EX-99.B(h)
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, made as of the 1ST day of November, 1992, by and
between XXXXXXX & XXXX FUNDS, INC., and Xxxxxxx & Xxxx Services Company (the
"Agent"), as amended and restated as of April 1, 1996,
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 shares 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 FUNDS, INC.
By:_________________________________
Xxxxxx X. Xxxxxx, Vice President
ATTEST:
By:____________________________
Xxxxxx Xxxxxxx, Assistant Secretary
XXXXXXX & XXXX SERVICES COMPANY
By:_________________________________
Xxxxxx X. Xxxxxxx, President
ATTEST:
By:___________________________
Xxxxxx X. Xxxxxx, 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 B Shares
An amount payable on the first day of each month of $1.3125 for each account of
the Company which was in existence during any portion of the immediately
preceding month and, in addition, to pay to the Agent the sum of $0.30 for each
account for which, during such month, a record date was established for payment
of a dividend, in cash or otherwise (which term includes a distribution),
irrespective of whether such dividend was payable in that month or later or was
payable directly or was to be reinvested.
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.
EXHIBIT C
Bond or
Name of Bond Policy No. Insurer
Investment Company 87015198B ICI
Blanket Bond Form Mutual
Insurance
Company
Fidelity $20,400,000
Audit Expense 50,000
On Premises 20,400,000
In Transit 20,400,000
Forgery or Alteration 20,400,000
Securities 20,400,000
Counterfeit Currency 20,400,000
Uncollectible Items of
Deposit 25,000
Phone-Initiated Transactions 500,000
Total Limit 20,400,000
Directors and Officers/ 87015198D ICI
Errors and Omissions Liability Mutual
Insurance Form Insurance
Total Limit $ 5,000,000 Company
Blanket Lost Instrument Bond (Mail Loss) 30S100639551 Aetna
Life &
casualty
Blanket Undertaking Lost Instrument
Waiver of Probate 42SUN339806 Hartford
Casualty
Insurance
