Exhibit 9(a)5
AGENCY AGREEMENT
(Corporate Form)
AGREEMENT dated the 16th day of April, 1998, by and between Xxxxxxx
Global Fund, Inc., a Maryland corporation (the "Company") on behalf of Global
Discovery Fund, a series of the Company (the "Fund"), and XXXXXX SERVICE
COMPANY, a Delaware corporation ("Service Company").
WHEREAS, Company wants to appoint Service Company as Transfer Agent and
Dividend Disbursing Agent, on behalf of Class A shares, Class B shares and Class
C shares of the Fund, and Service Company wants to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
In connection with the appointment of Service Company as
Transfer Agent and Dividend Disbursing Agent for Fund, there
will be filed with Service Company the following documents:
A. A certified copy of the resolutions of the Board of
Directors of the Company appointing Service Company
as Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating
certain persons to give written instructions and
requests on behalf of the Fund.
B. A certified copy of the Charter of the Company and
any amendments thereto.
C. A certified copy of the Bylaws of the Company.
D. Copies of Registration Statements filed with the
Securities and Exchange Commission.
E. Specimens of all forms of outstanding share
certificates for the Fund as approved by the Board of
Directors of the Company, with a certificate of the
Secretary of the Company as to such approval.
F. Specimens of the signatures of the officers of the
Company authorized to sign share certificates and
individuals authorized to sign written instructions
and requests on behalf of the Fund.
G. An opinion of counsel for the Company:
(1) With respect to Company's organization and
existence under the laws of the State of
Maryland.
(2) With respect to the status of all shares of
Fund covered by this appointment under the
Securities Act of 1933, and any other
applicable federal or state statute.
(3) To the effect that all issued Fund shares of
the Fund are, and all unissued shares of the
Fund will be when issued, validly issued,
fully paid and non-assessable.
2. Certain Representations and Warranties of Service Company.
Service Company represents and warrants to the Company that:
A. It is a corporation duly organized and existing and
in good standing under the laws of the State of
Delaware.
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
Certificate of Incorporation and Bylaws to enter into
and perform the services contemplated in this
Agreement.
D. All requisite corporate action has 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.
F. It is, and will continue to be, registered as a
transfer agent under the Securities Exchange Act of
1934, as amended.
3. Certain Representations and Warranties of the Company. The
Company represents and warrants to Service Company that:
A. It is a corporation duly organized and existing and
in good standing under the laws of the State of
Maryland.
B. It is an investment company registered under the
Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of
1933 has been filed and will be effective with
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respect to all shares of the Fund being offered for
sale at any time and from time to time.
D. All requisite steps have been or will be taken to
register the Fund's shares for sale in all applicable
states, including the District of Columbia.
E. The Company and its Directors are empowered under
applicable laws and by the Company's Charter and
Bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this
Agreement, the Company, on behalf of the Fund, hereby
employs and appoints Service Company as Transfer
Agent and Dividend Disbursing Agent of the Fund
effective the date hereof.
B. Service Company hereby accepts such employment and
appointment and agrees that it will act as the Fund's
Transfer Agent and Dividend Disbursing Agent. Service
Company agrees that it will also act as agent in
connection with the Fund's periodic withdrawal
payment accounts and other open-account or similar
plans for stockholders, if any.
C. Service Company agrees to provide the necessary
facilities, equipment and personnel to perform its
duties and obligations hereunder in accordance with
industry practice.
D. The Company, on behalf of the Fund, agrees to use all
reasonable efforts to deliver to Service Company in
Kansas City, Missouri, as soon as they are available,
all its Fund stockholder account records.
