EXHIBIT H(17)
FORM OF
CO-ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (the "Agreement"), dated as of this 31st day
of July, 2000 (the "Effective Date"), by and among PFPC Inc. ("PFPC"), a
Delaware corporation, THE NORTHERN TRUST COMPANY ("Northern"), an Illinois state
bank (each a "Co-Administrator" and collectively, the "Co-Administrators"), and
NORTHERN FUNDS (the "Fund"), a Delaware business trust.
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 desires to retain the Co-Administrators to render certain
administrative services with respect to each investment portfolio listed in
Schedule A hereto, as the same may be amended from time to time by the parties
hereto (collectively, the "Portfolios"), and the Co-Administrators are willing
to render such services.
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein and intending to be legally bound hereby, the parties hereto agree
as follows:
Article 1 Definitions.
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Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
(a) "Advisory Agreement" shall mean the Investment Advisory and
Ancillary Services Agreement between the Fund and Northern made as of July
31, 2000, as currently in effect and as amended and/or superseded from time
to time.
(b) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of a party as the same may be amended from
time to time.
(c) "Assign" and "Assignment" shall have the same meaning herein as
the term "assignment" has in the 1940 Act.
(d) "Authorized Person" shall be deemed to include (i) any Board
Member or 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 a Co-Administrator from time to time.
(e) "Board Members" shall mean the Directors or Trustees of the
governing body of the Fund, as the case may be.
(f) "Board of Directors" shall mean the Board of Directors or Board
of Trustees of the Fund, as the case may be.
(g) "By-Laws" shall mean the By-Laws of a party as the same may be
amended from time to time.
(h) "Commission" shall mean the Securities and Exchange Commission.
(i) "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 custody agreement.
(j) "1933 Act" shall mean the Securities Act of 1933 and the rules
and regulations promulgated thereunder, all as amended from time to time.
(k) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
(l) "Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by a Co-Administrator from a person
reasonably believed by a Co-Administrator to be an Authorized Person.
(m) "Prospectus" shall mean the most recently dated Fund Prospectuses
and Statements of Additional Information, including any supplements thereto
if any, which has become effective under the 1933 Act and the 1940 Act.
(n) "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.
(o) "Written Instructions" shall mean a written communication signed
by a person reasonably believed by a Co-Administrator to be an Authorized
Person and actually received by a Co-Administrator. 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 Co-Administrators.
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The Fund hereby appoints Northern and PFPC to act as Co-Administrators of
the Fund for the period and on the terms set forth in this Agreement. Northern
and PFPC accept such appointment and agree to render the services herein set
forth for the compensation herein provided. This Agreement shall be effective
and binding on the parties hereto as of the Effective Date.
Article 3 Duties of the Co-Administrators.
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3.1 Subject to the general supervision of the Board of Directors, the Co-
Administrators shall provide supervision of all aspects of the Fund's operations
(other than those referred to in paragraph 3(a) of the Advisory Agreement) and
perform the customary services of an administrator, including but not limited to
the corporate secretarial, treasury and blue sky services set forth in Schedule
B to this Agreement.
3.2 In performing their duties under this Agreement, the Co-
Administrators: (a) will act in accordance with the Articles of Incorporation,
By-Laws, Prospectus and with the Oral Instructions and Written Instructions of
the Fund and will conform to and comply with the requirements of the 1940 Act
and all other applicable federal or state laws and regulations; and (b) will
consult with legal counsel to the Fund, as necessary and appropriate.
Furthermore, the Co-Administrators shall not have or be required to have any
authority to supervise the investment or reinvestment of the securities or other
properties which comprise the assets of the Fund or any of its Portfolios and
shall not provide any investment advisory services to the Fund or any of its
Portfolios under this Agreement.
3.3 In addition to the duties set forth herein, the Co-Administrators
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 Co-Administrators.
3.4 The Co-Administrators agree to provide the services described herein
in accordance with the performance standards annexed hereto as Exhibit 1 of
Schedule B and incorporated herein (the "Performance Standards"). Such
Performance Standards may be amended from time to time upon written agreement by
the parties.
3.5 The services of the Co-Administrators hereunder are not deemed
exclusive and the Co-Administrators shall be free to render similar services to
others so long as their services under this Agreement are not impaired thereby.
Article 4 Recordkeeping and Other Information.
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4.1 The Co-Administrators shall create and maintain all records required
of them pursuant to their duties hereunder and as set forth in Schedule B in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Where applicable, such records
shall be maintained by the Co-Administrators 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 Co-
Administrators agree that all such records prepared or maintained by the Co-
Administrators relating to the services to be performed by the Co-Administrators
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.
