TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of , 1999 by and between PFPC INC., a
Delaware corporation ("PFPC"), and XXXXXXXXX & XXXXX FUND TRUST, a Delaware
business trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Trust and any other
person duly authorized by the Trust's Trustees to give Oral
Instructions and Written Instructions on behalf of the Trust and
listed on the Authorized Persons Appendix attached hereto and made a
part hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Trust by
1
setting forth such limitation in the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "CHANGE OF CONTROL" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parents(s).
(f) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person.
(g) "SEC" means the Securities and Exchange Commission.
(h) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "SHARES" mean the shares of beneficial interest of any series or class
of the Trust.
(j) "WRITTEN INSTRUCTIONS" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Trust, on behalf of each Portfolio, hereby appoints PFPC
to serve as transfer agent, registrar, dividend disbursing agent and
shareholder servicing agent to the Trust in accordance with the terms set
forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable, will
provide PFPC with the following:
(a) Certified or authenticated copies of the resolutions of the Trust's
Trustees,
2
approving the appointment of PFPC or its affiliates to provide
services to the Trust and approving this Agreement;
(b) A copy of the Trust's most recent effective registration statement;
(c) A copy of the advisory agreement with respect to each investment
Portfolio of the Trust (each, a Portfolio);
(d) A copy of the distribution agreement with respect to each class of
Shares of the Trust;
(e) A copy of each Portfolio's administration agreements if PFPC or its
affiliate is not providing the Portfolio with such services;
(f) Copies of any shareholder servicing agreements (other than agreements
with financial intermediaries) made in respect of the Trust or a
Portfolio; and
(g) Copies (certified or authenticated where applicable) of any and all
amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by PFPC hereunder. Except as specifically set
forth herein, PFPC assumes no responsibility for such compliance by the
Trust or any of its investment portfolios.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not
3
in any way inconsistent with the provisions of the Trust's
organizational documents or of any vote, resolution or proceeding of
the Trust's Trustees or of the Trust's shareholders, unless and until
PFPC receives Written Instructions to the contrary.
(c) The Trust agrees to forward to PFPC Written Instructions confirming
Oral Instructions so that PFPC receives the Written Instructions by
the close of business on the business day after such Oral Instructions
are received. The fact that such confirming Written Instructions are
not received by PFPC shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFPC shall incur no liability to the Trust in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Trust.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing
(who may be counsel for the Trust, the Trust's investment adviser or
PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between directions,
advice or Oral
4
Instructions or Written Instructions PFPC receives from the Trust, and
the advice it receives from counsel, PFPC may rely upon and follow the
advice of counsel. In the event PFPC so relies on the advice of
counsel, PFPC remains liable for any action or omission on the part of
PFPC which constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions, advice or Oral Instructions
or Written Instructions it receives from the Trust or from counsel and
which PFPC believes, in good faith, to be consistent with those
directions, advice or Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an
obligation upon PFPC (i) to seek such directions, advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance
with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of PFPC's properly taking or not
taking such action. Nothing in this subsection shall excuse PFPC when
an action or omission on the part of PFPC constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard by PFPC
of any duties, obligations or responsibilities set forth in this
Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Trust, which are
in the possession or under the control of PFPC, shall be the property of
the Trust and shall be surrendered promptly on request of the Trust. Such
books and records shall be prepared
5
and maintained by PFPC as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Trust and Authorized Persons
shall have access to such books and records at all times during PFPC's
normal business hours. Upon the reasonable request of the Trust, copies of
any such books and records shall be provided by PFPC to the Trust or to an
Authorized Person, at the Trust's expense.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the Trust
and information relating to the Trust and its shareholders, unless the
release of such records or information is otherwise consented to, in
writing, by the Trust. The Trust agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be exposed to
civil or criminal contempt proceedings or when required to divulge such
information or records to duly constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Trust's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Trust.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Trust, take reasonable steps to
minimize service interruptions. PFPC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith,
6
gross negligence or reckless disregard of its duties or obligations under
this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PFPC (a) has reviewed its business and
operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has developed a testing plan to test the
remediation or replacement of computer applications/systems, in each case,
to address on a timely basis the risk that certain computer
applications/systems used by PFPC may be unable to recognize and perform
properly date sensitive functions involving dates prior to, including and
after December 31, 1999, including dates such as February 29, 2000 (the
"Year 2000 Challenge"). To the best of PFPC's knowledge and belief, the
reasonably foreseeable consequences of the Year 2000 Challenge will not
adversely affect PFPC's ability to perform its duties and obligations under
this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the term
of this Agreement, the Trust, on behalf of each Portfolio, will pay to PFPC
a fee or fees as may be agreed to from time to time in writing by the Trust
and PFPC.
