EXHIBIT (h)(iii)
AMENDMENT TO
TRANSFER AGENCY AGREEMENT
-------------------------
This Amendment is made as of November ___, 2000, between OLD WESTBURY
FUNDS, INC. (the "Company"), and BISYS Fund Services Ohio, Inc. ("BISYS"). The
parties hereby amend the Transfer Agency Agreement (the "Agreement") between the
Company and BISYS, dated as of November 15, 1999, as set forth below.
WHEREAS, the parties hereto wish to modify Section 5 of the Agreement,
entitled "Term," by extending the initial term set forth therein; and
WHEREAS, the parties wish to modify the fee schedule set forth in
Schedule B to the Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
premises and covenants herein set forth, the parties agree as follows:
1. Capitalized terms not otherwise defined herein shall have the
same meaning as in the Agreement.
2. Section 5 of the Agreement shall be amended and restated in its
entirety to read as follows:
5. Term.
----
This Agreement shall remain in effect through February 28, 2003
("Initial Term"). During the Initial Term, this Agreement may be
terminated without penalty (i) by mutual agreement of the
parties, (ii) for "cause," as defined below, upon the provision
of 60 days advance written notice by the party alleging cause or
(iii) as to any Fund or the Company, except for a Combination, as
defined below, upon the liquidation, dissolution or elimination
(hereinafter referred to as "liquidation") of such Fund or the
Company, as the case may be.
After the Initial Term, this Agreement may be renewed by the
parties hereto for additional one year periods and may be
terminated without penalty by a vote of a majority of the entire
Board of Directors of the Company, upon 90 days' written notice
to BISYS, or by BISYS upon 90 days' written notice to the
Company.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty
(30) days following written notice of such breach from the non-
breaching party; (b) an act or series of acts or omissions which,
in the aggregate, constitutes, in the reasonable judgment of the
Company's Directors, a serious failure to perform satisfactorily
BISYS' obligations hereunder;
1
(c) a final, unappealable judicial, regulatory or administrative
ruling or order in which the party to be terminated has been
found guilty of criminal or unethical behavior in the conduct of
its business; or (d) financial difficulties on the part of the
party to be terminated which are evidenced by the authorization
or commencement of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or involuntary case under
Title 11 of the United States Code, as from time to time is in
effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of
debtors or to the modification or alteration of the rights of
creditors.
Notwithstanding the foregoing, after such termination for so long
as BISYS, with the written consent of the Company, in fact
continues to perform any one or more of the services contemplated
by this Agreement or any schedule or exhibit hereto, the
provisions of this Agreement, including without limitation the
provisions dealing with indemnification, shall continue in full
force and effect. Compensation due BISYS through the effective
date of termination and unpaid by the Company upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to
collect from the Company, in addition to the compensation
described in Schedule B of this Agreement, the amount of all of
BISYS' cash disbursements for services in connection with BISYS'
activities in effecting such termination, including without
limitation, the delivery to the Company and/or its designees of
the Company's property, records, instruments and documents.
If, during the Initial Term of this Agreement, for any reason
other than nonrenewal, mutual agreement of the parties, "cause",
as defined above, or "liquidation", as defined above, BISYS is
replaced as transfer agent, or if a third party is added to
perform all or a part of the services provided by BISYS under
this Agreement (excluding any Sub-transfer Agent appointed by
BISYS as provided in Section 1 hereof), then the Company shall
make a one-time cash payment, in consideration of the fee
structure and services to be provided under this Agreement, and
not as a penalty, to BISYS equal to (i) the balance due BISYS for
the remainder of the Initial Term, in the event such termination
occurs during the first twelve (12) months of the Initial Term,
(ii) seventy-five percent (75%) of the balance due BISYS for the
remainder of the Initial Term, in the event such termination
occurs during the second twelve (12) months of the Initial Term,
or (iii) fifty percent (50%) of the balance due BISYS for the
remainder of the Initial Term, in the event such termination
occurs after the first twenty-four (24) months of the Initial
Term, assuming for purposes of calculation of the payment that
such balance shall be based upon the average amount of the
Company's assets for the twelve months prior to the date BISYS is
replaced or a third party is added.
In the event that the Company is merged into, or its assets are
combined with, another legal entity in part or in whole pursuant
to any form of business reorganization (a "Combination") prior to
the expiration of the Initial Term and BISYS is not retained to
provide transfer agency services consistent with this Agreement,
the parties acknowledge and agree that the one-time cash payment
referred to in the preceding
2
paragraph shall be due and payable. No other fees or amounts
shall be due BISYS in the event of a Combination.
The parties further acknowledge and agree that, in the event
BISYS is replaced, or a third party is added, as set forth above,
(i) a determination of actual damages incurred by BISYS would be
extremely difficult, and (ii) the liquidated damages provision
contained herein is intended to adequately compensate BISYS for
damages incurred and is not intended to constitute any form of
penalty.
3. Section 9 of the Agreement, entitled "Standard of Care; Reliance
on Records and Instructions; Indemnification", shall be amended
by adding a new paragraph, which paragraph is set forth below:
BISYS agrees to indemnify and hold harmless the Company, its
employees, agents, directors, officers and nominees from and
against any and all claims, demands, actions and suits, whether
groundless or otherwise, and from and against any and all
judgments, liabilities, losses, damages, costs, charges, counsel
fees and other expenses of every nature and character arising out
of or in any way relating to BISYS' bad faith, willful
misconduct, negligence or from reckless disregard of its
obligations and duties, with respect to the performance of
services under this Agreement. The Company shall give BISYS
written notice of and reasonable opportunity to defend against
said claim in its own name or in the name of the Company.
4. Schedule B to the Agreement, entitled "Transfer Agent Fees",
shall be amended by eliminating the Annual Per Fund Fee and by
replacing the section entitled "Annual Per Shareholder Account
Fee" with the following:
Annual Per Shareholder Account Fee: $20.00
The above-referenced fee shall apply to all Shareholder Accounts
in excess of 700 during any month of the term of this Agreement.
5. This Amendment may be executed in one or more counterparts, each
of which will be deemed an original, but all of which together
shall constitute one and the same instrument.
6. Except as specifically set forth herein, all other provisions of
the Agreement shall remain in full force and effect.
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
OLD WESTBURY FUNDS, INC.
By: __________________________________
Title: _______________________________
BISYS FUND SERVICES OHIO, INC.
By: __________________________________
Title: _______________________________
4