E. Subject to the provisions of Sections 20 and 21
hereof, Service Company agrees that it will perform
all the usual and ordinary services of Transfer Agent
and Dividend Disbursing Agent and as agent for the
various stockholder accounts, including, without
limitation, the following: issuing, transferring and
canceling share certificates, maintaining all
stockholder accounts, preparing stockholder meeting
lists, mailing proxies, receiving and tabulating
proxies, mailing stockholder reports and
prospectuses, withholding federal income taxes,
preparing and mailing checks for disbursement of
income and capital gains dividends, preparing and
filing all
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required U.S. Treasury Department information returns
for all stockholders, preparing and mailing
confirmation forms to stockholders and dealers with
respect to all purchases and liquidations of the Fund
shares and other transactions in stockholder accounts
for which confirmations are required, recording
reinvestments of 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 systematic
withdrawal plan stockholders.
5. Compensation and Expenses.
A. In consideration for the services provided hereunder
by Service Company as Transfer Agent and Dividend
Disbursing Agent, the Company, on behalf of the Fund,
will pay to Service Company from time to time
compensation as agreed upon in writing by the parties
for all services rendered as Agent, and also, all its
reasonable out-of-pocket expenses and other
disbursements incurred in connection with the agency,
as described in Section 5.B below. Such compensation
will be set forth in a separate schedule to be agreed
to by the Company and Service Company. The initial
agreement regarding compensation is attached as
Exhibit A.
B. The Company, on behalf of the Fund, agrees to
promptly reimburse Service Company for all reasonable
out-of-pocket expenses or advances incurred by
Service Company in connection with the performance of
services under this Agreement including, but not
limited to, postage (and first class mail insurance
in connection with mailing share certificates),
envelopes, check forms, continuous forms, forms for
reports and statements, stationery, and other similar
items, telephone and telegraph charges incurred in
answering inquiries from dealers or stockholders,
microfilm used each year to record the previous
year's transactions in stockholder accounts and
computer tapes used for permanent storage of records
and cost of insertion of materials in mailing
envelopes by outside firms. Service Company may, at
its option, arrange to have various service providers
submit invoices directly to the Fund for payment of
out-of-pocket expenses reimbursable hereunder.
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6. Efficient Operation of Service Company System.
A. In connection with the performance of its services
under this Agreement, Service Company is responsible
for the accurate and efficient functioning of its
system at all times, including without limitation:
(1) The accuracy of the entries in Service
Company's records reflecting purchase and
redemption orders and other instructions
received by Service Company from dealers,
stockholders, the Company or its principal
underwriter.
(2) The timely availability and the accuracy of
stockholder lists, stockholder account
verifications, confirmations and other
stockholder account information to be
produced from Service Company's records or
data.
(3) The accurate and timely issuance of dividend
and distribution checks in accordance with
instructions received from the Company.
(4) The accuracy of redemption transactions and
payments in accordance with redemption
instructions received from dealers,
stockholders or the Company or other
authorized persons.
(5) The deposit daily in the Company's
appropriate special bank account for the
Fund of all checks and payments received
from dealers or stockholders for investment
in shares.
(6) The requiring of proper forms of
instructions, signatures and signature
guarantees and any necessary documents
supporting the rightfulness of transfers,
redemptions and other stockholder account
transactions, all in conformance with
Service Company's present procedures with
such changes as may be deemed reasonably
appropriate by Service Company or as may be
reasonably approved by or on behalf of the
Company.
(7) The maintenance of a current duplicate set
of the Fund's essential or required records,
as agreed upon from time to time by the
Company
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and Service Company, at a secure distant
location, in form available and usable
forthwith in the event of any breakdown or
disaster disrupting its main operation.
7. Indemnification.
A. The Company, on behalf of the Fund, shall indemnify
and hold Service Company harmless from and against
any and all claims, actions, suits, losses, damages,
costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to any
action or omission by Service Company pursuant to
this Agreement or in connection with the agency
relationship created by this Agreement, provided that
Service Company has acted in good faith, without
negligence and without willful misconduct.
B. Service Company shall indemnify and hold the Company
harmless from and against any and all claims,
actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or
omission by Service Company pursuant to this
Agreement or in connection with the agency
relationship created by this Agreement, provided that
Service Company has not acted in good faith, without
negligence and without willful misconduct.
