Exhibit H(2)
FORM OF
SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT dated the 26th day of October, 1998 and amended the 1st of April,
2001, by and between [UAM Fund] (the "Company"), a Maryland corporation and UAM
Shareholder Services Center, Inc. ("UAM SSMC"), a Delaware corporation.
WITNESSETH:
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series portfolios ("Portfolios"), each of which may
consist of one or more classes of shares of common stock ("Shares"); and
WHEREAS, the Company desires to engage UAM SSC to provide services
pursuant to this shareholder services agreement (the "Agreement") between the
Company and UAM SSC.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the Company and UAM SSC, intending to be legally bound, hereby
agree as follows:
1. Scope. In addition to the Portfolios and classes of shares thereof existing
on the effective date of this Agreement, the Company may from time to time
hereafter create additional Portfolios and issue separate classes of its shares
of common stock or classify and reclassify
shares of any Portfolio or class, and the appointment effected hereby shall
constitute appointment for the provision of services with respect to all
existing Portfolios and classes and any additional Portfolios and classes unless
the parties shall otherwise agree in writing.
2. Appointment. UAM SSC hereby agrees to perform such services and to serve
such functions as are set forth in Appendix A hereto, which appendix is
incorporated herein by this reference. Appendix A may not be amended except by
written agreement between the Company and UAM SSC. At the Company's request,
UAM SSC may perform services in addition to those set forth in Appendix A for an
additional fee mutually accepted by the parties. UAM SSC hereby agrees to
perform such services and serve such functions as provided in Appendix A in
accordance with the terms and conditions set forth in this Agreement.
3. Obligations Under this Agreement. To the extent that the provisions or
requirements of this Agreement and any agreement related thereto, may impose
obligations on UAM SSC to provide services, conform to a standard of conduct,
adhere to a stipulated process or procedure, or otherwise undertake to perform a
defined duty or responsibility, or may require the Company to fulfill such
obligations, UAM SSC shall perform such obligations and shall at all times use
reasonable care and act in good faith in performing such obligations.
4. Duties and Responsibilities. In connection with the services provided by
UAM SSC pursuant to this Agreement, UAM SSC shall directly or indirectly:
a. Personnel. Provide the services of personnel competent to perform the
obligations under this Agreement.
b. Facilities. Furnish, at its own expense, such office facilities,
furnishings, office equipment and other property and resources as are necessary
for the fulfillment of the obligations under this Agreement.
c. Books and Records. Maintain customary records, and particularly shall
maintain those records required to be maintained pursuant to subparagraph
(2)(iv) of paragraph (b) of Rule 31a-1 under the 1940 Act. UAM SSC may send
periodically to the Company, or to where designated by the Secretary or an
Assistant Secretary of the Company, all books, documents, and all records no
longer deemed needed for current purposes, upon the understanding that such
books, documents, and records, will be maintained by the Company under and in
accordance with the requirements of Rule 17Ad-7 adopted under the Securities
Exchange Act of 1934. Such materials will not be destroyed by the Company
without the consent of UAM SSC (which consent will not be unreasonably
withheld), but will be safely stored for possible future reference.
d. Reports to the Company. Furnish to or place at the disposal of the
Company such information, reports, evaluations, analyses, and opinions relating
to the services performed by UAM SSC under any shareholder services agreement
(as provided for hereunder), as the Company may reasonably request or as the
Company may deem helpful to make an informed determination regarding the
rendering of services by UAM SSC, the continuation of this Agreement, and the
payments contemplated to be made hereunder.
5. Fees. In consideration of the services performed by UAM SSC under this
Agreement, the Company shall pay such fees to UAM SSC as are set forth in
Appendix B hereto, which appendix is incorporated herein by this reference. In
addition to the fees set forth in Appendix B, UAM SSC shall be entitled to
reimbursement from the Company for all reasonable out-of-pocket expenses without
xxxx-up incurred by UAM SSC in connection with the performance of the
services provided for in this Agreement. UAM SSC shall conduct an evaluation of
the fees payable under this Agreement at six month intervals and shall advise
the Company as to any adjustments in fees that UAM SSC deems appropriate, but in
any event, Appendix B may not be amended except by the written agreement of the
Company and UAM SSC.