Article 5 Fund Instructions.
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5.1 A Co-Administrator will have no liability when acting upon Written or
Oral Instructions reasonably 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.
5.2 At any time, a Co-Administrator 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 in good faith in
accordance with such Written Instructions or in accordance with the opinion of
counsel for the Fund or for the Co-Administrator. Written Instructions
requested by a Co-Administrator will be provided by the Fund within a reasonable
period of time.
5.3 Each Co-Administrator, 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 a Co-Administrator's right
to rely on Oral Instructions.
Article 6 Compensation.
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6.1 Each Co-Administrator will from time to time employ or associate with
itself such person or persons as the Co-Administrator may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons include officers and employees who are employed by both
the Co-Administrator and the Fund. The Co-Administrator shall pay the
compensation of such person or persons and no obligation shall be incurred on
behalf of the Fund in such respect.
6.2 The Co-Administrators shall not be required to pay any of the
following expenses incurred by the Fund: membership dues in the Investment
Company Institute or any similar organization; investment advisory fees; custody
and transfer agency fees; fees paid under any service or distribution plan
adopted by the Fund; costs of printing and mailing stock certificates; costs of
typesetting and printing of the Prospectus for regulatory purposes and for
distribution to existing shareholders of the Portfolios; costs of shareholders'
reports and notices; interest on borrowed money; brokerage commissions; stock
exchange listing fees; taxes and fees payable to federal, state and other
governmental agencies; fees of Board Members of the Fund who are not affiliated
with the Co-Administrators; outside auditing expenses; outside legal expenses;
blue sky registration or filing fees; or other expenses not specified in this
Section 6.2 which may be properly payable by the Fund. The Co-Administrators
shall not be required to pay any blue sky registration or filing fees unless and
until they have received the amount of such fees from the Fund.
6.3 The Fund on behalf of each of the Portfolios will compensate the Co-
Administrators for the performance of their obligations hereunder in accordance
with the fees and
charges set forth in the written Fee Schedule annexed hereto as Schedule C and
incorporated herein.
6.4 During the term of this Agreement, the Co-Administrators will pay all
expenses incurred by them in connection with the performance of their duties
under Article 3 and Article 4 hereof, other than those items listed in Section
6.2 and those out-of-pocket costs of the preparations, submissions, updatings
and filings of the Fund's Prospectus.
6.5 Any compensation agreed to hereunder may be adjusted from time to time
by the unanimous consent of the parties.
Article 7 Documents.
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In connection with the appointment of the Co-Administrators, the Fund
shall, on or before the Effective Date, but in any case within a reasonable
period of time for the Co-Administrators to prepare to perform their duties
hereunder, deliver or caused to be delivered to the Co-Administrators the
documents set forth in the written schedule of fund documents annexed hereto as
Schedule D.
Article 8 Fund Accounting System.
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8.1 Each Co-Administrator 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 owned and/or developed by it in connection with
the services provided by such Co-Administrator to the Fund pursuant to this
Agreement (the "Co-Administrator System").
8.2 Each Co-Administrator hereby grants to the Fund a limited license to
the Co-Administrator System for the sole and limited purpose of having such Co-
Administrator 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.
8.3 In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund, is provided with direct
access to the Co-Administrator System, such direct access capability shall be
limited to direct entry to the Co-Administrator System by means of on-line
mainframe terminal entry or PC emulation of such mainframe terminal entry, and
any other non-conforming method of transmission of information to the Co-
Administrator System is strictly prohibited without the prior written consent of
the particular Co-Administrator.
Article 9 Representations and Warranties.
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9.1 PFPC represents and warrants to the Fund that:
(a) it is a corporation duly organized, 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 Articles of
Incorporation and By-Laws to enter into and perform the services
contemplated by this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement; and
(d) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
9.2 Northern represents and warrants to the Fund that:
(a) it is duly organized, 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 Articles of
Incorporation and By-Laws to enter into and perform the services
contemplated by this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement; and
(d) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
9.3 The Fund represents and warrants to each Co-Administrator that:
(a) it is duly organized, 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 Articles 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 authorize it
to enter into this Agreement;
(d) a registration statement under the 1933 Act and the 1940 Act on
behalf of each of the Portfolios is currently effective; and
(e) as of the date hereof, each Portfolio is duly registered and
lawfully eligible for sale in each jurisdiction indicated for such
Portfolio on the list furnished to the Co-Administrators pursuant to
Article 7 of this Agreement and that it will notify the Co-Administrators
immediately of any changes to the aforementioned list.