C. In order that the indemnification provisions
contained in this Section 7 shall apply, upon the
assertion of a claim for which either party (the
"Indemnifying Party") may be required to provide
indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly
notify the Indemnifying Party of such assertion, and
shall keep such party advised with respect to all
developments concerning such claim. The Indemnifying
Party shall be entitled to assume control of the
defense and the negotiations, if any, regarding
settlement of the claim. If the Indemnifying Party
assumes control, the Indemnitee shall have the option
to participate in the defense and negotiations of
such claim at its own expense. The Indemnitee shall
in no event confess, admit to, compromise, or settle
any claim for which the Indemnifying Party may be
required to indemnify it except with the prior
written consent of the Indemnifying Party, which
shall not be unreasonably withheld.
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8. Certain Covenants of Service Company and the Company.
A. All requisite steps will be taken by the Company, on
behalf of the Fund, from time to time when and as
necessary to register the Fund's shares for sale in
all states in which the Fund's shares shall at the
time be offered for sale and require registration. If
at any time Company receives notice of any stop order
or other proceeding in any such state affecting such
registration or the sale of the Fund's shares, or of
any stop order or other proceeding under the Federal
securities laws affecting the sale of the Fund's
shares, the Company will give prompt notice thereof
to Service Company.
B. Service Company hereby agrees to establish and
maintain facilities and procedures reasonably
acceptable to the Company for safekeeping of share
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. Further, Service
Company agrees to carry insurance, as specified in
Exhibit B hereto, with insurers reasonably acceptable
to the Company and in minimum amounts that are
reasonably acceptable to the Company, which will not
be changed without the consent of the Company, which
consent shall not be unreasonably withheld, and which
will be expanded in coverage or increased in amounts
from time to time if and when reasonably requested by
the Company. If Service Company determines that it is
unable to obtain any such insurance upon commercially
reasonable terms, it shall promptly so advise the
Company in writing. In such event, the Company shall
have the right to terminate this Agreement upon 30
days notice.
C. To the extent required by Section 31 of the
Investment Company Act of 1940 and Rules thereunder,
Service Company agrees that all records maintained by
Service Company relating to the services to be
performed by Service Company under this Agreement are
the property of the Company and will be preserved,
maintained and made available in accordance with such
section and rules, and will be surrendered promptly
to the Company on request.
D. Service Company agrees to furnish the Company
semi-annual reports of the Fund's financial
condition, consisting of a balance sheet, earnings
statement and any other reasonably available
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financial information reasonably requested by the
Company. The annual financial statements of the Fund
will be certified by Service Company's certified
public accountants.
E. Service Company represents and agrees that it will
use all reasonable efforts to keep current on the
trends of the investment company industry relating to
stockholder services and will use all reasonable
efforts to continue to modernize and improve its
system without additional cost to the Company, on
behalf of the Fund.
F. Service Company will permit the Company and its
authorized representatives to make periodic
inspections of its operations at reasonable times
during business hours.
G. If Service Company is prevented from complying,
either totally or in part, with any of the terms or
provisions of this Agreement, by reason of fire,
flood, storm, strike, lockout or other labor trouble,
riot, war, rebellion, accidents, acts of God,
equipment, utility or transmission failure or damage,
and/or any other cause or casualty beyond the
reasonable control of Service Company, whether
similar to the foregoing matters or not, then upon
written notice to the Company, the requirements of
this Agreement that are affected by such disability,
to the extent so affected, shall be suspended during
the period of such disability; provided, however,
that Service Company shall make reasonable effort to
remove such disability as soon as possible. During
such period, the Company may seek alternate sources
of service without liability hereunder; and Service
Company will use all reasonable efforts to assist the
Company to obtain alternate sources of service.
Service Company shall have no liability to the
Company for nonperformance because of the reasons set
forth in this Section 8.G; but if a disability that,
in the Company's reasonable belief, materially
affects Service Company's ability to perform its
obligations under this Agreement continues for a
period of 30 days, then the Company shall have the
right to terminate this Agreement upon 10 days
written notice to Service Company.
