exhibit k.1
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of __________, 2005 by and between PFPC INC.,
a Massachusetts corporation ("PFPC"), and NFJ DIVIDEND, INTEREST & PREMIUM
STRATEGY FUND, a Massachusetts business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-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 and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give
Oral Instructions and Written Instructions on behalf of the
Fund. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed by
both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "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.
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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.
(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 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) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC or its affiliates to provide services to the
Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to the Fund;
(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of the Fund's administration agreements if PFPC is not
providing the
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Fund with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund;
(g) A copy of the Fund's organizational documents, as filed with the
state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any and
all amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. PFPC undertakes to comply with
all applicable requirements of the Securities Laws and any laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may 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
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business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions are
not received by PFPC or differ from the Oral Instructions shall
in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or PFPC's
ability to rely upon such Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no
liability to the Fund in acting in conformance with 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 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. Reliance on such advice, however, does not excuse
PFPC from its duties under this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not
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take in reliance upon directions or advice or Oral Instructions
or Written Instructions it receives from the Fund or from
counsel and which PFPC believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to
act in accordance with such directions or advice or Oral
Instructions or Written Instructions unless, under the terms of
other provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
7. Records; Visits. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC, shall be the property of
the Fund. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Fund and Authorized Persons shall have access to such
books and records at all times during PFPC's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records
shall be provided by PFPC to the Fund or to an Authorized Person, at the
Fund's expense.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known 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
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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 and was obtained through some means
other than through the performance of an agreement between PFPC and an
affiliate of the Fund; (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. In addition,
PFPC agrees that it will not, at any time during the term of this
Agreement or after its termination, reveal, divulge, or make known to
any person or entity, unless required by law, any list of shareholders
of the Fund or any personal information relating to such shareholders.
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9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to the
Fund.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PFPC shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC shall have no
liability with respect to the loss of data or service interruptions
caused by equipment failure, provided such loss or interruption is not
caused by PFPC's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
12. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC. The Fund
acknowledges that PFPC may receive float benefits and/or investment
earnings in connection with maintaining certain accounts required to
provide services under this Agreement.
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13. Indemnification. The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates, including their respective officers, directors,
agents and employees, from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees
and disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Fund. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) caused by PFPC's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement,
provided that in the absence of a finding to the contrary the
acceptance, processing and/or negotiation of a fraudulent payment for
the purchase of Shares shall be presumed not to have been the result of
PFPC's or its affiliates own willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties and obligations. The
provisions of this Section 13 shall survive termination of this
Agreement.
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 customary
care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for
under this Agreement. PFPC shall be liable only for any damages
arising out of PFPC's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC's
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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 has otherwise fulfilled its obligation
under this Agreement; 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, (i)
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 the
party or its affiliates and (ii) excluding fees owed by the Fund
under this Agreement for services rendered by PFPC, a party's
cumulative liability for all losses, claims, suits,
controversies, breaches or damages for any cause 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 shall not exceed $100,000 plus reasonable attorney's
fees.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
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(e) The provisions of this Section 14 shall survive termination of
this Agreement.
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 dividend reinvestment
plan account information and Fund financial reports.
(b) Dividends and Distributions. PFPC must receive Written
Instructions 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.
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In accordance with the Prospectus and such procedures and
controls as are mutually agreed upon from time to time by and
among the Fund, PFPC and the Fund's Custodian, PFPC shall
process applications from Shareholders relating to the Fund's
Dividend Reinvestment Plan ("Dividend Reinvestment Plan") and
will effect purchases of Shares in connection with the Dividend
Reinvestment Plan. 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. If a
shareholder is entitled to receive additional Shares, by virtue
of any distribution or dividend, appropriate credits will be
made to his or her account and/or certificates delivered where
requested, all in accordance with the Dividend Reinvestment
Plan.
(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) Monthly or quarterly dividend reinvestment plan
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.
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(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
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or other service provider, and all trailing expenses incurred by PFPC
directly attributable to termination, will be borne by the Fund.
17. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at 1345 Avenue of the Americas, New York, New York, 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, it shall
be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days after
it has been mailed. If notice is sent by messenger, it shall be deemed
to have been given on the day it is delivered.
18. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or of The PNC Financial Services Group, Inc., provided that PFPC
gives the Fund 30 days prior written notice of such assignment or
delegation. 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.
20. 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.
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21. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. 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.
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(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, each party hereby disclaims all
representations and warranties, express or implied, made to the
other party 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. Each party 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.
(i) Customer Identification Program Notice. To help the government
fight the funding of terrorism and money laundering activities,
Federal law requires each financial institution to obtain,
verify, and record information that identifies each person who
opens an account with that financial institution. Consistent
with this requirement, PFPC will request (or already has
requested) the Fund's name, address, 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
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Title:
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NFJ DIVIDEND, INTEREST & PREMIUM
STRATEGY FUND
By:
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Title:
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