EX-99.23(h)(1)
FORM OF TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of October __, 2007 and effective retroactively
to February 2, 2007 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 its sole discretion in each separate
instance, consider and rely upon instructions it receives from an
Authorized Person via electronic mail as Oral Instructions.
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(e) "PFPC SYSTEMS" has the meaning set forth in Section 18.
(f) "SEC" means the Securities and Exchange Commission.
(g) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act and the 1940 Act.
(h) "SHARES" mean the shares of beneficial interest of any series or class
of the Fund.
(i) "STANDARD OF CARE" means the responsibility of PFPC to fulfill its
obligations under this Agreement without willful misfeasance, bad
faith, negligence or reckless disregard of its duties.
(j) "THIRD PARTY PROVIDER" has the meaning set forth in Section 18.
(k) "THIRD PARTY SYSTEMS" has the meaning set forth in Section 18.
(l) "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. PFPC
shall be under no duty to take any action hereunder on behalf of the
Fund or any Portfolio except as specifically set forth herein or as may
be specifically agreed to by PFPC and the Fund in a written amendment
hereto.
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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.
(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.
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(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 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 Instructions or Written
Instructions. PFPC shall further provide the Fund with a copy of such
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.
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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:
(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;
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(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;
(viii) is necessary or desirable 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.
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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, 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
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); and PFPC may use the services of third-party vendors
in connection with the issuance of redemption and distribution checks
and shall retain any benefits obtained from any arrangements with such
vendors, including any commission or return on float paid to it by any
such vendors.
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(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 Trustees has approved or will approve the
terms of this Agreement, any such fees and expenses, and any such
benefits.
12. STANDARD OF CARE/LIMITATION OF LIABILITY.
(a) Subject to the terms of this Section 12, PFPC shall be liable to the
Fund (or any person or entity claiming through the Fund) for damages
only to the extent caused by PFPC's failure to meet its Standard of
Care or any material breach by PFPC of this Agreement. 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 a failure of PFPC to meet its Standard of
Care.
(b) PFPC's liability to the Fund and any person or entity claiming through
the Fund for any loss, claim, suit, controversy, breach or damage of
any nature whatsoever (including but not limited to those arising out
of or related to this Agreement) and regardless of the form of action
or legal theory ("Loss") shall not exceed the lesser of (i) the fees
received by PFPC for services provided hereunder during the twenty four
(24) months immediately prior to the date of such Loss or (ii)
$2,000,000.
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(c) PFPC shall not be liable for damages (including without limitation
damages caused by 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; national
emergencies; public enemy; war; terrorism; riot; fire; flood;
catastrophe; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of
nature; non-performance by a third party; failure of the mails; or
functions or malfunctions of the internet, firewalls, encryption
systems or security devices caused by any of the above.
(d) 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. PFPC shall not be liable for
any damages that are caused by actions or omissions taken by PFPC in
accordance with Written Instructions or advice of counsel. PFPC shall
not be liable for any damages arising out of any action or omission to
act by any prior service provider of the Fund or for any failure to
discover any such error or omission, except to the extent PFPC provided
services to the Fund prior to the effective date of this Agreement.
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(e) Neither PFPC nor its affiliates shall be liable for any consequential,
incidental, exemplary, punitive, special or indirect damages, whether
or not the likelihood of such damages was known by PFPC or its
affiliates.
(f) Neither party may assert a cause of action against the other party or
any of its affiliates for any alleged cause of action relating to this
Agreement more than the later of 12 months after such cause of action
arose or 12 months after the actual discovery of such alleged breach.
(g) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(h) This Section 12 shall survive termination of this Agreement.