6. Third Party Service Providers. The Company agrees that UAM SSC may enter
into a sub-shareholder services agreement or related agreements with other
service providers to perform certain services provided for by this Agreement.
UAM SSC's obligations and the standards of care under which UAM SSC has
undertaken to fulfill such obligations, and the indemnification that UAM SSC has
agreed to provide under this Agreement may not, however, be impaired or assigned
by UAM SSC without the consent and approval of the Board of Directors of the
Company. UAM SSC will provide written notice to the Company prior to entering
into such arrangements.
7. Certain Representations and Warranties of UAM SSC. UAM SSC represents and
warrants to the Company that:
a. It is a Corporation duly formed and validly subsisting under the laws of
the State of Delaware.
b. It is duly qualified to carry on its business in the Commonwealth of
Pennsylvania. c. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services contemplated in
this Agreement.
d. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934.
e. All requisite proceedings of the Directors have been taken to authorize it
to enter into and perform this Agreement.
f. It has and will continue to have and maintain the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
8. Certain Representations and Warranties of the Company. The Company
represents and warrants to UAM SSC' that:
a. It is a corporation duly organized and existing and in good standing under
the laws of the Maryland.
b. It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
c. It is empowered under applicable laws and by its Charter and Bylaws to
enter into and perform this Agreement.
d. All requisite proceedings of the Directors have been taken to authorize it
to enter into and perform this Agreement.
9. Certain Covenants of UAM SSC and the Company.
a. Records are Property of the Company. To the extent required by Section 31
of the 1940 Act, and the rules thereunder, UAM SSC agrees that all records
maintained UAM SSC relating to the services to be performed by UAM SSC under
this Agreement are the property of the Company and will be preserved and will
be surrendered promptly to the Company on request.
b. Financial Statements. UAM SSC agrees to furnish to the Company annual
reports of its financial condition, consisting of a balance sheet, earnings
statement and any other financial information reasonably requested by the
Company.
c. Information Concerning the Company. The Company agrees to furnish or
otherwise make available to UAM SSC such information relating to the business
and affairs of the Company as UAM SSC may reasonably require to discharge its
duties and obligations hereunder. The Company further agrees to provide UAM SSC
with information and updates relating to new product and service introductions
and sales and marketing efforts that may reasonably be expected to impact on
shareholder or prospective shareholder telephone call volume so that UAM SSC can
properly allocate the resources necessary to fulfill its obligations under this
Agreement.
d. Cooperation in Shareholder Responses. The Company agrees that it will, and
shall cause the Company's investment advisers to, cooperate with UAM SSC to the
extent necessary to formulate appropriate responses to written inquiries from
shareholders concerning investment strategy and philosophy and market
commentary.
10. Quality Control.
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a. Audits. UAM SSC shall be responsible for periodically conducting quality
control audits with respect to telephone purchase, redemption and exchange
requests and account changes received and processed by UAM SSC or any third
party service provider with which UAM SSC has contracted to perform any of the
services provided for under this Agreement. UAM SSC shall promptly report the
results of such quality control audits to the Company.
b. Inspections. UAM SSC shall permit the Company and its authorized
representatives, including, but not limited to, the Company's independent
auditors, to have reasonable access to the personnel and records of UAM SSC, and
to make periodic inspections of the operations of UAM SSC as such would involve
the Company at reasonable times during business hours for the purpose of
monitoring the quality of services performed by UAM SSC, and the level of fees
and reimbursements to which UAM SSC is entitled, under this Agreement.
c. Monitoring of Exchange Privileges. UAM SSC shall use its reasonable
efforts to detect and prevent shareholder violations of telephone exchange
privileges as described in the Company's prospectuses.
d. Service Improvements. UAM SSC shall use its reasonable efforts to keep
current on the trends of the investment company industry relating to shareholder
services and to continue to modernize and improve its service delivery
mechanisms.