Article 10 Indemnification.
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10.1 The Fund shall indemnify and hold each Co-Administrator 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 a Co-Administrator or for which a Co-Administrator
may be held to be liable in connection with this Agreement or a Co-
Administrator's performance hereunder (a "Claim"), unless such Claim resulted
from: (a) the willful misfeasance, bad faith or negligence of such Co-
Administrator in the performance of its duties hereunder, or by reason of its
reckless disregard thereof; or (b) such Co-Administrator's breach of Article 14
of this Agreement.
10.2 The Fund agrees and acknowledges that the Co-Administrators have not
prior to October 1, 1999 assumed, and will not assume, any obligations or
liabilities arising out of the conduct by the Fund or its administrator prior to
such date of those duties which the Co-Administrators have agreed to perform
pursuant to this Agreement. The Fund further agrees to indemnify each Co-
Administrator against any losses, claims, damages or liabilities to which a Co-
Administrator may become subject in connection with the conduct by the Fund or
its administrator of such duties prior to October 1, 1999.
10.3 Each Co-Administrator jointly and severally shall indemnify and hold
the Fund 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 Fund or for
which the Fund may be held to be liable in connection with this Agreement or the
Fund's performance hereunder (a "Claim"), provided that such Claim resulted
from: (a) the willful misfeasance, bad faith or negligence of such Co-
Administrator in the performance of its duties hereunder, or by reason of its
reckless disregard thereof; or (b) such Co-Administrator's breach of Article 14
of this Agreement.
10.4 In any case in which one party (the "Indemnifying Party") may be asked
to indemnify or hold another party (the "Indemnified Party") harmless, the
Indemnified Party will notify the Indemnifying Party in writing promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification (an "Indemnification Claim") against the
Indemnifying Party, although the failure to do so shall not relieve the
Indemnifying Party from any liability which it may otherwise have to the
Indemnified Party, and the Indemnified Party shall keep the Indemnifying Party
advised with respect to all developments concerning such situation. The
Indemnifying Party shall be entitled to participate at its own expense in the
defense, or if it so elects, to assume the defense of, any Indemnification Claim
which may be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel of good
standing chosen by the Indemnifying Party and approved by the Indemnified Party,
which approval shall not be unreasonably withheld. In the event the
Indemnifying Party elects to assume the defense of any such Indemnification
Claim and retain such counsel, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by the Indemnified Party. In the
event that the Indemnifying Party does not elect to assume the defense of any
such Indemnification Claim, or in case the Indemnified Party reasonably does not
approve of counsel chosen by the Indemnifying Party, or in case there is a
conflict of interest between the Indemnifying Party or the Indemnified
Party, the Indemnifying Party will reimburse the Indemnified Party for the fees
and expenses of any counsel retained by the Indemnified Party. The Indemnified
Party will not confess any Indemnification Claim or make any compromise in any
case in which the Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent. The obligations of
the parties hereto under this Article 10 shall survive the termination of this
Agreement.
Article 11 Standard of Care.
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11.1 The Co-Administrators shall at all times act in good faith and agree
to use their best efforts within commercially reasonable limits to ensure the
accuracy of all services performed under this Agreement, but assume no
responsibility for loss or damage to the Fund unless said errors are caused by
the Co-Administrators' willful misfeasance, bad faith or negligence in the
performance of their duties hereunder, or by reason of their reckless disregard
thereof.
11.2 Each party shall have the duty to mitigate damages for which another
party may become responsible.
11.3 Without in any way limiting the foregoing, in the event the Co-
Administrators shall provide blue sky services to the Fund, the Co-
Administrators shall have no liability for failing to file on a timely basis any
material to be provided by the Fund or its designee that the Co-Administrators
have not received on a timely basis from the Fund or its designee, nor shall the
Co-Administrators have any responsibility to review the accuracy or adequacy of
materials they receive from the Fund or its designee for filing; nor shall the
Co-Administrators have any liability for monetary damages for the sale of
securities in jurisdictions where Shares are not properly registered, or in
jurisdictions where Shares are sold in excess of the lawfully registered amount,
unless such failure of proper registration or excess sales is due to the willful
misfeasance, bad faith or negligence of the Co-Administrators, or the reckless
disregard of their duties hereunder. The Co-Administrators shall not be liable
for any errors which result from inaccurate or inadequate information reported
to the Co-Administrators directly or indirectly from the Fund's transfer agent.
