Exhibit 10.4
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TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of February 1, 2002 by and between PFPC
INC., a Massachusetts corporation ("PFPC"), and UST PRIVATE EQUITY
INVESTORS FUND INC, a Maryland corporation (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end, non-diversified management
investment company that has elected to be treated as a business development
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
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
Directors/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 or a person reasonably
believed by PFPC to be 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:
(a) certified or authenticated copies of the resolutions of
the Fund's Board of Directors/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 as are specified in writing by the Fund to PFPC and
agreed in writing by PFPC. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the
Fund.
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 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/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 (except where such Oral
Instructions are given by PFPC or its affiliates) so that
PFPC receives the Written Instructions as promptly as
practicable and in any event by the close of business on
the 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 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 request advice at its own cost
from such counsel of its own choosing (who may, without
limitation, 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, advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice
PFPC receives from counsel, PFPC may rely upon and follow
the advice of such counsel.
(d) Protection of PFPC. PFPC shall be protected in any action
it takes or does not take in reliance upon directions,
advice or Oral Instructions or Written Instructions it
receives from the Fund or from counsel selected with
reasonable care and which PFPC believes, in good faith,
to be consistent with those directions, advice and 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 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.
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 (collectivelly "PFPC System
Elements"). To the extent that PFPC System Elements are
incorporated in any work product for the Fund, PFPC Trust hereby
grants a non-exclusive, royalty-free and non-transferable license
to use the PFPC System Elements in the form provided 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, 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 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, negligence or reckless disregard of such duties
and obligations. The provisions of this Section 13 shall
survive termination of this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, neither the Fund nor its affiliates shall be
liable for any consequential, special or indirect losses
or damages, whether or not the likelihood of such damages
or loss was known by the Fund or its affiliates.
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 in performing services provided for under this
Agreement. PFPC shall be liable only for 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) 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) 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) Maintain shareholder registrations;
(ii) Provide toll-free lines for shareholder and
broker-dealer use;
(iii) Provide periodic shareholder lists and statistics;
(iv) Mailing of year-end tax information; and
(v) Periodic mailing of shareholder account information
and Fund financial reports.
(b) Dividends and Distributions. PFPC must receive a
resolution of the Fund's Board of Directors/Trustees
authorizing the declaration and payment of dividends and
distributions. Upon receipt of the resolution, PFPC shall
issue the dividends and distributions in cash, or, if the
resolution so provides, pay such dividends and
distributions in Shares. Such issuance or payment 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 timely send to the Fund's shareholders 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 maintain
and file with the United States Internal Revenue Service
and other appropriate taxing authorities reports relating
to all dividends above a stipulated amount (currently
$10.00 accumulated yearly dividends) paid by the Fund to
its shareholders as required by tax or other law, rule or
regulation. As the dividend disbursing agent, PFPC shall,
on or before the payment date of any such dividend or
distribution, notify the fund accounting agent of the
estimated amount required to pay any portion of said
dividend or distribution which is payable in cash, and on
or before the payment date of such distribution, the Fund
shall instruct the custodian to make available to the
dividend disbursing agent sufficient funds for the cash
amount to be paid out.
(c) Communications to Shareholders. Upon timely written
instructions, PFPC shall mail all communications by the
Fund to its shareholders, including:
(i) Reports to shareholders;
(ii) Quarterly dividend account statements;
(iii) Dividend and distribution notices;
(iv) Proxy material; and
(v) Tax form information.
PFPC will receive and tabulate the proxy cards for the
meetings of the Fund's shareholders.
(d) 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 the transfer
agent to perform any calculations contemplated or
required by this Agreement.
(e) Shareholder Inspection of Stock Records. Upon requests
from Fund shareholders to inspect stock records, PFPC
will notify the Fund and require instructions granting or
denying each such request. Unless PFPC has acted contrary
to the Fund's instructions, the Fund agrees to release
PFPC from any liability for refusal of permission for a
particular shareholder to inspect the Fund's shareholder
records.
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 (or each
successive service provider, if there are more than one), and all
trailing expenses incurred by PFPC, will be borne by the Fund.
17. Change of Control. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a
transaction that would result in a Change of Control of the Fund's
adviser or sponsor, the Fund's ability to terminate the Agreement
pursuant to Section 16 will be suspended from the time of such
agreement until the later to occur of (i) the first anniversary of
the Change of Control and (ii) the date which is exactly 18 months
after the date set forth in the first paragraph of this Agreement.
18. Notices. Notices shall be addressed (a) if to PFPC, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President;
(b) if to the Fund, ________, Attention: __________; 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.
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. In addition, PFPC may, in its sole
discretion, engage subcontractors to perform any of the
obligations contained in this Agreement to be performed by PFPC,
provided, however, PFPC shall remain responsible for the acts or
omissions of any such sub-contractors.
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. Force Majeure. "Notwithstanding anything in this Agreement to the
contrary, in no event shall either party be liable for any loss if
and to the extent such loss is caused, directly or indirectly, by
(i) fire, flood, elements of nature or other acts of God; (ii) any
outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of any
governmental authority; (iv) any labor disputes (whether or not
the employees' demands are reasonable or within the party's power
to satisfy); or (v) nonperformance by a third party or any similar
cause beyond the reasonable control of such party, including
without limitation, failures or fluctuations in
telecommunications, the Internet or other equipment operated or
controlled by such party."
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) 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.
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:
UST PRIVATE EQUITY INVESTORS FUND INC.
By:
Title:
