EX-99.B(h)vlssa
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, made as of the ___th day of __________, 2000, by and
between XXXXXXX & XXXX ADVISORS VALUE FUND, INC. (the _Company_), and Xxxxxxx
& Xxxx Services Company (the "Agent"),
W I T N E S S E T H :
WHEREAS, The Company wishes, as applicable, to appoint the Agent or to
continue the appointment of the Agent to be its shareholder servicing agent
upon, and subject to, the terms and provisions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the parties agree as follows:
1. Appointment of Agent as Shareholder Servicing Agent for the Company;
Acceptance.
(1) The Company hereby appoints the Agent to act as Shareholder
Servicing Agent for the Company upon, and subject to, the terms and provisions
of this Agreement.
(2) The Agent hereby accepts the appointment as Shareholder
Servicing Agent for the Company and agrees to act as such upon, and subject
to, the terms and provisions of this Agreement.
(3) The Agent may appoint an entity or entities approved by the
Company in writing to perform any portion of Agent's duties hereunder (the
"Subagent").
2. Definitions.
(1) In this Agreement -
(a) The term the "Act" means the Investment Company Act of
1940 as amended from time to time;
(b) The term "account" means the shares of the Company
registered on the books of the Company in the name of a shareholder under a
particular account registration number and includes shares subject to
instructions by the shareholder with respect to periodic redemptions and/or
reinvestment in additional shares of any dividends payable on said shares;
(c) The term "affiliate" of a person shall mean a person
controlling, controlled by, or under common control with that person;
(d) The term "Class" shall mean each separate sub-class of a
class of shares of the Company, as may now or in the future exist;
(e) The term "Fund" shall mean each separate class of shares
of the Company, as may now or in the future exist;
(f) The term "officers' instruction" means an instruction
given on behalf of the Company to the Agent and signed on behalf of the
Company by any one or more persons authorized to do so by the Company's Board
of Directors;
(g) The term "prospectus" means the prospectus and Statement
of Additional Information of the applicable Fund or Class from time to time in
effect;
(h) The term "shares" means shares including fractional shares
of capital stock of the Company, whether or not such shares are evidenced by
an outstanding stock certificate issued by the Company;
(i) The term "shareholder" shall mean the owner of record of
shares of the Company;
(j) The term "stock certificate" means a certificate
representing shares in the form then currently in use by the Company.
3. Duties of the Agent.
The Agent shall perform such duties as shall be set forth in this
paragraph 3 and in accordance with the practice stated in Exhibit A of this
Agreement or any amendment thereof, any or all of which duties may be
delegated to or performed by one or more Subagents pursuant to Paragraph (3)
above.
(1) Transfers.
Subject to the provisions of this Agreement the Agent hereby
agrees to perform the following functions as transfer agent for the Company:
(a) Recording the ownership, transfer, exchange and
cancellation of ownership of shares of the Company on the books of the
Company;
(b) Causing the issuance, transfer, exchange and cancellation
of stock certificates;
(c) Establishing and maintaining records of accounts;
(d) Computing and causing to be prepared and mailed or
otherwise delivered to shareholders payment checks and notices of reinvestment
in additional shares of dividends, stock dividends or stock splits declared by
the Company on shares and of redemption proceeds due by the Company on
redemption of shares;
(e) Furnishing to shareholders such information as may be
reasonably required by the Company, including appropriate income tax
information;
(f) Addressing and mailing to shareholders prospectuses,
annual and semi-annual reports and proxy materials for shareholder meetings
prepared by or on behalf of the Company;
(g) Replacing allegedly lost, stolen or destroyed stock
certificates in accordance with and subject to procedures and conditions
agreed upon and set out in officers' instructions;
(h) Maintaining such books and records relating to
transactions effected by the Agent pursuant to this Agreement as are required
by the Act, or by rules or regulations thereunder, or by any other applicable
provisions of law, to be maintained by the Company or its transfer agent with
respect to such transactions; preserving, or causing to be preserved, any such
books and records for such periods as may be required by any such law, rule or
regulation; furnishing the Company such information as to such transactions
and at such time as may be reasonably required by it to comply with applicable
laws and regulations;
(i) Providing such services and carrying out such
responsibilities on behalf of the Company, or imposed on the Agent as the
Company's transfer agent, not otherwise expressly provided for in this
Paragraph 3, as may be required by or be reasonably necessary to comply with
any statute, act, governmental rule, regulation or directive or court order,
including, without limitation, the requirements imposed by the Tax Equity and
Fiscal Responsibility Act of 1982 and the Income and Dividend Tax Compliance
Act of 1983 relating to the withholding of tax from distributions to
shareholders.
