FORM OF TRANSFER AGENCY SERVICES AGREEMENT
__________________________________________
THIS AGREEMENT is made as of __________, 2006 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and THE ROXBURY FUNDS, a Delaware statutory
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) "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
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its sole discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic mail as
Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" mean the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "Shares" mean the shares of beneficial interest of any series or class of
the Fund.
(h) "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 electronically
(with respect to sub-item (ii) above) or 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. 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.
4. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon Oral
Instructions or Written Instructions.
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(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 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.
5. 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 request
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).
(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
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receives from counsel, PFPC may rely upon and follow the advice of counsel.
PFPC shall provide the Fund with prior written notice of its intention to
follow advice of counsel that is materially inconsistent with Oral or
Written Instructions. PFPC shall further provide the Fund with a copy of
such advice of counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Fund and without
liability for any action PFPC takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions PFPC
receives from or on behalf of 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.
6. 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.
7. Confidentiality.
(a) Each party shall keep confidential any information relating to the other
party's business ("Confidential Information"). Confidential Information
shall include:
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(i) any data or information that is competitively sensitive material,
and not generally known 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;
(ii) 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;
(iii) 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
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations if
it:
(i) is already known to the receiving party at the time it is obtained;
(ii) is or becomes publicly known or available through no wrongful act of
the receiving party;
(iii) is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(iv) is released by the protected party to a third party without
restriction;
(v) is requested or required to be disclosed by the receiving party
pursuant to a court order, subpoena, governmental or regulatory
agency request or law (provided the receiving party will provide the
other party written notice of the same, to the extent such notice is
permitted);
(vi) is relevant to the defense of any claim or cause of action asserted
against the receiving party;
(vii) is Fund information provided by PFPC in connection with an
independent third party compliance or other review and where a duty
of confidentiality exists on the party conducting the review;
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(viii) is necessary for PFPC to release such information in connection with
the provision of services under this Agreement; or
(vii) has been or is independently developed or obtained by the receiving
party.
8. 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.
9. 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. Notwithstanding the foregoing, the parties
acknowledge the Fund shall retain all ownership rights in Fund data which
resides on the PFPC System.
10. 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.
11. Compensation.
(a) As compensation for services rendered by PFPC during the term of
this
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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. In addition,
the Fund agrees to pay, and will be billed separately in arrears
for, reasonable expenses incurred by PFPC in the performance of its
duties hereunder.
(b) PFPC shall establish certain cash management accounts ("Service
Accounts") required to provide services under this Agreement. The
Fund acknowledges (i) PFPC may receive investment earnings from
sweeping the funds in such Service Accounts into investment accounts
including, but not limited, investment accounts maintained at an
affiliate or client of PFPC; (ii) balance credits earned with
respect to the amounts in such Service Accounts ("Balance Credits")
will be used to offset the banking service fees imposed by the cash
management service provider (the "Banking Service Fees"); (iii) PFPC
shall retain any excess Balance Credits for its own use;(iv) Balance
Credits will be calculated and applied toward the Fund's Banking
Service Fees regardless of the Service Account balance sweep
described in Sub-Section (i).
(c) The undersigned hereby represents and warrants to PFPC that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFPC or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC to such adviser or sponsor or
any affiliate of the Fund relating to the Agreement have been fully
disclosed to the Board of Trustees of the Fund and that, if required
by applicable law, such Board of
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Trustees has approved or will approve the terms of this Agreement,
any such fees and expenses, and any such benefits.
12. Indemnification.
(a) The Fund agrees to indemnify, defend and hold harmless PFPC and its
affiliates, including their respective officers, directors, agents
and employees, from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys'
fees and disbursements and liabilities arising under the Securities
Laws 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)
caused by PFPC's or its affiliates' own willful misfeasance, bad
faith, gross negligence or reckless disregard in the performance of
PFPC's activities 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 under this Agreement.
(b) PFPC agrees to defend, indemnify and hold the Fund and its officers,
directors and employees harmless from all taxes, charges, expenses,
assessments, claims and liabilities (including reasonable attorneys'
fees and disbursements and liabilities arising under the Securities
Laws and any state and foreign securities and blue sky laws) caused
by the negligence, bad faith or willful misfeasance of
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PFPC in the performance of its duties hereunder. Notwithstanding the
foregoing, the Fund shall not be indemnified against any liability
(or any expenses incident to such liability) caused by the Fund's or
the Fund's other service providers' misfeasance, bad faith or
negligence or any material breach by the Fund of this Agreement or
any other agreement between PFPC and the Fund.
(c) LEGAL ACTION AGAINST INDEMNIFICATION PARTY.
(i) Notice of the Action
A party that seeks indemnification under Section 12 must promptly
give the other party notice of any legal action. But a delay in
notice does not relieve an indemnifying party of any liability to an
indemnified party, except to the extent the indemnifying party shows
that the delay prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense
The indemnifying party may participate in the defense at any time or
it may assume the defense by giving notice to the other party. After
assuming the defense, the indemnifying party:
(1) must select any attorney that is satisfactory to the
other party;
(2) is not liable to the other party for any later attorney's
fees or for any other later expenses that the other party incurs,
except for reasonable investigation costs;
(3) must not compromise or settle the action without the other
party's consent (but the other party must not unreasonably withhold
its consent); and
(4) is not liable for any compromise or settlement made
without its consent.
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(iii) Failing to Assume the Defense
If the indemnifying party fails to participate in or assume the
defense within 15 days after receiving notice of the action, the
indemnifying party is bound by any determination made in the action
or by any compromise or settlement made by the other party.
(d) The provisions of this Section 12 shall survive termination of
this Agreement.
13. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of the
Fund except as specifically set forth herein or as may be specifically
agreed to by PFPC and the Fund in a written amendment hereto. PFPC shall be
obligated to exercise care and diligence in the performance of its duties
hereunder and to act in good faith in performing services provided for
under this 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 or any material breach by
PFPC of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
shall not be liable for losses, delays, failure, errors, interruption or
loss of data occurring directly or indirectly by reason of circumstances
beyond its reasonable control, including without limitation acts of God;
action or inaction of civil or military authority; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil
commotion; interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of nature;
or non-performance by a third party; and (ii) PFPC shall not be under any
duty or obligation to inquire into and shall not be liable for
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the validity or invalidity, authority or lack thereof, or truthfulness or
accuracy or lack thereof, of any instruction, direction, notice, instrument
or other information which PFPC reasonably believes to be genuine.
(c) 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) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) The provisions of this Section 13 shall survive termination of this
Agreement.
14. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments, if any;
(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;
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(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;
(xiv) Perform other participating broker-dealer shareholder services as
may be agreed upon from time to time;
(xv) Accept and post daily Share purchases and redemptions;
(xvi) Accept, post and perform shareholder transfers and exchanges; and
(xvii) Issue and cancel certificates (when requested in writing by the
shareholder).
(b) Purchase of Shares. PFPC shall issue and credit an account of an investor,
in the manner described in the Fund's prospectus, once it receives:
(i) A purchase order in completed proper form;
(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.
(c) Redemption of Shares. PFPC shall process requests to redeem Shares as
follows:
(i) All requests to transfer or redeem Shares and payment therefor shall
be made in accordance with the Fund's prospectus, when the
shareholder tenders Shares in proper form, accompanied by such
documents as PFPC reasonably may deem necessary.
(ii) PFPC reserves the right to refuse to transfer or redeem Shares until
it is satisfied that the endorsement on the instructions is valid
and genuine and that the requested transfer or redemption is legally
authorized, and it shall incur no
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liability for the refusal, in good faith, to process transfers or
redemptions which PFPC, in its good judgment, deems improper or
unauthorized, or until it is reasonably satisfied that there is no
basis to any claims adverse to such transfer or redemption.
(iii) When Shares are redeemed, PFPC shall deliver to the Fund's custodian
(the "Custodian") and the Fund or its designee a notification
setting forth the number of Shares redeemed. Such redeemed Shares
shall be reflected on appropriate accounts maintained by PFPC
reflecting outstanding Shares of the Fund and Shares attributed to
individual accounts.
(iv) PFPC shall, upon receipt of the monies provided to it by the
Custodian for the redemption of Shares, pay such monies as are
received from the Custodian, all in accordance with the procedures
established from time to time between PFPC and the Fund.
(v) 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, unless
otherwise instructed in writing by the broker-dealer.
(vi) PFPC shall not process or effect any redemption requests with
respect to Shares of the Fund after receipt by PFPC or its agent of
notification of the suspension of the determination of the net asset
value of the Fund.
(d) Dividends and Distributions. Upon a resolution of the Fund's Board of
Trustees authorizing the declaration and payment of dividends and
distributions and Written Instructions to PFPC, PFPC shall issue dividends
and distributions declared by the Fund
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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.
(e) 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.
(f) Communications to Shareholders. Upon timely Written Instructions, PFPC
shall mail all communications by the Fund to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
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(iv) Dividend and distribution notices;
(v) Tax form information; and
(vi) Proxy material
(g) 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.
(h) 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:
(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.
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(i) 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.
(j) 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.
[Note: Paragraphs (k) through (m) are not in CRM agreement. Will Roxbury be
using these services?]
(k) Lost Shareholders. PFPC shall perform such services as are required in
order to comply with rule 17Ad-17 of the 1934 Act (the "Lost Shareholder
Rule"), 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
(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.
(l) Retirement Plans.
(i) In connection with the individual retirement accounts, simplified
employee pension plans, rollover individual retirement plans,
educational IRA's and XXXX
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individual retirement accounts ("XXX Plans"), 403(b) Plans and money
purchase and profit sharing plans ("Qualified Plans") (collectively,
the "Retirement Plans") within the meaning of Section 408 of the
Internal Revenue Code of 1986, as amended (the "Code") sponsored by
the Fund for which contributions of the Fund's shareholders (the
"Participants") are invested solely in Shares of the Fund, PFPC
shall provide the following administrative services:
(A) Establish a record of types and reasons for distributions
(i.e., attainment of age 59-1/2, disability, death, return of
excess contributions, etc.);
(B) Record method of distribution requested and/or made;
(C) Receive and process designation of beneficiary forms
requests;
(D) Examine and process requests for direct transfers between
custodians/trustees, transfer and pay over to the successor
assets in the account and records pertaining thereto as
requested;
(E) Prepare any annual reports or returns required to be prepared
and/or filed by a custodian of a Retirement Plan, including,
but not limited to, an annual fair market value report, Forms
1099R and 5498; and file same with the IRS and provide same
to Participant/Beneficiary, as applicable; and
(F) Perform applicable federal withholding and send
Participants/Beneficiaries an annual TEFRA notice regarding
required federal tax withholding.
(ii) PFPC shall arrange for PFPC Trust Company to serve as custodian for
the Retirement Plans sponsored by the Fund.
(iii) With respect to the Retirement Plans, PFPC shall provide the Fund
with the associated Retirement Plan documents for use by the Fund
and PFPC shall be responsible for the maintenance of such documents
in compliance with all applicable provisions of the Code and the
regulations promulgated thereunder.
(m) Print Mail. The Fund hereby engages PFPC as its exclusive print/mail
service provider with respect to those items and for such fees as may be
agreed to from time to time in writing by the Fund and PFPC.
(n) Proxy Advantage. The Fund hereby engages PFPC as its exclusive proxy
solicitation service provider with respect to those items and for such fees
as may be agreed to from
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time to time in writing by the Fund and PFPC.
15. Privacy. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part 248.11, it
shall not disclose the non-public personal information of investors in the Fund
obtained under this Agreement, except as necessary to carry out the services set
forth in this Agreement or as otherwise permitted by law or regulation.
16. Anti-Money Laundering. To the extent the other provisions of this Agreement
require PFPC to establish, maintain and monitor accounts of investors in the
Fund consistent with securities laws, PFPC shall perform reasonable actions
necessary to help the Fund be in compliance with Section 352 of the USA PATRIOT
Act, as follows: In this regard, PFPC shall: (a) establish and implement written
internal policies, procedures and controls reasonably designed to help prevent
the Fund from being used to launder money or finance terrorist activities; (b)
provide for independent testing, by an employee who is not responsible for the
operation of PFPC's AML program or by an outside party, for compliance with
PFPC's established policies and procedures; (c) designate a person or persons
responsible for implementing and monitoring the operation and internal controls
of PFPC's AML program; and (d) provide ongoing training of PFPC personnel
relating to the prevention of money-laundering activities. Upon the reasonable
request of the Fund, PFPC shall provide to the Fund: (x) a copy of PFPC's
written AML policies and procedures (it being understood such information is to
be considered confidential and treated as such and afforded all protections
provided to confidential information under this Agreement); (y) at the option of
PFPC, a copy of a written assessment or report prepared by the party performing
the independent testing for compliance, or a summary thereof, or a certification
that the findings of the independent party are satisfactory; and (z) a
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summary of the AML training provided for appropriate personnel. PFPC agrees to
permit inspections relating to its AML program by U.S. Federal departments or
regulatory agencies with appropriate jurisdiction and to make available to
examiners from such departments or regulatory agencies such information and
records relating to its AML program as such examiners shall reasonably request.
Without limiting or expanding the foregoing, the parties agree the provisions
herein do not apply to Section 326 of the USA PATRIOT Act (or other sections
other than Section 352) or regulations promulgated thereunder.
17. Customer Identification Program ("CIP") Services.
(a) To help the Fund comply with its Customer Identification Program (which
the Fund is required to have under regulations issued under Section 326 of
the USA PATRIOT Act) PFPC will do the following:
(i) Implement procedures under which new accounts in the Fund are not
established unless PFPC has obtained the name, date of birth (for
natural persons only), address and government-issued identification
number (collectively, the "Data Elements") for each corresponding
Customer (as defined in 31 CFR 103.131).
(ii) Use collected Data Elements to attempt to reasonably verify the
identity of each new Customer promptly before or after each
corresponding new account is opened. Methods may consist of
non-documentary methods (for which PFPC may use unaffiliated
information vendors to assist with such verifications) and
documentary methods (as permitted by 31 CFR 103.131), and may
include procedures under which PFPC personnel perform enhanced due
diligence to verify the identities of Customers the identities of
whom were not successfully verified through the first-level (which
will typically be reliance on results obtained from an information
vendor) verification process(es).
(iii) Record the Data Elements and maintain records relating to
verification of new Customers consistent with 31 CFR 103.131(b)(3).
(iv) Regularly report to the Fund about measures taken under (a)-(c)
above.
(v) If PFPC provides services by which prospective Customers may
subscribe for shares in the Fund via the Internet or telephone, work
with the Fund to notify prospective Customers, consistent with
31 CFR 103.(b)(5), about the Fund's CIP.
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(vi) Set forth on a separate fee schedule compensation amounts due for
these CIP Services.
(b) Notwithstanding anything to the contrary, and without expanding the scope
of the express language above, PFPC need not collect the Data Elements for
(or verify) prospective customer (or accounts) beyond the requirements of
relevant regulation (for example, PFPC will not verify customers opening
accounts through NSCC) and PFPC need not perform any task that need not be
performed for the fund to be in compliance with relevant regulation.
(c) Notwithstanding anything to the contrary, PFPC need not perform any of
the steps described above with respect to persons purchasing Shares via
exchange privileges.
18. Duration and Termination.
(a) This Agreement shall be effective on the date first written above and
unless terminated pursuant to its terms shall continue for a period of
three (3) years (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal Terms")
each, unless the Fund or PFPC provides written notice to the other of its
intent not to renew. Such notice must be received not less than ninety (90)
days prior to the expiration of the Initial Term or the then current
Renewal Term.
