Exhibit (h)(3)
TRANSFER AGENCY AND
SERVICE AGREEMENT
THIS AGREEMENT is made
as of August 8, 2022, by and between STATE STREET BANK AND TRUST COMPANY, Massachusetts trust company having its principal office and
place of business at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("State Street" or the "Transfer Agent"), and
AB Active ETFs, Inc., a Maryland corporation having its principal office and place of business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000 (the "Company").
WHEREAS, the Company is
authorized to issue shares of beneficial interest ("Shares") in separate series, with each such series representing interests
in a separate portfolio of securities and other assets;
WHEREAS, the Company intends
to initially offer Shares in one or more series, each as named in the attached Schedule A, which may be amended by the parties
from time to time (such series, together with all other series subsequently established by the Company and made subject to this Agreement
in accordance with Section 11 of this Agreement, being herein referred to as a "Portfolio," and collectively as the "Portfolios");
WHEREAS, each Portfolio
will issue and redeem Shares only in aggregations of Shares known as "Creation Units" as described in the currently effective
prospectus and statement of additional information of the Company (collectively, the "Prospectus");
WHEREAS, only those entities
("Authorized Participants") that have entered into an Authorized Participant Agreement with the distributor of the Company,
currently Foreside Fund Services, LLC (the "Distributor"), are eligible to place orders for Creation Units with the Distributor;
WHEREAS, the Depository
Trust Company, a limited purpose trust company organized under the laws of the State of New York ("DTC") or its nominee will
be the record or registered owner of all outstanding Shares;
WHEREAS, Company desires
to appoint Transfer Agent to act as its transfer agent, dividend disbursing agent and agent in connection with certain other activities;
and Transfer Agent is willing to accept such appointment.
NOW, THEREFORE, in consideration
of the mutual covenants herein contained, the parties hereto, agree as follows:
| 1.1 | Subject to the terms and conditions set forth in this Agreement, the Company and each Portfolio hereby
employs and appoints the Transfer Agent to act as, and the Transfer Agent agrees to act as, transfer agent for the Creation Units and
dividend disbursing agent of the Company and each Portfolio. |
| 1.2 | Transfer Agency Services. In accordance with procedures established from time to time by agreement
between the Company and each Portfolio, as applicable, and the Transfer Agent (the "Procedures"), the Transfer Agent shall: |
| (i) | establish each Authorized Participant's account in the applicable Portfolio on the Transfer Agent's recordkeeping
system and maintain such account for the benefit of such Authorized Participant; |
| (ii) | receive and process orders for the purchase of Creation Units from the Distributor or the Company, and
promptly deliver payment and appropriate documentation thereof to the custodian of the applicable Portfolio as identified by the Company
(the "Custodian"); |
| (iii) | generate or cause to be generated and transmitted confirmation of receipt of such purchase orders to the
Authorized Participants and, if applicable, transmit appropriate trade instruction to the National Securities Clearance Corporation ("NSCC"); |
| (iv) | receive and process redemption requests and redemption directions from the Distributor or the Company
and deliver the appropriate documentation thereof to the Custodian; |
| (v) | with respect to items (i) through (iv) above, the Transfer Agent may execute transactions directly with
Authorized Participants; |
| (vi) | at the appropriate time as and when it receives monies paid to it by the Custodian with respect to any
redemption, pay over or cause to be paid over in the appropriate manner such monies, if any, to the redeeming Authorized Participant as
instructed by the Distributor or the Company; |
| (vii) | prepare and transmit by means of DTC's book-entry system payments for any dividends and distributions
declared by the Company on behalf of the applicable Portfolio; |
| (viii) | record the issuance of Shares of the applicable Portfolio and maintain a record of the total number of
Shares of each Portfolio which are issued and outstanding; and provide the Company on a regular basis with the total number of Shares
of each Portfolio which are issued and outstanding but Transfer Agent shall have no obligation, when recording the issuance of Shares,
to monitor the issuance of such Shares to determine if there are authorized Shares available for issuance or to take cognizance of any
laws relating to, or corporate actions required for, the issue or sale of such Shares, which functions shall be the sole responsibility
of the Company and each Portfolio; and, excluding DTC or its nominee as the record or registered owner, the Transfer Agent shall have
no obligations or responsibilities to account for, keep records of, or otherwise related to, the beneficial owners of the Shares; |
| (ix) | maintain and manage, as agent for the Company and each Portfolio, such bank accounts as the Transfer Agent
shall deem necessary for the performance of its duties under this Agreement, including but not limited to, the processing of Creation
Unit purchases and redemptions and the payment of a Portfolio's dividends and distributions. The Transfer Agent may maintain such accounts
at the bank or banks deemed appropriate by the Transfer Agent in accordance with applicable law; |
| (x) | process any request from an Authorized Participant to change its account registration; and |
| (xi) | except as otherwise instructed by the Company, the Transfer Agent shall process all transactions in each
Portfolio in accordance with the procedures mutually agreed upon by the Company and the Transfer Agent with respect to the proper net
asset value to be applied to purchase orders received in good order by the Transfer Agent or by the Company or any other person or firm
