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EXHIBIT (h)(4)
PROSPECT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 14th day of May,
2001, by and among Xxxxxxx Investments, a Massachusetts business trust (the
"Trust"), Xxxxxxx Asset Management, Inc., a Michigan corporation (the
"Adviser"), Quasar Distributors, LLC, a Delaware limited liability company
("Distributor"), and Firstar Mutual Fund Services, LLC, a Wisconsin limited
liability company ("FMFS").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended, as an open-end management company, and is authorized to issue
shares of beneficial interest in separate series, with each such series
representing interests in a separate portfolio of securities and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers
Act of 1940, as amended, and any applicable state securities laws, as an
investment adviser;
WHEREAS, the Adviser serves as investment adviser to each series of the
Trust;
WHEREAS, FMFS provides fulfillment services to mutual funds;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member of
the National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Trust and the Adviser desire to retain FMFS to provide
fulfillment services for each series of the Corporation and any additional
series of the Trust listed on Exhibit A attached hereto (each a "Fund" and
collectively the "Funds"), as amended from time to time.
NOW, THEREFORE, the parties agree as follows:
1. DUTIES AND RESPONSIBILITIES OF FMFS
A. Answer all prospective shareholder calls concerning the
Fund(s).
B. Send all available Fund material requested by the prospect
within 24 hours from time of call.
C. Receive and update all Fund fulfillment literature so that the
most current information is sent and quoted.
D. Provide 24 hour answering service to record prospect calls
made after hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Trust and Adviser as
agreed upon between the parties.
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2. DUTIES AND RESPONSIBILITIES OF THE DISTRIBUTOR
A. Provide Fund fulfillment literature updates to FMFS as
necessary.
B. File with the National Association of Securities Dealers,
Inc., Securities and Exchange Commission and state regulatory
agencies, as appropriate, all fulfillment literature that the
Fund(s) request FMFS send to prospective shareholders.
C. Supply FMFS with sufficient inventory of fulfillment materials
as requested from time to time by FMFS.
D. Provide FMFS with any sundry information about the Fund(s) in
order to answer prospect questions.
3. COMPENSATION
As compensation for the services performed and the expenses assumed by
FMFS under this Agreement, the Trust shall, to the extent permissible
under applicable law, pay FMFS such fees and expenses as set forth in
Exhibit A to this Agreement, which are payable within ten days of
receipt of invoice. To the extent such fees are not payable by the
Trust, the Adviser shall be responsible for paying the remaining amount
of fees to FMFS.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS and the Distributor agree on behalf of themselves and their
directors, officers, and employees to treat confidentially and as
proprietary information of the Trust all records and other information
relative to the Trust and prior, present, or potential shareholders of
the Trust (and clients of said shareholders), and not to use such
records and information for any purpose other than the performance of
its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where FMFS
and the Distributor may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by
the Trust.
5. INDEMNIFICATION
The Distributor agrees to indemnify FMFS from any liability arising out
of the distribution of fulfillment literature that has not been filed
with the appropriate Federal and State Regulatory Agencies. FMFS agrees
to indemnify the Trust from any liability arising from the improper use
of fulfillment literature during the performance of its duties and
responsibilities identified in this Agreement. FMFS will be liable for
bad faith, gross negligence or willful misconduct on its part in its
duties under this Agreement.
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6. TERMINATION
This Agreement may be terminated by any party upon 90 days' written
notice.
FMFS is hereby expressly put on notice of the limitation of shareholder
liability as set forth in the Trust's Declaration of Trust and agrees
that obligations assumed by the Trust pursuant to this Agreement shall
be limited in all cases to the Trust and its assets, and if the
liability relates to one or more series, the obligations hereunder
shall be limited to the respective assets of such series. FMFS further
agrees that it shall not seek satisfaction of any such obligation from
the shareholders or any individual shareholder of a series of the
Trust, or from the trustees or any individual trustee of the Trust.
7. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower FMFS
to act as agent for any other party to this Agreement, or to conduct
business in the name of, or for the account of any other party to this
Agreement.
8. DATA NECESSARY TO PERFORM SERVICES
The Trust or its agent, which may be FMFS, shall furnish to FMFS the
data necessary to perform the services described herein at such times
and in such form as mutually agreed upon. If FMFS is also acting in
another capacity for the Trust, nothing herein shall be deemed to
relieve FMFS of any of its obligations in such capacity.
9. NOTIFICATION OF ERROR
The Trust will notify FMFS of any discrepancy between FMFS and the
Trust, including, but not limited to, failing to account for a security
position in a Fund's portfolio, by the later of: within five (5)
business days after receipt of any written reports rendered by FMFS to
the Trust; within five (5) business days after discovery of any error
or omission not covered in the balancing or control procedure; or
within five (5) business days of receiving written notice from any
shareholder.
10. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
state of Wisconsin. However, nothing herein shall be construed in a
manner inconsistent with the Investment Company Act of 1940 or any rule
or regulation promulgated by the Securities and Exchange Commission
thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
XXXXXXX INVESTMENTS XXXXXXX ASSET MANAGEMENT, INC.
By: /S/ XXXX X. XXXXXXXX By: /S/ XXXXXX X. XXXXXX
Chairman Vice President
FIRSTAR MUTUAL FUND SERVICES, LLC QUASAR DISTRIBUTORS, LLC
By: /S/ ROBERTJ. XXXX By: /S/ XXXXXX X. XXXX
Title: Senior Vice President Title: Senior Vice President
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PROSPECT SERVICING AGREEMENT
ANNUAL FEE SCHEDULE
EXHIBIT A
FUND DATE ADDED
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Xxxxxxx Large-Cap Fund May 14, 2001
Xxxxxxx Small-Cap Fund May 14, 2001
Xxxxxxx Asset Allocation Fund May 14, 2001
Xxxxxxx Utility Fund May 14, 2001
Xxxxxxx Market Neutral Fund May 14, 2001
Xxxxxxx Government Money Market Fund May 14, 2001
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FIRSTAR MUTUAL FUND SERVICES, LLC
PROSPECT SERVICING
ANNUAL FEE SCHEDULE
FULL SERVICE (INBOUND TELESERVICING AND KIT ASSEMBLY AND MAILING)
TIER 1 (0-50 orders per month)
Account Management $ 300/month
TIER 2 (51-250 orders per month)
Account Management $ 300/month
First 50 orders NC
Per order over 50 $ 4.00/order
TIER 3 (251-500 orders per month)
Account Management $ 1,000/month
First 250 orders NC
Per order over 250 $ 3.50/order
TIER 4 (over 500 orders per month)
Account Management $ 2,000/month
First 500 orders NC
Per order over 500 $ 3.00/order
Service includes account management, lead reporting, call servicing, database
management, kit assembly and mailing (excluding postage and materials).
INBOUND TELESERVICING (ONLY)
Account Management $100/month
Call Servicing $.99/minute
Base Reporting Services Included.
Assumes that client is responsible for costs associated with order delivery.
LEAD CONVERSION REPORTING
Account Management $ 700/month
Database Installation, Setup $1,500/fund group
WEB ON-LINE FUND FULFILLMENT
Account Management $ 500/month
Installation, Setup $ 0 (NC)
Per Retail Request $ .40/retail request
Per Intermediary Request $ .60/retail request
FOLLOW-UP SERVICES
Correspondence $2.00/letter
E-mail Correspondence (Separate Quote)*
Telemarketing (Separate Quote)*
Customized Services (Separate Quote)*
*Dependent upon client requirements
All fees are billed monthly plus out-of-pocket expenses, including, but not
limited to:
Customized reporting development ($150.00/hour)
Postage, stationery
Programming, special reports
Retention of records
File transmission charges
Legal expenses
All other out-of-pocket expenses
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