The Co-Administrators shall be under no obligation to investigate or confirm the
accuracy or adequacy of any information provided to the Co-Administrators by the
Fund's transfer agent.
11.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL ANY PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO ANY OTHER
PARTY FOR CONSEQUENTIAL DAMAGES.
Article 12 Term and Termination.
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12.1 This Agreement shall be effective on the Effective Date and, unless
sooner terminated as provided herein, shall continue until September 30, 2001
(the "Initial Term").
12.2 Upon the expiration of the Initial Term, this Agreement shall continue
automatically for successive one-year terms ("Renewal Terms") with respect to
each Portfolio, provided such continuance is specifically approved at least
annually by (i) the Board of Directors or (ii) by a vote of a majority (as
defined in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the particular Portfolio, provided that in either event the
continuance is also approved by a majority of the Board Members who are not
parties to this Agreement and who are not interested persons (as defined in the
0000 Xxx) of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval.
12.3 The Fund may terminate this Agreement at any time after the Initial
Term, with or without cause, and without penalty, on at least sixty (60) days
written notice to the Co-Administrators.
12.4 Each Co-Administrator may terminate this Agreement with respect to
itself at any time after the Initial Term, with or without cause, and without
penalty, on at least sixty (60) days written notice to the Fund and the other
Co-Administrator.
12.5 The Fund may terminate this Agreement at any time during the Initial
Term in the event that the Fund or its shareholders incur damages in excess of
one hundred thousand dollars ($100,000) as a result of the willful misfeasance,
bad faith or negligence of the Co-Administrators, or the reckless disregard of
their duties hereunder. For this purpose, "damages" is defined as damages
caused by a single event, or cumulative series of events related to the same
matter, which generates a monetary loss to the Fund or its shareholders. The
Fund's right to terminate this Agreement pursuant to this Section 12.5 shall
remain effective even if the Co-Administrators have made the Fund or its
shareholders whole with respect to the damages caused.
12.6 The Fund may also terminate this Agreement at any time during the
Initial Term, regardless of the amount of damages to the Fund or its
shareholders, in the event that the Co-Administrators have failed to meet one of
the performance standards set forth in Exhibit 1 to Schedule B (a "Triggering
Event"). The Fund will provide the Co-Administrators with sixty (60) days
written notice if the Fund intends to exercise its option to terminate this
Agreement under this Section 12.6; provided, however, that such notice must be
given within sixty (60) days following the end of the month in which the
Triggering Event occurs.
12.7 In the event this Agreement: (a) is terminated by the Fund pursuant
to Section 12.5, Section 12.6 or Section 12.9 hereof; or (b) is not continued
after the expiration of the Initial Term or any Renewal Term, all reasonable
expenses associated with the movement of records and materials and conversion
thereof to a successor administrator shall be borne by the Co-Administrators,
and the Fund shall not be responsible for the Co-Administrators' costs
associated with such termination; provided, however, that such expenses shall
not exceed $25,000 in the event this Agreement is not continued after the
expiration of the Initial Term or any Renewal Term. In the event this Agreement
is terminated by the Fund pursuant to any other provision of this Agreement, all
reasonable expenses associated with conversion to a successor administrator
shall be borne by the Fund.
12.8 Notwithstanding anything contained in this Agreement to the contrary,
unless this Agreement is terminated pursuant to Section 12.5, Section 12.6 or
Section 12.9 hereof, should the Fund move any of the services provided by the
Co-Administrators hereunder to a successor service provider during the Initial
Term, or should, during the Initial Term, all or substantially all of the Fund's
assets be merged with or purchased by another entity which does not utilize the
services of the Co-Administrators, the Co-Administrators shall be entitled to
receive fees from the Fund for the period from the date of such movement, merger
or purchase until the end of the Initial Term (the "Unexpired Term"). The fees
payable for the Unexpired Term shall be accelerated to the date of such
movement, merger or purchase and shall be calculated in accordance with Section
6.3 herein at the asset levels on such date.
12.9 The Fund may terminate this Agreement upon its Assignment by a Co-
Administrator unless the conditions to an Assignment as set forth in Article 16
hereof have been satisfied.
Article 13 Additional Portfolios.
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In the event that the Fund establishes one or more Portfolios in addition
to those identified in Schedule A with respect to which the Fund desires to have
the Co-Administrators render services as administrator under the terms hereof,
the Fund shall so notify the Co-Administrators in writing, and if the Co-
Administrators agree in writing to provide such services, Schedule A shall be
deemed amended to include such additional Portfolios.
Article 14 Confidentiality.
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14.1 The parties agree that the Proprietary Information (defined below) is
confidential information of the parties and their respective licensers. The
Fund and the Co-Administrators shall exercise at least the same degree of care,
but not less than reasonable care, to safeguard the confidentiality of the
Proprietary Information of each other as they would exercise to protect their
own Proprietary Information. The Fund and the Co-Administrators may use the
Proprietary Information only to exercise their respective rights or perform
their respective duties under this Agreement. Except as otherwise required by
law, the Fund and the Co-Administrators shall not duplicate, sell or disclose to
others the Proprietary Information of the other, in whole or in part, without
the prior written permission of the affected party. The Fund and the Co-
Administrators may, however, disclose Proprietary Information to their
respective employees who have a need to know the Proprietary Information to
perform work for the other, provided that the Fund and the Co-Administrators
shall use reasonable efforts to ensure that the Proprietary Information is not
duplicated or disclosed by their respective employees in breach of this
Agreement. The Fund and the Co-Administrators may also disclose the Proprietary
Information to independent contractors, auditors and professional advisors,
provided they first agree in writing to be bound by confidentiality obligations
substantially similar to this Section 14.1. Notwithstanding the previous
sentence, in no event shall either the Fund or the Co-Administrators disclose
the Proprietary Information to any competitor of the other without specific,
prior written consent.
14.2 Proprietary Information means:
(a) 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 Fund or the Co-Administrators, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them;
(b) 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 Fund or the Co-
Administrators a competitive advantage over their competitors;
(c) 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;
(d) 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 of any party hereto which now exist or come into the control
or possession of the other; and
(e) with respect to the Fund, all records and other information
relative to the Fund and its prior, present or potential shareholders (and
clients of such shareholders).
14.3 The obligations of confidentiality and restriction on use herein shall
not apply to any Proprietary Information that a party 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 such party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
(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 the other party as much advance notice of the possibility of
such disclosure as practical so the other party may attempt to stop such
disclosure or obtain a protective order concerning such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Proprietary
Information disclosed under this Agreement.
14.4 Notwithstanding the foregoing, it is hereby understood and agreed by
the parties hereto that any marketing strategies, customer profiles or
administrative, business or shareholder servicing plans or similar items
prepared or developed by the Co-Administrators for the benefit of the Fund shall
be considered the Proprietary Information of the Fund and nothing in this
Agreement shall be construed to prevent or prohibit the Fund from disclosing
such Proprietary Information to a successor administrator.
14.5 The obligations of the parties hereto under this Article 14 shall
survive the termination of this Agreement.
Article 15 Force Majeure.
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No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by circumstances beyond such party's reasonable
control. In any such event, the non-performing party shall be excused from any
further performance and observance of the obligations so affected only for as
long as such circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
Article 16 Assignment and Subcontracting.
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This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be Assigned or otherwise transferred
by any party hereto without the prior written consent of the other parties;
provided, however, that each party may, in its sole discretion, Assign all its
right, title and interest in this Agreement to an entity controlling, controlled
by, or under common control with, such party, provided that the Board of
Directors in its sole discretion reasonably determines within ninety (90) days
of receiving written notice of such Assignment that: (i) the financial capacity
of a Co-Administrator's assignee is not materially less than that of the Co-
Administrator; (ii) the nature and quality of the services to be provided
hereunder are not materially adversely affected by such Assignment; and (iii)
the quality and capability of the personnel and facilities of a Co-
Administrator's assignee are not materially less than those of the Co-
Administrator. The Co-Administrators may, in their sole discretion, engage
subcontractors to perform any non-material or non-substantive obligations
contained in this Agreement that they are otherwise required to perform
hereunder, provided that the Co-Administrators shall be responsible for all
compensation payable to such subcontractors and shall remain responsible for the
acts and omissions of such subcontractors to the same extent that the Co-
Administrators are hereunder.
Article 17 Notice.
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Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or a Co-Administrator shall be sufficiently
given if addressed to a 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:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
To Northern:
Xxxxx X. Xxxxxx, Esq.
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx - X-0
Xxxxxxx, XX 00000
To PFPC:
PFPC Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to PFPC's General Counsel
Article 18 Governing Law/Venue.
-------------------
The laws of the Commonwealth of Massachusetts shall govern the
interpretation, validity, and enforcement of this Agreement. All actions
arising from or related to this Agreement shall be brought in the state and
federal courts sitting in the City of Boston, and the parties hereby submit
themselves to the exclusive jurisdiction of those courts.
Article 19 Counterparts.
------------
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 20 Captions.
--------
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 21 Publicity.