on behalf of such Portfolio or from an Authorized Participant before cut-offs established by the Company. The Transfer Agent shall report
to the Company any known exceptions to the foregoing. |
| 1.3 | Additional Services. In addition to, and neither in lieu of nor in contravention of the
services set forth in Section 1.2 above, the Transfer Agent shall perform the following services: |
| (i) | The Transfer Agent shall perform such other services for the Company that are mutually agreed to by the
parties from time to time, for which the Company will pay such fees as may be mutually agreed upon, including the Transfer Agent's reasonable
out-of-pocket expenses. The provision of such services shall be subject to the terms and conditions of this Agreement. |
| (ii) | DTC and NSCC. The Transfer Agent shall: (a) accept and effectuate the registration and maintenance
of accounts, and the purchase and redemption of Creation Units in such accounts, in accordance with instructions transmitted to and received
by the Transfer Agent by transmission from DTC or NSCC on behalf of Authorized Participants; and (b) issue instructions to a Portfolio's
banks for the settlement of transactions between the Portfolio and DTC or NSCC (acting on behalf of the applicable Authorized Participant). |
| 1.4 | Authorized Persons. The Company and each Portfolio, xxxxxx agrees and acknowledges that the Transfer
Agent may rely on the current list of authorized persons, including the Distributor, as provided or agreed to by the Company and as may
be amended from time to time, in receiving instructions to issue or redeem Creation Units. The Company and each Portfolio, agrees and
covenants for itself and each such authorized person that any order or sale of or transaction in Creation Units received by it after the
order cut-off time as set forth in the Prospectus or such earlier time as designated by such Portfolio (the "Order Cut-Off Time"),
shall be |
effectuated at the net asset value determined
on the next business day or as otherwise required pursuant to the applicable Portfolio's then-effective Prospectus, and the Company or
such authorized person shall so instruct the Transfer Agent of the proper effective date of the transaction.
| 1.5 | Anti-Money Laundering and Client Screening. With respect to the Company's or any Portfolio's offering
and sale of Creation Units at any time, and for all subsequent transfers of such interests, the Company or its delegate shall, to the
extent applicable, directly or indirectly and to the extent required by law: (i) conduct know your customer/client identity due diligence
with respect to potential investors and transferees in the Shares and Creation Units and shall obtain and retain due diligence records
for each investor and transferee; (ii) use its best efforts to ensure that each investor's and any transferee's funds used to purchase
Creation Units or Shares shall not be derived from, nor the product of, any criminal activity; (iii) if requested, provide periodic written
verifications that such investors/transferees have been checked against the United States Department of the Treasury Office of Foreign
Assets Control database for any non-compliance or exceptions; and (iv) perform its obligations under this Section in accordance with all
applicable anti-money laundering laws and regulations. In the event that the Transfer Agent has received advice from counsel that access
to underlying due diligence records pertaining to the investors/transferees is necessary to ensure compliance by the Transfer Agent with
relevant anti-money laundering (or other applicable) laws or regulations, the Company shall, upon receipt of written request from the
Transfer Agent, provide the Transfer Agent copies of such due diligence records. |
| 1.6 | State Transaction ("Blue Sky") Reporting. If applicable, the Company shall be solely
responsible for its "blue sky" compliance and state registration requirements. |
| 1.7 | Tax Law. The Transfer Agent shall have no responsibility or liability for any obligations now or
hereafter imposed on the Company, a Portfolio, any Creation Units, any Shares, a beneficial owner thereof, or an Authorized Participant
in connection with the services provided by the Transfer Agent hereunder by the tax laws of any country or of any state or political subdivision
thereof. It shall be the responsibility of the Company to notify the Transfer Agent of the obligations imposed on the Company, a Portfolio,
the Creation Units, the Shares, or the Transfer Agent in connection with the services provided by the Transfer Agent hereunder by the
tax law of countries, states and political subdivisions thereof, including responsibility for withholding and other taxes, assessments
or other governmental charges, certifications and governmental reporting. |
| 1.8 | The Transfer Agent shall provide the office facilities and the personnel determined by it to perform the
services contemplated herein. |
| 1.9 | Compliance Program. The Transfer Agent maintains and will continue to maintain a compliance program
that is reasonably designed to prevent violations of the applicable Federal securities laws relating to the services to be provided hereunder. |
Upon the request of the Fund, the Transfer
Agent will provide to the Fund in connection with any periodic annual or semi-annual shareholder report filed by the Fund or, in the absence
of the filing of such reports, on a quarterly basis, a sub-certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 with respect to the
Transfer Agent's performance of the services set forth in this Agreement and its internal controls related thereto. In addition, on a
quarterly basis, the Transfer Agent will provide to the Fund a certification in connection with Rule 38a-1 under the 1940 Act. The Transfer
Agent reserves the right to amend and update its compliance program and the measurement tools and certifications provided thereunder from
time to time in order to address changing regulatory and industry developments.
