Exhibit (h)(8)
LIMITED
AGENCY AGREEMENT
This Agreement ("Agreement") is made as of this ________ day of ______,
2002, by and between ____________________("Transfer Agent"), and X. XXXX PRICE
RETIREMENT PLAN SERVICES, INC., a Maryland corporation with its principal office
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("RPS" or "Plan Agent").
WITNESSETH:
WHEREAS, the Funds listed on Exhibit A (each such investment company a
"Fund" and, collectively, the "Funds") are investment companies registered under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, Transfer Agent is the shareholder accounting and registered
transfer agent for the Funds pursuant to Section 17 A of the Securities Exchange
Act of 1934, as amended (the "1934 Act");
WHEREAS, RPS is a registered transfer agent pursuant to Section 17 A of
the 1934 Act, as amended, and has agreed to arrange separately for the
performance of certain recordkeeping services for participants ("Participants")
in certain retirement plans ("Plan" collectively referred to as the "Plans");
WHEREAS, certain Participants have elected to purchase shares of the
Fund for the Plan and maintain shares in an omnibus account ("Account(s)") with
the Fund.
WHEREAS, Transfer Agent desires to appoint RPS as agent for the Funds
solely with respect to the Plans to perform services outlined in this agreement,
and RPS is willing and able to furnish such services on the terms and conditions
hereinafter set forth; and
WHEREAS, RPS has been authorized and requested by the Plans to carry
out the obligations discussed herein;
NOW, THEREFORE, in consideration ofthe mutual covenants herein
contained, the parties hereto agree as follows:
1. Terms of Appointment; Duties of the Parties
RPS and Transfer Agent shall perform the following services in
accordance with procedures established from time to time by agreement among the
parties:
1.1. Subject to the terms and conditions set forth in this Agreement,
RPS will act as agent for the Fund for the purpose of accepting orders from the
Plans or Participants for the
purchase and redemption of the authorized and issued shares of the Fund (the
"Shares") (collectively referred to as "Orders").
The operating procedures governing the responsibilities of the parties
under this Agreement are set forth in Exhibit B which is attached hereto and
specifically made a part ofthis Agreement.
1.2. Each party shall maintain adequate offices, personnel and computer
and other equipment to perform the services contemplated by this Agreement. Each
party shall notify the other party promptly in the event that it becomes unable
for any reason to perform the services contemplated by, or any other of its
obligations under, this Agreement.
1.3. Any representation made by RPS regarding the Fund shall be in its
capacity as Plan Agent and agent ofthe Plans and not in its capacity as agent
for the Fund.
1.4. RPS agrees that records maintained by it hereunder will be
preserved, maintained and made available in accordance with applicable laws and
copies will be surrendered promptly to Transfer Agent in accordance with its
request. ill certain instances, RPS may be required to seek the authorization of
the Plan prior to making the records available to the Transfer Agent. RPS and
Transfer Agent agree that all books, records, information and data pertaining to
the business of the other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain confidential and
shall not be voluntarily disclosed to any other person, except to the Plan, or
as may be required by law.
2. Expenses
2.1. All expenses incident to performance by the Transfer Agent under
this Agreement shall be paid by the Transfer Agent and all expenses incident to
performance by the Plan Agent under this Agreement shall be paid by the Plan
Agent.
3. Representations and Warranties
3.1. RPS represents and warrants to Transfer Agent that:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland;
(b) It has legal power and authority to carry on its business;
(c) All requisite actions have been taken to authorize it to enter
into and to perform its duties under this Agreement;
(d) It is duly registered as a transfer agent under Section 17 A of
the 1934 Act; and
(e) It shall comply with federal and state securities laws and
regulations thereunder in connection with its responsibilities
under this Agreement.
3.2. Transfer Agent represents and warrants to RPS that:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of its State;
(b) It is empowered by its charter and by-laws and under applicable
law to enter into and to perform this Agreement;
(c) All requisite actions have been taken to authorize it to enter
into and to perform its duties under this Agreement and it is
duly authorized to appoint RPS as agent for the Fund;
(d) It is duly registered as a transfer agent under section 17 A of
the 1934 Act; and
(e) It shall comply with federal and state securities laws and
regulations thereunder in connection with its responsibilities
under this Agreement.
