SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS
AGREEMENT is made as of November 21, 2009 or such other date as mutually agreed
upon by the parties hereto by and among PNC GLOBAL INVESTMENT SERVICING (U.S.)
INC., a Massachusetts corporation (“PNC”), SIVEST GROUP, INCORPORATED (the
“Adviser”) and FIRSTHAND FUNDS, a Delaware statutory trust (the
“Fund”). Capitalized terms not otherwise defined shall have the
meanings set forth in Appendix A.
A. The
Fund is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the “1940 Act”).
B. The
Fund and the Adviser have entered into Second Amended and Restated
Administration Agreement dated November 10, 2001 (the “Administration
Agreement”) pursuant to which the Adviser provides administrative services for
the Fund.
C. The
Fund and the Adviser desire that PNC be retained to provide sub-administration
and accounting services with respect to the 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 PNC wishes to furnish such
services.
1. Appointment. The Fund hereby
agrees that the Adviser may subcontract to PNC for the performance of all or a
portion of its duties under the Administration Agreement, and the Fund and the
Adviser hereby represent, warrant and covenant to PNC that PNC may be
subcontracted for such role under the Administration
Agreement. Accordingly, the Fund and the Adviser hereby appoint PNC
as sub-administrator to provide sub-administration and accounting
services to each of the Portfolios, in accordance with the terms set forth in
this Agreement. PNC accepts such appointment and agrees to furnish
such services. PNC shall be under no duty to take any action hereunder on
behalf of the Fund or any Portfolio or the Adviser except as specifically set
forth herein or as may be specifically agreed to by PNC, the Adviser and the
Fund in a written amendment hereto. PNC is not a party to, nor bound
by, and shall be deemed to have no knowledge of the terms of, the Administration
Agreement. PNC shall not bear, or otherwise be responsible for, any
fees, costs or expenses charged by any third party service providers engaged by
the Fund or the Adviser or by any other third party service provider to the
Fund.
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2.
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Instructions.
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(a) Unless
otherwise provided in this Agreement, PNC shall act only upon Oral Instructions
or Written Instructions.
(b) PNC
shall be entitled to rely upon any Oral Instruction or Written Instruction it
receives from an Authorized Person (or from a person reasonably believed by PNC
to be an Authorized Person) pursuant to this Agreement. PNC may
assume that any Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of organizational documents or
this Agreement or of any vote, resolution or proceeding of the Fund’s Board of
Directors or Trustees or of the Fund’s shareholders, unless and until PNC
receives Written Instructions to the contrary.
(c) The
Fund agrees to forward to PNC Written Instructions confirming Oral Instructions
(except where such Oral Instructions are given by PNC or its affiliates) so that
PNC receives the Written Instructions by the close of business on the same day
that such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PNC or differ from the Oral
Instructions shall in no way invalidate the transactions or enforceability of
the transactions authorized by the Oral Instructions or PNC’s ability to rely
upon such Oral Instructions.
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3.
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Right to Receive
Advice.
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(a) Advice of the
Fund. If PNC is in doubt as to any action it should or should
not take, PNC may request directions or advice, including Oral Instructions or
Written Instructions, from the Fund.
(b) Advice of
Counsel. If PNC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PNC may request advice
from counsel of its own choosing (who may be counsel for the Fund, the Fund’s
investment adviser or PNC, at the option of PNC). Notwithstanding anything in
this Agreement to the contrary or such instance where counsel for the Fund or
the Fund’s investment adviser is unable or unwilling to respond, to the extent
such counsel is not counsel for the Fund or the Fund’s investment adviser, PNC
shall bear the cost of such counsel of its own choosing.
(c) Conflicting
Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PNC receives from the Fund
and the advice PNC receives from counsel, PNC may rely upon and follow the
advice of counsel.
(d) No Obligation to Seek
Advice. Nothing in this section shall be construed so as to impose an
obligation upon PNC (i) to seek such directions or advice or Oral Instructions
or Written Instructions, or (ii) to act in accordance with such directions
or advice or Oral Instructions or Written Instructions.
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4.
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Records;
Visits.
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(a) The
books and records pertaining to the Fund and the Portfolios which are in the
possession or under the control of PNC shall be the property of the Fund. The
Fund and Authorized Persons shall have access to such books and records at all
times during PNC’s
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normal
business hours. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by PNC to the Fund or to an
Authorized Person, at the Fund’s expense.
