Exhibit 9(b)
SHAREHOLDER SERVICES AGREEMENT
This Agreement, dated as of the 31st day of March, 1993, made by and
between The Xxxxxxxx Funds, Inc. (the "Fund") a corporation operating as an
open-end management investment company, duly organized and existing under the
laws of the State of Maryland and Fund/Plan Services, Inc. (the "Company"), a
corporation duly organized and existing under the laws of the State of Delaware.
WITNESSETH THAT:
WHEREAS, the Fund consists of a series of Funds, at present namely:
Xxxxxxxx Small-Cap Yield Fund; and
WHEREAS, the Fund desires to appoint the Company as its Transfer,
Redemption and Dividend Disbursing Agent as set forth in this Agreement and to
perform certain other functions in connection with these duties; and
WHEREAS, the Company is willing to perform such functions upon the terms
and conditions set forth below; and
WHEREAS, the Fund will cause to be provided certain information to the
Company as set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto, intending to be legally bound, do hereby
agree as follows:
Section 1. The terms as defined in this Section wherever used in this
Agreement, or in any amendment or supplement hereto, shall have the meanings
herein specified unless the context otherwise requires.
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The Fund: The term Fund shall mean any series issued by the authority of
the Board of Directors.
Share Certificates: The term Share Certificates shall mean the share
certificates for the Shares of the Fund.
Shareholders: The term Shareholders shall mean the registered owners from
time to time of the Shares of the Fund in accordance with the share registry
records of the Fund.
Shares: The term Shares shall mean the issued and outstanding shares of the
Fund.
Signature Guarantee: The term Signature Guarantee shall mean that
signatures will be guaranteed by an Eligible guarantor institution" as defined
in rule 17Ad-15 under the Securities Exchange Act of 1934. Eligible guarantor
institutions include banks, brokers, dealers, credit unions, national securities
exchanges, registered securities associations, clearing agencies and savings
associations. Broker-dealers guaranteeing signatures must be a member of a
clearing corporation or maintain net capital of at least $100,000. Credit unions
must be authorized to issue signature guarantees. Signature guarantees will be
accepted from any eligible guarantor institution which participates in a
signature guarantee program.
Oral Instruction: The term Oral Instruction shall mean an authorization,
instruction, approval, item or set of data, or information of any kind
transmitted to the Company in person or by telephone, telegram, telecopy or
other mechanical or documentary means lacking original signature, by a person or
persons believed in good faith by the Company to be a person or persons
authorized by a resolution of the Board of Directors of the Fund, to give Oral
Instructions on behalf of the Fund.
Written Instruction: The term Written Instruction shall mean an
authorization, instruction, approval, item or set of data or information of any
kind transmitted to the Company in original writing containing original
signatures or a copy of such document transmitted by telecopy
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including transmission of such signature believed in good faith by the Company
to be the signature of a person authorized by a resolution of the Board of
Directors of the Fund to give Written Instructions on behalf of the Fund.
TRANSFER AGENCY
Section 2. The Fund shall furnish to Company as Transfer Agent a sufficient
supply of blank Share Certificates and from time to time will renew such supply
upon the request of Company. Such blank Share Certificates shall be signed
manually or by facsimile signatures of officers of the Fund authorized by law or
the by-laws of the Fund to sign Share Certificates and, if required, shall bear
the corporate seal or a facsimile thereof.
Section 3. Company as Transfer Agent, shall make original issues of Shares
in accordance with Section 14 and 15 below and with the Fund's Prospectus and
Statement of Additional Information upon the written request of the Fund and
upon being furnished with (i) a certified copy of a resolution or resolutions of
the Board of Directors of the Fund authorizing such issue; (ii) an opinion of
counsel as to the validity of such additional Shares; and (iii) necessary funds
for the payment of any original issue tax applicable to such additional Shares.
