TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of May 1, 2000 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and KALMAR POOLED INVESTMENT TRUST, a
Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give
Oral Instructions and Written Instructions on behalf of the Fund.
An Authorized Person's scope of authority may be limited by
setting forth such limitation in a written document signed by both
parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parents(s).
(f) "Oral Instructions" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC
to be an Authorized Person. PFPC may, in its sole discretion in
each separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(i) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
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(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC or its affiliates to provide services to the
Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration statement;
(c) A copy of the advisory agreement with respect to each investment
Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect to
each class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC is
not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with the
state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any and
all amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. PFPC undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect
to the duties to be performed by PFPC hereunder. Except as specifically
set forth herein, PFPC assumes no responsibility for such compliance by
the Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from
a person reasonably believed by PFPC to be an Authorized Person)
pursuant to this Agreement. PFPC may
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assume that any Oral Instruction or Written Instruction received
hereunder is not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Trustees or of the
Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions so that PFPC receives the Written Instructions
by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such Oral
Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFPC shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with the other provisions of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should
or should not take, PFPC may request directions or advice,
including Oral Instructions or Written Instructions, from the
Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of
law pertaining to any action it should or should not take, PFPC
may seek advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC, at
the option of PFPC).
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(c) Conflicting Advice. In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC
receives from the Fund, and the advice it receives from counsel,
PFPC may rely upon and follow the advice of counsel.
(d) Protection of PFPC. PFPC shall be protected in any action it takes
or does not take in reliance upon directions or advice or Oral
Instructions or Written Instructions it receives from the Fund or
from counsel and which PFPC believes, in good faith, to be
consistent with those directions or advice or Oral Instructions or
Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon PFPC (i) to seek such
directions or advice or Oral Instructions or Written Instructions,
or (ii) to act in accordance with such directions or advice or
Oral Instructions or Written Instructions unless, under the terms
of other provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
7. Records; Visits. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC, shall be the property of
the Fund. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Fund and Authorized Persons shall have access to such
books and records at all times during PFPC's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records
shall be provided by PFPC to the Fund or to an Authorized Person, at the
Fund's expense.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known
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to the public, including, but not limited to, information about product
plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Fund or PFPC, their
respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality
affords the Fund or PFPC a competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, and trade secrets, whether or
not patentable or copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if it: (a) is already known
to the receiving party at the time it is obtained; (b) is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) is rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of confidentiality;
(d) is released by the protected party to a third party without
restriction; (e) is required to be disclosed by the receiving party
pursuant to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will provide the
other party written notice of such requirement, to the extent such notice
is permitted); (f) is relevant to the defense of any claim or cause of
action asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party.
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9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection
with the services provided by PFPC to the Fund.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PFPC shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC shall have no
liability with respect to the loss of data or service interruptions
caused by equipment failure, provided such loss or interruption is not
caused by PFPC's own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties or obligations under this Agreement.
12. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may be
agreed to from time to time in writing by the Fund and PFPC. The Fund
acknowledges that PFPC may receive float benefits and/or investment
earnings in connection with maintaining certain accounts required to
provide services under this Agreement.
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13. Indemnification. The Fund agrees to indemnify and hold harmless PFPC and
its affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Fund. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) arising out of PFPC's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement,
provided that in the absence of a finding to the contrary the acceptance,
processing and/or negotiation of a fraudulent payment for the purchase of
Shares shall be presumed not to have been the result of PFPC's or its
affiliates own willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties and obligations.
14. 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
and to use its best efforts within reasonable limits in performing
services provided for under this Agreement. PFPC shall be liable
only for any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise out
of PFPC's willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties.
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(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for
losses beyond its control, including without limitation (subject
to Section 11), delays or errors or loss of data occurring by
reason of circumstances beyond PFPC's control, provided that PFPC
has acted in accordance with the standard set forth in Section
14(a) above; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for the
validity or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this Agreement,
and which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
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.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that allegedly occurred more than 18 months immediately
prior to the filing of the suit (or, if applicable, commencement
of arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
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(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with shareholders to
complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of activity;
(viii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(ix) Mail duplicate confirmations to broker-dealers of their
clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to the
Fund;
(xi) Provide detailed data for underwriter/broker confirmations;
(xii) Prepare periodic mailing of year-end tax and statement
information;
(xiii) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Services Provided by PFPC Under Oral Instructions or Written
Instructions.
(i) Accept and post daily Share purchases and redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when requested in writing by
the shareholder).
(c) Purchase of Shares. PFPC shall issue and credit an account of an
investor, in the
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manner described in the Fund's prospectus, once it receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of funds for such
order to the Fund's custodian.
(d) Redemption of Shares. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Trustees.
Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's prospectus, when the recordholder
tenders Shares in proper form and directs the method of
redemption. If Shares are received in proper form, Shares shall be
redeemed before the funds are provided to PFPC from the Fund's
custodian (the "Custodian"). If the recordholder has not directed
that redemption proceeds be wired, when the Custodian provides
PFPC with funds, the redemption check shall be sent to and made
payable to the recordholder, unless:
(i) the surrendered certificate is drawn to the order of an
assignee or holder and transfer authorization is signed by
the recordholder; or
(ii) transfer authorizations are signed by the recordholder when
Shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by a
customer, and the Custodian provides PFPC with funds, PFPC shall
prepare and send the redemption check to the broker-dealer and
made payable to the broker-dealer on behalf of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of the
Fund's Board of
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Trustees authorizing the declaration and payment of dividends and
distributions, PFPC shall issue dividends and distributions
declared by the Fund in Shares, or, upon shareholder election, pay
such dividends and distributions in cash, if provided for in the
Fund's prospectus. Such issuance or payment, as well as payments
upon redemption as described above, shall be made after deduction
and payment of the required amount of funds to be withheld in
accordance with any applicable tax laws or other laws, rules or
regulations. PFPC shall mail to the Fund's shareholders such tax
forms and other information, or permissible substitute notice,
relating to dividends and distributions paid by the Fund as are
required to be filed and mailed by applicable law, rule or
regulation. PFPC shall prepare, maintain and file with the IRS and
other appropriate taxing authorities reports relating to all
dividends above a stipulated amount paid by the Fund to its
shareholders as required by tax or other law, rule or regulation.
(f) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders, checks
and applications.
(ii) PFPC may arrange, in accordance with the prospectus, for a
shareholder's:
- Exchange of Shares for shares of another fund with
which the Fund has exchange privileges;
- Automatic redemption from an account where that
shareholder participates in a automatic redemption
plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) Communications to Shareholders. Upon timely Written Instructions,
PFPC shall mail all communications by the Fund to its
shareholders, including:
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(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards for
the meetings of the Fund's shareholders.
(h) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class of
Shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform any
calculations required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
against any certificate reported to be lost or stolen and comply
with all applicable federal regulatory requirements for reporting
such loss or alleged misappropriation. A new certificate shall be
registered and issued only upon:
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(i) The shareholder's pledge of a lost instrument bond or such
other appropriate indemnity bond issued by a surety company
approved by PFPC; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect PFPC and its
affiliates.
(j) Shareholder Inspection of Stock Records. Upon a request from any
Fund shareholder to inspect stock records, PFPC will notify the
Fund and the Fund will issue instructions granting or denying each
such request. Unless PFPC has acted contrary to the Fund's
instructions, the Fund agrees to and does hereby release PFPC from
any liability for refusal of permission for a particular
shareholder to inspect the Fund's stock records.
(k) Withdrawal of Shares and Cancellation of Certificates. Upon
receipt of Written Instructions, PFPC shall cancel outstanding
certificates surrendered by the Fund to reduce the total amount of
outstanding shares by the number of shares surrendered by the
Fund.
(l) Lost Shareholders. PFPC shall perform such services as are
required in order to comply with Rules 17a-24 and 17Ad-17 of the
1934 Act (the "Lost Shareholder Rules"), including, but not
limited to, those set forth below. PFPC may, in its sole
discretion, use the services of a third party to perform some of
or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rules; and
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(iv) preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for
any escheatment services.
(m) Print Mail. In addition to performing the foregoing services, the
Fund hereby engages PFPC as its print/mail service provider with
respect to those items identified in the Fee Schedule/Fee Letter.
16. Duration and Termination. This Agreement shall continue until terminated
by the Fund or by PFPC on sixty (60) days' prior written notice to the
other party. In the event the Fund gives notice of termination, all
expenses associated with movement (or duplication) of records and
materials and conversion thereof to a successor transfer agent or other
service provider, and all trailing expenses incurred by PFPC, will be
borne by the Fund.
17. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at Barley Mill House, 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000,
Attention: Ford X. Xxxxxx, Xx. or (c) if to neither of the foregoing, at
such other address as shall have been given by like notice to the sender
of any such notice or other communication by the other party. If notice
is sent by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days after
it has been mailed. If notice is sent by messenger, it shall be deemed to
have been given on the day it is delivered.
18. Amendments. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or
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waiver is sought.
19. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or of The PNC Financial Services Group, Inc., provided that PFPC
gives the Fund 30 days prior written notice of such assignment or
delegation.
20. Non-Solicitation. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or
engage, for the Fund or any other person, any of PFPC's employees.
21. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
22. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written
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approval of PFPC, which approval shall not be unreasonably
withheld or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or
effect.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(e) Partial Invalidity. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected
thereby.
(f) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing,
custom or usage of trade), of any services or any goods provided
incidental to services provided under this Agreement. PFPC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof
by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
----------------------------------------
Title:
-------------------------------------
KALMAR POOLED INVESTMENT TRUST
By:
----------------------------------------
Title:
-------------------------------------
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EXHIBIT A
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THIS EXHIBIT A, dated as of May 1, 2000, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of May 1, 2000, between PFPC Inc.
and Kalmar Pooled Investment Trust.
PORTFOLIOS
----------
GROWTH WITH VALUE SMALL CAP
GROWTH WITH VALUE MICRO CAP
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