Exhibit 8(a)(2)
AMENDED AND RESTATED
TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY AND
SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT, made as of October 1, 2000, by and between Xxxxxxx Xxxxx
Focus Value Fund, Inc. (formerly known as Xxxxxxx Xxxxx Phoenix Fund, Inc.), a
Maryland corporation (the "Corporation"), on behalf of itself and Xxxxxxx Xxxxx
Focus Value Fund (formerly known as Xxxxxxx Xxxxx Phoenix Fund) (the "Fund"),
and FINANCIAL DATA SERVICES, INC., a Florida corporation ("FDS").
WITNESSETH:
WHEREAS, the Corporation and FDS desire to amend and restate the Transfer
Agent, Dividend Disbursing Agent and Shareholder Servicing Agency Agreement
previously executed by the parties in order to reflect the change of name for
the Corporation and the Fund subject to, the terms and provisions of this
Agreement;
NOW, THEREFORE, in consideration of mutual covenants contained in this
Agreement, the Corporation and FDS agree as follows:
1. Appointment of FDS as Transfer Agent, Dividend Disbursing Agent and
Shareholder Servicing Agent.
(a) The Corporation hereby appoints FDS to act as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund upon, and subject
to, the terms and provisions of this Agreement.
(b) FDS hereby accepts the appointment as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund, and agrees to act
as such upon, and subject to, the terms and provisions of this Agreement.
2. Definitions.
(a) In this Agreement:
(I) The term "Act" means the investment Company Act of 1940 as
amended from time to time and any rule or regulation thereunder;
(II) The term "Account" means any account of a Shareholder, as
defined below, or if the shares are held in an account in the name of a
Broker-Dealer, as defined below, for the benefit of an identified person, such
account, including a Plan Account, any account under a plan (by whatever name
referred to in the Prospectus) pursuant to the Self-Employed Individuals
Retirement Act of 1962 ("Xxxxx Act Plan") and any account under a plan (by
whatever name referred to in the Prospectus) pursuant to ss.401(k) of the
Internal Revenue Code ("Corporation Master Plan");
(III) The term "application" means an application made by a
Shareholder or prospective Shareholder respecting the opening of an Account;
(IV) The term "Fund Distributor" means FAM Distributor, Inc., a
Delaware corporation;
(V) The term "Broker-Dealer" means a registered broker-dealer that
sells shares of the Fund pursuant to a selected dealer's agreement with the Fund
Distributor;
(VI) The term "Officer's Instruction" means an instruction in
writing given on behalf of a Fund to FDS, and signed on behalf of the Fund by
the President, any Vice President, the Secretary or the Treasurer of the
Corporation;
(VII) The term "Plan Account" means an account opened by a
Shareholder or prospective Shareholder in respect to an open account, monthly
payment or withdrawal plan (in each case by whatever name referred to in the
Prospectus), and may also include an account relating to any other plan if and
when provision is made for such plan in the Prospectus;
(VIII) The term "Prospectus" means the Prospectus and the Statement
of Additional Information of the relevant Fund as from time to time in effect;
(IX) The term "Shareholder" means a holder of record of Shares;
(X) The term "Shares" means shares of stock of the Corporation
irrespective of class or series.
2
3. Duties of FDS as Transfer Agent, Dividend Disbursing Agent and
Shareholder Servicing Agent.
(a) Subject to the succeeding provisions of the Agreement, FDS hereby
agrees to perform the following functions as Transfer Agent, Dividend Disbursing
Agent and Shareholder Servicing Agent for the Fund:
(I) Issuing, transferring and redeeming Shares;
(II) Opening, maintaining, servicing and closing Accounts;
(III) Acting as agent for the Fund's Shareholders and/or customers
of a Broker-Dealer in connection with Plan Accounts, upon the terms and subject
to the conditions contained in the Prospectus and application relating to the
specific Plan Account;
(IV) Acting as agent of the Fund and/or a Broker-Dealer, maintaining
such records as may permit the imposition of such contingent deferred sales
charges as may be described in the Prospectus, including such reports as may be
reasonably requested by the Corporation with respect to such Shares as may be
subject to a contingent deferred sales charge;
(V) Upon the redemption of Shares subject to such a contingent
deferred sales charge, calculating and deducting from the redemption proceeds
thereof the amount of such charge in the manner set forth in the Prospectus. FDS
shall pay, on behalf of the Fund's Distributor, to a Broker-Dealer such deducted
contingent deferred sales charges imposed upon all Shares maintained in the name
of that Broker-Dealer, or maintained in the name of an account identified as a
customer account of that Broker-Dealer, Sales charges imposed upon any other
Shares shall be paid by FDS to the Fund Distributor;
(VI) Exchanging the investment of a Shareholder into, or from, the
shares of other open-end investment companies or other series portfolios of the
Corporation, if any, if and to the extent permitted by the Prospectus at the
direction of such Shareholder;
(VII) Processing redemptions;
(VIII) Examining and approving legal transfers;
(IX) Furnishing such confirmations of transactions relating to their
Shares as required by applicable law;
3
(X) Acting as agent for the Corporation with respect to furnishing
each Shareholder such appropriate periodic statements relating to Accounts,
together with additional enclosures, including appropriate income tax
information and income tax forms duly completed, as required by applicable law,
as well as furnishing such information to each Broker-Dealer to enable the
Broker-Dealer to provide such information to its customers;
(XI) Acting as agent for the Corporation with respect to mailing
annual and semi-annual reports prepared by or on behalf of the Fund, and mailing
new Prospectuses upon their issue to each Shareholder as required by applicable
law as well as causing such materials to be mailed to each Broker-Dealer to
enable the Broker-Dealer to deliver such materials to its customers;
(XII) Furnishing such periodic statements of transactions effected
by FDS, reconciliations, balances and summaries as the Fund may reasonably
request;
(XIII) Maintaining such books and records relating to transactions
effected by FDS as are required by the Act, or by any other applicable provision
of law, rule or regulation, to be maintained by the Corporation or its transfer
agent with respect to such transactions, and preserving, or causing to be
preserved, any such books and records for such periods as may be required by any
such law, rule or regulation acid as may be agreed upon from time to time
between FDS and the Corporation. In addition, FDS agrees to maintain and
preserve master files and historical computer tapes on a daily basis in multiple
separate locations a sufficient distance apart to ensure preservation of at
least one copy of such information;
(XIV) Withholding taxes on non-resident alien Accounts, preparing
and filing U.S. Treasury Department Form 1099 and other appropriate forms as
required by applicable law with respect to dividends and distributions; and
(XV) Reinvesting dividends for full and fractional Shares and
disbursing cash dividends, as applicable, pursuant to instructions received from
the Shareholder at the time an Account is established.
(b) FDS agrees to act as proxy agent in connection with the holding of
annual, if any, and special meetings of Shareholders, mailing such notices,
proxies and proxy statements in
4
connection with the holding of such meetings as may be required by applicable
law, receiving and tabulating votes cast by proxy and communicating to the
Corporation the results of such tabulation accompanied by appropriate
certificates, and preparing and furnishing to the Corporation certified lists of
Shareholders as of such date, in such form and containing such information as
may be required by the Corporation.
(c) FDS agrees to deal with, and answer in a timely manner, all
correspondence and inquiries relating to the functions of FDS under this
Agreement with respect to Accounts.
(d) FDS agrees to furnish to the Corporation such information and at such
intervals as is necessary for the Fund to comply with the registration and/or
the reporting requirements (including applicable escheat Laws) of the Securities
and Exchange Commission, Blue Sky authorities or other governmental authorities.
(e) FDS agrees to provide to the Corporation such information as may
reasonably be required to enable the Fund to reconcile the number of outstanding
Shares between FDS' records and the account books of the Corporation.
(f) Notwithstanding anything in the foregoing provisions of this
paragraph, FDS agrees to perform its functions thereunder subject to such
modification (whether in respect of particular cases or in any particular class
of cases) as may from time to time be agreed in a writing signed by both
parties.
4 Compensation.
(a) The Corporation agrees to pay FDS the fees and charges, as well as
FDS' out of pocket costs, for services described in this Agreement as set forth
in the Schedule of Fees attached hereto.
5. Right of Inspection.
(a) FDS agrees that it will, in a timely manner, make available to, and
permit, any officer, accountant, attorney or authorized agent of the Corporation
to examine and make transcripts and copies (including photocopies and computer
or other electronical information storage media and print-outs) of any and all
of its books and records which relate to any transaction or function performed
by FDS under or pursuant to this Agreement.
5
6. Confidential Relationship.
(a) FDS agrees that it will, on behalf of its officers and employees,
treat all transactions contemplated by this Agreement, and all information
germane thereto, as confidential and not to be disclosed to any person (other
than the Shareholder concerned, or the Corporation, or as may be disclosed in
the examination of any books or records by any person lawfully entitled to
examine the same) except as may be authorized by the Corporation by way of an
Officer's instruction.
7. Indemnification.
(a) The Corporation shall indemnify and hold FDS harmless from any loss,
costs, damage and reasonable expenses, including reasonable attorney's fees
(provided that such attorney is appointed with the Corporation's consent, which
consent shall not be unreasonably withheld) incurred by it resulting from any
claim, demand, action or suit in connection with the performance of its duties
hereunder, provided that this indemnification shall not apply to actions or
omissions of FDS in cases of willful misconduct, failure to act in good faith or
negligence by FDS, its officers, employees or agents, and further provided that
prior to confessing any claim against it which may be subject to this
indemnification, FDS shall give the Corporation reasonable opportunity to defend
against said claim in its own name or in the name of FDS. An action taken by FDS
upon any Officer's Instruction reasonably believed by it to have been properly
executed shall not constitute willful misconduct, failure to act in good faith
or negligence under this Agreement.
