Exhibit (h)(3)
SUB-TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of August 1, 2002 by and between PFPC Inc., a
Massachusetts corporation ("PFPC"), and Xxxxx Xxxxx Management, a Massachusetts
business trust] (the "Xxxxx Xxxxx").
W I T N E S S E T H:
WHEREAS, PFPC serves as transfer agent for the Xxxxx Xxxxx funds (the
"Funds") pursuant to a certain Transfer Agency Agreement dated January 1, 1998,
as amended between PFPC and the Funds (the "TA Agreement");
WHEREAS, the Funds and Xxxxx Xxxxx desire for PFPC to retain Xxxxx Xxxxx to
perform certain services directly on behalf of the Funds.
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 Fund and any other person duly
authorized by the Fund's Board of Directors to give Oral Instructions and
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) "Financial Intermediaries" means any investment advisor, broker-dealer,
financial planner or any other person authorized by a Shareholder or a Fund
to act on behalf of a Shareholder.
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(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" mean the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "Shareholder" means a record owner of Shares of a Fund.
(h) "Shares" mean the shares of beneficial interest of any series or class of
the Funds.
2. APPOINTMENT. The PFPC hereby engages Xxxxx Xxxxx to perform those
services set forth on the attached Schedule A in accordance with the terms set
forth in this Agreement and Xxxxx Xxxxx agrees to perform such services directly
on behalf of the Funds.
3. COMPLIANCE WITH RULES AND REGULATIONS. Xxxxx Xxxxx shall 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 Xxxxx Xxxxx hereunder.
4. RECORDS. The books and records pertaining to the Funds, which are in the
possession or under the control of Xxxxx Xxxxx, shall be the property of the
Funds. Such books and records shall be prepared and maintained as required by
the 1940 Act and other applicable Securities Laws, rules and regulations. The
Funds shall have access to such books and records at all times during normal
business hours. Upon the reasonable request of the Funds, copies of any such
books and records shall be provided by Xxxxx Xxxxx to the Fund.
5. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the other
party's business ("Confidential Information"). Confidential Information
shall include:
(i) 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
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relating to the past, present or future business activities of Xxxxx
Xxxxx or PFPC, their respective subsidiaries and affiliated companies
and the customers, clients and suppliers of any of them;
(ii) any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in
the sense that its confidentiality affords Xxxxx Xxxxx or PFPC a
competitive advantage over its competitors;
(iii) 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
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it:
(i) is already known to the receiving party at the time it is obtained;
(ii) is or becomes publicly known or available through no wrongful act of
the receiving party;
(iii) is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(iv) is released by the protected party to a third party without
restriction;
(v) is required to be disclosed by the receiving party pursuant to a
requirement of a court order, subpoena, governmental or regulatory
agency or law (provided the receiving party will provide the other
party written notice of such requirement, to the extent such notice is
permitted);
(vi) is relevant to the defense of any claim or cause of action asserted
against the receiving party; or
(vii) has been or is independently developed or obtained by the receiving
party.
6. COMPENSATION PFPC and Xxxxx Xxxxx acknowledge that effective July 1,
2002 the Funds shall pay to PFPC an amount equal to the lesser of (i) actual
expense of Xxxxx Xxxxx associated with providing the services set forth in this
Agreement; or (ii) $2,500,000.00 annually. PFPC shall, within thirty (30) of
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receipt of the foregoing payment from the Funds, remit to Xxxxx Xxxxx such
monies so received as compensation for the services performed by Xxxxx Xxxxx
hereunder. PFPC shall have no obligation to make payments to Xxxxx Xxxxx unless
and until it receives payment from the Funds. In addition, it shall be the
responsibility of Xxxxx Xxxxx to provide information with respect to its expense
associated with the services provided pursuant to this Agreement.
7. INDEMNIFICATION. PFPC shall have no liability for and Xxxxx Xxxxx agrees
to indemnify, defend and hold harmless PFPC and its affiliates, including their
respective officers, directors, agents and employees, from any and all taxes,
charges, expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws) arising
directly or indirectly from any action or omission to act which Xxxxx Xxxxx
takes in connection with the provision of services hereunder. The provisions of
this Section 7 shall survive termination of this Agreement.
8. DURATION AND TERMINATION. This Agreement shall be effective on the date
first written above and unless otherwise terminated by the parties shall remain
in effect until the termination of the TA Agreement.
9. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to Xxxxx
Xxxxx, at 000 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Vice President of
Mutual Funds Operations; 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
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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.
10. 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.
11. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of PFPC or
of The PNC Financial Services Group, Inc., provided that PFPC gives the Fund 30
days prior written notice of such assignment or delegation.
12. 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.
13. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
14. 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, provided that the
parties may embody in one or more separate documents their agreement, if
any, with respect to delegated duties.
(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.
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(d) 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.
(e) Partial Invalidity. 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.
(f) 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.
(g) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such
party.
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: /s/ Xxxxxxx Xxxxxxxx
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Title: Executive Vice President
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XXXXX XXXXX MANAGEMENT
By: /s/ Xxxxx X. X'Xxxxxx
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Title: Treasurer
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SCHEDULE A
Xxxxx Xxxxx shall perform the following services directly on behalf of the
Funds:
o Provide call center services to Financial Intermediaries and Shareholders.
o Answer written inquiries relating to Shareholder accounts (matters relating
to portfolio management, distribution of Shares and other management policy
questions will be referred to the Funds)
o Furnish a Statement of Additional Information to any Shareholder who
requests in writing or by telephone) such statement from a Fund.
o Processing transaction requests received via telephone
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