4. Indemnification
4.1. RPS shall indemnify and hold Transfer Agent and its directors,
officers and employees harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities arising out
ofRPS's lack of good faith, negligence or willful misconduct in the performance
of its duties under this Agreement, or arising out of the material breach of any
representation or warranty ofRPS hereunder. RPS shall not be liable for
indemnification hereunder if such losses are attributable to the negligence or
misconduct of the Transfer Agent in performing its obligations under this
Agreement.
4.2. Transfer Agent shall indemnify and hold RPS and its directors,
officers and employees harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities arising out of
Transfer Agent's lack of good faith, negligence or willful misconduct in the
performance of its duties under this Agreement, or arising out of any material
breach of any representation or warranty of Transfer Agent hereunder. Transfer
Agent shall not be liable for indemnification hereunder if such losses are
attributable to the negligence or misconduct ofRPS in performing its obligations
under this Agreement.
4.3. Transfer Agent shall reimburse RPS, the Plan and its participants
for any losses or reasonable costs incurred as a result of a material pricing
error of the Fund or if a price is not received by the time period designated in
Exhibit B of this Agreement.
4.4. In order that the indemnification provisions contained herein
shall apply, upon the assertion of a claim or loss for which either party may be
required to indemnify the other, the
party seeking indemnification shall promptly notify the other party of such
assertion or loss, and shall keep the other party advised with respect to all
developments concerning such claim. The party who may be required to indemnify
shall have the option to participate at its expense with the party seeking
indemnification in the defense of such claim. The party seeking indemnification
shall in no case confess any claim or make any compromise in any case in which
the other party may be required to indemnify it except with the other party's
prior written consent.
The obligations ofthe parties hereto under this Section 4 shall survive
the termination of the Agreement.
5. Acknowledgments
5.1. The parties acknowledge that RPS is also the Plan's Agent and as
such will provide certain services to the Plan as agent of the Plan, which may
involve, among other things, preparing informational or promotional materials
that may refer to the Fund and responding to telephone inquiries from Plan
participants. The parties acknowledge that the provision of such services and
any other actions of Plan Agent related to the Fund and not specifically
authorized herein are outside the scope ofthis Agreement and will be taken in
the capacity of Plan Agent.
5.2. The parties acknowledge that the services provided by Plan Agent
hereunder are shareholder administrative services and not investment advisory or
distribution related services.
5.3. RPS acknowledges and agrees that Transfer Agent may enter into
agreements similar to this Agreement with organizations other than RPS which
also serve as transfer agents for mutual funds. Transfer Agent acknowledges and
agrees that nothing contained herein shall prohibit RPS or any affiliate ofRPS
from providing administrative, subaccounting or recordkeeping services to any
defined contribution plan or from soliciting any such plan or sponsor thereof to
enter into any arrangement with RPS or any affiliate ofRPS for such services.
5.4. Transfer Agent acknowledges that it will provide in bulk to Plan
Agent, at a single address and at no expense to Plan Agent, the following
shareholder communicatiQns materials prepared for circulation to shareholders of
record of the Funds in quantities requested by Plan Agent which are sufficient
to allow mailing thereof by Plan Agent and, to the extent required by applicable
law, to all participants: proxy or information statements, annual reports,
semi-annual reports, and all updated prospectuses, supplements and amendments
thereof.
5.5 The parties agree that the services provided by Plan Agent are not
in the capacity of a sub-transfer agent for the Transfer Agent or for the Fund
as that term is defined pursuant to Rule 17A et. seq. of the 0000 Xxx. The Fund
and the Transfer Agent will not list Plan Agent as a sub-transfer agent on any
required filings made by the Transfer Agent or in any Fund prospectus. Plan
Agent shall not be responsible for filing any reports with respect to
information that pertains to the Fund.
6. Termination of Agreement
6.1. This Agreement may be terminated by either party upon ninety (90)
days written notice to the other. This Agreement may be terminated by Transfer
Agent immediately upon notice to RPS in the event that RPS becomes unable for
any reason to perform the services contemplated by this Agreement, Transfer
Agent ceases to be the transfer agent for the Fund, or the Fund ceases to be an
investment alternative under the Plan. This Agreement may be terminated by RPS
immediately upon notice to Transfer Agent in the event that Transfer Agent
ceases to be the transfer agent for the Fund or the Fund ceases to be an
investment alternative under the Plan. If the Fund ceases to be an investment
alternative for any individual Plan, the provisions of this Agreement will no
longer apply to such Plan.