11. Liability and Indemnification.
a. Indemnification by the Company. UAM SSC shall not be responsible for, and
the Company shall indemnify and hold UAM SSC harmless from and against, any and
all losses, liabilities, claims, demands, suits, costs and expenses (including
reasonable attorneys' fees) which may be asserted against UAM SSC or for which
UAM SSC may be held to be liable, arising out of, or are attributable to, the
Company's failure to comply with the terms of this Agreement, or arising out of
or attributable to, the Company's gross negligence or willful misconduct or
breach of any representation or warranty of the Company's hereunder.
b. Indemnification by UAM SSC. The Company shall not be responsible for, and
UAM SSC shall indemnify the Company, its officers and directors and hold them
harmless from
and against, any and all losses, liabilities, claims, demands, suits, costs and
expenses (including reasonable attorneys' fees) which may be asserted against
the Company or for which the Company may be held to be liable, arising out of,
or attributable to, UAM SSC's failure to comply with the terms of this
Agreement. or arising out of, or are attributable to, any negligence or willful
misconduct or breach of any representation or warranty of UAM SSC hereunder.
c. Notice of Potential Claims: Defense of Claims. The Company and UAM SSC
agree that each shall promptly notify the other in writing of any situation
which represents or appears to involve a claim which may be the subject of
indemnification hereunder, although the failure to provide such notification
shall not relieve the indemnifying party of its liability pursuant to this
Section 11. The indemnifying party shall have the option to defend against any
such claim. In the event the indemnifying party so elects, it will notify the
indemnified party and shall assume the defense of such claim, and the
indemnified party shall cooperate fully with the indemnifying party, at the
indemnifying party's expense, in the defense of such claim. If the indemnifying
party elects not to defend against such claim, the indemnified party shall be
entitled to advance of reasonable expenses to defend such claim.
Notwithstanding the foregoing, the indemnified party shall not enter into any
settlement of such matter without the written consent of the indemnifying party,
which consent shall not be withheld unreasonably. The indemnifying party shall
not be obligated to indemnify the indemnified party for any settlement entered
into without the written consent of the indemnifying party. If the consent of
the indemnified party is required to effectuate any settlement and the
indemnified party refuses to consent to any settlement negotiated by the
indemnifying party, the liability of the indemnifying
party for losses arising out of or due to such matter shall be limited to the
amount to the rejected proposed settlement.
d. Except for violations of Section 17c. hereunder, in no event and under no
circumstances shall either party to this Agreement be liable to anyone,
including, without limitation, to the other party, for consequential damages for
any act or failure to act under any provision of this Agreement even if advised
of the possibility thereof.
e. Survival of Provisions. The obligations of the Company and UAM SSC
pursuant to this Section 11 shall survive the termination of this Agreement.
12. Limitations on Liability.
a. Subcontractors. Nothing herein shall impose any duty upon UAM SSC in
connection with or make UAM SSC liable for the actions or omissions to act of
unaffiliated third parties such as, by way of example and not limitation,
Airborne Services, the U.S. mails and telecommunication companies, provided, if
UAM SSC selected such company, UAM SSC shall have exercised reasonable care in
selecting the same. The foregoing limitation of liability with respect to
actions or omissions of unaffiliated third parties shall not be construed to
relieve UAM SSC of any obligations under Section 6 hereof with respect to any
services that UAM SSC has agreed to perform under this agreement that are
ultimately performed by other parties.
b. Portfolios as Separate Parties. Each Portfolio shall be regarded for all
purposes hereunder as a separate party apart from each other Portfolio. Unless
the context otherwise requires, with respect to every transaction covered by
this Agreement, every reference herein to the Company shall be deemed to relate
solely to the particular Portfolio to which such transaction relates. Under no
circumstances shall the rights, obligations or remedies with respect
to a particular Portfolio constitute a right, obligation or remedy applicable to
any other Portfolio. The use of this single document to memorialize the separate
agreement each Portfolio is understood to be for clerical convenience only and
shall not constitute any basis for joining the Portfolios for any reason.