(2) Correspondence.
The Agent agrees to deal with and answer all correspondence
from or on behalf of shareholders relating to its functions under this
Agreement.
4. Compensation of the Agent.
The Company agrees to pay the Agent for its services under this
Agreement in accordance with the schedule as then in effect set forth in
Exhibit B of this Agreement or any amendment thereof. In addition, the
Company agrees to reimburse the Agent for the following "out-of-pocket"
expenses of the Agent within five days after receipt of an itemized statement
of such expenses, to the extent that payment of such expenses has not been or
is not to be made directly by the Company: (i) costs of stationery,
appropriate forms, envelopes, checks, postage, printing (except cost of
printing prospectuses, annual and semi-annual reports and proxy materials) and
mailing charges, including returned mail and proxies, incurred by the Agent
with respect to materials and communications sent to shareholders in carrying
out its duties to the Company under this Agreement; (ii) long distance
telephone costs incurred by the Agent for telephone communications and
microfilm and storage costs for transfer agency records and documents; (iii)
costs of all ancillary and supporting services and related expenses (other
than insurance premiums) reasonably required by and provided to the Agent,
other than by its employees or employees of an affiliate, with respect to
functions of the Company being performed by it in its capacity as Agent
hereunder, including legal advice and representation in litigation to the
extent that such payments are permitted under Paragraph 7 of this Agreement
and charges to Agent made by any Subagent; (iv) costs for special reports or
information furnished on request pursuant to this Agreement and not
specifically required by the Agent by Paragraph 3 of this Agreement; and (v)
reasonable costs and expenses incurred by the Agent in connection with the
duties of the Agent described in Paragraph (3)(1)(i). In addition, the
Company agrees to promptly pay over to the Agent any fees or payment of
charges it may receive from a shareholder for services furnished to the
shareholder by the Agent.
Services and operations incident to the sale and distribution of the
Company's shares, including sales communications, confirmations of investments
(not including reinvestment of dividends) and the clearing or collection of
payments will not be for the account or at the expense of the Company under
this Agreement.
5. Right of Company to Inspect Records, etc.
The Company will have the right under this Agreement to perform on
site inspection of records and accounts and to perform audits directly
pertaining to the Company shareholder accounts serviced by the Agent hereunder
at the Agent's or any Subagent's facilities in accordance with reasonable
procedures at the frequency necessary to assure proper administration of the
Agreement. The Agent will cooperate with the Company's auditors or
representatives of appropriate regulatory agencies and furnish all reasonably
requested records and data.
6. Insurance.
The Agent now has the insurance coverage described in Exhibit C,
attached hereto, and the Agent will not take any action to eliminate or
decrease such coverage during the term of this Agreement without receiving the
approval of the Fund in advance of any change, except the Agent, after giving
reasonable notice to the Company, may eliminate or decrease any coverage if
the premiums for such coverage are substantially increased.
7. Standard of Care; Indemnification.
The Agent will at all times exercise due diligence and good faith in
performing its duties hereunder. The Agent will make every reasonable effort
and take all reasonably available measures to assure the adequacy of its
personnel and facilities as well as the accurate performance of all services
to be performed by it hereunder within, at a minimum, the time requirements of
any applicable statutes, rules or regulations or as set forth in the
prospectus.