6.2. Upon termination ofthis Agreement, each party shall return to the
other party all copies of confidential or proprietary materials or information
received from such other party hereunder, other than materials or information
required to be retained by such party under applicable laws or regulations. The
obligations of the parties under this subsection 6.2 shall survive the
termination of this Agreement.
7. Assignment
7.1. Neither this Agreement nor any rights or obligations hereunder may
be assigned or delegated by either party without the written consent of the
other party.
7.2. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
8. Notices
Notices hereunder shall be in writing, shall be delivered personally,
sent by certified mail (return receipt requested), or sent by facsimile machine
in accordance with procedures established by agreement of the parties hereto,
and shall be addressed to a party either at its address below or at a changed
address specified by it in a notice to the other party hereto:
Transfer Agent _______________________________
_______________________________
_______________________________
Attention:_____________________
RPS: X. XXXX PRICE RETIREMENT PLAN SERVICES, INC.
0000 Xxxxxxxx Xxxx Xxxx
Campus Building 0, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: RPS Trading Department
With Copy to:
X. Xxxx Price Associates, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
9. Amendment
This Agreement rimy be amended or modified only by a written agreement
executed by both parties.
10. Maryland Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of Maryland.
11. Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof whether
oral or written. This Agreement is intended to set forth the rights, duties and
responsibilities between Transfer Agent and RPS with respect to the matters
covered herein. Nothing contained in the Agreement is intended to convey rights
to any third parties such as Plans, Participants.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
[transfer agent]
By:_____________________________________
Name:___________________________________
Title:__________________________________
X. XXXX PRICE RETIREMENT PLAN
SERVICES, INC.
By:_____________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
FUND_____________________________________ TICKER________________
EXHIBIT B
PROCEDURES
(a) On each day the New York Stock Exchange (the "Exchange") is open
for business (a "Business Day"), the Plan Agent may receive instructions from
the Plan and/or an investment adviser, trustee, sponsor or administrative
committee of a Plan (each a "Plan Representative") for each Plan for the
purchase or redemption of shares of the Funds ("Instructions") based solely upon
each Plan's receipt of Instructions from Plan Representatives and/or
Participants prior to time when the net asset value per share ("NA V") of the
Funds ("Share Price") is determined for the Fund (the "Close of Trading") on the
Business Day. mstructions in good order received by the Plan Agent prior to 4:00
p.m. Eastern time ("ET") on any given Business Day, or earlier ifthe Exchange
closed earlier than 4:00 p.m. ET on any given Business Day ("Trade Date") and
transmitted to the Transfer Agent by no later than 9:00 a.m. ET on the Business
Day following the Trade Date ("Trade Date plus One" or "TD+ 1 "), will be
executed at the Share Price of each applicable Fund, determined as of the Close
of Trading on the Trade Date.
(b) By no later than 7:00 p.m. ET on each Business Day ("Price
Communication Time"), the Funds' sub-administrator will use its best efforts to
communicate to the Plan Agent via a mutually agreed-upon electronic trading
platform and pricing method (E.G., National Securities Clearing Corporation
("NSCC"), etc.), the Share Price of each applicable Fund, as well as dividend
and capital gain information and, in the case of income funds, the daily accrual
for interest factor (mil rate), determined at the Close of Trading on that
Business Day. It is understood and agreed that, in the context of Section 22
ofthe 1940 Act and the rules and public interpretations thereunder by the staff
of the Securities and Exchange Commission ("SEC Staff'), receipt by the Plan
Agent of any Instructions from the Plan Representatives and/or Participants in a
timely manner shall be deemed to be receipt by the Funds of such Instructions
solely for pricing purposes and shall cause purchases and sales for the Plans to
be deemed to occur at the Share Price for such Business Day.
(c) As noted in Paragraph (a) above, by 9:00 a.m. ET on TD+ 1
("Instruction Cutoff Time") and after the Plan Agent has processed all approved
Plan Representative and/or Participant activity, the Plan Agent will transmit to
the Transfer Agent via electronic transmission or system-to-system, or by a
method acceptable to the Plan Agent, a report (the "Instruction Report")
detailing the Instructions that were received by the Plan Agent prior to the
Funds' daily determination of Share Price for each Fund (I.E., the Close of
Trading) on each Business Day.