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(b)
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PNC
shall keep the following records:
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(i)
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all
books and records with respect to each Portfolio’s books of
account;
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(ii)
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records
of each Portfolio’s securities transactions;
and
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(iii)
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all
other books and records as PNC is required to maintain pursuant to Rule
31a-1 of the 1940 Act in connection with the services provided
hereunder.
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5.
Confidentiality. Each party
shall keep confidential any information relating to the other party’s
business (“Confidential Information”). Confidential Information shall
include (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, finances, operations,
customer relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the past, present
or future business activities of the Adviser, the Fund or PNC, their respective
subsidiaries and affiliated companies; (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 Adviser, the Fund or PNC a competitive advantage over its competitors; (c)
all confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information shall not be
Confidential Information and shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available through no wrongful act
of the receiving party; (c) is rightfully received from a third party who, to
the best of the receiving party’s knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third party without
restriction; (e) is requested or required to be disclosed by the receiving party
pursuant to a court order, subpoena, governmental or regulatory agency request
or law; (f) is relevant to the defense of any claim or cause of action asserted
against the receiving party; (g) is Fund information provided by PNC in
connection with an independent third party compliance or other review; (h) is
necessary or desirable for PNC to release such information in connection with
the provision of services under this Agreement; or (h) has been or is
independently developed or obtained by the receiving party. The
provisions of this Section 5 shall survive termination of this Agreement for a
period of three (3) years after such termination.
6.
Liaison
with Accountants. PNC shall act as
liaison with the Fund’s independent public accountants
and shall provide account analyses, fiscal year summaries, and other
audit-related schedules with respect to each Portfolio. PNC shall
take all reasonable action in the performance of its duties under this Agreement
to assure that the necessary information is made available to
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such
accountants for the expression of their opinion, as required by the
Fund.
7.
PNC
System. PNC 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 utilized by PNC in connection with the services provided by PNC to the
Adviser and the Fund.
8.
Disaster
Recovery. PNC 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, PNC shall, at no
additional expense to the Adviser or the Fund, take reasonable steps to minimize
service interruptions. PNC 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 PNC’s own intentional misconduct, bad
faith or gross negligence with respect to its duties under this
Agreement.
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9.
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Compensation.
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(a) As
compensation for services rendered by PNC during the term of this Agreement, the
Adviser, on behalf of each Portfolio, will pay to PNC a fee or fees as may be
agreed to in writing by the Adviser, Fund and PNC.
(b) The
undersigned hereby represents and warrants to PNC that (i) the terms of this
Agreement, (ii) the fees and expenses associated with this Agreement, and (iii)
any benefits accruing to PNC or to the adviser or sponsor to the Fund in
connection with this Agreement, including but not limited to any fee waivers,
conversion cost reimbursements, up front payments, signing payments or periodic
payments made or to be made by PNC to such adviser or sponsor or any
affiliate of the Fund relating to this Agreement have been fully disclosed to
the Board of Directors or Trustees of the Fund and that, if required by
applicable law, such Board of Directors or Trustees has approved or will approve
the terms of this Agreement, any such fees and expenses, and any such
benefits.
(c) Notwithstanding
the limitation of liability provisions of this Agreement or the termination of
this Agreement, the Fund shall remain responsible for paying to PNC the fees set
forth in the applicable fee letter.
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10.
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Standard
of Care/Limitation of Liability.
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(a) Subject
to the terms of this Section 10, PNC shall be liable to the Adviser and the Fund
(or any person or entity claiming through the Fund) for damages only to the
extent caused by PNC’s own intentional misconduct, bad faith or gross negligence
with respect to its duties under this Agreement (“Standard of
Care”).
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(b) The
aggregate cumulative liability of PNC and its affiliates to the Adviser, the
Fund, their affiliates, and any person or entity claiming through the Fund or
its affiliates for any loss, claim, suit, controversy, breach or damage of any
nature whatsoever (including but not limited to those arising out of or related
to this Agreement and any other agreement by and between PNC or any of its
affiliates and the Adviser, the Fund or any of their affiliates (this Agreement,
collectively with the Fund’s Transfer Agency Services Agreement with PNC and the
Fund’s FIN 48 Tax Services Agreement with PNC, the “Service Agreements”))
and regardless of the form of action or legal theory (“Loss”) shall not exceed
the greater of: (i) the fees actually paid to PNC and its affiliates
pursuant to the Service Agreements during the twelve (12) months immediately
preceding the date of the first such Loss; and (ii) five hundred thousand U.S.
dollars ($500,000). For the purposes of clarification, in the event a
Loss occurs prior to the end of twelve (12) months subsequent to the date of
this Agreement, the amount in part (i) above shall be calculated on a pro forma
basis based upon the fees actually paid to PNC and its affiliates pursuant to
the Service Agreements prior to the date of the Loss.