13. Term of Agreement. This Agreement shall become effective on the day and
year first written above and, unless sooner terminated as hereinafter provided,
shall continue in effect for an initial period that will expire on September 1,
2002, and thereafter shall continue in effect from year to year.
14. Termination.
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a. Material Breach. This Agreement may be terminated by either party in the
event of a material breach of the Agreement by the other party upon thirty (30)
days' prior written notice to the other party; provided, however, that the
Agreement shall not terminate if such material breach is cured within such
thirty (30) day period.
b. Termination by the Company. The Company may, without payment of penalty,
terminate this Agreement upon 90 days' written notice to UAM SSC.
c. Termination by UAM. UAM SSC may, without payment of penalty, terminate
this Agreement upon 90 days' written notice to the Company.
d. Assignment. No assignment of this Agreement by either party shall occur
without the written consent of the other party; however, no written consent
will be necessary is such assignment is to another affiliate of Old Mutual plc.
15. Notices. All notices to be given hereunder shall be deemed properly given
if given in writing, delivered in person, or if sent by U.S. mail, first class,
postage prepaid, or if sent by
facsimile and thereafter confirmed by mail, (i) if to the Company, to [FUND
ADDRESS], and (ii) if to the UAM SSC, to UAM Shareholder Service Center, 0000
Xxxxxxx Xxxxx Xxxxx, Xxxxx, XX 00000-0000, Attention: Xxx X. Xxxxxxxx, or to
such other address as shall have been specified in writing by the party to whom
such notice is to be given.
16. Force Majeure. In the event UAM SSC is unable to perform its obligations
or duties under the terms of this Agreement because of any act of God, strike,
riot, act of war, equipment failure, power failure or damage or other causes
reasonably beyond its control, UAM SSC shall not be liable for any losses,
damages, costs, charges, counsel fees, payments, expenses or liability to any
other party (whether or not a party to this Agreement) resulting from such
failure to perform its obligations or duties under this Agreement or otherwise
from such causes. This provision, however, shall in no way excuse UAM SSC from
being liable to the Company for any and all losses, damages, costs, charges,
counsel fees, payments and expenses incurred by the Company due to the non-
performance or delay in performance by UAM SSC of its duties and obligation
under this Agreement if such non-performance or delay in performance could have
been reasonably prevented by UAM SSC through back-up systems and other
procedures commonly employed by other persons in the mutual funds industry who
provide services similar to those to be provided by UAM SSC under this
Agreement, provided that UAM SSC shall have the right, at all times, to mitigate
or cure any losses, including by making adjustments or corrections to any
current or former shareholder accounts.
17. Miscellaneous.
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a. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of Massachusetts,
including its
choice of law provision, except as such laws may conflict with the 1940 Act and
the rules thereunder or other applicable federal laws or regulations.
b. Severability. If any provision of this Agreement shall be held or made
invalid in whole or in part by a court decision, statute, rule, or otherwise,
the remaining provisions of the Agreement shall not be affected thereby.
Invalid provisions shall, in accordance with the intent and purpose of this
Agreement, be replaced by mutual consent of the parties with such valid
provisions which in their economic effect come as closely as legally possible to
such invalid provisions.
c. Confidentiality. UAM SSC agrees on behalf of itself and its employees to
treat confidentially all records and other information relative to the Company
and its prior, present, or prospective shareholders, except, after prior
notification to and approval in writing the Company, which approval shall not be
withheld unreasonably and may not be withheld where UAM SSC may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities.
d. Amendments in Writing. Any part of this Agreement or any appendix hereto
may be amended or waived only by an instrument in writing signed by the parties
hereto.
e. Headings and Captions. The headings and captions contained in this
Agreement are included for convenience of reference only and in no way define or
delineate any of the provisions hereof or otherwise affect their construction or
effect.