---------
No party shall release or publish news releases, public announcements,
advertising or other publicity relating to this Agreement or to the transactions
contemplated by it without the prior review and written approval of the other
parties; provided, however, that a party may make such disclosures as are
required by legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other parties.
Article 22 Relationship of Parties.
-----------------------
The Co-Administrators agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
Article 23 Entire Agreement; Severability.
------------------------------
23.1 This Agreement, including all Schedules and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against PFPC unless said writing is executed by a Senior Vice
President, Executive Vice President or President of PFPC. No such writing shall
be effective as against the Fund unless said writing is executed by the Chairman
of the Board of Directors or another person specifically designated by the Board
of Directors. No such writing shall be effective as against Northern unless
said writing is executed by the Vice President, Senior Vice President, Executive
Vice President or President of Northern. A party's waiver of a breach of any
term or condition in the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or condition.
23.2 The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties
shall in good faith modify or substitute such provision consistent with the
original intent of the parties. Without limiting the generality of this
paragraph, if a court
determines that any remedy stated in this Agreement has failed of its essential
purpose, then all other provisions of this Agreement shall remain fully
effective.
Article 24 Board Member and Shareholder Liability.
--------------------------------------
This Agreement is executed by or on behalf of the Fund with respect to each
of the Portfolios and the obligations hereunder are not binding upon any of the
Board Members, officers or shareholders of the Fund individually but are binding
only upon the Portfolio to which such obligations pertain and the assets and
property of such Portfolio. All obligations of the Fund under this Agreement
shall apply only on a Portfolio-by-Portfolio basis, and the assets of one
Portfolio shall not be liable for the obligations of another Portfolio. The
Fund's Declaration of Trust is on file with the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the Effective Date.
NORTHERN FUNDS
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
THE NORTHERN TRUST COMPANY
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
PFPC INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
SCHEDULE A
TO THE
CO-ADMINISTRATION AGREEMENT
BY AND BETWEEN
NORTHERN FUNDS,
THE NORTHERN TRUST COMPANY
AND
PFPC INC.
DATED JULY 31, 2000
LIST OF PORTFOLIOS
-------------------
Money Market Fund Global Fixed Income Fund (formerly known as
U.S. Government Money Market Fund the International Fixed Income Fund)
U.S. Government Select Money Market Fund High Yield Municipal Fund
Tax-Exempt Money Market Fund High Yield Fixed Income Fund
Municipal Money Market Fund Income Equity Fund
California Municipal Money Market Fund Stock Index Fund
U.S. Government Fund Growth Equity Fund
Short-Intermediate U.S. Government Fund Select Equity Fund
Intermediate Tax-Exempt Fund Mid Cap Growth Fund
California Intermediate Tax-Exempt Fund Small Cap Index Fund
Florida Intermediate Tax-Exempt Fund Small Cap Value Fund (formerly known as the
Fixed Income Fund Small Cap Fund)
Tax-Exempt Fund Small Cap Growth Fund
Arizona Tax-Exempt Fund International Growth Equity Fund
California Tax-Exempt Fund International Select Equity Fund
Technology Fund
Blue Chip 20 Fund
Global Communications Fund
SCHEDULE B
-----------
DUTIES OF THE CO-ADMINISTRATORS
(a) Maintaining office facilities (which may be in the offices of a Co-
Administrator or a corporate affiliate) and furnishing corporate officers for
the Fund;
(b) Furnishing data processing services, clerical services, and executive
and administrative services and standard stationery and office supplies;
(c) Performing all functions ordinarily performed by the office of a
corporate treasurer, and furnishing the services and facilities ordinarily
incident thereto, as follows:
- Expense accrual monitoring and payment of the Fund's bills, preparing
monthly reconciliation of the Fund's expense records and updating
projections of annual expenses
- Determining dividends
- Calculating yields and total returns
- Preparing materials for review by the Board of Directors, e.g.,
written reports pursuant to Rules 2a-7, 10f-3, 17a-7, 17e-1 and 144A
and the Fund's applicable procedures
- Tax and financial counsel
- Creating expense pro formas for new Portfolios/classes
- Reporting Fund statistical information to investment company reporting
agencies and associations (e.g., Lipper Analytical Services, Inc. and
the Investment Company Institute)
- Compliance testing (e.g., to test compliance with applicable
provisions of the Prospectus, 1940 Act and Internal Revenue Code)
(d) Preparing and submitting reports to the Fund's shareholders and the
Commission including, but not necessarily limited to, Annual Reports and Semi-
Annual Reports on Form N-SAR;
(e) Preparing and printing financial statements;
(f) Preparing monthly Portfolio profile reports;
(g) Preparing and filing the Fund's federal and state tax returns (other
than those required to be filed by the Fund's custodian and transfer agent) and
providing shareholder tax information to the Fund's transfer agent;
(h) Assisting the Fund's investment adviser, at the adviser's request, in
monitoring and developing compliance procedures for the Fund which will include,
among other matters, procedures to assist the adviser in monitoring compliance
with each Portfolio's investment objective, policies, restrictions, tax matters
and applicable laws and regulations;
(i) Assisting in marketing strategy and product development;
(j) Performing oversight/management responsibilities, including the
following:
- Supervision and coordination of transfer agent
- Supervision and coordination of XXX custodian
- Supervision and coordination of Fund custodian
- Vendor management and invoicing
- Daily report coordination
- Media relations
- Sales literature forms and development
- Fund operations coordination
- Management of auditor relationship
- Oversight of Portfolio compliance and tax function
(k) Performing "blue sky" compliance functions, as follows:
- Effecting and maintaining, as the case may be, the registration of
Shares of the Fund for sale under the securities laws of the
jurisdictions listed in the Written Instructions of the Fund, which
instructions will include the amount of Shares to be registered as
well as the warning threshold to be maintained.