13. INDEMNIFICATION.
(a) Absent PFPC's failure to meet its Standard of Care or the Third Party
Provider's own willful misfeasance, bad faith, negligence of its duties
and obligations under this Agreement, the Fund agrees to indemnify,
defend and hold harmless PFPC, the Third Party Providers and their
respective affiliates and their respective directors, trustees,
officers, agents and employees from all claims, suits, actions,
damages, losses, liabilities, obligations, costs and reasonable
expenses (including attorneys' fees and court costs, travel costs and
other reasonable out-of-pocket costs related to dispute resolution)
arising directly or indirectly from: (i) any action or omission to act
by any prior service provider of the Fund, except to the extent PFPC
provided services to the Fund prior to the effective date of this
Agreement; and (ii) any action taken or omitted to be taken by PFPC or
a Third Party Provider in connection with the provision of services to
the Fund. The Fund further agrees to indemnify PFPC and the Third Party
Providers for any damages disruption, disablement, harm, or impediment,
in any manner, of the operation of the PFPC systems or any Third Party
Systems, or any other associated software, firmware, hardware, or
network.
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(b) PFPC will indemnify, defend, and hold harmless the Fund and its
officers, trustees, and employees, from all claims, suits, actions,
damages, losses, liabilities, obligations, costs and reasonable
expenses (including attorneys' fees and court costs, travel costs and
other reasonable out-of-pocket costs related to dispute resolution) to
the extent arising directly out of PFPC's failure to meet its Standard
of Care.
(c) Legal Action Against Indemnification Party.
(i) NOTICE OF THE ACTION. A party that seeks indemnification under
this Section 13 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 obtaining consent of the indemnified
party, which shall not be unreasonably withheld, delayed or
conditioned, and the parties shall reasonably cooperate with
each other. After assuming the defense, the indemnifying
party:
(1) must select an attorney that is satisfactory to the
other party;
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(2) shall permit the indemnified party to participate in
settlement or defense through separate counsel chosen by the
indemnified party (subject to the consent of the indemnifying
party, which consent shall not be unreasonably withheld),
provided that the fees and expenses of such counsel shall not
be borne by the indemnifying party unless one of the following
conditions shall exist: (x) the indemnifying party shall have
failed to assume the defense of such claim or employ counsel
reasonably satisfactory to the indemnified party, or (y) the
defendants in any such action include both the indemnifying
party and the indemnified party and the indemnified party has
reasonably concluded that there may be legal defenses
available to it which are different from or additional to
those available to the indemnifying party, or (z) there exists
or will exist a conflict of interest between the indemnified
party and the indemnifying party for the same counsel to
represent both the indemnifying party and the indemnified
party and;
(3) must not compromise or settle the action (unless such
compromise or settlement includes as an unconditional term
thereof the giving by the claimant or plaintiff to the
indemnified party of a release from all liability in respect
to such 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, so long as indemnifying party is contesting the
indemnifiable claim in good faith.
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(iii) FAILING TO ASSUME THE DEFENSE. If the indemnifying party fails
to participate in or assume the defense within 30 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 provided,
however, that the indemnified party shall notify the
indemnifying party of any compromise or settlement of any such
indemnifiable claim.
(d) 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. PFPC shall
perform the following services, if required by the Fund:
(i) Calculate 12b-1 and/or shareholder servicing fee payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with shareholders to
complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of activity;
(viii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(ix) Mail duplicate confirmations to broker-dealers of their
clients' activity, whether executed through the broker-dealer
or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to the Fund;
(xi) Provide detailed data for underwriter/broker confirmations;
(xii) Prepare periodic mailing of year-end tax and statement
information;
(xiii) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity;
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(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 (the "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
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.
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(iii) When Shares are redeemed, PFPC shall deliver to 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 shareholder, 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 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.
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(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;
(iv) Dividend and distribution notices;
(v) Tax form information; and
(vi) Proxy material.
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(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.
(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.
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(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.
(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 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;
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(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.
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.
19
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 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.
16.2 To help the Fund comply with its requirements to establish and implement a
due diligence program for "foreign financial institution" accounts (which the
Fund is required to have under regulations issued under Section 312 of the USA
PATRIOT Act), PFPC will do the following:
20
(i) Implement and operate a due diligence program that includes
appropriate, specific, risk-based policies, procedures and
controls that are reasonably designed to enable the Fund to
detect and report, on an ongoing basis, any known or suspected
money laundering activity conducted through or involving any
correspondent account established, maintained, administered or
managed by the Fund for a "foreign financial institution" (as
defined in 31 CFR 103.175(h))("Foreign Financial
Institution");
(ii) Conduct due diligence to identify and detect any Foreign
Financial Institution accounts in connection with new accounts
and account maintenance;
(iii) Assess the money laundering risk presented by each such
Foreign Financial Institution account, based on a
consideration of all appropriate relevant factors (as
generally outlined in 31 CFR 103.176), and assign a risk
category to each such Foreign Financial Institution account;
(iv) Apply risk-based procedures and controls to each such Foreign
Financial Institution account reasonably designed to detect
and report known or suspected money laundering activity,
including a periodic review of the Foreign Financial
Institution account activity sufficient to determine
consistency with information obtained about the type, purpose
and anticipated activity of the account;
(v) Include procedures to be followed in circumstances in which
the appropriate due diligence cannot be performed with respect
to a Foreign Financial Institution account;
(vi) Adopt and operate enhanced due diligence policies, where
necessary, as may be required by future regulations pending
for Foreign Financial Institution accounts;
(vii) Record due diligence program and maintain due diligence
records relating to Foreign Financial Institution accounts;
and
(viii) Report to the Fund about measures taken under (i)-(vii) above.
Notwithstanding anything to the contrary, and without expanding the
scope of the express language in this subsection 16.2, PFPC need not
complete any due diligence beyond the requirements of the relevant
Foreign Financial Institution due diligence program regulations and
PFPC need not perform any task that need not be performed for the Fund
to be in compliance with relevant Foreign Financial Institution due
diligence program regulations.
21
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 312) or regulations promulgated
thereunder. This amendment specifically excludes private bank account
provisions of Section 312 of the USA PATRIOT Act.
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.
22
(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. SEC RULE 22C-2 SERVICES.
(a) PFPC shall provide to the Fund the services set forth in the
attached Exhibit B, relating to the obligations of the Fund
under SEC Rule 22c-2 under the 1940 Act, as amended ("Rule
22c-2").The Fund will enter into agreements with financial
intermediaries (collectively, "Financial Intermediaries")
under the terms of which such Financial Intermediaries will be
instructed to provide data to PFPC pursuant to Rule 22c-2
relating to transactions in the Fund's shares. A form of such
notice to be provided by the Fund to each Financial
Intermediary is attached as Exhibit C. PFPC shall not be
liable to the Fund, its investors or any agents of the Fund,
including its investment advisor(s), for any errors or
omissions in any data provided to PFPC by any Financial
Intermediaries or for compliance by the Fund with SEC Rule
22c-2. PFPC's sole obligation under this Section 18 shall be
to provide the Fund with access to information relating to
transactions in the Fund's shares based solely on information
provided to PFPC by Financial Intermediaries.
23
(b) In providing the services described in Exhibit B hereto, PFPC
may, pursuant to licenses or other agreements (collectively,
"Third Party Agreements") with one or more unrelated parties
(collectively, "Third Party Providers"), utilize information,
data, technology and systems (collectively, "Third Party
Systems") licensed or otherwise provided to PFPC by such Third
Party Providers. The Fund will not use or disclose any
information relating to Third Party Systems, and the Fund will
be subject to such restrictions, limitations and indemnities
with respect to the use of Third Party Systems as are
applicable to PFPC under Third Party Agreements.
19. 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 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.
24
(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.
20. 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 Xxxxxxx Xxxxx, Roxbury Capital Management, 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.
25
21. 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.
22. 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.
23. 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.
24. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
25. 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 (including the
interim transfer agency agreement between the parties), provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
26
(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 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.
27
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) TRUSTEE LIABILITY. 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 party is a
natural person, that party's date of birth. PFPC may also ask (and may
have
28
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:
----------------------------------------
29
EXHIBIT A
THIS EXHIBIT A, dated as of , 2007, is Exhibit A to that
certain Transfer Agency Services Agreement dated as of , 2007, between
PFPC Inc. and The Roxbury Funds.
