EXHIBIT NO. EX-99.h.3
TRANSFER AGENCY SERVICES AGREEMENT
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THIS AGREEMENT is made as of May 20, 2002 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and GAM FUNDS, INC., a Maryland corporation
(the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company with separate series 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:
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(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 Directors 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) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(h) "Shares" mean the shares of beneficial interest of any series or class of
the Fund.
(i) "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
and each series thereunder, including those series as may be added from time to
time 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 at PFPC's request:
(a) Certified or authenticated copies of the resolutions of the Fund's Board of
Directors, 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 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 Directors 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 next day after 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 by an Authorized Person, PPFC shall incur no liability to the Fund
in acting upon such Oral Instructions or Written Instructions provided that
PFPC's actions comply with 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 request
advice at its own cost 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 receives from counsel, PFPC may rely upon and follow the
advice of counsel. In the event PFPC relies on the advice of counsel, PPFC
shall remain liable for any action or omission on the part of PFPC which
constitutes willful misfeasance, bad faith, gross negligence or reckless
disregard by PFPC of any duties or obligations set forth herein.
(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 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. For the avoidance of doubt, this subsection does not relieve
PFPC when an action or omission by it constitute willful misfeasance, bad
faith, gross negligence or reckless disregard of any duties or obligation
set forth herein.
7. Records; Visits. PFPC shall prepare and maintain in complete and accurate
form all books and records necessary for it to serve as transfer agent and
otherwise perform its duties pursuant to this Agreement. 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 by PFPC 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.
(a) Each party shall keep confidential any information relating to the other
party's business ("Confidential Information"). Confidential Information
shall include:
(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,
any non-public personal information about the Fund's customers, 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 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 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);
(vi) is relevant to the defense of any claim or cause of action asserted
against the receiving party; or
(vii)has been or is independently developed or obtained by the receiving
party.
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 and for backup of data
with respect to the Fund. 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.
13. 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, negligence or reckless disregard in the
performance of PFPC's activities under this Agreement.
(b) The Fund shall not be responsible for and PFPC shall indemnify and hold the
Fund harmless from and against any and all claims made by third parties
against the Fund which result from PFPC's or its affiliates own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations hereunder.
(c) The Board of Directors of the Fund, its officers and shareholders shall not
be liable for any obligations of the Fund and PFPC agrees that in asserting
any rights or claims under this Agreement, it shall look only to the assets
of the Fund or the particular series thereunder in settlement of such
rights or claims and not to the Fund's Board of Directors, its officers or
shareholders.
(d) The provisions of this Section 13 shall survive termination of this
Agreement.
14. Representations and Warranties.
(a) PFPC represents and warrants that it has implemented safeguards with
respect to loss or damage from fire, theft or any other cause of the Fund's
blank checks, certificates, records and other data and acknowledges a
continuing duty to undertake such safeguards.
(b) PFPF represents and warrants that it is a registered transfer agent with
full authority to provide the services set forth in this Agreement.
15. 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 use its best efforts in performing
services provided for under this Agreement. PFPC shall be liable 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, negligence or reckless disregard of such duties.
(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 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 party
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 such party or its affiliates.
(d) No party may assert a cause of action against PFPC or any of its affiliates
that allegedly occurred more than 12 months immediately prior to the filing
of the suit (or, if applicable, commencement of arbitration proceedings)
alleging such cause of action if known or reasonably should have been
discovered.
(e) Each party shall have a duty to mitigate damages for which the other party
may become responsible.
(f) The provisions of this Section 14 shall survive termination of this
Agreement.
16. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Develop, monitor and maintain, in consultation with the Fund, all
systems necessary to implement and operate a tiered distribution
system including Class B conversion feature, as more fully set forth
in the Funds registration statement and related documents, which may
be amended from time to time;
(ii) Calculate 12b-1 payments;
(iii) Maintain shareholder registrations;
(iv) Review new applications and correspond with shareholders to complete
or correct information;
(v) Calculate CDSC amounts upon redemption of Fund shares and deduct such
amounts from redemption proceeds;
(vi) Direct payment processing of checks or wires;
(vii) Determine dates of Class B conversion and effect the same;
(viii) Prepare and certify stockholder lists in conjunction with proxy
solicitations;
(ix) Countersign share certificates;
(x) Prepare and mail to shareholders confirmation of activity;
(xi) Provide toll-free lines for direct shareholder use, plus customer
liaison staff for on-line inquiry response;
(xii)Mail duplicate confirmations to broker-dealers of their clients'
activity, whether executed through the broker-dealer or directly with
PFPC;
(xiii) Provide periodic shareholder lists outstanding share calculations
and statistics to the Fund;
(ix) Provide detailed data for underwriter/broker confirmations;
(xv) Prepare periodic mailing of year-end tax and statement information;
(xvi)Notify on a timely basis the investment adviser, accounting agent,
and custodian of fund activity; and
(xvii) 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 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 Directors. 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) 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 registered address and
made payable to the registered shareholder on behalf of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of the Fund's
Board of Directors 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:
(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 required by applicable
Securities Laws, rules and regulations 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.
(viii) For avoidance of doubt, where a broker-dealer is not assigned to a
shareholder account, PFPC will code such account to identify GAM
Services, Inc. as the broker-dealer of record.
(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 lost or stolen certificate will be cancelled and 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.
(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
(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 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) Retirement Plans.
(i) In connection with the individual retirement accounts, simplified
employee pension plans, rollover individual retirement plans,
educational IRA's and XXXX 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) Maintain required records relevant to required distributions from
XXX Plans;
(B) Establish a record of types and reasons for distributions (i.e.,
attainment of age 59-1/2, disability, death, return of excess
contributions, etc.);
(C) Record method of distribution requested and/or made;
(D) Receive and process designation of beneficiary forms requests;
(E) 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;
(F) 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
(G) 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 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.
17. 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. The Fund may terminate this
Agreement with immediate effect for cause.
18. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the Fund, at 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx XX 00000, Attention: Secretary 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 during regular business hours, it shall be deemed to have been
given immediately otherwise next business day. 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.
19. 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.
20. 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 and the Fund consents, in
writing, to the assignment. The Fund retains the right to reject any such
assignment fund to be unacceptable by the officers of the Fund or the Board of
Directors. The assignment and delegation of any of PFPC's duties shall not
relieve PFPC of any of its responsibilities or liabilities under this Agreement.
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. Anti-Money Laundering.
(a) 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 for the Fund to be in compliance with United States Federal
anti-money laundering ("AML") laws applicable to investor activity,
including the Bank Secrecy Act and the PATRIOT Act. In this regard,
PFPC shall: (i) establish and implement written policies, procedures
and internal controls reasonably designed to prevent the Fund from
being used to launder money or finance terrorist activities; (ii)
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; (iii)
designate a person or persons responsible for implementing and
monitoring the operation and internal controls of PFPC's AML program;
and (iv) provide ongoing training of 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
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.
(b) The parties acknowledge that at the time of the execution of this
Agreement regulators are in the process of finalizing new rules
related to the implementation of Section 326 of the PATRIOT Act
regarding customer identification programs for mutual fund customers
(the "Section 326 Rules"). In connection with the foregoing and upon
finalization of the Section 326 Rules, PFPC and the Fund shall
endeavor to amend this Agreement, upon terms to be mutually agreed to
by the parties, to identify the related services of PFPC and the
associated fees to be paid by the Fund.
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 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) 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) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(h) PFPC Insurance. Upon execution of this Agreement and upon request of
the Fund thereafter, PFPC shall provide to the Fund a Certificate of
Insurance setting forth the insurance coverage maintained by PFPC
relative to the services provided by PFPC hereunder.
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: /s/ Xxxxxxx Danofrio
--------------------------------
Xxxxxxx Danofrio
Title: Executive Vice President
-----------------------------
GAM FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxxxxx
Title: Treasurer
-----------------------------
ATTESTED BY:
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
Business Approval By:
Date:
Legal Approval By:
Date:
EXHIBIT A
---------
THIS EXHIBIT A, dated as of May 20, 2002, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of May 20, 2002, between PFPC Inc.
and GAM Funds, Inc.
PORTFOLIOS
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GAM Global Fund
GAM International Fund
GAM Pacific Basin Fund
GAM Japan Capital Fund
GAM Europe Fund
GAM American Focus Fund
GAMerica Capital Fund
GAM American Focus Long/Short Fund