(c) PNC
shall not be liable for damages (including without limitation damages caused by
delays, failure, errors, interruption or loss of data) occurring directly or
indirectly by reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or military
authority; national emergencies; public enemy; war; terrorism; riot; fire;
flood; catastrophe; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; non-performance
by a third party; failure of the mails; or functions or malfunctions of the
internet, firewalls, encryption systems or security devices caused by any of the
above.
(d) PNC
shall not be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction, direction, notice,
instrument or other information which PNC reasonably believes to be
genuine. PNC shall not be liable for any damages that are caused by
actions or omissions taken by PNC in accordance with Written Instructions or
advice of counsel. PNC shall not be liable for any damages arising out of
any action or omission to act by any prior service provider of the Fund or for
any failure to discover any such error or omission.
(e)
Neither PNC nor its affiliates shall be liable for any
consequential, incidental, exemplary, punitive, special or indirect damages,
whether or not the likelihood of such damages was known by PNC or its
affiliates.
(f) No
party may assert a cause of action against PNC or any of its affiliates that
allegedly occurred more than the earlier of the applicable statute of
limitations or 36 months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging such cause of
action.
(g) Each
party shall have a duty to mitigate damages for which the other parties may
become responsible.
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(h)
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This
Section 10 shall survive termination of this
Agreement.
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11. Indemnification. Absent PNC’s failure to meet
its Standard of Care (defined in Section 10 above), the Fund agrees to
indemnify, defend and hold harmless PNC and its affiliates and their respective
directors, trustees, officers, agents and employees from all claims, suits,
actions, damages, losses, liabilities, obligations, costs and reasonable
expenses (including attorneys’ fees and court costs, travel costs and other
reasonable out-of-pocket costs related to dispute resolution) arising directly
or indirectly from: (a) any action or omission to act by any prior service
provider of the Fund; and (b) any action taken or omitted to be taken by PNC in
connection with the provision of services to the Fund. This
Section 11 shall survive termination of this Agreement.
12.
Description
of Accounting Services on a Continuous Basis. PNC will perform
the following accounting services with respect to each Portfolio:
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(i)
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Journalize
investment, capital share and income and expense
activities;
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(ii)
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Verify
investment buy/sell trade tickets when received from the investment
adviser for a Portfolio (the “Adviser”) and transmit trades to the Fund’s
custodian (the “Custodian”) for proper
settlement;
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(iii)
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Maintain
individual ledgers for investment
securities;
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(iv)
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Maintain
historical tax lots for each
security;
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(v)
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Reconcile
cash and investment balances of the Fund with the Custodian, and provide
the Adviser with the beginning cash balance available for investment
purposes;
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(vi)
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Update
the cash availability throughout the day as required by the
Adviser;
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(vii)
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Post
to and prepare the Statement of Assets and Liabilities and the Statement
of Operations;
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(viii)
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Calculate
various contractual expenses (e.g., advisory
and custody fees);
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(ix)
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Monitor
the expense accruals and notify an officer of the Fund of any proposed
adjustments;
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(x)
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Control
all disbursements and authorize such disbursements upon Written
Instructions;
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(xi)
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Calculate
capital gains and losses;
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(xii)
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Determine
net income;
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(xiii)
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Obtain
security market quotes from independent pricing services approved by the
Adviser, or if such quotes are unavailable, then obtain such prices from
the Adviser, and in either case calculate the market value of each
Portfolio’s investments in accordance with the Fund's valuation policies
or guidelines; provided, however, that PNC shall not under any
circumstances be under a duty to independently price or value any of the
Fund's investments itself or to confirm or validate any information or
valuation provided by the Adviser or any other pricing source, nor shall
PNC have any liability relating to inaccuracies or otherwise with respect
to such information or valuations;
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(xiv)
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Transmit
or make available a copy of the daily portfolio valuation to the
Adviser;
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(xv)
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Compute
net asset value; and
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(xvi)
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As
appropriate, compute yields, total return, expense ratios, portfolio
turnover rate, and, if required, portfolio average dollar-weighted
maturity.