| 2.1 | Fee Schedule. For the performance by the Transfer Agent of services provided pursuant to this Agreement,
the Transfer Agent shall be entitled to receive the fees and expenses set forth in a written fee schedule. |
| 3. | REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT |
The Transfer Agent represents and warrants
to the Company that:
| 3.1 | It is a trust company duly organized and existing under the laws of the Commonwealth of Massachusetts. |
| 3.2 | It is duly registered as a transfer agent under Section 17A(c)(2) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), it will remain so registered for the duration of this Agreement, and it will promptly notify the
Company in the event of any material change in its status as a registered transfer agent. |
| 3.3 | It is duly qualified to carry on its business in the Commonwealth of Massachusetts. |
| 3.4 | It is empowered under applicable laws and by its organizational documents to enter into and perform the
services contemplated in this Agreement. |
| 3.5 | All requisite organizational proceedings have been taken to authorize it to enter into and perform this
Agreement. |
| 4. | REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PORTFOLIOS |
The Company and each Portfolio represents
and warrants to the Transfer Agent that:
| 4.1 | The Company is a corporation duly organized, existing and in good standing under the laws of the state
of its formation. |
| 4.2 | The Company is empowered under applicable laws and by its organizational documents to enter into and perform
this Agreement. |
| 4.3 | All requisite proceedings have been taken to authorize the Company to enter into, perform and receive
services pursuant to this Agreement and to appoint the Transfer Agent as transfer agent of the Company and the Portfolios. |
| 4.4 | The Company is registered under the Investment Company Act of 1940, as amended (the "1940 Act"),
as an open-end management investment company. |
| 4.5 | A registration statement under the Securities Act of 1933, as amended (the "Securities Act"),
is currently effective and will remain effective, and all appropriate state securities law filings have been made and will continue to
be made, with respect to all Shares of the Company being offered for sale. |
| 4.6 | Where information provided by the Company or the Authorized Participants includes information about an
identifiable individual ("Personal Information"), the Company represents and warrants that it has obtained all consents and
approvals, as required by all applicable laws, regulations, by-laws and ordinances that regulate the collection, processing, use or disclosure
of Personal Information, necessary to disclose such Personal Information to the Transfer Agent, and as required for the Transfer Agent
to use and disclose such Personal Information in connection with the performance of the services hereunder. The Company acknowledges that
the Transfer Agent may perform any of the services, and may use and disclose Personal Information outside of the jurisdiction in which
it was initially collected by the Company, including the United States and that information relating to the Company, including Personal
Information of investors may be accessed by national security authorities, law enforcement and courts. The Transfer Agent shall be kept
indemnified by and be without liability to the Company for any action taken or omitted by it in reliance upon this representation and
warranty, including without limitation, any liability or costs in connection with claims or complaints for failure to comply with any
applicable law that regulates the collection, processing, use or disclosure of Personal Information. |
| 5. | DATA ACCESS AND PROPRIETARY INFORMATION |
| 5.1 | The Company acknowledges that the databases, computer programs, screen formats, report formats, interactive
design techniques, and documentation manuals furnished to the Company by the Transfer Agent as part of the Company's ability to access
certain Company-related data maintained by the Transfer Agent or another third party on databases under the control and ownership of the
Transfer Agent ("Data Access Services") constitute copyrighted, trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to the Transfer Agent or another third party. In no event shall Proprietary
Information be deemed Authorized Participant information or the confidential information of the Company. The Company and each Portfolio
agrees to treat all Proprietary Information as proprietary to the Transfer Agent and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided hereunder. Without limiting the foregoing, the Company agrees for
itself and its officers and directors and their agents, to: |
| (i) | use such programs and databases solely on the Company's, or such agents' computers, or solely from equipment
at the location(s) agreed to between the Company and the Transfer Agent, and solely in accordance with the Transfer Agent's applicable
user documentation; |
| (ii) | refrain from copying or duplicating in any way the Proprietary Information; |
| (iii) | refrain from obtaining unauthorized access to any portion of the Proprietary Information, and if such
access is inadvertently obtained, to inform the Transfer Agent in a timely manner of such fact and dispose of such information in accordance
with the Transfer Agent's instructions; |
| (iv) | refrain from causing or allowing Proprietary Information transmitted from the Transfer Agent's computers
