AGENCY AGREEMENT,
as amended
THIS AGREEMENT ("Agreement"), made the 23rd day of September, 1993,
as amended by a First Amendment to Agency Agreement dated as of August 18,
1994, by and between XXXXXXX INVESTMENTS, a Massachusetts business trust
(the "Fund"), and XXXXXX MANAGEMENT CORPORATION ("Xxxxxx Management"), a
Michigan corporation:
WHEREAS, the Fund desires to appoint Xxxxxx Management as Transfer
Agent and Dividend Disbursing Agent and Xxxxxx Management desires to accept
such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Appointment. The Fund hereby appoints Xxxxxx Management to act
as Transfer Agent and Dividend Disbursing Agent for each of the Fund's
Series for the period and on the terms set forth in this Agreement, unless
the Fund and Xxxxxx Management determine it is in the best interests of a
particular Series of the Fund to negotiate and execute a separate Agreement.
In connection therewith, Xxxxxx Management accepts such appointment and
agrees to render the services on the terms and for the compensation herein
provided. In connection with such appointment, the Fund will make available
to Xxxxxx Management for inspection the following documents and will deliver
to it all future amendments and supplements:
A. Certified copy of the resolution of appointment adopted by the
Board of Trustees of the Fund;
B. Certified copy of the Declaration of Trust of the Fund and all
amendments thereto;
C. Certified copy of the By-Laws of the Fund;
D. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock;
E. Specimens of all forms of outstanding stock certificates, in
the forms approved by the Board of Trustees of the Fund, with a
certificate of the Secretary of the Fund, as to such approval;
F. Two signature cards bearing specimens of the signatures of the
officers authorized to sign stock certificates or sign written
instructions and requests;
G. Such other certificates, documents or opinions which Xxxxxx
Management may, in its reasonable discretion, deem necessary or
appropriate in the proper performance of its duties.
2. Certain Representations and Warranties of Xxxxxx Management.
Xxxxxx Management represents and warrants to the Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of Michigan.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform the services
contemplated in this Agreement.
D. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
E. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. Certain Representations and Warranties of the Fund. The Fund
represents and warrants to Xxxxxx Management that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the State of Massachusetts.
B. It is an open-end management investment company registered
under the Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of 1933 will
be in effect with respect to all shares of each Series of the Fund
being offered for sale.
D. All requisite steps have been or will be taken to register each
Series of the Fund's shares for sale in all applicable states.
E. The Fund is empowered under applicable laws and by its
Declaration of Trust and by-laws to enter into and perform this
Agreement.
4. Scope of Service.
X. Xxxxxx Management agrees to provide the necessary facilities,
equipment and personnel to perform its duties and obligations
hereunder in accordance with industry practice.
X. Xxxxxx Management agrees that it will perform all of the usual
and ordinary services of Transfer Agent and Dividend Disbursing Agent
and as Agent for the various shareholder accounts, including, without
limitation, the following: issuing, transferring and cancelling
stock certificates, maintaining all shareholder accounts, preparing
shareholder meeting lists, mailing proxies, receiving and tabulating
proxies, mailing shareholder reports and prospectuses, withholding
taxes, preparing and mailing checks for
disbursement of income dividends and capital gains distributions,
preparing and filing U.S. Treasury Department Form 1099 for all
shareholders, preparing and mailing confirmation forms to
shareholders with respect to all purchases and liquidations of the
Fund shares and other transactions in shareholder accounts for which
confirmations are required, recording reinvestments or dividends and
distributions in the Fund shares, recording redemptions of the Fund
shares and preparing and mailing checks for payments upon redemption
and for disbursements to withdrawal plan holders.
5. Limit of Authority. Unless otherwise expressly limited by the
resolution of appointment or by subsequent corporate action, the appointment
of Xxxxxx Management as Transfer Agent will be construed to cover the full
amount of authorized stock of the class or classes for each Series of the
Fund as the same will, from time to time, be constituted and any subsequent
increases in such authorized amount and the addition of new Series.
6. Compensation and Expenses. In consideration for its services
hereunder as Transfer Agent and Dividend Disbursing Agent, the Fund shall
pay to Xxxxxx Management the costs of all stationery, postage and supplies
used solely in the performance of Xxxxxx Management's services as transfer
agent and dividend disbursing agent, and, in addition, the Fund shall pay
to Xxxxxx Management a monthly service fee which shall be fifty cents
($0.50) for each shareholder account maintained at the end of the preceding
month until January 31, 1995 and seventy-five cents ($0.75) for each
shareholder account thereafter.