(i) It is understood by the parties that all Instructions from the
Plan Representatives and/or Participants shall be received and processed by
the Plan Agent in accordance with its standard transaction processing
procedures that apply to all investment options offered under the Plans.
The Plan Agent shall maintain records sufficient to identify that date and
time of receipt of all Plan Representative and/or
EXHIBIT C
Participant transactions involving the Funds and shall make such records
available upon reasonable request for examination by the Funds or its
designated representative or, at the request of the Funds, by appropriate
governmental authorities. Under no circumstances shall the Plan Agent
change, alter or modify any Instructions received by it in good order.
(ii) The Instruction Report shall state whether the Instructions
received by the Plan Agent from the Plan Representatives and/or
Participants by the Close of Trading on such Business Day resulted in the
Accounts being a net purchaser or net seller of shares in each of the Funds
and shall indicate the net dollar value purchased or net dollar value
redeemed by the Accounts in each ofthe Funds and the date of the
transaction. On Business Days where there are no Instructions, the
Instruction Report will so indicate. Each transmission of Instructions by
the Plan Agent of a net purchase or redemption instruction relating to a
particular Fund and a Business Day shall constitute a representation and
covenant by the Plan Agent that such net purchase or redemption Instruction
was based on Plan Representative and/or Participants transactions received
by the Plan Agent prior to the Close of Trading (and prior to the time the
Share Price for each Fund was determined on such Business Day) and that
each net purchase or redemption Instruction included all such Plan
Representative and/or Participant transactions so received by the Plan
Agent. All Instructions will be communicated in U.S. dollars.
(iii) As noted above, Instructions communicated by the Plan Agent to
the Transfer Agent by means acceptable to the Plan Agent on any Business
Day by the Instruction Cutoff Time will be processed by the Fund's Transfer
Agent at the Share Price determined for each Fund as of the Close of
Trading on the Business Day on which the Plan Agent received those
Instructions from the Plan Representatives and/or Participants (I.E., the
Trade Date).
(iv) Following the completion of the transmission of any Instructions
by the. Plan Agent to the Transfer Agent by the Instruction Cutofftime, the
Transfer Agent will verify that the Instruction was received from the Plan
Agent by such method acceptable to both the Transfer Agent and Plan Agent.
(v) In the event that an Instruction transmitted by the Plan Agent on
any Business Day is not received by the Transfer Agent by the Instruction
Cutoff Time, due to mechanical difficulties or for any other reason beyond
the Plan Agent's reasonable control, such Instruction shall nonetheless be
treated by the Transfer Agent as if it has been received by the Instruction
Cutoff Time, provided that the Plan Agent retransmits such Instruction by
facsimile transmission to the Transfer Agent and such Instruction is
received by the Transfer Agent's financial control representative no later
than 9:30 a.m. ET on TD+ 1. In addition, the Plan Agent will place a phone
call to a financial control representative ofthe Transfer Agent prior to
9:00 a.m. ET on TD+ 1 to advise the Transfer Agent that a facsimile
transmission concerning the Instruction is being sent.
EXHIBIT C
(vi) With respect to all Instructions, the Transfer Agent's financial
control representative will manually adjust the "supersheet" for the Trade
Date to reflect any Instructions sent by the Plan Agent.
(vii) By no later than 4:00 p.m. on TD+ 1, the Transfer Agent will
confirm that all Instructions provided to the Transfer Agent on TD+ 1 were
accurately received and that the trades for each Account were accurately
completed and Plan Agent will use its best efforts to notify the Transfer
Agent of any discrepancies.
(d) As set forth below, upon the timely receipt from the Plan Agent
ofthe Instruction Report, the Fund will execute the purchase or redemption
transactions (as the case may be) at the Share Price for each Fund computed as
of the Close of Trading on the Trade Date.