to the Company's, or such agents' computer to be retransmitted to any other computer facility or other location, except with the prior
written consent of the Transfer Agent; |
| (v) | allow the Company or such agents to have access only to those authorized transactions agreed upon by the
Company and the Transfer Agent; |
| (vi) | honor all reasonable written requests made by the Transfer Agent to protect at the Transfer Agent's expense
the rights of the Transfer Agent in Proprietary Information at common law, under federal copyright law and under other federal or state
law. |
| 5.2 | Proprietary Information shall not include all or any portion of any of the foregoing items that (1) are
or become publicly available without breach of this Agreement; (ii) that are released for general disclosure by a written release by the
Transfer Agent; or (iii) that are already in the possession of the receiving party at the time of receipt without obligation of confidentiality
or breach of this Agreement. |
| 5.3 | If the Company notifies the Transfer Agent that any of the Data Access Services do not operate in material
compliance with the most recently issued user documentation for such services, the Transfer Agent shall use commercially reasonable efforts
to correct such failure. Organizations from which the Transfer Agent may obtain certain data included in the Data Access Services are
solely responsible for the contents of such data, and the Company agrees to make no claim against the Transfer Agent arising out of the
contents of such third-party data, including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS
AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. THE TRANSFER AGENT
EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. |
| 5.4 | If the transactions available to the Company include the ability to originate electronic instructions
to the Transfer Agent in order to (i) effect the transfer or |
movement of cash or Creation Units, or
(ii) transmit Authorized Participant information or other information, then in such event the Transfer Agent shall be entitled to rely
on the validity and authenticity of such instruction without undertaking any further inquiry as long as such instruction is undertaken
in conformity with security procedures established by the Transfer Agent from time to time.
| 5.5 | Each party shall take reasonable efforts to advise its employees of their obligations pursuant to this
Section. The obligations of this Section shall survive any earlier termination of this Agreement. |
| 6. | STANDARD OF CARE / LIMITATION OF LIABILITY |
| 6.1 | The Transfer Agent shall at all times act in good faith in its performance of all services performed under
this Agreement, but assumes no responsibility and shall not be liable for loss or damage due to errors, including encoding and payment
processing errors, unless said errors are caused by its negligence, bad faith, or willful misconduct or that of its employees or agents.
The parties agree that any encoding or payment processing errors shall be governed by this standard of care, and that Section 4-209 of
the Uniform Commercial Code is superseded by this Section. |
| 6.2 | In any event, the Transfer Agent's cumulative liability for each calendar year (a "Liability Period")
with respect to the services provided pursuant to this Agreement regardless of the form of action or legal theory shall be limited to
the total fees payable hereunder during the preceding 12-month period, for any liability or loss suffered by the Company or the Portfolios. |
| 6.3 | In no event shall the Transfer Agent be liable for any special, incidental, indirect, punitive or consequential
damages, regardless of the form of action and even if the same were foreseeable. |
| 7.1 | The Transfer Agent and its affiliates, including their respective officers, directors, employees and agents
(the "Indemnitees"), shall not be responsible for, and the Company and each Portfolio shall indemnify and hold the Indemnitees
harmless from and against, any and all losses, damages, costs, charges, reasonable counsel fees (including the defense of any lawsuit
in which one of the Indemnitees is a named party), payments, expenses and liability arising out of or attributable to: |
| (i) | all actions of the Transfer Agent or its agents or subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken in good faith and without negligence or willful misconduct; |
| (ii) | the Company's breach of any representation, warranty or covenant of the Company hereunder; |
| (iii) | the Company's lack of good faith, negligence or willful misconduct; |
| (iv) | reliance upon, and any subsequent use of or action taken or omitted, by the Transfer Agent, or its agents
or subcontractors on: (a) any information, records, documents, data, stock certificates or services, which are received by the Transfer
Agent or its agents or subcontractors in physical form, or by machine readable input, facsimile, electronic data entry, electronic instructions
or other similar means authorized by the Company, and which have been prepared, maintained or performed by the Company or any other person
or firm on behalf of the Company, including but not limited to any broker-dealer, third party administrator or previous transfer agent;
(b) any instructions or requests of the Company or its officers or the Company's agents or subcontractors or their officers or employees;