9. Adjustment.
In case of any recapitalization, readjustment or other change
in the structure of the Fund requiring a change in the form of
share certificates, Service Company will issue or register
certificates in the new form
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in exchange for, or in transfer of, the outstanding
certificates in the old form, upon receiving the following:
A. Written instructions from an officer of the Company.
B. Certified copy of any amendment to the Charter or
other document effecting the change.
C. Certified copy of any order or consent of each
governmental or regulatory authority required by law
for the issuance of the shares in the new form, and
an opinion of counsel that no order or consent of any
other government or regulatory authority is required.
D. Specimens of the new certificates in the form
approved by the Board of Directors of the Company,
with a certificate of the Secretary of the Company as
to such approval.
E. Opinion of counsel for the Company:
(1) With respect to the status of the shares of
the Fund in the new form under the
Securities Act of 1933, and any other
applicable federal or state laws.
(2) To the effect that the issued shares of the
Fund in the new form are, and all unissued
shares of the Fund will be when issued,
validly issued, fully paid and
non-assessable.
10. Share Certificates.
The Company, on behalf of the Fund will furnish Service
Company with a sufficient supply of blank share certificates
and from time to time will renew such supply upon the request
of Service Company. Such certificates will be signed manually
or by facsimile signatures of the officers of the Company
authorized by law and the Company's Bylaws to sign share
certificates and, if required, will bear the trust seal or
facsimile thereof.
11. Death, Resignation or Removal of Signing Officer.
The Company will file promptly with Service Company written
notice of any change in the officers authorized to sign share
certificates, written instructions or requests, together with
two signature cards bearing the specimen signature of each
newly authorized officer,
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all as certified by an appropriate officer of the Company. In
case any officer of the Company who will have signed manually
or whose facsimile signature will have been affixed to blank
share certificates will die, resign, or be removed prior to
the issuance of such certificates, Service Company may issue
or register such share certificates as the share certificates
of the Fund notwithstanding such death, resignation, or
removal, until specifically directed to the contrary by the
Company in writing. In the absence of such direction, the
Company will file promptly with Service Company such approval,
adoption, or ratification as may be required by law.
12. Future Amendments of Charter and Bylaws.
The Company will promptly file with Service Company copies of
all material amendments to its Charter and Bylaws and
Registration Statement made after the date of this Agreement.
13. Instructions, Opinion of Counsel and Signatures.
At any time Service Company may apply to any officer of the
Company for instructions, and may consult with legal counsel
for the Company at the expense of the Company, or with its own
legal counsel at its own expense, with respect to any matter
arising in connection with the agency; and it will not be
liable for any action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion of such
counsel. Service Company is authorized to act on the orders,
directions or instructions of such persons as the Board of
Directors of the Company shall from time to time designate by
resolution. Service Company will be protected in acting upon
any paper or document, including any orders, directions or
instructions, reasonably believed by it to be genuine and to
have been signed by the proper person or persons; and Service
Company will not be held to have notice of any change of
authority of any person so authorized by the Company until
receipt of written notice thereof from the Company. Service
Company will also be protected in recognizing share
certificates that it reasonably believes to bear the proper
manual or facsimile signatures of the officers of the Company,
and the proper countersignature of any former Transfer Agent
or Registrar, or of a Co-Transfer Agent or Co-Registrar.
14. Papers Subject to Approval of Counsel.
The acceptance by Service Company of its appointment as
Transfer Agent and Dividend Disbursing Agent, and all
documents filed in connection with such appointment and
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thereafter in connection with the agencies, will be subject to
the approval of legal counsel for Service Company, which
approval will not be unreasonably withheld.
15. Certification of Documents.
The required copy of the Charter of the Company and copies of
all amendments thereto will be certified by the appropriate
official of the State of Maryland; and if such Charter and
amendments are required by law to be also filed with a county,
city or other officer or official body, a certificate of such
filing will appear on the certified copy submitted to Service
Company. A copy of the order or consent of each governmental
or regulatory authority required by law for the issuance of
the Fund shares will be certified by the Secretary or Clerk of
such governmental or regulatory authority, under proper seal
of such authority. The copy of the Bylaws and copies of all
amendments thereto and copies of resolutions of the Board of
Directors of the Company will be certified by the Secretary or
an Assistant Secretary of the Fund.