7. Efficient Operation of Xxxxxx Management System.
A. In connection with the performance of its services under this
Agreement, Xxxxxx Management is responsible for the accurate and
efficient functioning of its system at all times, including:
1. The accuracy of all entries in Xxxxxx Management's record
reflecting orders and instructions received by Xxxxxx
Management from shareholders or the Fund;
2. The continuous availability and the accuracy of
shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be
produced from its records or data;
3. The accuracy and timely issuance of dividend and
distribution checks in accordance with instructions received
from the Fund;
4. The accuracy of redemption transactions and payments in
accordance with redemption instructions received from dealers,
shareholders or the Fund;
5. The deposit daily in the Fund's appropriate special bank
account for all checks and payments received from dealers or
shareholders for investment in shares;
6. The requiring of proper forms of instructions, signatures
and signature guarantees and any necessary documents supporting
the legality of transfers, redemptions and other shareholder
account transactions.
8. Indemnification. Xxxxxx Management will hold harmless and
indemnify the Fund from and against any loss or liability arising out of
Xxxxxx Management's failure to comply with the terms of this Agreement or
arising out of Xxxxxx Management's negligence, misconduct, or bad faith.
9. Certain Covenants of Xxxxxx Management and Fund.
A. All requisite steps will be taken by the Fund from time to time
when and as necessary to register each Series of the Fund's shares
for sale in all states in which such Series' shares will be at the
time offered for sale and require registration. If at any time the
Fund receives notice of any stop order or other proceeding in any
such state affecting such registration or the sale of a Series of the
Fund's shares, or any stop order or other proceeding under the
Federal securities laws affecting the sale of a Series of the Fund's
shares, the Fund will give prompt notice thereof to Xxxxxx
Management.
X. Xxxxxx Management hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for
safekeeping of stock certificates, check forms, and facsimile
signature imprinting devices, if any; and for the preparation or use,
and for keeping account of, such certificates, forms and devices.
C. To the extent required by Section 31 of the Investment Company
Act of 1940 as, amended, and Rules thereunder, Xxxxxx Management
agrees that all records maintained by Xxxxxx Management relating to
the services to be performed by Xxxxxx Management under this
Agreement are the property of the Fund and will be preserved and will
be surrendered promptly to the Fund on request or when they are no
longer deemed needed for current purposes.
X. Xxxxxx Management represents and agrees that it will use its
best efforts to maintain current knowledge of the trends of the
investment company industry relating to shareholder services and will
use its best efforts to continue to modernize and improve its system
without additional cost to Fund.
X. Xxxxxx Management will permit the Fund and its authorized
representatives to make periodic inspections of its operation at
reasonable times during business hours.
10. Recapitalization or Readjustment. In case of any
recapitalization, readjustment or other change in the capital structure of
a Series of the Fund requiring a change in the form of the stock
certificates, Xxxxxx Management will for an additional fee to be agreed
upon, issue or register certificates in the new form in exchange for, or in
transfer of, the outstanding certificates in the old form, upon receiving:
A. Written instructions from an officer of the Fund;
B. Certified copy of the amendment to the Declaration of Trust or
other document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock in
the new form, and an opinion of outside counsel that the order or
consent of no other government or regulatory authority is required;
D. Specimens of the new certificates in the form approved by the
Board of Trustees of the Fund, with a certificate of the Secretary of
the Fund as to such approval.
11. Stock Certificates. The Fund will furnish Xxxxxx Management
with a sufficient supply of blank stock certificates and from time to time
will renew such supply upon the request of Xxxxxx Management. Such
certificates will be signed manually or by facsimile signatures of the
officers of the Fund authorized by law and by By-Laws to sign stock
certificates, and, if required, will bear the corporate seal or facsimile
thereof.
12. Death, Resignation or Removal of Signing Officer. The Fund will
file promptly with Xxxxxx Management written notice of any change in the
officers authorized to sign stock certificates, written instructions or
requests, together with two signature cards bearing the specimen signature
of each newly authorized officer. In case any officer of the Fund who will
have signed manually or whose facsimile signature will have been affixed to
blank stock certificates will die, resign, or be removed prior to the
issuance of such stock certificates, Xxxxxx Management may issue or register
such stock certificates as the stock certificates of the Fund
notwithstanding such death, resignation, or removal, until specifically
directed to the contrary by the Fund in writing. In the absence of such
direction, the Fund will file promptly with Xxxxxx Management such approval,
adoption, or ratification as may be required by law.
13. Future Amendments of Declaration of Trust and By-Laws. The
Fund will promptly file with Xxxxxx Management certified copies of all
material amendments to its Declaration of Trust or By-Laws made after the
date hereof.
14. Records. Xxxxxx Management will maintain customary records in
connection with its agency, and particularly will maintain those records
required to maintained pursuant to subparagraph (2)(iv) or paragraph (b) of
Rule 31a-1 under the Investment Company Act of 1940, if any.