f. Interpretation. Nothing herein contained shall be deemed to require the
Company to take any action contrary to their charter documents or bylaws, or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the
Board of Directors/Trustees of its responsibility for and control of the conduct
of the affairs of the Company.
g. Enforceability by Successors and Assigns. All terms and provisions of
this Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns.
h. Survival of Representations, Warranties and Indemnification. The
representations and warranties, and the indemnification extended hereunder, if
any, are intended to and shall continue after and survive the expiration,
termination or cancellation of this Agreement.
i. No Joint Venture. Neither the execution nor performance of this Agreement
shall be deemed to create a partnership or joint venture by and between the
Company and UAM SSC. It is understood and agreed that all services performed
hereunder by UAM SSC shall be as an independent contractor. While this
Agreement is between the Company and the UAM SSC, the Parties agree that this
Agreement and the performance of the services provided for herein shall be
performed for the benefit of the Company.
j. No Waiver. The failure of either party to insist upon the performance of
any terms or conditions of this Agreement or to enforce any rights resulting
from any breach of any of the terms or conditions of this Agreement, including
the payment of damages, shall not be construed as a continuing or permanent
waiver of any such terms, conditions, rights or privileges, but the same shall
continue and remain in full force and effect as if no such forbearance or waiver
had occurred.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officers, to be effective as of the day and
year first above written.
[UAM FUND]
By: ________________________________
Name:
Title:
UAM SHAREHOLDER SERVICE CENTER, INC.
By: ________________________________
Name:
Title:
APPENDIX A
SERVICES
UAM SSC generally shall be responsible for providing shareholder services,
including but not limited to the following:
1. Provide "General" Shareholder Support.
2. Process "Phone" Transactions
ACH Buys from Bank of record
ACH Redemption to Bank of record
Process Purchase Orders (Wire or Check settlement)
Wire Redemption to Bank of record
Account Exchanges between Portfolios
Wire Redemption to Bank of record
3. Process "Basic" Account Maintenance
Stop/restart/defer systematic investment purchase
Increase/decrease a systematic investment purchase
Increase/decrease/defer/discontinue a systematic
withdrawal plan
Add a beneficiary birth date
Change dividend/capital gains distribution option
Stop dividend mail
Add/change a dividend move
Combine identical accounts within same Portfolio
Add/delete "stop mail" from an account
Stop/Replace a redemption check
Add/change/delete systematic exchange with the same
registration
4. Research/Document/Request corrective processing by Transfer Agent
5. Correspondence Services (Adviser and Call Center Related Issues)
6. Problem Research and Resolution
7. Institutional Desk Servicing
Dealer Servicing
Account Maintenance
Dealer File Maintenance
Transaction Processing
Order Settlement Support
Adjustment Processing Support
NSCC Networking Support
Portfolio Info/Data Dissemination
8. Non-Signature Guaranteed address change
Stop/restart/defer a Systematic Monthly Investment (SIP)
Increase/decrease a Systematic Monthly Investment (SIP)
Increase/decrease/defer/discontinue a systematic
withdrawal plan (SWP)
Add a beneficiary birth date
Change dividend/capital gains distribution method
Stop dividend mail
Add/change a dividend move
Combine identical accounts within the same Portfolios
Add or delete stop mail from the account
Stop or replace a redemption check after 15 days
Add/change/delete systematic exchanges (SYSEXCH) with
the same registration
Correct minor errors in names on registration if clearly
indicated on the application.
Reissue checkwriting drafts on a Cash Reserve account
where the privilege has been established
Link/unlink accounts for the INVESTOR statement product
(managers only)
APPENDIX B
FEES AND EXPENSES
EFFECTIVE SEPTEMBER 1, 2001
The Company shall pay UAM SSC monthly fees for its services to the Portfolios
for which UAM SSC calculated at the annual rate set forth below.
. $8,250 for the first operational Class of a Portfolio; plus
. $2,750 for each additional operational Class of a Portfolio; plus
. $33 per account.
These fees do not include out-of-pocket expenses, which will be billed monthly
and due upon billing.