16. Records.
Service Company will maintain customary records in connection
with its agency, and particularly will maintain those records
required to be maintained pursuant to sub-paragraph (2)(iv) of
paragraph (b) of Rule 31a-1 under the Investment Company Act
of 1940, if any.
17. Disposition of Books, Records and Canceled Certificates.
Service Company will send periodically to the Company, or to
where designated by the Secretary or an Assistant Secretary of
the Company, all books, documents, and all records no longer
deemed needed for current purposes and share certificates
which have been canceled in transfer or in exchange, upon the
understanding that such books, documents, records, and share
certificates will not be destroyed by the Company without the
consent of Service Company (which consent will not be
unreasonably withheld), but will be safely stored for possible
future reference.
18. Provisions Relating to Service Company as Transfer Agent.
A. Service Company will make original issues of share
certificates upon written request of an officer of
the Company and upon being furnished with a
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certified copy of a resolution of the Board of
Directors authorizing such original issue, an opinion
of counsel as outlined in Section 1.G or 9.E of this
Agreement, the certificates required by Section 10 of
this Agreement and any other documents required by
Section 1 or 9 of this Agreement.
B. Before making any original issue of certificates, the
Company, on behalf of the Fund, will furnish Service
Company with sufficient funds to pay any taxes
required on the original issue of the shares. Company
will furnish Service Company such evidence as may be
required by Service Company to show the actual value
of the shares. If no taxes are payable, Service
Company will upon request be furnished with an
opinion of outside counsel to that effect.
C. Shares will be transferred and new certificates
issued in transfer, or shares accepted for redemption
and funds remitted therefor, upon surrender of the
old certificates in form deemed by Service Company
properly endorsed for transfer or redemption
accompanied by such documents as Service Company may
deem necessary to evidence the authority of the
person making the transfer or redemption, and bearing
satisfactory evidence of the payment of any
applicable share transfer taxes. Service Company
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 guarantee of signature by such persons as
may from time to time be specified in the prospectus
related to such shares or otherwise authorized by the
Company. Service Company 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 it will incur no liability
for the refusal in good faith to make transfers or
redemptions which, in its judgment, are improper,
unauthorized, or otherwise not rightful. Service
Company may, in effecting transfers or redemptions,
rely upon Simplification Acts or other statutes which
protect it and the Company in not requiring complete
fiduciary documentation.
D. When mail is used for delivery of share certificates,
Service Company will forward share certificates in
"nonnegotiable" form as provided by the Company, on
behalf of the Fund, by first
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class mail, all such mail deliveries to be covered
while in transit to the addressee by insurance
arranged for by Service Company.
E. Service Company will issue and mail subscription
warrants and certificates provided by Company, on
behalf of the Fund, and representing share dividends,
exchanges or split-ups, or act as Conversion Agent
upon receiving written instructions from any officer
of the Company and such other documents as Service
Company deems necessary.
F. Service Company will issue, transfer, and split-up
certificates upon receiving written instructions from
an officer of the Company and such other documents as
Service Company may deem necessary.
G. Service Company may issue new certificates in place
of certificates represented to have been lost,
destroyed, stolen or otherwise wrongfully taken, upon
receiving indemnity satisfactory to Service Company,
and may issue new certificates in exchange for, and
upon surrender of, mutilated certificates. Any such
issuance shall be in accordance with the provisions
of law governing such matter and any procedures
adopted by the Board of Directors of the Company of
which Service Company has notice.
H. Service Company will supply a stockholder's list of
the Fund to the Company properly certified by an
officer of Service Company for any stockholder
meeting upon receiving a request from an officer of
the Company. It will also supply lists at such other
times as may be reasonably requested by an officer of
the Company.
I. Upon receipt of written instructions of an officer of
the Company, Service Company will address and mail
notices to stockholders of the Fund.
