SERVICING AND DISTRIBUTION AGREEMENT
We wish to enter into this Servicing and Distribution Agreement
("Agreement") with you concerning the provision of distribution services
(and, to the extent provided below, support services) to your clients
("Clients") who may from time to time acquire and beneficially own shares
of any Fund ("Shares") offered by Xxxxxxx Funds, Inc.
The terms and conditions of this Agreement are as follows:
Section 1. You will provide reasonable assistance in connection with
the distribution of Shares to Clients as requested from time to time,
which assistance may include forwarding sales literature and advertising
provided by us for Clients. In addition, you agree to provide the
following support services to Clients who may from time to time acquire
and beneficially own shares: (i) processing dividend and distribution
payments from us on behalf of Clients for whom you are the holder of
record; (ii) providing information periodically to Clients showing their
positions in Shares; (iii) arranging for bank wires, (iv) responding to
Client inquiries relating to the services performed by you; (v) providing
subaccounting with respect to Shares beneficially owned by Clients for
whom you are the holder of record; (vi) if required by law, forwarding
shareholder communications from us (such as proxies, shareholder reports,
annual and semi-annual financial statements and dividend, distribution and
tax notices) to Clients; (vii) assisting in processing purchase, exchange
and redemption requests from Clients and in placing such orders with our
service contractors; (viii) assisting Clients in changing dividend
options, account designations and addresses; and (ix) providing such
other similar services as we may reasonably request to the extent you are
permitted to do so under applicable statutes, rules and regulations.
Section 2. You will provide such office space and equipment,
telephone facilities and personnel (which may be any part of the space,
equipment and facilities currently used in your business, or any personnel
employed by you) as may be reasonably necessary or beneficial in order to
provide the aforementioned assistance and services to Clients.
Section 3. Neither you nor any of your officers, employees or agents
are authorized to make any representations concerning us or the Shares
except those contained in our then current prospectuses and statements of
additional information for Shares, copies of which will be supplied by us
to you, or in such supplemental literature or advertising as may be
authorized by us in writing.
a. We will indemnify and hold you harmless for any representations
or statements in the Prospectus, SAI or any other collateral
sales material which we supply.
b. We will tell you in which jurisdiction the shares are qualified
for sale.
Section 4. For all purposes of this Agreement you will be deemed
to be an independent contractor, and will have no authority to act as an
agent for us in any matter or in any respect. By your written acceptance
of this Agreement, you agree to and do release, indemnify and hold us
harmless from and against any and all liabilities or losses resulting from
requests, directions, actions or inactions of or by you or your officers,
employees or agents regarding your responsibilities hereunder or the
purchase, redemption, transfer or registration of Shares (or orders
relating to the same) by or on behalf of Clients. You and your employees
will, upon request, be available during normal business hours to consult
with us or our designees concerning the performance of your
responsibilities under this Agreement.
Section 5. In consideration of the services and facilities
provided by you hereunder, we will pay to you, and you will accept as full
payment therefor, a fee at the annual rate of 0.25% of the average daily
net asset value of the Shares beneficially owned by your Clients for whom
you are the dealer of record or holder of record or with whom you have a
servicing relationship (the "Clients' Shares"), which fee will be computed
daily and payable quarterly. For purposes of determining the fees payable
under this Section 5, the average daily net asset value of the Clients'
Shares will be computed in the manner specified in our Registration
Statement (as the same is in effect from time to time) in connection with
the computation of the net asset value of Shares for purposes of purchases
and redemptions. The fee rate stated above may be prospectively increased
or decreased by the Board of Directors of Xxxxxxx Funds, Inc., in its sole
discretion, at any time upon notice to you. Furthermore, Xxxxxxx Funds,
Inc. may, in its discretion and without notice, suspend or withdraw the
sale of Shares, including the sale of Shares to you for the account of any
Client or Clients.