PORTFOLIOS
Roxbury Mid-Cap Fund
Roxbury Small-Cap Growth Fund
30
EXHIBIT B
o The PFPC 22c-2 system (the "System") is intended to enable the Fund to
manage data requests to, and to access and analyze data provided by,
Financial Intermediaries as required by SEC Rule 22c-2.
o Pursuant to agreements between the Fund and Financial Intermediaries,
Financial Intermediaries will deliver to PFPC, in electronic format,
information on transactions effected in Fund shares.
o The Fund may use the System to access data that is provided to PFPC by
Financial Intermediaries or that is otherwise available to PFPC through
NSCC for Financial Intermediaries that are NSCC members. The Fund may
also use the System to request data from non-NSCC members.
o The System is intended to be generally available to the Fund from 8:00
am to 6:00 pm Eastern Time during regular trading days, subject to
periodic unavailability due to maintenance, upgrades, testing and
potential System failures.
o PFPC will work with the Fund to develop an implementation program with
the objective of launching the System not later than the effective date
of SEC Rule 22c-2. The implementation program will seek to identify and
access sources of relevant data, including identification of omnibus
accounts, Financial Intermediaries, NSCC membership status, CUSIPs,
Fund shareholder accounts and Fund trading and redemption policies as
set forth in the Fund's SEC registration statement and prospectuses.
Designated representatives of the Fund will have access to the System.
The System will be tested and de-bugged as necessary.
o The System implementation schedule will vary depending on the profile
and requirements of the Fund, but is estimated to take at least 3-6
weeks. PFPC will provide project oversight and coordination, planning
and review. PFPC will also assist the Fund in testing the System and
training designated Fund representatives in the use of the System.
o PFPC will consider enhancements and improvements upon request, with
fees at rates to be negotiated.
31
EXHIBIT C
NOTIFICATION TO FINANCIAL INTERMEDIARY
The following letter (or a letter in substantially the same form) shall be used
by Customer or PFPC to notify each relevant Financial Intermediary that it is to
send Shareholder Data to PFPC.
To: Financial Intermediary
RE: Compliance with Securities and Exchange Commission Rule 22c-2 under the
Investment Act of 1940, as Amended (the "Rule")
This letter is being sent to you (sometimes referred to as "Financial
Intermediary") pursuant to and subject to that certain Information Sharing
Agreement that has been executed by and between us. This letter relates to and
applies to the following Funds for which you are a Financial
Intermediary: (the "Funds"). Please accept this letter as
our authorization for the following:
1. PROVIDING OF SHAREHOLDER DATA. Financial Intermediary shall provide PFPC
Inc., agent of the Funds, such information and take such action, as may be
required pursuant to the Rule (the "Shareholder Data"), so as to allow the Funds
to comply with the Rule, for the continuing period starting from the date of
this notice letter.
2. FORM AND TIMING OF RESPONSE. Financial Intermediary agrees to transmit
electronically (without any cost or charge to the Funds or PFPC Inc.) the
requested Shareholder Data to PFPC Inc. (or an entity further designated by PFPC
Inc.).
3. DEFINITIONS. For purposes of this Letter Agreement:
A. The term "FUNDS" includes the fund's principal underwriter and transfer
agent. The term not does include any "excepted funds" as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1940.
B. The term "SHARES" means the interests of Shareholders corresponding to
the redeemable securities of record issued by the Funds under the Investment
Company Act of 1940 that are held by the Financial Intermediary.
C. The term "SHAREHOLDER" means the beneficial owner of Shares, whether
the Shares are held directly or by the Financial Intermediary in nominee name.
[EDITOR'S NOTE: THIS DEFINITION CAN BE TAILORED TO ADDRESS THE TYPE OF SHARES AT
ISSUE, E.G., RETIREMENT PLAN PRODUCTS, INSURANCE PRODUCTS, ETC.]
Should you have any questions, please contact the undersigned at
[Insert Phone Number].
Authorized Signature,
[Insert Name and Title]