J. In case of any request or demand for the inspection
of the share books of the Company related to the Fund
or any other books of Company related to the Fund in
the possession of Service Company, Service Company
will endeavor to notify the Company and to secure
instructions as to permitting or refusing such
inspection. Service Company reserves the right,
however, to exhibit the share books or other books to
any person in case it is advised by its counsel that
it may be held responsible for the failure to exhibit
the share books or other books to such person.
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19. Provisions Relating to Dividend Disbursing Agency.
A. Service Company will, at the expense of the Company,
on behalf of the Fund, provide a special form of
check containing the imprint of any device or other
matter desired by the Company. Said checks must,
however, be of a form and size convenient for use by
Service Company.
B. If the Company wants to include additional printed
matter, financial statements, etc., with the dividend
checks, the same will be furnished to Service Company
within a reasonable time prior to the date of mailing
of the dividend checks, at the expense of the
Company, on behalf of the Fund.
C. If the Company wants the Fund's distributions mailed
in any special form of envelopes, sufficient supply
of the same will be furnished to Service Company but
the size and form of said envelopes will be subject
to the approval of Service Company. If stamped
envelopes are used, they must be furnished by the
Company, on behalf of the Fund; or, if postage stamps
are to be affixed to the envelopes, the stamps or the
cash necessary for such stamps must be furnished by
the Company, on behalf of the Fund.
D. Service Company will maintain one or more deposit
accounts as Agent for the Fund, into which the funds
for payment of dividends, distributions, redemptions
or other disbursements provided for hereunder will be
deposited, and against which checks will be drawn.
20. Termination of Agreement.
A. This Agreement may be terminated by either party upon
sixty (60) days prior written notice to the other
party.
B. The Company, 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 events:
(1) Any interruption or cessation of operations
by Service Company or its assigns which
materially interferes with the business
operation of the Fund.
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(2) The bankruptcy of Service Company or its
assigns or the appointment of a receiver for
Service Company or its assigns.
(3) Any merger, consolidation or sale of
substantially all the assets of Service
Company or its assigns.
(4) The acquisition of a controlling interest in
Service Company or its assigns, by any
broker, dealer, investment adviser or
investment company except as may presently
exist.
(5) Failure by Service Company or its assigns to
perform its duties in accordance with this
Agreement, which failure materially
adversely affects the business operations of
the Fund and which failure continues for
thirty (30) days after written notice from
the Company.
(6) The registration of Service Company or its
assigns as a transfer agent under the
Securities Exchange Act of 1934 is revoked,
terminated or suspended for any reason.
C. In the event of termination, the Company, on behalf
of the Fund, will promptly pay Service Company all
amounts due to Service Company hereunder. Upon
termination of this Agreement, Service Company shall
deliver all stockholder and account records and other
materials pertaining to the Fund either to the
Company or as directed in writing by the Company.
21. Assignment.
A. Neither this Agreement nor any rights or obligations
hereunder may be assigned by Service Company without
the written consent of the Company; provided,
however, no assignment will relieve Service Company
of any of its obligations hereunder.
B. This Agreement including, without limitation, the
provisions of Section 7 will inure to the benefit of
and be binding upon the parties and their respective
successors and assigns.
C. Service Company is authorized by the Company to use
the system services of DST Systems, Inc. and the
system and other services, including data entry, of
Administrative Management Group, Inc.
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22. Confidentiality.
A. Except as provided in the last sentence of Section
18.J hereof, or as otherwise required by law, Service
Company will keep confidential all records of and
information in its possession relating to the Fund or
its stockholders or stockholder accounts and will not
disclose the same to any person except at the request
or with the consent of the Company.
B. Except as otherwise required by law, the Company will
keep confidential all financial statements and other
financial records (other than statements and records
relating solely to the Company's business dealings
with Service Company) and all manuals, systems and
other technical information and data, not publicly
disclosed, relating to Service Company's operations
and programs furnished to it by Service Company
pursuant to this Agreement and will not disclose the
same to any person except at the request or with the
consent of Service Company. Notwithstanding anything
to the contrary in this Section 22.B, if an attempt
is made pursuant to subpoena or other legal process
to require the Company, on behalf of the Fund, to
disclose or produce any of the aforementioned
manuals, systems or other technical information and
data, the Company shall give Service Company prompt
notice thereof prior to disclosure or production so
that Service Company may, at its expense, resist such
attempt.