- Filing with each appropriate jurisdiction the appropriate materials
relating to the Fund.
- Providing to the Fund quarterly reports of sales activity in each
jurisdiction in accordance with the Written Instructions of the Fund.
Sales will be reported by shareholder residence. NSCC trades and
order clearance will be reported by the state provided by
the dealer at the point of sale. Trades by omnibus accounts will be
reported by trustee state of residence in accordance with the Written
Instructions of the Fund outlining the entities which are permitted to
maintain omnibus positions with the Fund.
- In the event sales of Shares in a particular jurisdiction reach or
exceed the warning levels provided in the Written Instructions of the
Fund, the Co-Administrators will promptly notify the Fund with a
recommendation of the amount of Shares to be registered in such
jurisdiction and the fee for such registration. The Co-Administrators
will not register additional Shares in such jurisdiction unless and
until the Co-Administrators shall have received Written Instructions
to do so.
- If the Co-Administrators are instructed by the Fund not to register
Shares in a particular jurisdiction, the Co-Administrators will use
their best efforts to cause any sales in such jurisdictions to be
blocked, and such sales will not be reported to the Co-Administrators
as sales of Shares of the Fund.
(l) Performing corporate secretarial services including the following:
- Assist in maintaining corporate records and good standing status of
Fund in its state of organization
- Develop and maintain calendar of annual and quarterly board approvals
and regulatory filings
- Prepare notice, agenda, memoranda, resolutions and background
materials for legal approvals at quarterly and special board meetings
and committee meetings; assemble and distribute board materials for
board meetings and committee meetings; attend meetings; make
presentations where appropriate; prepare minutes; follow up on issues;
prepare such periodic and special reports as the Board Members may
reasonably request
- Provide support for written consent votes where needed
(m) Monitoring the Fund's arrrangements with respect to services provided
by institutions ("Servicing Agents") to their customers who are the beneficial
owners of Shares, pursuant to agreements ("Servicing Agreements") between the
Fund and such Servicing Agents including:
- Review the qualifications of Servicing Agents wishing to enter into
Servicing Agreements
- Assist in the execution and delivery of Servicing Agreements
- Report to the Board of Directors with respect to the amounts paid or
payable by the Fund from time to time under the Servicing Agreements
and the nature of the services provided by Servicing Agents
- Maintain appropriate records in connection with their monitoring
duties
(n) Performing the following legal services:
- Prepare and file annual Post-Effective Amendments to the Fund's
Registration Statement
- Prepare and file Rule 24f-2 Notices
- Prepare and file Forms N-SAR
- Prepare and file Annual and Semi-Annual Financial Reports
- Communicate significant regulatory or legislative developments to Fund
management and Board Members and provide related planning assistance
where needed
- Consult with Fund management regarding portfolio compliance and Fund
corporate and regulatory issues as needed
- Maintain effective communication with outside counsel
- Arrange D&O/E&O insurance and fidelity bond coverage for Fund
- Assist in monitoring Fund Code of Ethics reporting and provide such
reports to the person designated under the Fund's Code
- Monitor handling of litigation by outside counsel and non-routine
regulatory matters
- Assist in managing Commission audits of the Fund at the investment
adviser's principal place of business
- Review sales material and advertising for Fund Prospectus compliance
- Assist in developing compliance guidelines and procedures to improve
overall compliance by Fund and service providers
- Prepare compliance manuals
Performing, in accordance with the Written Instructions of the Fund, Special
Legal Services in accordance with the pricing structure listed on the Fee
Schedule attached to this Agreement as Schedule C. Examples of such Special
Legal Services are:
- Assist in new Portfolio start-up (to the extent requested):
- Coordinate time and responsibility schedules
- Prepare Fund corporate documents
- Draft/file registration statement (including investment
objectives/policies and prospectuses)
- Respond to and negotiate Commission comments
- Draft notice, agenda and resolutions for organizational meeting;