(c) any instructions or opinions of legal counsel to the Company or any Portfolio with respect to any matter arising in connection with
the services to be performed by the Transfer Agent under this Agreement which are provided to the Transfer Agent by the Company or Fund
after consultation with such legal counsel; or (d) any paper or document, reasonably believed to be genuine, authentic, or signed by the
proper person or persons; |
| (v) | the offer or sale of Creation Units in violation of any requirement under federal or state securities
laws or regulations requiring that such Creation Units be registered, or in violation of any stop order or other determination or ruling
by any federal or state agency with respect to the offer or sale of such Creation Units; |
| (vi) | the negotiation and processing of any checks, wires and ACH transmissions, including without limitation,
for deposit into, or credit to, the Company's demand deposit accounts maintained by the Transfer Agent; |
| (vii) | all actions relating to the transmission of Company, Creation Unit or Authorized Participant data through
the NSCC clearing systems, if applicable; and |
| (viii) | any tax obligations under the tax laws of any country or of any state or political subdivision thereof,
including taxes, withholding and reporting requirements, claims for exemption and refund, additions for late payment, interest, penalties
and other expenses (including legal expenses) that may be assessed, imposed or charged against the Transfer Agent as transfer agent hereunder. |
| 7.2 | At any time the Transfer Agent may apply to any officer of the Company for instructions, and may consult
with legal counsel (which may be Company counsel) with respect to any matter arising in connection with the services to be performed by
the Transfer Agent under this Agreement, and the Transfer Agent and its agents or subcontractors shall not be liable and shall be indemnified
by the Company and the applicable Portfolio for any action taken or omitted by it in reliance upon such |
instructions or upon the opinion of such
counsel. The Transfer Agent, its agents and subcontractors shall be protected and indemnified in acting upon any paper or document furnished
by or on behalf of the Company or the applicable Portfolio, reasonably believed to be genuine and to have been signed by the proper person
or persons, or upon any instruction, information, data, records or documents provided the Transfer Agent or its agents or subcontractors
by machine readable input, electronic data entry or other similar means authorized by the Company and the Portfolios, and shall not be
held to have notice of any change of authority of any person, until receipt of written notice thereof from the Company.
| 8. | ADDITIONAL COVENANTS OF THE COMPANY AND THE TRANSFER AGENT |
| 8.1 | Delivery of Documents. The Company shall promptly furnish to the Transfer Agent the following: |
| (i) | A copy of the resolution of the Board of Trustees of the Company certified by the Company's Secretary
authorizing the appointment of the Transfer Agent and the execution and delivery of this Agreement. |
| (ii) | A copy of the Articles of Incorporation and By-Laws of the Company and all amendments thereto. |
| 8.2 | Certificates, Checks, Facsimile Signature Devices. The Transfer Agent hereby agrees to establish
and maintain facilities and procedures for safekeeping of any stock certificates, check forms and facsimile signature imprinting devices;
and for the preparation or use, and for keeping account of, such certificates, forms and devices. |
| 8.3 | Records. The Transfer Agent shall keep records (including any required copies of such records)
relating to the services to be performed hereunder, in the form and manner as it may deem advisable. In furtherance of the Company's compliance
with the requirements of Section 31 of the 1940 Act and the Rules thereunder, the Transfer Agent agrees that any records relating to the
services provided to the Company and Portfolios hereunder shall be made available upon reasonable request and preserved for the periods
prescribed by the applicable Rules unless such records are earlier surrendered to the Company or Portfolios. Records may be surrendered
in either written or machine-readable form, at the option of the Transfer Agent. In the event that the Transfer Agent is requested or
authorized by the Company, or required by subpoena, administrative order, court order or other legal process, applicable law or regulation,
or required in connection with any investigation, examination or inspection of the Company by state or federal regulatory agencies, to
produce the records of the Company or the Transfer Agent's personnel as witnesses or deponents, the Company agrees to pay the Transfer
Agent for the Transfer Agent's reasonable time and expenses, as well as the reasonable fees and expenses of the Transfer Agent's counsel,
incurred in such production; provided, however, that in the case of a routine inspection or examination of the Company, the Company shall
pay such reasonable time, fees and expenses only to the extent agreed upon by the Administrator and the Company at the time of such routine
inspection or examination. For the avoidance of doubt, |
any examination
or inspection of the Company in which the Administrator is precluded from disclosing the examination or inspection to the Company would
not be deemed a routine examination or inspection for the purposes of the preceding sentence.