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 New York and shall be governed by the laws of said
state.
B. No provisions of this 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 limit any of the provisions hereof or otherwise
affect their construction or effect.
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D. This Agreement shall become effective as of the date
hereof.
E. 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.
F. If any part, term or provision of this Agreement is
held by the courts 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.
G. With respect to any claim by Service Company for
recovery of that portion of the compensation and
expenses (or any other liability of the Company
arising hereunder) allocated to a particular class of
the Fund, whether in accordance with the express
terms hereof or otherwise, Service Company shall have
recourse solely against the assets of that class to
satisfy such claim and shall have no recourse against
the assets of any other series of the Company or
class of the Fund for such purpose.
H. This Agreement is the entire contract between the
parties relating to the subject matter hereof and
supersedes all prior agreements between the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officer as of the day and year first set forth
above.
XXXXXXX GLOBAL FUND, INC.,
on behalf of Global Discovery Fund
By /s/Xxxxxxxx Xxxxx
--------------------
Title: President
ATTEST:
/s/Xxxxxxxx Xxxxxxx
-----------------------------
Title: Assistant Secretary
17
XXXXXX SERVICE COMPANY
By /s/Xxxxxx X. Xxxxxx
----------------------
Title:
ATTEST:
/s/Xxxxxxx X. Xxxxx
-----------------------------
Title:
18
EXHIBIT A
FEE SCHEDULE (MULTIPLE CLASSES OF SHARES)
TRANSFER AGENCY FUNCTION FEE PAYABLE BY THE COMPANY, ON
BEHALF OF THE FUND
CLASS A and C CLASS B
1. Annual open shareholder account fee (per year per
account):
a. Non-daily dividend series. $6.00 $6.00
b. CDSC account fee. Not Applicable $2.25
c. Non-monetary transaction fee. $2.00 $2.00
2. Annual closed shareholder account fee (per year per $6.00 $6.00
account).
3. Establishment of new shareholder account (per new $4.00 $4.00
account).*
4. Transaction Based Fees
(per transaction):
a. Dividend transaction fee (per dividend per account). $ .40 $ .40
b. Automated transaction fee (per transaction).** $ .50 $ .50
c. Purchase or redemption of shares transaction fee. $1.25 $1.25
d. Audio Response fee. $0.15 $0.15
The out-of-pocket expenses of Service Company will be reimbursed by the Company,
on behalf of the Fund, in accordance with the provisions of Section 5 of the
Agency Agreement.
-----------------
* The new shareholder account fee is not applicable to Class A Share
accounts established in connection with a conversion from Class B
Shares.
** Automated transaction includes, without limitation, money market series
purchases and redemptions, ACH purchases, systematic exchanges and
conversions from Class B Shares to Class A Shares.
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EXHIBIT B
INSURANCE COVERAGE
DESCRIPTION OF POLICY:
Brokers Blanket Bond, Standard Form 14
Covering losses caused by dishonesty of employees, physical
loss of securities on or outside of premises while in
possession of authorized person, loss caused by forgery or
alteration of checks or similar instruments.
Errors and Omissions Insurance
Covering replacement of destroyed records and computer errors
and omissions.
Special Forgery Bond
Covering losses through forgery or alteration of checks or
drafts of customers processed by insured but drawn on or
against them.
Mail Insurance (applies to all full service operations)
Provides indemnity for the following types of securities lost
in the mails:
Non-negotiable securities mailed to domestic locations
via registered mail.
Non-negotiable securities mailed to domestic
locations via first-class or certified mail.
Non-negotiable securities mailed to foreign locations
via registered mail.
Negotiable securities mailed to all locations via
registered mail.
20