attend board meeting; make presentations where appropriate;
prepare minutes and follow up on issues
- Prepare proxy materials for special meetings of shareholders
(including fund merger documents)
- Prepare Post-Effective Amendments for special purposes (e.g., new
funds or classes, changes in advisory relationships, mergers,
restructurings)
- Assist in extraordinary non-recurring projects, including providing
consultative legal services, such as:
- Arrange CDSC financial programs
- Prospectus simplification
- Profile prospectuses
- Exemptive order applications
- Requests for no-action letters
EXHIBIT 1 TO SCHEDULE B
PERFORMANCE STANDARDS
The Co-Administrators' obligation to meet the following Performance Standards
shall be measured in the aggregate with respect to all Portfolios of the Fund.
The Co-Administrators will report to the Fund on a monthly basis the percent of
items completed within standard as well as a quality rating. Reporting will be
detailed to the transaction type level. A pass/fail determination for
contractual penalties will be based on the categories listed below. Note that
completion standards are measured in business days.
Fund Administration (Treasury and Reporting)/Tax/Compliance
-----------------------------------------------------------
The following standards will be met 100% of the time:
- All Commission and Internal Revenue Service ("IRS") regulatory
requirements will be met according to the deadlines set forth by the
Commission and the IRS
- Notification to the Fund's investment adviser within two (2) business
days with compliance violations based on procedures established by and
among the Co-Administrators and the Fund
- Directors & Officers Errors & Omissions Insurance Coverage will be
reviewed annually
- Rule 17g-1 Fidelity Bond filings will be made as required by the
regulations of the Commission
The following standard will be met 98% of the time:
- Code of Ethics reporting forms will be circulated at least seven (7)
business days before each quarter end
Blue Sky
--------
The following standards will be met 98% of the time:
- Annual renewal filings will be submitted at least thirty (30) business
days prior to expiration
- Filings of Prospectus and Annual Reports will be submitted within
fifteen (15) business days of printing/release
Legal Administration
--------------------
The following standards will be met 98% of the time as measured on a quarterly
basis:
- Board materials will be sent to the Fund for review at least fourteen
(14) business days prior to the Board meeting, provided that all
requested information has been received by the Co-Administrators
within agreed-upon time frames
- Board materials will be sent to the Board Members at least seven (7)
business days prior to the Board meeting, provided that all requested
information has been received by the Co-Administrators within agreed-
upon time frames
- Timely submission of sales literature to NASD, provided that copies of
such materials are provided to the Co-Administrators or their
affiliates on a timely basis
SCHEDULE C
----------
FEE SCHEDULE
For the services rendered, expenses assumed, facilities furnished and
payments made by the Co-Administrators, as provided for in this Agreement, the
Fund, on behalf of each Portfolio, on the first business day of each month, will
pay to Northern, as agent for itself and PFPC, a fee for the previous month at
the annualized rates listed below.
1. Standard Annual Fees: .15% of each Portfolio's average daily net assets
The foregoing fee will be computed based on net assets on each day.
2. Fees for Special Legal Services: The Co-Administrators shall be entitled
to the following fee for the performance of any Special Legal Services as
described in Schedule B in accordance with the Written Instructions of the Fund:
$185 per hour subject to certain project caps as may be agreed to by the Co-
Administrators and the Fund. Services and charges may vary based on volume.
SCHEDULE D
----------
FUND DOCUMENTS
- Certified copy of the Articles of Incorporation of the Fund
- Certified copy of the By-Laws of the Fund
- Copy of the resolution of the Board of Directors authorizing the
execution and delivery of this Agreement
- Copies of all agreements between the Fund and its service providers
- A listing of all jurisdictions in which each Portfolio is registered
and lawfully available for sale as of the date of this Agreement and
all information relative to the monitoring of sales and registrations
of the Shares in such jurisdictions
- The Fund's most recent post-effective amendment to its registration
statement
- The Fund's Prospectus