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13.
Description
of Sub-Administration Services on a Continuous Basis. PNC will perform
the following administration services with respect to each
Portfolio:
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(i)
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Prepare
quarterly broker security transactions
summaries;
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(ii)
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Prepare
monthly security transaction
listings;
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(iii)
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Supply
various normal and customary Portfolio and Fund statistical data as
requested on an ongoing basis;
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(iv)
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Prepare
for execution and filing the Fund’s Federal and state tax
returns;
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(v)
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Monitor
each Portfolio’s status as a regulated investment company under
Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
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(vi)
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Prepare
the Fund’s financial statements for its annual and semi-annual shareholder
reports, and prepare and coordinate the filing of Forms N-CSR, N-Q and
N-PX (with the Fund providing the voting records in the format required by
PNC);
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(vii)
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Prepare
and coordinate the filing of annual Post-Effective Amendments to the
Fund’s Registration Statement (not including the addition of a new series
or class); prepare and file (or coordinate the filing of) (i) semi-annual
reports on Form N-SAR and (ii) Notices pursuant to Rule
24f-2;
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(viii)
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Administratively
assist in obtaining the fidelity bond and directors’ and officers’/errors
and omissions insurance policies for the Fund in accordance with the
requirements of Rule 17g-1 under the 1940 Act as such bond and policies
are
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approved
by the Fund’s Board of Directors;
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(ix)
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Draft
agendas (with final selection of agenda items being made by Fund counsel)
and resolutions for quarterly board
meetings;
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(x)
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Coordinate
the preparation, assembly and mailing of board materials for quarterly
board meetings and board committee
meetings;
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(xi)
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Attend
quarterly board meetings and any board committee meetings and draft
minutes thereof;
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(xii)
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Provide
compliance policies and procedures related to services provided by PNC
and, if mutually agreed, certain PNC affiliates, summary procedures
thereof and periodic certification letters;
and
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(xiii)
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Maintain
a regulatory calendar for the Fund listing various SEC filing and board
approval deadlines.
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All
regulatory services are subject to the review and approval of Fund
counsel.
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14.
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Duration
and Termination.
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(a) This
Agreement shall be effective on the date first written above and unless
terminated pursuant to its terms shall continue for a period of four (4) years
(the “Initial Term”).
(b) Upon
the expiration of the Initial Term, this Agreement shall automatically renew for
successive terms of one (1) year (“Renewal Terms”) each, unless the Adviser, the
Fund or PNC provides written notice to the other of its intent not to
renew. Such notice must be received not less than ninety (90) days
prior to the expiration of the Initial Term or the then current Renewal
Term.
(c) In
the event of termination, all expenses associated with movement of records and
materials and conversion thereof to a successor service provider will be borne
by the Fund and paid to PNC prior to any such conversion.
(d) If
a party hereto is guilty of a material failure to perform its duties and
obligations hereunder (a “Defaulting Party”) the other party (the
“Non-Defaulting Party”) may give written notice thereof to the Defaulting Party,
and if such material failure shall not have been remedied within thirty (30)
days after such written notice is given of such material failure, then the
Non-Defaulting Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. In all cases,
termination by the Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this Agreement or
otherwise against the Defaulting Party.
