AMENDMENT TO TRANSFER AGENCY SERVICES AGREEMENT
_______________________________________________
THIS AMENDMENT (this "Amendment") to the Transfer Agency Services Agreement
(the "Agreement") by and between PFPC INC., a Massachusetts corporation
("PFPC"), and Tweedy, Xxxxxx Fund Inc., the undersigned investment company (the
"Fund"), is made as of May 24, 2007. Capitalized terms used but not defined
herein shall have the same meaning as in the Agreement.
1. Services. In addition to the services set forth in the Agreement, PFPC
shall provide to the Fund the services set forth in Exhibit A hereto relating to
the obligations of the Fund under SEC Rule 22c-2 under the Investment Company
Act of 1940, as amended ("Rule 22c-2"), and the Fund will pay to PFPC the fees
and charges in respect of such services set forth in Exhibit B hereto. The Fund
will enter into agreements with financial intermediaries (collectively,
"Financial Intermediaries") under the terms of which such Financial
Intermediaries will be instructed to provide data to the Fund pursuant to Rule
22c-2. A form of a notice which may be used to instruct each Financial
Intermediary to provide data to PFPC is attached as Exhibit C hereto. PFPC shall
not be liable to the Fund, its investors or any agents of the Fund, including
its investment advisor(s), for any errors or omissions in any data provided to
PFPC by any Financial Intermediaries or for compliance by the Fund with SEC Rule
22c-2. PFPC's sole obligation under this Section 1 shall be to provide the Fund
with access to information relating to transactions in the Fund's shares based
solely on information provided to PFPC by Financial Intermediaries.
2. Systems. In providing the services described in Exhibit A hereto, PFPC
may, pursuant to licenses or other agreements (collectively, "Third Party
Agreements") with one or more unrelated parties (collectively, "Third Party
Providers"), utilize information, data, technology and systems (collectively,
"Third Party Systems") licensed or otherwise provided to PFPC by such Third
Party Providers. The Fund will not use or disclose any information relating to
Third Party Systems, and the Fund will be subject to such restrictions and
limitations with respect to use of Third Party Systems as are applicable to PFPC
under Third Party Agreements and provided in writing to the Fund.
3. Indemnification. The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates, including their respective officers, directors, agents
and employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and disbursements
and liabilities arising under the securities laws, rules and regulations of the
United States (including SEC Rule 22c-2) or of any state and any foreign
country) arising directly or indirectly from any action or omission to act which
PFPC takes or fails to take in connection with the provision of services to the
Fund pursuant to this Amendment. Neither PFPC, nor any of its affiliates, shall
be indemnified against any liability (or any expenses incident to such
liability) caused by PFPC's or its affiliates' own willful misfeasance, bad
faith, negligence or reckless disregard in the performance of PFPC's activities
under this Amendment. The provisions of this Section 3 shall survive termination
of this Amendment.
4. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf
of the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Fund in a written amendment hereto.
PFPC shall be obligated to exercise care and diligence in the performance
of its duties hereunder and to act in good faith in performing services
provided for under this Amendment. PFPC shall be liable only for any
damages arising out of PFPC's failure to perform its duties under this
Amendment to the extent such damages arise out of PFPC's willful
misfeasance, bad faith, negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Amendment to the contrary, (i)
PFPC shall not be liable for losses, 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; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil
commotion; interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of nature;
or non-performance by a third party; and (ii) PFPC 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 PFPC reasonably believes to be genuine.
(c) PFPC agrees to keep and maintain all data received from the
Financial Intermediaries ("Shareholder Records and Information") secure and
confidential. PFPC acknowledges that it has adopted policies and procedures
that address administrative, technical, and physical safeguards for the
protection of the Shareholder Records and Information. PFPC further
warrants that these policies and procedures are reasonably designed to (i)
insure the security and confidentiality of the Shareholder Records and
Information; (ii) protect against any anticipated threats or hazards to the
security or integrity of the Shareholder Records and Information; (iii)
protect against unauthorized access to or use of Shareholder Records and
Information; (iv) properly dispose of the Shareholder Records and
Information by taking reasonable measures to protect against unauthorized
access to, or use in connection with its disposal; and (v) ensure that all
Shareholder Records and Information shall be transmitted and received using
data security and encryption technology that is standard in the industry.
PFPC shall promptly notify the Fund in writing of any unauthorized access
to or disclosure of the Shareholder Records and Information.
(d) Notwithstanding anything in this Amendment to the contrary, (i)
neither PFPC nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood of
such losses or damages was known by PFPC or its affiliates and (ii) PFPC's
cumulative liability to the Fund for all losses, claims, suits,
controversies, breaches or damages for those arising out of or related to
this Agreement and regardless of the form of action or legal theory shall
not exceed the lesser of $100,000 or the fees received by PFPC for services
provided under the Agreement during the six (6) months immediately prior to
the date of such loss or damage.
(e) The Fund may not assert a cause of action against PFPC or any of
its affiliates relating to this Amendment that allegedly occurred more than
twelve (12) months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging such cause of
action.
(f) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(g) The provisions of this Section 4 shall survive termination of this
Amendment.
5. Effective Date. This Amendment shall be effective as of the date hereof.
Except as set forth in this Amendment, the Agreement shall continue in full and
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as of the day and year first above written.
PFPC INC.
By: /s/ Xxxxxxx XxXxxxxx
____________________________________
Name: Xxxxxxx XxXxxxxx
Title: Executive Vice President, Senior
Managing Director
Tweedy, Xxxxxx Fund Inc.
By: /s/ X. X. Xxxxxxxxxxx
____________________________________
Name: X. X. Xxxxxxxxxxx
Title: VP & COOO
EXHIBIT A
Services
o The PFPC 22 c-2 system (the "System") is intended to enable the Fund to
manage data requests to, and to access and analyze data provided by,
Financial Intermediaries as required by SEC Rule 22c-2.
o Pursuant to agreements between the Fund and Financial Intermediaries,
Financial Intermediaries will deliver to PFPC, in electronic format,
information on transactions effected in Fund shares.
o The Fund may use the System to access data that is provided to PFPC by
Financial Intermediaries or that is otherwise available to PFPC through
NSCC for Financial Intermediaries that are NSCC members. The Fund may also
use the System to request data from non-NSCC members.
o The System is intended to be generally available to the Fund from 8:00 am
to 6:00 pm Eastern Time during regular trading days, subject to periodic
unavailability due to maintenance, upgrades, testing and potential System
failures.
o PFPC will work with the Fund to develop an implementation program with the
objective of launching the System not later than the effective date of SEC
Rule 22c-2. The implementation program will seek to identify and access
sources of relevant data, including identification of omnibus accounts,
Financial Intermediaries, NSCC membership status, CUSIPs, Fund shareholder
accounts and Fund trading and redemption policies as set forth in the
Fund's SEC registration statement and prospectuses. Designated
representatives of the Fund will have access to the System. The System will
be tested and de-bugged as necessary.
o The System implementation schedule will vary depending on the profile and
requirements of the Fund, but is estimated to take at least 3-6 weeks. PFPC
will provide project oversight and coordination, planning and review. PFPC
will also assist the Fund in testing the System and training designated
Fund representatives in use of the System.
o PFPC will consider enhancements and improvements on request, with fees at
rates to be negotiated.
EXHIBIT B
Fees and Charges
This Fee Schedule Summary represents the pricing as set forth at date of
contract execution.
Implementation Fee: $200 per hour (will be invoiced monthly). (See Exhibit A
for implementation services)
Monthly Base Fee: $3,000 (to begin first day of initial download and this fee
shall not be prorated for any partial months)
Transaction Storage Fee: $275 per month per million transactions (or fraction
thereof) stored (will be invoiced monthly)
Customized system
development (if applicable): $200 per hour (will be invoiced as incurred)
Training: One day of on-site training included. Additional training
can be procured at the rate of $150 per hour, plus travel and
expenses.
Non Standard Data
Processing Charge: Will be quoted upon request
Out of Pocket expenses: Will include NSCC data charges per transaction. Out of
pocket expenses not detailed above will be invoiced as
incurred. Services requested over and above those
contained within this agreement would be evaluated at the
time of request.
EXHIBIT C
Notification to Financial Intermediary
A copy of the following letter (or a letter in substantially the same form) may
be used by Customer to notify each relevant Financial Intermediary that it is to
send Shareholder Data to PFPC.
To: Financial Intermediary
RE: Compliance with Securities and Exchange Commission Rule 22c-2 under the
Investment Act of 1940, as Amended (the "Rule")
This letter is being sent to you (sometimes referred to as "Financial
Intermediary") pursuant to and subject to that certain Information Sharing
Agreement that has been executed by and between us (the "22c-2 Agreement"). This
letter relates to and applies to the separate series of Tweedy, Xxxxxx Fund Inc.
for which you are a Financial Intermediary (the "Funds").
Please accept this letter as our authorization for the following:
Provision of Shareholder Data to PFPC Inc. Financial Intermediary is
authorized to provide PFPC Inc., the agent of the Funds, such information
as may be required pursuant to the 22c-2 Agreement (the "Shareholder
Data"). The Shareholder Data provided to PFPC Inc. (or an entity further
designated by PFPC Inc.) should be transmitted electronically in a format
consistent with the Enhanced PR3 (Client Data Share File) or the NSCC
Standardized Data Reporting Format without any cost or charge.
Should you have any questions, please contact the undersigned at _______________
[Insert Phone Number].
Authorized Signature,
[Insert Name and Title]