(c) In the event of termination, all expenses associated with movement of
records and materials and conversion thereof to a successor transfer agent
will be borne by the Fund and paid to PFPC prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform its duties
and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give
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written notice thereof to the Defaulting Party, and if such material breach
shall not have been remedied within thirty (30) days after such written
notice is given, then the Non-Defaulting Party may terminate this Agreement
by giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting Party
shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the
Defaulting Party.
(e) Notwithstanding anything contained in this Agreement to the contrary,
should a merger, acquisition, change in control, re-structuring,
re-organization or any other decision involving the Fund or any affiliate
(as defined under the 0000 Xxx) of the Fund result in the Fund's desire to
cease to use PFPC as the provider of any of the services set forth
hereunder in favor of another service provider prior to the expiration of
the then current Initial or Renewal Term, PFPC shall make a good faith
effort to facilitate a conversion of services to the Fund's successor
service, provider, however, there can be no guarantee that PFPC will be
able to facilitate such a conversion of services on the conversion date
requested by the Fund. In connection with the foregoing and prior to such
conversion to the successor service provider, the payment of all fees to
PFPC as set forth herein shall be accelerated to a date prior to the
conversion or termination of services and calculated as if the services had
remained with PFPC until the expiration of the then current Initial or
Renewal Term and calculated at the asset and/or Shareholder account levels,
as the case may be, on the date notice of termination was given to PFPC.
19. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other address
as PFPC may inform the Fund in writing); (b) if to the Fund, to
Xxxxxxxx X. Xxxxxxx, Roxbury Capital Management,
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LLC, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxxxx, XX 00000 with a copy
to Xxxxxxx X. Xxxxxx, Esquire, Drinker Xxxxxx & Xxxxx LLP, One Xxxxx
Square, 18th and Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000-0000; 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.
20. 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 waiver is sought.
21. 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 thirty
(30) days' prior written notice of such assignment or delegation.
22. 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.
23. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
24. 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
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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 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) Information. The Fund will provide such information and documentation as
PFPC may reasonably request in connection with services provided by PFPC
to the Fund.
(e) 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.
(f) 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.
(g) 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.
(h) 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
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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.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such
party.
(j) The Fund and PFPC agree that the obligations of the Fund under this
Agreement shall not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future,
of the Fund individually, but are binding only upon the assets of the Fund
or applicable Portfolio, as provided in the Fund's agreement and
declaration of trust. The execution and delivery of this Agreement have
been authorized by the Trustees of the Fund, and signed by an authorized
officer of the Fund, acting as such, and neither such authorization by the
Trustees nor such execution by such officer shall be deemed to have been
made by them or any shareholder of the Fund individually or to impose any
liability on any of them or any shareholder of the Fund personally, but
shall bind only the assets and property of the Fund or applicable
Portfolio, as provided in the Fund's agreement and declaration of trust.
(k) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify, and
record certain information that identifies each person who initially opens
an account with that financial institution on or after October 1, 2003.
Certain of PFPC's affiliates are financial institutions, and PFPC may, as a
matter of policy, request (or may have already requested) the Fund's name,
address and taxpayer identification number or other government-issued
identification number, and, if such
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party is a natural person, that party's date of birth. PFPC may also ask
(and may have already asked) for additional identifying information, and
PFPC may take steps (and may have already taken steps) to verify the
authenticity and accuracy of these data elements.
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:
THE ROXBURY FUNDS
By:
Title:
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EXHIBIT A
_________
THIS EXHIBIT A, dated as of ____________, 2006, is Exhibit A to that
certain Transfer Agency Services Agreement dated as of ____________, 2006,
between PFPC Inc. and The Roxbury Funds.
PORTFOLIOS
__________
Roxbury Mid-Cap Fund
Roxbury Small-Cap Growth Fund
Roxbury Micro-Cap Fund
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