SERVICE AGREEMENT
This Agreement is entered into as the 16th day of December, 1999, between J. &
X. Xxxxxxxx & Co. Incorporated (the "Manager"), a Delaware corporation, and
Allianz Life Insurance Company of North America(the "Company"), a life insurance
company organized under the laws of Minnesota.
WHEREAS, the Manager serves as the investment manager to Xxxxxxxx Portfolios,
Inc. (the "Fund"), an open-end management investment company organized as a
Maryland corporation and registered with the Securities and Exchange Commission
(the "SEC") under the Investment Company Act of 1940 (the "1940 Act").
WHEREAS, the Company desires to provide certain shareholder services to certain
owners of variable annuity contracts issued by the Company ("Owners") in
connection with their investment in the series of the Fund listed on Schedule A
hereto (each a "Portfolio"); Accordingly, the parties hereto agree as follows:
1. Services of the Company
(a) The Company shall provide any combination of the following support
services, as agreed upon by the parties from time to time, to Owners
who invest in the Portfolios: printing and delivering prospectuses,
statements of additional information, shareholder reports, proxy
statements and marketing materials related to the Portfolios to
existing Owners; providing facilities to answer questions from existing
Owners about the Portfolios; receiving and answering correspondence;
providing information to the Manager and to Owners with respect to
shares of the Portfolios attributable to Owner accounts; complying with
federal and state securities laws
pertaining to the sale of shares of the Portfolios; and assisting
Owners in completing application forms and selecting dividend and other
account options.
(b) The Company will provide such office space and equipment, telephone
facilities, and personnel as may be reasonably necessary or beneficial
in order to provide such services to Owners.
(c) The Company will furnish to the Manager, the Fund or their designees
such information as the Manager may reasonably request, and will
otherwise cooperate with the Manager in the preparation of reports to
the Fund's Board of Directors concerning this Agreement, as well as any
other reports or filing that may be required by law.
2. Maintenance of Records
Each party shall maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the services described
herein. Upon the reasonable request of Manager or the Fund, the Company will
provide the Manager, the Fund or the representative of either, copies of all
such records.
3. Compliance with Law
At all times, the Company shall comply with all laws, rules and regulations
applicable to it by virtue of entering into the Agreement. At all times, Manager
shall comply with all laws, rules and regulations applicable to it by virtue of
entering into this Agreement.
4. Relationship of Parties
It is understood and agreed that all services performed hereunder by the Company
shall be as an independent contractor and not as an employee or agent of the
Manager, the Fund or any of the Portfolios, and neither of the parties shall
hold itself out as an agent of the other party with the authority to bind such
party.
5. Expenses
The Company or its affiliates shall bear all expenses of printing and delivering
prospectuses, statements of additional information, shareholder reports, proxy
statements and marketing materials relating to the Portfolios to prospective and
existing Owners and of servicing Owners and providing the services set forth in
Section 1 of this Agreement.
6. Compensation
The Manager shall pay the Company for the services to be provided by the Company
under this Agreement in accordance with, and in the manner set forth in,
Schedule B hereto, as such Schedule may be amended from time to time.
7. Representations, Warranties and Agreements
(a) Each party represents and warrants that it is free to enter into this
Agreement and that by doing so it will not breach or otherwise impair
any other agreement or understanding with any other person,
corporation, or other entity.
(b) The Company represents and warrants that:
(i) it has full power and authority under applicable law, and has taken all
action necessary, to enter into and perform this Agreement;
(ii) the arrangement provided for in this Agreement, including the amount of
the fee received by the Company, will be timely disclosed to the Owners
to the extent required by applicable law; and
(iii) the performance of the duties and obligations and provision of services
by Company as described in this Agreement and the receipt of the fees
as provided in this
Agreement will not violate state insurance law, the Employee Retirement
Income Security Act of 1974, as amended, the Internal Revenue Code of
1986, as amended, federal or state securities laws, or any other
applicable law.
(c) Manager represents and warrants that:
(i) it is registered as an investment adviser under the Investment Advisers
Act of 1940, and any applicable state securities law;
(ii) it has full power and authority under applicable law, and has taken all
action necessary, to enter into and perform this Agreement, and
(iii) the performance of the duties and obligations by the Manager as
described in this Agreement will not violate federal or state
securities laws, or any other applicable law.
8. Indemnification
(a) The Company agrees to indemnify the Manager and its affiliates, and
their directors, employees and agents for any loss (including without
limitation, litigation costs and expenses and attorneys' and experts'
fees and expenses) resulting from: (i) the grossly negligent or willful
act, omission or error of the Company or its affiliates; (ii) any
breach by the Company of this Agreement; or (iii) the inaccuracy or
breach of any representation made by the Company in this Agreement.
(b) The Manager agrees to indemnify the Company and its affiliates, and
their directors, employees and agents for any loss (including without
limitation, litigation costs and expenses and attorneys' and experts'
fees and expenses) resulting from: (i) the grossly negligent or willful
act, omission or error of the Manager or its affiliates; (ii) any
breach by the Manager of this Agreement; or (iii) the inaccuracy or
breach of any representation made by Manager in this Agreement.
9. Termination
(a) Unless sooner terminated with respect to any Portfolio, this Agreement
will continue with respect to a Portfolio until terminated.
(b) This Agreement will automatically terminate with respect to a Portfolio
in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Portfolio. This Agreement may be terminated
with respect to any Portfolio by the Manager or by the Company without
penalty, upon 60 days' prior written notice to the other party.
(c) Section 7 shall survive termination of this Agreement.
10. Assignment
This Agreement, including Schedules A and B, may be amended, and the terms of
this Agreement, including Schedules A and B, may be waived, only by a writing
signed by each of the parties.
11. Non-Exclusivity
Each of the parties acknowledges and agrees that this Agreement and the
arrangement described herein are intended to be non-exclusive and that each of
the parties is free to enter into similar agreements and arrangements with other
entities.
12. General
All notices and other communications to either the Company or the Manager will
be duly given if mailed, telegraphed or telecopied to the address set forth
below, or at such other address as either party may provide in writing to the
other party.
If to the Manager:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel, Law & Regulation
If to the Company:
Allianz Life Insurance Company of North America
0000 Xxxxxxxx Xxx, Xxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
13. Counterparts
This Agreement may be executed in any number of counterparts which all together
shall constitute one instrument.
14. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the State of Minnesota applicable to agreements fully executed and to be
performed therein, exclusive of conflicts of laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their duly
authorized officers as of the date and year first written above.
J. & X. XXXXXXXX & CO. INCORPORATED By: /s/ Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: President
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President Corporate Legal Officer & Secretary
SCHEDULE A
PORTFOLIOS
Xxxxxxxx Xxxxxxxxx Global Technology Portfolio
Xxxxxxxx Small-Cap Value Portfolio
A-1
SCHEDULE B
COMPENSATION
The Company shall receive a fee from the Manager calculated at an annual rate of
..25% of each Portfolios' average daily net assets attributable to shares of the
Portfolio beneficially owned by Owners.
