Exhibit (5)(b)(5)
XXXXXXX X. XXXXXXXXX FUND, INC.
FORM OF
SHAREHOLDER SERVICING AND ADMINISTRATIVE AGREEMENT
SHAREHOLDER SERVICING AND ADMINISTRATIVE AGREEMENT, dated as of _____________ ,
____, between XXXXXXX X. XXXXXXXXX FUND, INC., a Maryland Corporation (the
"Fund"), on behalf of the Xxxxxxxxx International Value Portfolio (the
"Portfolio"), and XXXXXXX X. XXXXXXXXX & CO., INC., a New York Corporation
("Xxxxxxxxx").
In consideration of the mutual agreements herein made, the parties hereto agree
as follows:
1. Duties of Xxxxxxxxx.
a. Shareholder Servicing. Xxxxxxxxx shall provide shareholder servicing to the
Fund, the Portfolio, or its shareholders, including, but not limited to: (i)
processing share purchase and redemption requests transmitted or delivered to
the office of Xxxxxxxxx; (ii) proxy solicitations and providing information to
shareholders concerning their mutual fund investments, systematic withdrawal
plans, dividend payments and reinvestments, shareholder account or transaction
status, net asset value of shares, Portfolio performance, Fund services, plans
and options, investment policies, Portfolio holdings and distributions and the
taxation thereof; and (iii) dealing with shareholder complaints and
correspondence directed to or brought to the attention of Xxxxxxxxx. Xxxxxxxxx
may enter into agreements with other organizations whereby some or all of
Xxxxxxxxx'x duties in this regard may be delegated, and such organizations will
be compensated therefor by Xxxxxxxxx.
b. Administration. Xxxxxxxxx shall also manage the corporate affairs of the
Portfolio including, but not limited to (i) providing office space, clerical,
secretarial, and administrative services (exclusive of, and in addition to, any
such service provided by any others retained by the Fund on behalf of the
Portfolio) and executive and other personnel necessary for the operations of the
Fund and of the Portfolio, (ii) supervising those responsible for the financial
and accounting records required to be maintained by the Fund and (iii)
overseeing the performance of services provided to the Fund on behalf of the
Portfolio by others, including the Custodian and Transfer Agent. Xxxxxxxxx'x
performance of its duties under this Agreement shall be subject in each case to
oversight by the Board of Directors of the Fund (the "Board") and in accordance
with the objectives and policies set forth in the Registration Statement and the
current Prospectus and Statement of Additional Information relating to the Fund
or the Portfolio, as amended from time to time, the requirements of the
Investment Company Act of 1940, as amended (the "Act") and other applicable law.
2. Limitation of Liability. Subject to Section 36 of the Act, Xxxxxxxxx, and the
directors, officers and employees of Xxxxxxxxx, shall not be liable to the Fund
or the Portfolio for any error of judgment or mistake of law or for any loss
arising out of the performance or non-performance of duties under this
Agreement, except for willful misfeasance, bad faith or gross negligence in the
performance of, or by reason of reckless disregard of, obligations and duties
under this Agreement.
3. Indemnification. The Fund, on behalf of the Portfolio, shall indemnify and
hold harmless Xxxxxxxxx, and the directors, officers, and employees of
Xxxxxxxxx, against any loss, liability, claim, damage or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damage or expenses and reasonable counsel fees incurred in connection
therewith) arising out of the performance or non-performance of any duties under
this Agreement, provided, however, that nothing herein shall be deemed to
protect Xxxxxxxxx or any director, officer or employee thereof against any
liability to the Fund or its stockholders, to which Xxxxxxxxx or any director,
officer or employee thereof would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties under this Agreement.
4. Expenses. Xxxxxxxxx shall pay all of its expenses arising from the
performance of its obligations under Section 1 of this Agreement and shall pay
any salaries, fees and expenses of the Directors who are employees of Xxxxxxxxx.
Xxxxxxxxx shall not be required to pay any other expenses of the Fund or the
Portfolio, including (a) the fees payable to Xxxxxxxxx under this Agreement and
the Investment Management Agreement; (b) the fees and expenses of Directors
who are not affiliated with Xxxxxxxxx; (c) the fees and expenses of the
Custodian and Transfer Agent, including but not limited to fees and expenses
relating to Fund accounting, pricing of the shares of the Portfolio and
computation of net asset value; (d) the fees and expenses of calculating yield
and/or performance of the Portfolio; (e) the charges and expenses of legal
counsel and independent accountants; (f) all taxes and corporate fees payable to
governmental agencies; (g) the fees of any trade association of which the Fund
is a member; (h) reimbursement of the Portfolio's share of the organization
expenses of the Portfolio or the Fund; (i) the fees and expenses involved in
registering and maintaining registration of the Fund and the Portfolio's shares
with the Securities and Exchange Commission, registering the Fund as a broker or
dealer and qualifying the shares of the Portfolio under state securities laws,
including the preparation and printing of the registration statements and
prospectuses for such purposes, allocable communications expenses with respect
to investor services, all expenses of shareholders' and Board of Directors'
meetings and preparing, printing and mailing proxies, prospectuses and reports
to shareholders; (j) brokers' commissions, dealers' xxxx-ups and any issue or
transfer taxes chargeable in connection with the Portfolio's transactions; (k)
the cost of stock certificates representing shares of the Portfolio; (1)
insurance expenses, including, but not limited to, the cost of a fidelity bond,
directors and officers insurance and errors and omissions insurance; and (m)
litigation and indemnification expenses, expenses incurred in connection with
mergers, and other extraordinary expenses not incurred in the ordinary course of
the Portfolio's business.
5. Compensation. As compensation for the services performed and the facilities
and personnel provided by Xxxxxxxxx pursuant to Section 1 of this Agreement, the
Fund, on behalf of the Portfolio, will pay to Xxxxxxxxx, promptly after the end
of each month, a fee assessed at an annual rate of 0.25 of 1% of the average
daily net assets of the Portfolio during the month. If Xxxxxxxxx shall serve
hereunder for less than the whole of any month, the fee hereunder shall be
prorated. Nothing herein shall prohibit the Directors from approving the payment
by the Fund, or the Portfolio, of additional compensation to others for
consulting services, supplemental research and security and economic analysis.
6. Term of Agreement. This Agreement shall continue in effect with respect to
the Portfolio for a period of more than two years from the date hereof only so
long as such continuance is specifically approved at least annually in
conformity with the requirements of the Act with regard to investment advisory
contracts; provided, however, that this Agreement may be terminated at any time
without the payment of any penalty, on behalf of the Portfolio, by the Fund, by
the Board or, with respect to the Portfolio, by vote of a majority of the
outstanding voting securities (as defined in the Act) of the Portfolio, or by
Xxxxxxxxx, on not more than 60 days' nor less than 30 days' written notice to
the other party. This Agreement shall terminate automatically in the event of
its assignment (as defined in the Act).
7. Miscellaneous. This Agreement may be amended by mutual written consent. This
Agreement contains the entire agreement between the parties hereto and
supersedes all prior agreements, understandings and arrangements with respect to
the subject matter hereof. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require, or
to impose any duty upon, either of the parties to do anything in violation of
any applicable laws or regulations. Xxxxxxxxx may perform the same services for
other persons or entities, including other investment companies.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolio, and Xxxxxxxxx have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXX X. XXXXXXXXX & CO., INC.
By:
XXXXXXX X. XXXXXXXXX FUND, INC.
By:
