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EXHIBIT (e)
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RESTATED AGREEMENT
FOR
DISTRIBUTION REINVESTMENT PLAN AND
CASH PURCHASE PLAN
FOR SHAREHOLDERS OF COMMON STOCK
OF
THE XXXXX FUND, INC.
AND
THE XXXXX TOTAL RETURN FUND, INC.
AGREEMENT dated as of September 1, 1997, by and among THE XXXXX FUND, INC. and
THE XXXXX TOTAL RETURN FUND, INC., each of which is a Maryland corporation
(hereinafter singularly or collectively referred to as the "Fund"), State Street
Bank & Trust Company (the "Agent" or "Plan Agent"), and shareholders of the Fund
(the "Participants") in the Distribution Reinvestment Plan and Cash Purchase
Plan (the "Plan") provided hereunder.
WHEREAS, each Fund wishes to provide the Plan for the benefit of its
shareholders; and
WHEREAS, the Agent wishes to act as agent for the Plan;
NOW, THEREFORE, the parties agree that the terms and conditions of the
Plan shall be as set forth on Exhibit A hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the date first set forth above.
THE XXXXX FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
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President
THE XXXXX TOTAL RETURN FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
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President
STATE STREET BANK & TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Vice President and Senior Counsel
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THE XXXXX FUND, INC. AND
THE XXXXX TOTAL RETURN FUND, INC.
TERMS AND CONDITIONS OF DISTRIBUTION REINVESTMENT PLAN
AND CASH PURCHASE PLAN
1. Each holder of shares (a "Shareholder") of common stock in The Xxxxx
Fund, Inc. and The Xxxxx Total Return Fund, Inc. (the "Fund") whose Fund shares
are registered in his or her own name will automatically be a participant
("Participant") in the Distribution Reinvestment Plan and Cash Purchase Plan
(the "Plan"), unless any such Shareholder specifically elects to receive all
distributions in cash paid by check mailed directly to the Shareholder. A
Shareholder whose shares are registered in the name of a broker-dealer or other
nominee (the "Nominee") will be a Participant if (a) such a service is provided
by the Nominee and (b) the Nominee makes such an election on behalf of the
Shareholder to participate in the Plan. State Street Bank & Trust Company (the
"Agent" or "Plan Agent") will act as agent for Participants and will open an
account under the Plan for each Participant in the same name as such
Participant's common stock is registered on the books and records of the
transfer agent for the common stock.
2. Whenever the Fund declares a distribution payable in shares of
common stock or cash, Participants will receive such distribution in the manner
described in paragraph 3 below as determined on the record date for such
distribution.
3. Whenever the market price of the Fund's common stock is equal to or
exceeds net asset value per share at the time shares of common stock are valued
for the purpose of determining the number of shares equivalent to the
distribution, Participants will be issued shares of common stock valued at the
greater of (i) net asset value per share or (ii) 95% of the then current market
price. Participants will receive any such distribution entirely in shares of
common stock, and the Agent shall automatically receive such shares of common
stock, including fractions, for all Participants' accounts. If net asset value
per share of the common stock at the time of valuation exceeds the market price
of the common stock at such time, or if the Fund should declare a distribution
payable only in cash, the Agent will, as purchasing agent for the Participants,
buy shares of common stock in the open market, on the New York Stock Exchange (
the "Exchange") or elsewhere, for each Participant's account. If, following the
commencement of such purchases and before the Plan Agent has completed its
purchases the market price exceeds the net asset value of the shares of common
stock, the Plan Agent is permitted to cease purchasing shares on the open market
and the Fund may issue the remaining shares at a price equal to the greater of
(a) net asset value or (b) 95% of the then current market price. In the case
where the Plan Agent has terminated open market purchases and the Fund has
issued the remaining shares, the number of shares received by the Participant in
respect of the cash dividend or distribution will be based on the weighted
average of prices paid for shares purchased in the open market and the price at
which the Fund issued the remaining shares.
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If the record date for a distribution precedes the ex-date for such distribution
(which generally occurs in connection with the Fund's final distribution for the
calendar year), the determination of whether new Shares will be issued by the
Fund or whether the Agent will buy Fund shares in the open market will be made
on the basis of the closing market price for the shares of the Fund's common
stock on the ex-date for such distribution.
The Agent will apply all cash received as a distribution to purchase shares of
common stock on the open market as soon as practicable after the record date of
such distribution, but in no event later than 30 days after such date, except
where necessary to comply with the applicable provisions of the federal
securities law.
4. For all purposes of the plan: (a) the market price of the Fund's
common stock on a particular date shall be the last sale price on the Exchange
at the close of the previous trading day or, if there is no sale on the Exchange
on that date, then the mean between the closing bid and asked quotations for
such stock on the Exchange on such date and (b) net asset value per share of
common stock on a particular date shall be as determined by or on behalf of the
Fund.
5. Participants in the Plan may make additional cash payments on a
monthly basis of at least $100 but not more than $3000 for investment in the
Fund. Such voluntary cash payments received by the Agent will be applied by the
Agent to purchase additional Shares on the open market on or about the
investment date following the Agent's receipt of the voluntary cash payment. The
investment dates will be the fifteenth day of each month (or the closest
business day if a weekend or holiday). Such Shares will be purchased on the open
market. Participants have an unconditional right to obtain the return of any
voluntary cash payments if the Agent receives written notice at least 48 hours
prior to such investment date. In the event that any cash payment is received or
processed too late to be applied toward a purchase for the current month's
investment date, it will be applied to a purchase for the next month's
investment date. Participants will not receive interest on voluntary cash
payments held by the Agent pending investment.
6. The open market purchases provided for above may be made on any
securities exchange where the shares of common stock of the Fund are traded, in
the over-the-counter market or in negotiated transactions, and may be on such
terms as to price, delivery and otherwise as the Agent shall determine. Funds
held by the Agent uninvested will not bear interest, and it is understood that,
in any event, the Agent shall have no liability in connection with any inability
to purchase shares of common stock within 30 days after the initial date of such
purchase as herein provided, or with the timing of any purchases effected. The
Agent shall have no responsibility as to the value of the shares of common stock
of the Fund acquired for any Participant's account.
7. The Agent will hold shares of common stock acquired pursuant to the
Plan in noncertificated form in the Agent's name or that of its Nominee. The
Agent will forward to each Participant any proxy solicitation material and will
vote any shares of common stock so held for each Participant only in accordance
with the proxy returned by any such Participant
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to the Fund. Upon any Participant's written request, the Agent will deliver to
her or him, without charge, a certificate or certificates for the full shares of
common stock.
8. The Agent will confirm to each Participant acquisitions made for its
account as soon as practicable but not later than 60 days after the date
thereof. Although a Participant may from time to time have an undivided
fractional interest (computed to three decimal places) in a share of common
stock of the Fund, no certificates for a fractional share will be issued.
However, distributions on fractional shares of common stock will be credited to
Participants' accounts.
9. Any stock dividends or split shares distributed by the Fund on
shares of common stock held by the Agent for any Participant will be credited to
such Participant's account. In the event that the Fund makes available to
Participants rights to purchase additional shares of common stock or other
securities, then to the extent that such rights are transferable, the Agent will
sell such rights and apply the proceeds of the sale to the purchase of
additional shares of common stock of the Fund for the account of Participants.
10. The Agent's service fee for investing distributions will be paid by
the Fund. Participants will be charged a pro rata share of brokerage commissions
on all open market purchases.
11. Any Participant may terminate such Participant's account under the
Plan by notifying the Agent in writing. Such termination will be effective
immediately if notice is received by the Agent not less than 10 business days
prior to any distribution record date; otherwise, such termination will be
effective with respect to any subsequent distribution, no more than five trading
days after the distributions paid for such record date have been credited to the
Participant's account. The Plan may be terminated by the Fund or the Agent with
the Fund's prior written consent, upon notice in writing mailed to each
Participant at least 90 days prior to any record date for the payment of any
distribution by the Fund. Upon any termination, the Agent will cause to be
delivered to each Participant a certificate or certificates for the appropriate
number of full shares and a cash adjustment for any fractional share held for
each such Participant under the Plan. Anytime the Participant elects by notice
to the Agent in writing in advance of such termination to have the Agent sell
part or all shares and remit the proceeds to it, the Agent is authorized to
deduct brokerage commissions for this transaction from the proceeds.
12. These terms and conditions may be amended or supplemented by the
Fund or the Agent with the Fund's and Agent's prior written consent, at any time
or times but, except when necessary or appropriate to comply with applicable law
or the rules or policies of the Securities and Exchange Commission or any other
regulatory authority, only by mailing to each Participant appropriate written
notice at least 90 days prior to the effective date thereof. The amendment or
supplement shall be deemed to be accepted by each Participant unless, with
respect to any such Participant, prior to the effective date thereof, the Agent
receives written notice of the termination of the Participant's account under
the Plan. Any such amendment may include an appointment by the Agent in its
place and stead of a successor Agent under these terms and conditions, with full
power and authority to
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perform all or any of the acts to be performed by the Agent under these terms
and conditions. Upon any such appointment of a successor Agent for the purpose
of receiving distributions, the Fund will be authorized to pay to such successor
Agent, for Participants' accounts, all distributions payable on the shares of
common stock held in each Participant's name or under the Plan for retention or
application by such successor Agent as provided in these terms and conditions.
13. The Agent shall at all times act in good faith and agree to use its
best efforts within reasonable limits to ensure the accuracy of all services
performed under this Agreement to comply with applicable law, but assumes no
responsibility and shall not be liable for loss or damage due to errors unless
such error is caused by its or its employees' negligence, bad faith or willful
misconduct.
14. The Participant shall have no right to draw checks or drafts
against such Participant's Account or to give instructions to the Plan Agent in
respect of any shares or cash held therein except as expressly provided herein.
15. The Participant agrees to notify the Plan Agent promptly in writing
of any change of address. Notices to the Participant may be given by the Agent
by letter addressed to the Participant as shown on the records of the Agent.
16. This Agreement and the account established hereunder for the
Participant shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts and the Rules and Regulations of the
Securities and Exchange Commission, as they may be changed or amended from time
to time.
17. The Plan Agent may use its affiliates and/or affiliates of the
Fund's investment adviser for all trading activity relative to the Plan on
behalf of Plan Participants. Such affiliates will receive a commission in
connection with such trading transactions.
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