(e) Notwithstanding
anything contained in this Agreement to the contrary (other than as
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contained
in Section 14(f) below), if in connection with a Change in Control (for purposes
of this Section 14(e) “Change of Control” is defined to mean a merger,
consolidation, adoption, acquisition, change in control, re-structuring, or
re-organization of or any other similar occurrence involving the Adviser, the
Fund or any affiliate of the Fund) the Adviser or the Fund gives notice to PNC
terminating it as the provider of any of the services hereunder or if the
Adviser or the Fund otherwise terminates this Agreement before the expiration of
the Initial Term (“Early Termination”): (i) PNC shall, if requested by the Fund,
make a good faith effort to facilitate a conversion to the Fund’s successor
service provider, provided that PNC does not guarantee that it will be able to
effect a conversion on the date(s) requested by the Fund and (ii) before the
effective date of the Early Termination, the Fund shall pay to PNC an amount
equal to all fees and other amounts (“Early Termination Fee”) calculated as if
PNC were to provide all services hereunder until the expiration of the Initial
Term subject to the following schedule: (a) during the first year of this
Agreement: 100% of the Early Termination Fee; (b) during the second year of this
Agreement: 75% of the Early Termination Fee; (c) during the third year of this
Agreement, 50% of the Early Termination Fee; (d) during the fourth year of this
Agreement, 25% of the Early Termination Fee; (e) after the end of the fourth
year of this Agreement and during any subsequent Renewal Term: 0% of the Early
Termination Fee. The Early Termination Fee shall be calculated using the average
of the monthly fees and other amounts due to PNC under this Agreement during the
last three calendar months before the date of the notice of Early Termination
(or if not given the date it should have been given). The Adviser and the Fund
expressly acknowledge and agree that the Early Termination Fee is not a penalty
but reasonable compensation to PNC for the termination of services before the
expiration of the Initial Term. If any of the Fund’s assets serviced by PNC
under this Agreement are removed from the coverage of this Agreement (“Removed
Assets”) and are subsequently serviced by another service provider (including
the Fund or any affiliate of the Fund): (i) the Fund will be deemed to have
caused an Early Termination with respect to such Removed Assets as of the day
immediately preceding the first such removal of assets and (ii) at, PNC’s
option, either (1) the Fund will also be deemed to have caused an Early
Termination with respect to all non-Removed Assets as of a date selected by PNC
or (2) this Agreement will remain in full force and effect with respect to all
non-Removed Assets.
(f)
In the event that this Agreement is terminated in accordance with the
provisions of Section 14(d) above, Section 14(e) above shall be treated as if it
was not a part of this Agreement (provided that the removal of assets as
referenced in the preamble to the last sentence of such Section 14(e) shall not
be permitted prior to the termination date of this Agreement).
(g) In
the event that Fund, or any series thereof, appoints an investment adviser (“New
Adviser”) other than Adviser during the term of this Agreement, both New Adviser
and PNC shall, at the Fund’s request, execute an amendment to this Agreement
adding New Adviser as a party hereto.
15. Notices. Notices shall be addressed
(a) if to PNC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
President (or such other address as PNC may inform the Adviser and the Fund in
writing); (b) if to the Adviser or the Fund, at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxxxxxxxxx 00000, Attention: President (or such other address as
the Adviser or the
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Fund may
inform PNC in writing) 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
confirming 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.
16. Amendments. This Agreement,
or any term thereof, may be changed or waived only by written amendment, signed
by the party against whom enforcement of such change or waiver is
sought.
17. Assignment. PNC may assign
its rights hereunder to any majority-owned direct or indirect subsidiary of PNC
or of The PNC Financial Services Group, Inc., provided that PNC gives the
Adviser and the Fund thirty (30) days prior written notice of such
assignment.
18.
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.
19. Further
Actions. Each party agrees
to perform such further acts and execute such further documents as are necessary
to effectuate the purposes hereof.
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20.
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Miscellaneous.
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(a) Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to make any
modifications to its registration statement or adopt any policies which would
affect materially the obligations or responsibilities of PNC hereunder without
the prior written approval of PNC, which approval shall not be unreasonably
withheld or delayed. The scope of services to be provided by PNC under this
Agreement shall not be increased as a result of new or revised regulatory or
other requirements that may become applicable with respect to the Adviser or the
Fund, unless the parties hereto expressly agree in writing to any such
increase.
(b) During
the term of this Agreement and for one year thereafter, the Adviser or the Fund
shall not (with the exceptions noted in the immediately succeeding sentence)
knowingly solicit or recruit for employment or hire any of PNC’s employees, and
the Adviser and the Fund shall cause the Fund’s affiliates to not (with the
exceptions noted in the immediately succeeding sentence) knowingly solicit or
recruit for employment or hire any of PNC’s employees. To “knowingly”
solicit, recruit or hire within the meaning of this provision does not include,
and therefore does not prohibit, solicitation, recruitment or hiring of a PNC
employee by the Fund, the Fund’s sponsor or an affiliate of the Fund if the PNC
employee was identified by such entity solely as a result of the PNC employee’s
response to a general advertisement by such entity in a publication of trade or
industry interest or other similar general solicitation by such
entity.