15. Disposition of Books, Records and Cancelled Certificates.
Xxxxxx Management will make available to the Fund all books, documents, and
all records no longer deemed needed for current purposes and stock
certificates which have been cancelled in transfer or in exchange, upon the
understanding that such books, documents, records, and stock certificates
will not be destroyed by the Fund without the consent of Xxxxxx Management,
but will be safely stored for possible future reference. Such consent shall
not be unreasonably withheld.
16. Provisions Relation to Xxxxxx Management as Transfer Agent. It
is generally contemplated that most stockholders' shares will be held in
open account, book-entry form at The Depository Trust Company or equivalent.
In connection with physically delivered certificates, the following
provisions will apply.
X. Xxxxxx Management will make original issues of stock
certificates upon written request of an officer of the Fund and upon
being furnished with a certified copy of a resolution of the Board of
Trustees authorizing such original issue, any documents required by
paragraphs 5 or 10 of this Agreement, and necessary funds for the
payment of any original issue tax.
B. Before making any original issue of certificates the Fund will
furnish Xxxxxx Management with sufficient funds to pay all required
taxes on the original issue of the stock, if any. The Fund will
furnish Xxxxxx Management such evidence as may be required by Xxxxxx
Management to show the actual value of the stock.
C. Shares of stock will be transferred and new certificates issues
in transfer, or shares of stock accepted for redemption and funds
remitted therefor, upon surrender of the old certificates in form
deemed by Xxxxxx Management properly endorsed for transfer or
redemption accompanied by such documents as Xxxxxx Management may
deem necessary to evidence that authority of the person making the
transfer or redemption, and bearing satisfactory evidence of the
payment of any applicable stock transfer taxes. Xxxxxx Management
reserves the right to refuse to transfer or redeem shares until it is
satisfied that the endorsement or signature on the certificate or any
other document is valid and genuine, and for that purpose it may
require a guaranty of signature by a firm having membership in the
New York Stock Exchange, Midwest Stock Exchange, American Stock
Exchange Securities Corporation, Pacific Coast Stock Exchange, or any
other exchange acceptable to Xxxxxx Management or by a bank or trust
company approved by it. Xxxxxx Management also reserves the right to
refuse to transfer or redeem shares until it is satisfied that the
requested transfer or redemption is legally authorized, and that it
will incur no liability for the refusal in good faith to make
transfer or redemptions which, in its judgment, are improper or
unauthorized. Xxxxxx Management may, in effecting transfers or
redemptions, rely upon Simplification Acts or other statutes which
protect it and the Fund in not requiring complete fiduciary
documentation. In cases in which Xxxxxx Management is not directed
or otherwise required to maintain the consolidated records of
stockholder's accounts, Xxxxxx Management will not be liable for any
loss which may arise by reason of not having such records, provided
that such loss could not have been prevented by the exercise of
ordinary diligence. Xxxxxx Management will be under no duty to use
a greater degree of diligence by reason of not having such records.
X. Xxxxxx Management will issue and mail subscription warrants,
certificates representing stock dividends, exchanges or split ups, or
act as Conversion Agent upon receiving written instructions from any
officer of the Fund and such other documents as Xxxxxx Management
deems necessary.
X. Xxxxxx Management will issue, transfer, and split up
certificates and will issue certificates of stock representing full
shares upon surrender of scrip certificates aggregating one full
share or more when presented to Xxxxxx Management for that purpose
upon receiving written instructions from an officer of the Fund and
such other documents as Xxxxxx Management may deem necessary.
X. Xxxxxx Management may issue new certificates in place of
certificates represented to have been lost, destroyed, stolen or
otherwise wrongfully taken upon receiving instructions from the Fund
and indemnity satisfactory to Xxxxxx Management and Fund, and may
issue new certificates in exchange for, and upon surrender of,
mutilated certificates. Instructions from the Fund will be in such
form as will be approved by the Board of Trustees of the Fund and
will be in accordance with the provisions of law and the By-Laws of
the Fund governing such matter.
X. Xxxxxx Management will supply a stockholder's list to the Fund
for meetings of stockholders of any Series of the Fund upon receiving
a request from an officer of the Fund. It will also supply lists at
such other times as may be requested by an officer of the Fund.
H. Upon receipt of written instructions of an officer of the Fund,
Xxxxxx Management will address and mail notices to stockholders.
I. In case of any request or demand for the inspection of the
stock books of a Series of the Fund or any other books in the
possession of Xxxxxx Management, Xxxxxx Management will endeavor to
notify the Fund and to secure instructions as to permitting or
refusing such inspection. Xxxxxx Management reserves the right,
however, to exhibit the stock books or other books to any person in
case it is advised by its counsel that it may be held for the failure
to exhibit the stock books or other books to such person.
17. Condition Precedent. This Agreement shall take effect only if,
as a condition precedent, the Agreement is approved at a special meeting of
the Fund's Board of Trustees by a majority of the Fund's trustees and by a
majority of the disinterested trustees, and further, only if this Agreement
is approved by a majority of the disinterested trustees pursuant to the
following findings:
A. That the proposed Agreement is in the best interests of the
Fund and its shareholders;
B. That the services to be performed pursuant to the proposed
Agreement are services required for the operation of the Fund;
C. That Xxxxxx Management can provide services the nature and
quality of which are at least equal to those provided by others
offering the same or similar services.
D. That the fees for such services are fair and reasonable in
light of the usual and customary charges made by others for services
of the same nature and quality.
18. Effective Date. Provided the condition precedent stated in
paragraph 17 of this Agreement has been met, this Agreement shall become
effective at the close of business on the date the Registration Statement
relating to the Fund's Utility Series becomes effective.
19. Termination of Agreement.
A. This Agreement shall become effective on the execution date
hereof and, unless sooner terminated as provided herein, shall
continue for an initial two-year term and thereafter shall be renewed
automatically for successive one-year terms, provided such
continuance is specifically approved at least annually (i) by the
Fund's Board of Directors or (ii) by vote of a majority (as defined
in the Investment Company Act of 1940) of the outstanding voting
securities of the Fund, provided that in either event the continuance
is also approved by a majority of the Fund's directors who are not
parties to this Agreement and who are not "interested persons" (as
defined in the Investment Company Act of 1940) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose
of voting on such approval. This Agreement is terminable with
respect to the Fund without penalty, on at least 60 days' written
notice to the Fund, by vote of a majority (as defined in the
Investment Company Act of 1940) of the outstanding voting securities
of the Fund, or by Xxxxxx Management, and shall also terminate
automatically if assigned in whole or in part by Xxxxxx Management.
B. This Agreement may be terminated by either party upon receipt
of 60 days' written notice from the other party.
C. The Fund, in addition to any other rights and remedies, shall
have the right to terminate this Agreement forthwith upon the
occurrence at any time of any of the following event:
1. Any interruption or cessation of operations by Xxxxxx
Management which materially interferes with the business
operation of the Fund;
2. The bankruptcy of Xxxxxx Management or the appointment of
a receiver for Xxxxxx Management;
3. Any merger, consolidation or sale of substantially all
the assets of Xxxxxx Management;
4. The acquisition of a controlling interest in Xxxxxx
Management, by any broker, dealer, investment adviser or
investment company except as may presently exist; or
5. Failure by Xxxxxx Management to perform its duties in
accordance with the Agreement, which failure materially
adversely affects the business operations of the Fund and which
failure continues for 30 days after receipt of written notice
from Fund.
If at any time this Agreement is terminated by the Fund
pursuant to clause 1, 2 or 5, Fund will have and is hereby
granted the right, at its option, to use or cause its agents,
employees or independent contractors to use, for as long as
Fund deems necessary for its own operations, and no other, and
without payment of any compensation or reimbursement to Xxxxxx
Management, Xxxxxx Management's system including all of the
programs, manuals and other materials and information necessary
to operate the system.
D. In the event of termination, the Fund will promptly pay Xxxxxx
Management all amounts due to Xxxxxx Management hereunder.
20. Services Not Exclusive. The services furnished by Xxxxxx
Management hereunder are not to be deemed exclusive and Xxxxxx Management
shall be free to furnish similar services to others so long as its services
under this Agreement are not impaired thereby.
21. Assignment. Neither this Agreement nor any rights or
obligations hereunder may be assigned by Xxxxxx Management without automatic
termination of the Agreement.
22. Confidentiality. Xxxxxx Management agrees that, except as
provided in this Agreement, or as otherwise required by law, Xxxxxx
Management will keep confidential all records of and information in its
possession relating to the Fund or its shareholders or shareholder accounts
and will not disclose the same to any person except at the request or with
the consent of the Fund.
23. Survival of Representations and Warranties. All representations
and warranties by either party herein contained will survive the execution
and delivery of this Agreement.
24. Miscellaneous.
A. This Agreement is executed and delivered in the State of
Missouri and shall be governed by the laws of said state.
B. No provisions of the Agreement may be amended or modified, in
any manner except by a written agreement properly authorized and
executed by both parties hereto.
C. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
D. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
E. If any part, term or provision of this Agreement is by the
courts held to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement did
not contain the particular part, term or provision held to be illegal
or invalid.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and their corporate seals to be affixed by their respective duly
authorized officers.
XXXXXXX INVESTMENTS,
a Massachusetts business trust
By: /S/ XXXX X. XXXXXX
Xxxx X. Xxxxxx, President
XXXXXX MANAGEMENT CORPORATION,
a Michigan corporation
By: /S/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx, Chairman
