Exhibit 23(h)(2)
AGREEMENT RESPECTING NAMES
This Agreement is made as of the 1st day of October, 1995, by and
between Xxxxx Selected Advisers, L.P., f/k/a Selected/Venture Advisers, L.P., a
Colorado limited partnership, with its principal offices located at 000 Xxxx
Xxxxx Xxxxxx, Xxxxx Xx, XX ("DSA") and Xxxxx Series, Inc., f/k/a Retirement
Planning Funds of America, Inc., a Maryland corporation with its principal
offices located at 000 Xxxx Xxxxx Xxxxxx, Xxxxx Xx, XX (the "Fund").
WHEREAS, DSA is the owner of the trade name and service xxxx and all
applications and registrations thereof known and identified as "XXXXX SELECTED
ADVISERS, L.P. (the "Adviser Name")";
WHEREAS, prior to the date hereof, the name of Xxxxx Series, Inc. was
Retirement Planning Funds of America, Inc. ("Previous Fund Name");
WHEREAS, the Fund issues series of stock in the names as listed on
Exhibit A attached to this Agreement ("Series Names");
WHEREAS, prior to the date hereof, the Series Names were as listed on
Exhibit B attached to this Agreement (Previous Series Names");
WHEREAS, the Fund is the owner of the name Xxxxx Series, Inc. (the
"Fund Name");
WHEREAS, the Fund is the owner of the Series Names;
WHEREAS, the Fund is the owner of the name Retirement Planning Funds of
America, Inc.;
WHEREAS, the Fund is the owner of the Previous Series Names; and
WHEREAS, DSA is the investment adviser to the Fund.
NOW THEREFORE in consideration of the foregoing and of the mutual
licenses and promises hereinafter set forth, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Ownership of the Adviser Name. Subject to the terms of this
Agreement, the Fund acknowledges DSA's exclusive right, title and interest in
and to the Adviser Name and any registration that has or may issue thereon, and
will not do or cause to be done any act or thing in any way contesting or
impairing or tending to impair any part of such title and interest. The Fund
shall not in any manner represent that it has any ownership in the Adviser Name
or registration thereof, and the Fund acknowledges that
use of the Adviser Name shall not create in the Fund's favor any right, title or
interest in or to the Adviser Name. All uses of the Adviser Name by the Fund
shall inure to the benefit of DSA.
2. Ownership of the Fund, Previous Fund, Series Names and Previous
Series Names.
(a) DSA acknowledges the Fund's exclusive right, title and interest in
and to the Fund Name, Previous Fund Name, Series Name and Previous Series Names
and any registration that has or may issue thereon, and will not do or cause to
be done any act or thing in any way contesting or impairing or tending to impair
any part of such title and interest. All uses of the Fund Name, Previous Fund
Name, Series Names and Previous Series Names by DSA shall inure to the benefit
of the Fund.
(b) During and after the term of this Agreement, in perpetuity, DSA or
a legal successor or entity which controls, is controlled by or is under common
control with, DSA, shall at no time advise, form, administer, act as the
principal underwriter of, sponsor, distribute, or be in the position of an
affiliated person (as defined in the Investment Company Act of 1940 (the "Act"))
to, without the Fund's prior written consent, any investment company which uses
in its name or the name of any series, any word, name or xxxx which is the same
as, similar to or likely to be confusing with the Fund Name, Previous Fund Name,
Series Names as listed on Exhibit A attached to this Agreement, or Previous
Series Names as listed on Exhibit B attached to this Agreement.
3. Future Names.
(a) Unless it is otherwise agreed to by the parties, any name of a new
series issued by the Fund after the date hereof shall be owned by the Fund. The
new series names shall be referred to in this Agreement as "New Series Names."
(b) All terms and conditions provided for the Series Names under this
Agreement shall apply to any New Series Names.
4. Unauthorized Use.
(a) The Fund agrees to notify DSA of any allegations of any
unauthorized use of the Adviser Name by others which come to the Fund's
attention. The Fund, at its sole cost and expense, may take all action necessary
in its own name and on behalf of DSA to protect the Adviser Name from
unauthorized use by others. If required by law, the Fund may name DSA as a party
plaintiff to suits filed by the Fund under this paragraph. However, at its
election, DSA may take and bring such actions.
(b) DSA agrees to notify the Fund of any allegations of any
unauthorized use of the Fund Name, Previous Fund Name, any one of the Series
Names, or any one of the Previous Series Names by others which comes to DSA's
attention. DSA, at its sole cost and expense, may take all action necessary in
its own name and on behalf of the Fund to
protect the Fund Name, Previous Fund Name, Series Names and Previous Series
Names from unauthorized use by others. If required by law, DSA may name the Fund
as a party plaintiff to suits filed by DSA under this paragraph. However, at its
election, the Fund may take and bring such actions.
5. Representation and Warranty. Each party represents and warrants to
the other that such party has taken all required corporate action to authorize
the execution and performance of this Agreement.
6. Term.
(a) This Agreement shall continue in full force and effect until the
date DSA or a legal successor or entity which controls, is controlled by or is
under common control with DSA, is no longer the investment adviser to the Fund.
At such time this Agreement shall terminate.
(b) Upon the termination of this Agreement, DSA will, within a time
period that is practicable, change its name and the names of its series so that
the Fund Name and the Series Names no longer contain the Xxxxx name.
7. No Joint Venture. Nothing herein contained shall be construed to
create a partnership, joint venture, joint enterprise, joint arrangement or
profit sharing plan between the parties, and the Fund shall have no power to
obligate or bind DSA in any manner whatsoever.
8. Governing Law. It is agreed that this Agreement shall be interpreted
according to the laws of the State of New Mexico and the laws of the United
States of America.
9. Assignment. This Agreement shall not be assigned by either party
without the other party's prior written consent.
10. Survival. Sections 1, 2 and 3 of this Agreement shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first set forth above.
XXXXX SELECTED ADVISERS, X.X. XXXXX SERIES, INC.
By: Venture Advisers, Inc.
By: /s/ Xxxxxxx Xxxxxxx
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By: /s/ Xxxx Xxxx Its: [vice president]
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Its: [president]
EXHIBIT A
XXXXX GROWTH OPPORTUNITY FUND
XXXXX FINANCIAL FUND
XXXXX GOVERNMENT BOND FUND
XXXXX REAL ESTATE FUND
XXXXX CONVERTIBLE SECURITIES FUND
XXXXX GOVERNMENT MONEY MARKET FUND
EXHIBIT B
GROWTH FUND
BOND FUND
REAL ESTATE SECURITIES FUND
FINANCIAL VALUE FUND