The Agent shall not be responsible for, and the Company agrees to
indemnify the Agent for any losses, damages or expenses (including reasonable
counsel fees and expenses) (i) resulting from any claim, demand, action or
suit not resulting from the Agent's failure to exercise good faith or due
diligence and arising out of or in connection with the Agent's duties on
behalf of the Company hereunder; (ii) for any delay, error or omission by
reason of circumstances beyond its control, including acts of civil or
military authority, national emergencies, labor difficulties (except with
respect to the Agent's employees), fire, mechanical breakdown beyond its
control, flood or catastrophe, acts of God, insurrection, war, riots, or
failure beyond its control of transportation, communication or power supply;
or (iii) for any action taken or omitted to be taken by the Agent in good
faith in reliance on (a) the authenticity of any instrument or communication
reasonably believed by it to be genuine and to have been properly made and
signed or endorsed by an appropriate person, (b) the accuracy of any records
or information provided to it by the Company, (c) any authorization or
instruction contained in any officers' instruction, or (d) with respect to the
functions performed for the Company listed under Paragraph 3(1) of this
Agreement, any advice of counsel approved by the Company who may be internally
employed counsel or outside counsel, in either case for the Company and/or the
Agent.
In order for the rights to indemnification to apply, it is
understood that if in any case the Company may be asked to indemnify or hold
the Agent harmless, the Company shall be advised of all pertinent facts
concerning the situation in question, and it is further understood that the
Agent will use reasonable care to identify and notify the Company promptly
concerning any situation which presents or appears likely to present a claim
for indemnification against the Company. The Company shall have the option to
defend the Agent against any claim which may be the subject of this
indemnification and, in the event that the Company so elects, it will so
notify the Agent and thereupon the Company shall take over complete defense of
the claim and the Agent shall sustain no further legal or other expenses in
such situation for which the Agent shall seek indemnification under this
paragraph. The Agent will in no case confess any claim or make any compromise
in any case in which the Company will be asked to indemnify the Agent except
with the Company's prior written consent.
8. Term of the Agreement; Taking Effect; Amendments.
This Agreement shall become effective at the start of business on
the date hereof and shall continue, unless terminated as hereinafter provided,
for a period of one year and from year to year thereafter, provided that such
continuance shall be specifically approved as provided below.
This Agreement shall go into effect, or may be continued, or may be
amended or a new agreement between the Company and the Agent covering the
substance of this Agreement may be entered into only if the terms of this
Agreement, such continuance, the terms of such amendment or the terms of such
new agreement have been approved by the Board of Directors of the Company,
including the vote of a majority of the directors who are not "interested
persons," as defined in the Act, of either party to this Agreement or of
Xxxxxxx & Xxxx Investment Management Company, cast in person at a meeting
called for the purpose of voting on such approval. Such a vote is hereinafter
referred to as a "disinterested director vote."
Any disinterested director vote shall include a determination that:
(i) the Agreement, amendment, new agreement or continuance in question is in
the best interests of the Company and its shareholders; (ii) the services to
be performed under the Agreement, the Agreement as amended, new agreement or
agreement to be continued, are services required for the operation of the
Company; (iii) the Agent can provide services the nature and quality of which
are at least equal to those provided by others offering the same or similar
services; and (iv) the fees for such services are fair and reasonable in the
light of the usual and customary charges made by others for services of the
same nature and quality.
9. Termination.
(1) This Agreement may be terminated by the Agent at any time
without penalty upon giving the Company 120 days' written notice (which notice
may be waived by the Company) and may be terminated by the Company at any time
without penalty upon giving the Agent sixty (60) days' written notice (which
notice may be waived by the Agent), provided that such termination by the
Company shall be directed or approved by the vote of a majority of the Board
of Directors of the Company in office at the time or by the vote of the
holders of a majority (as defined in or under the Act) of the outstanding
voting securities of the Company.
(2) On termination, the Agent will deliver to the Company or its
designee all files, documents and records of the Company used, kept or
maintained by the Agent in the performance of its services hereunder,
including such of the Company's records in machine readable form as may be
maintained by the Agent, as well as such summary and/or control data relating
thereto used by or available to the Agent.