13. INDEMNIFICATION. The Trust, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC and its affiliates from all taxes,
charges, assessments, claims and liabilities (including, without
limitation, liabilities arising under the Securities Laws and any state and
foreign securities and blue sky laws, and amendments thereto), and
expenses, including (without limitation) attorneys' fees and disbursements,
arising directly or indirectly from (i) any action or omission to act which
PFPC takes (a) at the request or on the direction of or in reliance on the
advice of the Trust or (b) upon Oral
7
Instructions or Written Instructions or (ii) the acceptance, processing
and/or negotiation of checks or other methods utilized for the purchase of
Shares. Notwithstanding the preceding sentence, neither PFPC, nor any of
its affiliates, shall be indemnified, and PFPC shall indemnify and hold
harmless the Trust and its affiliates, against any liability (or any
expenses incident to such liability) arising out of PFPC's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement,
provided that in the absence of a finding to the contrary the acceptance,
processing and/or negotiation of a fraudulent payment for the purchase of
Shares shall be presumed not to have been the result of PFPC's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties and obligations. Any amounts payable by
the Trust hereunder shall be satisfied only against the relevant
Portfolio's assets and not against the assets of any other investment
portfolio of the Trust.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Trust
except as specifically set forth herein or as may be specifically
agreed to by PFPC in writing. PFPC shall be obligated to exercise care
and diligence in the performance of its duties hereunder, to act in
good faith and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. PFPC shall be
liable for any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise out of
PFPC's willful misfeasance, bad faith, gross negligence or reckless
disregard
8
of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC, shall not be liable for losses
beyond its control, provided that PFPC has acted in accordance with
the standard of care set forth above; and (ii) PFPC shall not be under
any duty or obligation to inquire into and shall not be liable for (A)
the validity or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which
PFPC reasonably believes to be genuine; or (B) subject to Section 10,
delays or errors or loss of data occurring by reason of circumstances
beyond PFPC's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable to the Trust for any
consequential, special or indirect losses or damages which the Trust
may incur or suffer by or as a consequence of PFPC's or its
affiliates' performance of the services provided hereunder, whether or
not the likelihood of such losses or damages was known by PFPC or its
affiliates.
15. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate 12b-1 payments and sales charges;
9
(ii) Maintain proper shareholder registrations;
(iii) Review new applications and correspond with shareholders to
complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction with proxy
solicitations;
(vi) Countersign Share certificates;
(vii) Prepare and mail to shareholders confirmations of activity;
(viii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(ix) Mail duplicate confirmations to broker-dealers of their
clients' activity, whether executed through the broker-dealer
or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to the Trust;
(xi) Provide detailed data for broker confirmations;
(xii) Prepare periodic mailing of year-end tax and statement
information;
(xiii) Notify on a timely basis the investment adviser, accounting
agent, and custodian of Portfolio activity; and
(xiv) Perform other shareholder services as may be agreed upon from
time to time.
(b) SERVICES PROVIDED BY PFPC UNDER ORAL INSTRUCTIONS OR WRITTEN
INSTRUCTIONS.
(i) Accept and post daily Trust purchases and redemptions;
(ii) Accept, post and perform shareholder transfers and exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
10
(v) Issue and cancel certificates, if any (when requested in
writing by the shareholder).
(c) PURCHASE OF SHARES. PFPC shall issue and credit an account of an
investor, in the manner described in the Trust's prospectus, once it
receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of Trusts for such order
to the Trust's custodian.
(d) REDEMPTION OF SHARES. PFPC shall redeem Shares only if that function
is properly authorized by the Trust's Declaration of Trust or
resolution of the Trust's Trustees. Shares shall be redeemed and
payment therefor shall be made in accordance with the Trust's
prospectus, when the recordholder submits the redemption in proper
form and directs the method of redemption. If a redemption submission
is received in proper form, Shares shall be redeemed before the Trusts
are provided to PFPC from the Trust's custodian (the "Custodian"). If
the recordholder has not directed that redemption proceeds be wired,
when the Custodian provides PFPC with Trusts, the redemption check
shall be sent to and made payable to the recordholder, unless:
(i) the surrendered certificate is drawn to the order of an
assignee or holder and transfer authorization is signed by the
recordholder; or
(ii) Transfer authorizations are signed by the recordholder when
Shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by a
customer, and the Custodian provides PFPC with Trusts, PFPC shall
prepare and send the
11
redemption check to the broker-dealer and made payable to the
broker-dealer on behalf of its customer.
(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a resolution of the
Trust's Trustees authorizing the declaration and payment of dividends
and distributions, PFPC shall issue dividends and distributions
declared by the Trust in Shares, or, upon shareholder election, pay
such dividends and distributions in cash, if provided for in the
Trust's prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction and
payment of the required amount of Trusts to be withheld in accordance
with any applicable tax laws or other laws, rules or regulations. PFPC
shall mail to the Trust's shareholders such tax forms and other
information, or permissible substitute notice, relating to dividends
and distributions paid by the Trust as are required to be filed and
mailed by applicable law, rule or regulation. PFPC shall prepare,
maintain and file with the IRS and other appropriate taxing
authorities reports relating to all dividends and distributions paid
by the Trust to its shareholders as required by tax or other law, rule
or regulation.
(f) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC will arrange, in accordance with the prospectus, for
issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders, checks and
applications.
(ii) PFPC will arrange, in accordance with the prospectus, for a
shareholder's:
12
- Exchange of Shares for shares of another trust with
which the Portfolio has exchange privileges;
- Automatic redemption from an account where that
shareholder participates in a automatic redemption
plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written Instructions, PFPC
shall mail all communications by the Trust to its shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Trust Shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards for the
meetings of the Trust's shareholders.
(h) RECORDS. PFPC shall maintain records of the accounts for each
shareholder showing the following information: (i) Name, address and
United States Tax Identification or Social Security number;
(ii) Number and class and series of Shares held and number and class
and series of Shares for which certificates, if any, have been
issued, including certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and the
date and price for all transactions in a shareholder's account;
(iv) Any stop or restraining order placed against a shareholder's
account;
13
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent to
perform any calculations contemplated or required by this
Agreement.
(i) LOST OR STOLEN CERTIFICATES (IF TRUST ISSUES CERTIFICATES). PFPC shall
place a stop notice against any certificate reported to be lost or
stolen and comply with all applicable federal regulatory requirements
for reporting such loss or alleged misappropriation. A new certificate
shall be registered and issued only upon:
(i) The shareholder's pledge of a lost instrument bond or such
other appropriate indemnity bond issued by a surety company
approved by PFPC; and
(ii) Completion of a release and indemnification agreement signed by
the shareholder to protect PFPC and its affiliates.
(j) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from any Trust
shareholder to inspect stock records, PFPC will notify the Trust and
the Trust will issue Written Instructions granting or denying such
request. Unless PFPC has acted contrary to the Trust's Written
Instructions, the Trust agrees to, and does hereby, release PFPC from
any liability for refusal of permission for a particular shareholder
to inspect the Trust's stock records.
(k) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES. Upon receipt of
Written Instructions, PFPC shall cancel outstanding certificates
surrendered by the Trust and reduce the total amount of outstanding
shares by the number of shares surrendered by the Trust.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the
14
Trust or by PFPC on sixty (60) days' prior written notice to the other
party.
17. CHANGE OF CONTROL. Notwithstanding any other provision of this Agreement,
in the event of an agreement to enter into a transaction that would result
in a Change of Control of the Trust's adviser or sponsor, the Trust's
ability to terminate the Agreement will be suspended from the time of such
agreement until two years after the Change of Control.
18. NOTICES. All notices and other written communications, including Written
Instructions, shall be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device. Notices shall be addressed (a) if to
PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to the
Trust, at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx X.
Xxxxx, with a copy to Xxxxxx X. Xxxxxxxxxx, Esq. at _____________; or (c)
if to neither of the foregoing, at such other address as shall have been
given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by tested telegram,
cable, telex or facsimile sending device, it shall be deemed to have been
given immediately. If notice is sent by first-class mail, it shall be
deemed to have been given three days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it is
delivered.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or
PNC Bank Corp., provided that (i) PFPC gives the Trust 30 days prior
written notice of such assignment or
15
delegation, (ii) the assignee or delegate agrees to comply with all the
provisions of this Agreement, (iii) PFPC and such assignee or delegate
promptly provide such information as the Trust may reasonably request, and
respond to such questions as the Trust may reasonably ask, relative to the
assignment or delegation (including, without limitation, the capabilities
of the assignee or delegate), and (iv) PFPC remains responsible for all of
its obligations under this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof.
(b) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(d) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made
16
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(g) LIMITATIONS. The obligations assumed by the Trust under this Agreement
are assumed on behalf of each Portfolio separately, and no Portfolio
shall be liable for the obligations of any other Portfolio. Neither
the Trustees nor any of the Trust's shareholders, officers, employees
or agents, whether past, present or future, shall be personally liable
for the obligations of the Trust or any Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
BY:
------------------------------
TITLE:
---------------------------
XXXXXXXXX & XXXXX FUND TRUST
BY:
------------------------------
TITLE:
---------------------------
17
EXHIBIT A
THIS EXHIBIT A, dated as of ____________ , 1999, is Exhibit A to that
certain Transfer Agency Services Agreement dated as of _____________ , 1999
between PFPC Inc. and Xxxxxxxxx & Xxxxx Fund Trust.
PORTFOLIOS
[Xxxxxxxxx & Xxxxx IPO Discovery Fund]
18
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
XXXXX X. XXXXX
------------------------------ ------------------------------
XXXXXX X. XXXXXX
------------------------------ ------------------------------
XXXXXX X. XXXXXXXXXX
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
Dated:_______________, 1999
19