Section 6. Any person authorized to direct the disposition of
monies paid or payable by us pursuant to this Agreement will provide to
the Board of Directors of Xxxxxxx Funds, Inc., and it will review, at
least quarterly, a written report of the amounts so expended and the
purposes for which such expenditures were made. In addition, you will
furnish us or our designees with such information as we or they may
reasonably request (including, without limitation, periodic certifications
confirming the provision to Clients of the services described herein), and
will otherwise cooperate with us and our designees (including, without
limitation, any auditors designated by us), in connection with the
preparation of reports to the Board of Directors of Xxxxxxx Funds, Inc.
concerning this Agreement and the monies paid or payable by us pursuant
hereto, as well as any other reports or filings that may be required by
law.
Section 7. We may enter into other similar Agreements with any
other person or persons without your consent.
Section 8. By your written acceptance of this Agreement, you
represent, warrant and agree that: (i) the compensation payable to you
hereunder, together with any other compensation you receive from Clients
for services contemplated by this Agreement, will not be excessive or
unreasonable under the laws and instruments governing your relationships
with Clients; (ii) you will provide to Clients a schedule of any fees
that you may charge to them relating to the investment of their assets in
Shares; (iii) you are a member of the NASD and registered as a broker-
dealer under the federal and all applicable state securities laws; (iv)
you are empowered under applicable law and by your organizational
documents to enter into and perform this Agreement, and all requisite
proceedings have been taken to authorize you to enter into and perform
this Agreement; and (v) you will comply at all times with all applicable
laws, rules and regulations. In addition, you understand that this
Agreement has been entered into pursuant to the Service and Distribution
Plan (the "Plan") pursuant to Rule 12b-1 under the Investment Company Act
of 1940 (the "Act"), and is subject to the provisions of the Plan, said
Rule, as well as any other applicable rules or regulations promulgated by
the Securities and Exchange Commission.
Section 9. This Agreement will become effective on the date a
fully executed copy of this Agreement is received by us or our designee.
Unless sooner terminated, this Agreement will continue for a period of one
year from the date of our acceptance of an executed copy of this
agreement, and thereafter will continue automatically for successive
annual periods provided such continuance is specifically approved at least
annually by Xxxxxxx Funds, Inc. in the manner described in Section 12.
This Agreement is terminable with respect to the Shares of any Fund,
without penalty, at any time by us or by you upon notice to the other
party hereto. This Agreement will also terminate automatically in the
event of its assignment (as defined in the Act) or if the Plan is
terminated. Finally, this Agreement may be terminated by a vote of a
majority of the "Disinterested Directors" as defined in Section 12 and, as
to a Fund, by vote of the holders of the majority of the outstanding
shares of such Fund.
Section 10. All notices and other communications to either you or
us will be duly given if mailed, telegraphed, telexed or transmitted by
similar telecommunications device to the appropriate address stated
herein.
Section 11. This Agreement will be construed in accordance with
the laws of the State of Wisconsin.
Section 12. This Agreement has been approved by vote of a majority
of (i) the Board of Directors of Xxxxxxx Funds, Inc. and (ii) those
Directors who are not "interested persons" (as defined in the Investment
Company Act of 1940) of Xxxxxxx Funds, Inc. and have no direct or indirect
financial interest in the operation of the Plan or in any agreement
related thereto cast in person at a meeting called for the purpose of
voting on such approval ("Disinterested Directors").
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly
return it to us at, Sunstone Distribution Services, LLC, 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx.
Very truly yours,
SUNSTONE DISTRIBUTION SERVICES, LLC
Date:_____________________ By:_________________________________
(Authorized Officer of Xxxxxxx Funds)
____________________________________
(address)
____________________________________
ACCEPTED AND AGREED TO:
____________________________________
(Name of dealer/shareholder organization)
Date:______________________ By:_________________________________
____________________________________
(Print name)
____________________________________
(address)
____________________________________
____________________________________
(phone number)