| 9. | CONFIDENTIALITY AND USE OF DATA |
| 9.1 | All information provided under this Agreement by a party (the "Disclosing Party") to the other
party (the "Receiving Party") regarding the Disclosing Party's business and operations shall be treated as confidential. Subject
to Section 9.2 below, all confidential information provided under this Agreement by Disclosing Party shall be used, including disclosure
to third parties, by the Receiving Party, or its agents or service providers, solely for the purpose of performing or receiving the services
and discharging the Receiving Party's other obligations under the Agreement or managing the business of the Receiving Party and its Affiliates
(as defined in Section 9.2 below), including financial and operational management and reporting, risk management, legal and regulatory
compliance and client service management. The foregoing shall not be applicable to any information (a) that is publicly available when
provided or thereafter becomes publicly available, other than through a breach of this Agreement, (b) that is independently derived by
the Receiving Party without the use of any information provided by the Disclosing Party in connection with this Agreement, (c) that is
disclosed to comply with any legal or regulatory proceeding, investigation, audit, examination, subpoena, civil investigative demand or
other similar process, (d) that is disclosed as required by operation of law or regulation or as required to comply with the requirements
of any market infrastructure that the Disclosing Party or its agents direct the Transfer Agent or its Affiliates to employ (or which is
required in connection with the holding or settlement of instruments included in the assets subject to this Agreement), or (e) where the
party seeking to disclose has received the prior written consent of the party providing the information, which consent shall not be unreasonably
withheld. |
| 9.2 | (a) In connection with the provision of the services and the discharge of its other obligations under
this Agreement, the Transfer Agent (which term for purposes of this Section 9.2 includes each of its parent company, branches and affiliates
("Affiliates")) may collect and store information regarding the Company or Fund and share such information with
its Affiliates, agents and service providers in order and to the extent reasonably necessary (i) to carry out the provision of services
contemplated under this Agreement and other agreements between the Company and the Transfer Agent or any of its Affiliates and (ii) to
carry out management of its businesses, including, but not limited to, financial and operational management and reporting, risk management,
legal and regulatory compliance and client service management. |
(b) Subject
to paragraph (d) below, the Transfer Agent and/or its Affiliates may use any Confidential Information of the Company or Portfolios ("Data")
obtained by such entities in the performance of their services under this Agreement or any other agreement between the Company and the
Transfer Agent or one of its Affiliates,
including Data regarding transactions
and portfolio holdings relating to the Company to develop, publish or otherwise distribute to third parties certain investor behavior
"indicators" or "indices" that represent broad trends in the flow of investment funds into various markets, sectors
or investment instruments (collectively, the "Indicators"), but only so long as (i) the Data is combined or aggregated with
(A) information of other customers of the Transfer Agent and/or (B) information derived from other sources, in each case such that the
Indicators do not allow for attribution or identification of such Data with the Company, (ii) the Data represents less than a statistically
meaningful portion of all of the data used to create the Indicators and (iii) the Transfer Agent publishes or otherwise distributes to
third parties only the Indicators and under no circumstance publishes, makes available, distributes or otherwise discloses any of the
Data to any third party, whether aggregated, anonymized or otherwise, except as expressly permitted under this Agreement.
(c) The
Company acknowledges that the Transfer Agent may seek to realize economic benefit from the publication or distribution of the Indicators.
(d) Except
as expressly contemplated by this Agreement, nothing in this Section 9.2 shall limit the confidentiality and data-protection obligations
of the Transfer Agent and its Affiliates under this Agreement and applicable law. The Transfer Agent shall cause any Affiliate, agent
or service provider to which it has disclosed Data pursuant to this Section 9.2 to comply at all times with confidentiality and data-protection
obligations as if it were a party to this Agreement.
| 9.3 | The Transfer Agent affirms that it has, and will continue to have throughout the term of this Agreement,
procedures in place that are reasonably designed to protect the privacy of non-public personal consumer/customer financial information
to the extent required by applicable laws, rules and regulations. |
| 10. | EFFECTIVE
PERIOD AND TERMINATION |
This Agreement shall remain
in full force and effect for an initial term ending August 8, 2024 (the "Initial Term"). After the expiration of the Initial
Term, this Agreement shall automatically renew for successive 1-year terms (each, a "Renewal Term") unless a written notice
of non-renewal is delivered by the non-renewing party no later than one-hundred and twenty (120) days prior to the expiration of the Initial
Term or any Renewal Term, as the case may be. During the Initial Term and thereafter, either party may terminate this Agreement: (i) in
the event of the other party's material breach of a material provision of this Agreement that the other party has either (a) failed to
cure or (b) failed to establish a remedial plan to cure that is reasonably acceptable, within 60 days' written notice of such breach,
or (ii) in the event of the appointment of a conservator or receiver for the other party or upon the happening of a like event to the
other party at the direction of an appropriate agency or court of competent jurisdiction. Upon termination of this Agreement pursuant
to this paragraph with respect to the Company or any Portfolio, the Company or applicable Portfolio shall pay Transfer Agent its compensation
due and shall reimburse Transfer Agent for its costs, expenses and disbursements.