(i) Except as otherwise provided herein, all purchase and redemption
transactions will settle on TD+ 1. Settlements will be through net Federal
Wire transfers between Plan Agent, acting on behalf of the Plans, and a
custodial account designated by the Fund Company. In the case of
Instructions which constitute a net purchase order, settlement shall occur
by the Plan Agent instructing the Plan Representative to initiate a wire
transfer by 1 :00 p.m. ET on TD+ 1 to the Fund Company for receipt by the
Fund Company's custodian by no later than the Close of Business at the New
York Federal Reserve Bank on TD+ 1, causing the remittance of the requisite
funds to cover such net purchase order. In the case of Instructions which
constitute a net redemption order, settlement shall occur by the Transfer
Agent causing the remittance of the requisite funds to cover such net
redemption order by Federal Funds Wire by 1 :00 p.m. ET on TD+ 1; provided,
that, the Fund Company reserves the right to suspend redemptions pursuant
to the 1940 Act or as otherwise required by law; provided, further, that,
notwithstanding the preceding sentence, the Fund Company will in good faith
make diligent efforts to settle any trade on TD+ 1 in any instance in which
Plan Agent has provided the Fund Company at least seventy-two (72) hours
advance Notice of an impending Instruction involving an "Extraordinary Plan
Event." For these purposes an "Extraordinary Plan Event" shall mean an
event outside the normal operation of a Plan such as an entire Plan moving
out of Plan Agent's account with the Fund or a Plan asset transfer or
merger arising from a Plan sponsor's merger, acquisition or divestiture.
All settlements made in accordance with this Subsection (i) shall be in
U.S. dollars.
(ii) The Plan Agent or such other party as may be designated by the
Plan as record owner of each Account ("RECORD OWNER") will be provided with
all written confirmations required under federal and state securities laws.
In this regard confirmations will be mailed by the Transfer Agent to the
Record Owner no later than 1:00 p.m. ET on TD+2.
(e) The Plan Agent shall, upon receipt of any confirmation or statement
concerning the Accounts, promptly verify by use of the terminal or by such other
method acceptable to the Plan Agent the accuracy ofthe information contained
therein against the information contained
in the Plan Agent's internal recordkeeping system and shall promptly advise the
Transfer Agent in writing of any discrepancies between such information. The
Transfer Agent and the Plan Agent shall cooperate to resolve any such
discrepancies as soon as reasonably practicable.
(f) In the event of any error (including any pricing error) or delay
with respect to the Procedures outlined in this EXHIBIT B (i) which is caused by
the Fund Company, the Transfer Agent, or the Fund Company's Sub-Administrator,
the Fund Company's Sub-Administrator or the Transfer Agent (as appropriate)
shall make any adjustments (upon first providing Plan Agent at least 24 hours
notice) on the Fund Company's accounting system necessary to correct such error
or delay and the response party or parties shall reimburse the Plan and the Plan
Agent for any losses or reasonable costs incurred directly as a result of the
error or delay but specifically excluding any and all consequential, punitive or
other indirect damages; or (ii) which is caused by the Plan Agent or by any Plan
Representative, the Fund Company's Sub-Administrator or the Transfer Agent shall
make any adjustment on the Fund Company's accounting system necessary to correct
such error or delay and the affected party or parties shall be reimbursed by the
Plan Agent for any losses or reasonable costs incurred directly as a result of
the error or delay, but specifically excluding any and all consequential
punitive or other indirect damages. In the event of any such adjustments on the
Fund Company's accounting system, the Plan Agent shall make the corresponding
adjustments on its internal recordkeeping system. In the event that errors or
delays with respect to the Procedures are contributed to by more than one party
hereto, each party shall be responsible for that portion of the loss or
reasonable cost which results ITom its error or delay. All parties agree to
provide the other parties prompt notice of any errors or delays of the type
referred to herein and to use reasonable efforts to take such action as may be
appropriate to avoid or mitigate any such costs or losses.
(g) The Fund Company will provide to the Plan Agent by the first
Business Day of each calendar month a schedule for the next calendar month
reflecting the dividend or capital gain distributions (including ex-dividend
dates, record dates and payment dates associated with that declaration or
distribution) ofthe Funds. The Plan Agent will be provided with any updates to
the calendar on a timely basis.
(h) The Transfer Agent shall provide to the Plan Agent by the fifth
Business Day of each calendar month a statement or statements for the preceding
calendar month reflecting the shares of the Funds held by the Plan as of the end
of such preceding month and all shareholderrelated activities by the Plan in the
Funds during such preceding month.
(i) All transmissions of files by the Plan Agent to the Funds required
under these Procedures shall conform with Plan Agent's specified file formats,
which Plan Agent shall provide to the Fund Company within a reasonable period of
time prior to their application.