(c) Except
as expressly provided in this Agreement, PNC hereby disclaims all
representations and warranties, express or implied, made to the Adviser or the
Fund or any other
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person,
including, without limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise (irrespective of
any course of dealing, custom or usage of trade), of any services or any goods
provided incidental to services provided under this Agreement. PNC
disclaims any warranty of title or non-infringement except as otherwise set
forth in this Agreement.
(d) This
Agreement embodies the entire agreement and understanding among the parties and
supersedes all prior agreements and understandings relating to the subject
matter hereof, provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated
duties. 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. Notwithstanding any provision
hereof, the services of PNC are not, nor shall they be construed as
constituting, legal advice or the provision of legal services for or on behalf
of the Adviser, the Fund or any other person. Neither this Agreement nor the
provision of services under this Agreement establishes or is intended to
establish an attorney-client relationship between the Adviser or the Fund and
PNC.
(e) The
Adviser and/or the Fund will provide such information and documentation as PNC
may reasonably request in connection with services provided by PNC to the
Fund.
(f) 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.
(g) If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as may be explicitly stated in this Agreement, (i)
this Agreement is not for the benefit of any other person or entity and (ii)
there shall be no third party beneficiaries hereof.
(h) The
facsimile signature of any party to this Agreement shall constitute the valid
and binding execution hereof by such party.
(i) To
help the U.S. government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial institution to obtain,
verify, and record certain information that identifies each person who initially
opens an account with that financial institution on or after October 1,
2003. Certain of PNC’s affiliates are financial institutions, and PNC may,
as a matter of policy, request (or may have already requested) the Adviser’s and
the Fund’s name, address and taxpayer identification number or other
government-issued identification number, and, if such party is a natural person,
that party’s date of birth. PNC may also ask (and may have already asked) for
additional identifying information, and PNC may take steps (and may have already
taken steps) to verify the authenticity and accuracy of these data
elements.
11
|
PNC
GLOBAL INVESTMENT
SERVICING (U.S.) INC. |
|||
|
By:
|
/s/ Xxx X. Xxxxxxxx
|
||
|
Name:
|
Xxx
X. Xxxxxxxx
|
||
|
Title:
|
Senior
Vice President
|
||
|
By:
|
/s/ Xxxxx Xxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxx
|
||
|
Title:
|
Trustee
|
||
|
SIVEST
GROUP, INCORPORATED
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxx
|
||
|
Title:
|
President
|
||
12
EXHIBIT
A
THIS
EXHIBIT A, dated as of November 21, 2009 is Exhibit A to that certain
Sub-Administration and Accounting Services Agreement dated as of November 21,
2009 among PNC Global Investment Servicing (U.S.) Inc., Firsthand Capital
Management, Inc., and Firsthand Funds.
Portfolios
Firsthand
Technology Value Fund
Firsthand
Technology Leaders Fund
Firsthand
Alternative Energy Fund
Firsthand
e-Commerce Fund
13
APPENDIX
A
As used
in this Agreement:
|
|
(a)
|
“1933 Act”
means the Securities Act of 1933, as
amended.
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|
|
(b)
|
“1934 Act”
means the Securities Exchange Act of 1934, as
amended.
|
|
|
(c)
|
“Authorized
Person” means any officer of the Fund and any other person duly
authorized by the Fund’s Board of Directors or Trustees to give Oral
Instructions or Written Instructions on behalf of the Fund. An
Authorized Person’s scope of authority may be limited by setting forth
such limitation in a written document signed by both parties
hereto.
|
|
|
(d)
|
“Oral
Instructions” mean oral instructions received by PNC from an
Authorized Person or from a person reasonably believed by PNC to be an
Authorized Person. PNC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives from an
Authorized Person via electronic mail as Oral
Instructions.
|
|
|
(e)
|
“SEC” means the
Securities and Exchange Commission.
|
|
|
(f)
|
“Securities
Laws” means the 1933 Act, the 1934 Act and the 1940
Act.
|
|
|
(g)
|
“Shares” means
the shares of beneficial interest of any series or class of the
Fund.
|
|
|
(h)
|
“Written
Instructions” mean (i) written instructions signed by an Authorized
Person (or a person reasonably believed by PNC to be an Authorized Person)
and received by PNC or (ii) trade instructions transmitted (and received
by PNC) by means of an electronic transaction reporting system access to
which requires use of a password or other authorized
identifier. The instructions may be delivered electronically
(with respect to sub-item (ii) above) or by hand, mail, tested telegram,
cable, telex or facsimile sending
device.
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14