In the event of: (i) the
Company's termination of this Agreement with respect to the Company or its Portfolio(s) for any reason other than as set forth in the
immediately preceding
paragraph, or (ii) a transaction not in the
ordinary course of business pursuant to which the Transfer Agent is not retained to continue providing services hereunder to the Company
or a Portfolio (or its respective successor), the Company or applicable Portfolio shall pay the Transfer Agent its compensation due through
the end of the then-current term (based upon the average monthly compensation previously earned by Transfer Agent with respect to the
Company or such Portfolio) and shall reimburse the Transfer Agent for its costs, expenses and disbursements. Upon receipt of such payment
and reimbursement, the Transfer Agent will deliver the Company's or such Portfolio's records as set forth herein. For the avoidance of
doubt, no payment will be required pursuant to clause (ii) of this paragraph in the event of (a) the liquidation or dissolution of the
Company or a Portfolio and distribution of the Company's or Portfolio's assets as a result of the Board's determination in its reasonable
business judgment that the Company or such Portfolio is no longer viable, (b) a merger of the Company or a Portfolio into, or the consolidation
of the Company of a Portfolio with, another entity, or (c) the sale by the Company or a Portfolio of all, or substantially all, of its
assets to another entity, in each of case of (b) and (c) where the Transfer Agent is retained to continue providing services to the Company
or such Portfolio (or its respective successor) on substantially the same terms as this Agreement.
Termination of this Agreement
with respect to any one particular Portfolio shall in no way affect the rights and duties under this Agreement with respect to the Company
or any other Portfolio.
In the event that the Company
establishes one or more series of Shares in addition to the Portfolios listed on the attached Schedule A, with respect to which
the Company desires to have the Transfer Agent render services as transfer agent under the terms hereof, it shall so notify the Transfer
Agent in writing, and if the Transfer Agent agrees in writing to provide such services, such series of Shares shall become a Portfolio
hereunder.
| 12.1 | Except as provided in Section 13 below, neither this Agreement nor any rights or obligations hereunder
may be delegated or assigned by either party without the written consent of the other party. |
| 12.2 | Except as explicitly stated elsewhere in this Agreement, nothing under this Agreement shall be construed
to give any rights or benefits in this Agreement to anyone other than the Transfer Agent and the Company and the Portfolios, and the duties
and responsibilities undertaken pursuant to this Agreement shall be for the sole and exclusive benefit of the Transfer Agent and the Company
and the Portfolios. This Agreement shall inure to the benefit of, and be binding upon, the parties and their respective permitted successors
and assigns. |
| 12.3 | This Agreement does not constitute an agreement for a partnership or joint venture between the Transfer
Agent and the Company. Neither party shall make any commitments with third parties that are binding on the other party without the other
party's prior written consent. |
| 13. | DELEGATION; SUBCONTRACTORS |
| 13.1 | The Transfer Agent shall have the right, without the consent or approval of the Company, to employ agents,
subcontractors, consultants and other third parties, whether affiliated or unaffiliated, to provide or assist it in the provision of any
part of the services stated herein (each, a "Delegate" and collectively, the "Delegates"). The Transfer Agent shall
be responsible for the services delivered by, and the acts and omissions of, any such Delegate as if the Transfer Agent had provided such
services and committed such acts and omissions itself. Where required, such Delegate shall be a duly registered transfer agent pursuant
to Section 17A(c)(2) of the 1934 Act. |
| 13.2 | The Transfer Agent will provide the Company with information regarding its global operating model for
the delivery of the services on a quarterly or other periodic basis, which information shall include the identities of Delegates affiliated
with the Transfer Agent that perform or may perform parts of the services, and the locations from which such Delegates perform services,
as well as such other information about its Delegates as the Company may reasonably request from time to time. Nothing in this Section
13 shall limit or restrict the Transfer Agent's right to use affiliates or third parties to perform or discharge, or assist it in the
performance or discharge, of any obligations or duties under this Agreement other than the provision of the services. |
| 14.1 | Amendment. This Agreement may be amended by a written agreement executed by both parties. |
| 14.2 | Massachusetts Law to Apply. This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts without giving effect to any conflicts of law rules thereof. |
| 14.3 | Force Majeure. The Transfer Agent shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure, computer virus, natural disaster, acts of war or terrorism,
pandemics, governmental actions or communication disruption. |
| 14.4 | Data Protection. The Transfer Agent will implement and maintain a comprehensive written information
security program that contains appropriate security measures to safeguard the personal information of the Company's shareholders, employees,
directors and/or officers that the Transfer Agent receives, stores, maintains, processes or otherwise accesses in connection with the
provision of services hereunder. For these purposes, "personal information" shall mean (i) an individual's name (first initial
and last name or first name and last name), address or telephone number plus (a) social security number, (b) driver's license number,
(c) state identification card |
number, (d) debit or credit card number,
(e) financial account number or (f) personal identification number or password that would permit access to a person's account or (ii)
any combination of the foregoing that would allow a person to log onto or access an individual's account. Notwithstanding the foregoing
"personal information" shall not include information that is lawfully obtained from publicly available information, or from
federal, state or local government records lawfully made available to the general public. The Administrator will maintain commercially
reasonable information security systems and controls, which include administrative, technical, and physical safeguards that are designed
to: (i) maintain the security and confidentiality of the Company's data; (ii) protect against any anticipated threats or hazards to the
security or integrity of the Company's data, including appropriate measures designed to meet legal and regulatory requirements applying
to the Administrator; and (iii) protect against unauthorized access to or use of the Company's data.
| 14.5 | Survival. All provisions regarding indemnification, warranty, liability, and limits thereon, and
confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination of this Agreement. |
| 14.6 | Severability. If any provision or provisions of this Agreement shall be held invalid, unlawful,
or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. |
| 14.7 | Priorities Clause. In the event of any conflict, discrepancy or ambiguity between the terms and
conditions contained in this Agreement and any schedules or attachments hereto, the terms and conditions contained in this Agreement shall
take precedence. |
| 14.8 | Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on
any occasion shall not be considered a waiver nor shall it deprive such party of the right thereafter to insist upon strict adherence
to that term or any term of this Agreement. The failure of a party hereto to exercise or any delay in exercising any right or remedy under
this Agreement shall not constitute a waiver of any such term, right or remedy or a waiver of any other rights or remedies. No single
or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise
of any other right or remedy. Any waiver must be in writing signed by the waiving party. |
| 14.9 | Entire Agreement. This Agreement and any schedules, exhibits, attachments or amendments hereto
constitute the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject matter hereof
whether oral or written. |
| 14.10 | Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed
to be an original, and all such counterparts taken together shall constitute one and the same Agreement. Counterparts may be executed
in either original or electronically transmitted form (e.g., faxes or emailed portable |
document format (PDF) form), and the parties
hereby adopt as original any signatures received via electronically transmitted form.
| 14.11 | Reproduction of Documents. This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, digital or other similar process. The parties hereto all/each agree that any
such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not
the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. |
| 14.12 | Notices. Any notice instruction or other instrument required to be given hereunder will be in writing
and may be sent by hand, or by facsimile transmission, or overnight delivery by any recognized delivery service, to the parties at the
following address or such other address as may be notified by any party from time to time: |
(a) If
to Transfer Agent, to:
State Street Bank and Trust
Transfer Agency
Attention: Compliance
Xxx Xxxxxxxx Xxxxx Xxxxxxxx
0 Xxxxxxxx Xxxxx
Mail Stop OHD0100
North Xxxxxx XX 00000
With a copy to:
STATE STREET BANK AND TRUST COMPANY
Legal Division – Global Services Americas
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
(b) If
to the Company, to:
Xxxxxx Xxxxxxxx
AllianceBernstein L.P.
000 Xxxxxxxx Xxxxxx
00xx Xxxxx Xxxxxxxxx, XX 00000
Telephone:
With a copy to:
Xxxxxx X. Xxxxx
AllianceBernstein L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone:
| 14.13 | Interpretive and Other Provisions. In connection with the operation of this Agreement, the Transfer
Agent and the Company on behalf of each of the Funds, may from time to time agree on such provisions interpretive of or in addition to
the provisions of this Agreement as may in their joint opinion be consistent with the general tenor of this Agreement. Any such interpretive
or additional provisions shall be in a writing signed by all parties, provided that no such interpretive or additional provisions shall
contravene any applicable laws or regulations or any provision of the Company's governing documents. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment of this Agreement. |
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the
parties hereto 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
| STATE STREET BANK AND TRUST COMPANY |
|
| |
|
| |
|
| By: |
/s/ Xxxxxx X. Xxxxx |
|
| |
Name: |
Xxxxxx X. Xxxxx |
|
| |
Title:: |
Managing Director |
|
Schedule A
LIST OF PORTFOLIOS
AB Active ETFs, Inc.
AB Ultra Short Income ETF
AB Tax-Aware Short Duration ETF