(3) In the event of any termination which involves the appointment
of a new shareholder servicing agent, including the Company's acting as such
on its own behalf, the Company shall have the non-exclusive right to the use
of the data processing programs used by the Agent in connection with the
performance of its duties under this Agreement without charge.
(4) In addition, on such termination or in preparation therefore,
at the request of the Company and at the Company's expense the Agent shall
provide to the extent that its capabilities then permit such documentation,
personnel and equipment as may be reasonably necessary in order for a new
agent or the Company to fully assume and commence to perform the agency
functions described in this Agreement with a minimum disruption to the
Company's activities.
10. Construction; Governing Law.
The headings used in this Agreement are for convenience only and
shall not be deemed to constitute a part hereof. Whenever the context
requires, words denoting singular shall be read to include the plural. This
Agreement and the rights and obligations of the parties hereunder, shall be
construed and interpreted in accordance with the laws of the State of Kansas,
except to the extent that the laws of the State of Maryland apply with respect
to share transactions.
11. Representations and Warranties of Agent.
Agent represents and warrants that it is a corporation duly
organized and existing and in good standing under the laws of the State of
Missouri, that it is duly qualified to carry on its business in the State of
Kansas and wherever its duties require, that it has the power and authority
under laws and by its Articles of Incorporation and Bylaws to enter into this
Shareholder Servicing Agreement and to perform the services contemplated by
this Agreement.
12. Entire Agreement.
This Agreement and the Exhibits annexed hereto constitutes the
entire and complete agreement between the parties hereto relating to the
subject matter hereof, supersedes and merges all prior discussions between the
parties hereto, and may not be modified or amended orally.
IN WITNESS WHEREOF, the parties have hereto caused this Agreement to
be duly executed on the day and year first above written.
XXXXXXX & XXXX ADVISORS VALUE FUND, INC.
By:
--------------------------
Xxxxxx X. Xxxxxxx, Vice President
ATTEST:
By: ----------------------------------
Xxxxxxx X. Xxxxxxxx, Secretary
XXXXXXX & XXXX SERVICES COMPANY
By: --------------------------------
Xxxxxx X. Xxxxxxx, President
ATTEST:
By:
---------------------------
Xxxxxx X. Xxxxxxx, Secretary
EXHIBIT A
A. DUTIES IN SHARE TRANSFERS AND REGISTRATION
1. The Agent in carrying out its duties shall follow general commercial
practices and the Rules of the Stock Transfer Association, Inc. except as they
may conflict or be inconsistent with the specific provisions of the Company's
Articles of Incorporation and Bylaws, prospectus, applicable Federal and state
laws and regulations and this Agreement.
2. The Agent shall not require that the signature of the appropriate
person be guaranteed, witnessed or verified in order to effect a redemption,
transfer, exchange or change of address except as may from time to time be
directed by the Company as set forth in an officers' instruction. In the
event a signature guarantee is required by the Company, the Agent shall not
inquire as to the genuineness of the guarantee.
3. The Agent shall not replace a lost, stolen or misplaced stock
certificate without requiring and being furnished with an open penalty surety
bond protecting the Company and the Agent against loss.
B. The practices, procedures and requirements specified in A above may be
modified, altered, varied or supplemented as from time to time may be mutually
agreed upon by the Company and the Agent and evidenced on behalf of the
Company by an officers' instruction. Any such change shall not be deemed to
be an amendment to the Agreement within the meaning of Paragraph 8 of the
Agreement.
EXHIBIT B
COMPENSATION
Class A Shares
An amount payable on the first day of each month of $1.3375 for each account
of the Company which was in existence during any portion of the immediately
preceding month.
Class B Shares
An amount payable on the first day of each month of $1.3375 for each account
of the Company which was in existence during any portion of the immediately
preceding month.
Class C Shares
An amount payable on the first day of each month of $1.3375 for each account
of the Company which was in existence during any portion of the immediately
preceding month.
Class Y Shares
An amount payable on the first day of each month equal to 1/12 of .15 of 1% of
the average daily net assets of the Class for the preceding month.