8. Regarding FDS.
(a) FDS hereby agrees to hire, purchase, develop and maintain such
dedicated personnel, facilities, equipment, software, resources and capabilities
as both parties may mutually determine to be reasonably necessary for the
satisfactory performance of the duties and responsibilities of FDS. FDS warrants
and represents that its officers and supervisory personnel charged with carrying
out its functions as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent for the Corporation possess the special skill and technical
knowledge appropriate for that purpose. FDS shall at all times exercise due care
and diligence in
6
the performance of its functions as Transfer Agent, Dividend Disbursing Agent
and Shareholder Servicing Agent for the Corporation. FDS agrees that, in
determining whether it has exercised due care and diligence, its conduct shall
be measured by the standard applicable to persons possessing such special skill
and technical knowledge.
(b) FDS warrants and represents that it is duly authorized and permitted
to act as Transfer Agent, Dividend Disbursing Agent and Shareholder Servicing
Agent under all applicable laws and that it will immediately notify the
Corporation of any revocation of such authority or permission or of the
commencement of any proceeding or other action which may lead to such
revocation.
9. Termination.
(a) This Agreement shall become effective as of the date first above
written and shall remain in force for two years thereafter and shall thereafter
continue from year to year. This Agreement may be terminated by the Corporation
or FDS (without penalty to the Corporation or FDS) provided that the terminating
party gives the other party written notice of such termination at least sixty
(60) days in advance, except that the Corporation may terminate this Agreement
immediately upon written notice to FDS if the authority or permission of FDS to
act as Transfer Agent, Dividend Disbursing Agent and Shareholder Servicing Agent
has been revoked or if any proceeding or other action which the Corporation
reasonably believes will lead to such revocation has been commenced.
(b) Upon termination of this Agreement, FDS shall deliver all Shareholder
records, books, stock ledgers, instruments and other documents (including
computerized or other electronically stored information) made or accumulated in
the performance of its duties as Transfer Agent, Disbursing Agent and
Shareholder Servicing Agent for the Corporation along with a certified locator
document clearly indicating the complete contents therein, to such successor as
may be specified in a notice of termination or Officer's Instruction; and the
Corporation assumes all responsibility for failure thereafter to produce any
paper, record or document so delivered and identified in the locator document,
if and when required to be produced.
7
10. Amendment.
(a) Except to the extent that the performance by FDS or its functions
under this Agreement may from time to time be modified by an Officer's
Instruction, this Agreement may be amended or modified only by further written
agreement between the parties.
11. Governing Law.
(a) This Agreement shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers and their respective
corporate seals hereunto duly affixed and attested, as of the day and year above
written.
XXXXXXX XXXXX FOCUS VALUE FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
8
Schedule of Fees
The Corporation will pay to FDS:
1. For all accounts other than those detailed below an annual fee of $11.00
per Class A and Class D Shareholder Account and $14.00 per Class B and
Class C Shareholder Account. Additionally, a $.20 monthly closed account
charge will be assessed to all accounts which close during the calendar
year. Application of this fee will commence the month following the month
the account is closed. At the end of the calendar year, the closed account
fee will be waived.
2. For ERISA accounts held in the MFA program or any other program requiring
equalization under ERISA, the Corporation will pay an annual fee equal to
10 basis points on the net assets in these accounts instead of the per
account charge.
3. For "Large" and "Mid" market employee benefit plan accounts, the
Corporation will pay an annual fee of $11.00 per Class A end Class D
Shareholder Account and $14.00 per Class B and Class C Shareholder Account
plus $1.00 per transaction.
4. For "Small" market employee benefit plans, the Corporation will pay per
each Shareholder Account based on the following schedule:
--------------------------------------------------------------------------------
Account Size Base Fee Transactions
--------------------------------------------------------------------------------
< $1,000 $ 7.00 $0.00
--------------------------------------------------------------------------------
$1,000 < $2,500 $11.00 $0.00
--------------------------------------------------------------------------------
> $2,500 $11.00 $1.00
--------------------------------------------------------------------------------
In addition, the Corporation shall reimburse FDS for the following out-of-pocket
expenses incurred by FDS pursuant to this Agreement:
o Postage
o Envelopes/stationery
o Record storage and retrieval
o Telephone (local and long distance)
o Pre-authorized checks
o Returned check fees/charges and other similar fees/charges
o Handling costs (ADP or other similar vendor)
o Fed wire charges (excluding wires to/from the Fund's custody
accounts)
o Forms
o Any other costs agreed in writing by the parties
9
