said
termination to become effective on the date of mailing notice to us of such
termination. Waiver of any breach of any provision of this Agreement will
not be construed as a waiver of the provision or of your right to enforce
said provision thereafter. Your failure to terminate for any cause shall
not constitute a waiver of your right to terminate at a later date for any
such cause. All notices hereunder shall be to the respective parties at
the addresses listed hereon, unless changed by notice given in accordance
with this Agreement.
2
--------------------------------------------------------------------------------
11. This Agreement shall become effective as of the date when it is executed
and dated by you below and shall be in substitution of any prior agreement
between you and us covering the Fund. This Agreement and all the rights
and obligations of the parties hereunder shall be governed by and construed
under the laws of the Commonwealth of Massachusetts. This Agreement is not
assignable or transferable, except that your firm may assign or transfer
this Agreement to any successor firm or corporation which becomes the
Distributor of the Fund.
[NAME OF SERVICING AGENT]
-------------------------------
-------------------------------
BY:
-----------------------------
Accepted:
FIRST DATA DISTRIBUTORS, INC.
By:
-------------------------
Date: day of ,199
----------- --------------- --
3
--------------------------------------------------------------------------------