Section 4. Transfers of Shares shall be registered and new Share
Certificates issued by Company upon surrender of outstanding Share Certificates,
(i) in form deemed by Company to be properly endorsed for transfer, (ii) with
all necessary endorser's signatures guaranteed pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934 (as defined in Section 1 of this Agreement),
accompanied by, (iii) such assurances as Company shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement, and (iv) satisfactory evidence of compliance with all applicable
laws relating to the payment or collection of taxes.
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Section 5. When mail is used for delivery of Share Certificates, Company
shall forward Share Certificates in "non-negotiable" form by first-class mail,
and Share Certificates in "negotiable" form by registered mail, all mail
deliveries to be covered while in transit to the addressee by insurance arranged
for by Company.
Section 6. In registering transfers Company as Transfer Agent may rely upon
the Uniform Commercial Code or any other statutes which, in the opinion of
counsel, protect Company and the Fund in not requiring complete documentation,
in registering transfer without inquiry into adverse claims, in delaying
registration for purposes of such inquiry, or in refusing registration where in
its judgment an adverse claim requires such refusal.
Section 7. Company as Transfer Agent may issue new Share Certificates in
place of Share Certificates represented to have been lost, destroyed or stolen,
upon receiving indemnity satisfactory to Company and may issue new Share
Certificates in exchange for and upon surrender of mutilated Share Certificates.
Section 8. In case any officer of the Fund who shall have signed manually
or whose facsimile signature shall have been affixed to blank Share Certificates
shall die, resign or be removed prior to the issuance of such Share
Certificates, Company as Transfer Agent may issue or register such Share
Certificates as the Share Certificates of the Fund notwithstanding such death,
resignation or removal; and the Fund shall file promptly with Company such
approval, adoption or ratification as may be required by law.
Section 9. With respect to confirmed trades received by the Company as
Transfer Agent for the Fund, the Company shall periodically notify the Fund of
the current status of outstanding confirmed trades. The Company is authorized to
cancel confirmed trades which have been outstanding for thirty (30) days. Upon
such cancellation, the Transfer Agent shall instruct the Fund Accounting Agent
to adjust the books of the Fund accordingly.
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Section 10. Company will maintain stock registry records in the usual form
in which it will note the issuance, transfer and redemption of Shares and the
issuance and transfer of Share Certificates, and is also authorized to maintain
an account entitled Unissued Certificate Account in which it will record the
Shares and fractions issued and outstanding from time to time for which issuance
of Share Certificates is deferred. Company is responsible to provide the Fund
reports of Fund Share purchases, redemptions, and total Shares outstanding on
the next business day after each net asset valuation. Company is authorized to
keep records, which will be part of the stock transfer records, in which it will
note the names and registered address of Shareholders and the number of Shares
and fractions from time to time owned by them for which no Share Certificates
are outstanding. Each Shareholder will be assigned a single account number even
though Shares for which Certificates have been issued will be accounted for
separately.
Section 11. Company will issue Share Certificates for Shares of the Fund,
only upon receipt of a written request from a Shareholder. In all other cases,
the Fund authorizes Company to dispense with the issuance and countersignature
of Share Certificates whenever Shares are purchased. In such case Company as
Transfer Agent, shall merely note on its stock registry records the issuance of
the Shares and fractions (if any), shall credit the Unissued Certificate Account
with the Shares and fractions issued and shall credit the proper number of
Shares and fractions to the respective Shareholders. Likewise, whenever Company
has occasion to surrender for redemption Shares and fractions owned by
Shareholders, it shall be unnecessary to issue Share Certificates for redemption
purposes. The Fund authorizes Company in such cases to process the transactions
by appropriate entries in its Share transfer records, and debiting of the
Unissued Certificate Account and the record of issued Shares outstanding.
Section 12. Company in its capacity as Transfer Agent will, in addition to
the duties and functions above-mentioned, perform the usual duties and functions
of a Stock Transfer Agent for a corporation. It will countersign for issuance or
reissuance Share Certificates representing original issue or reissued Shares as
directed by the Written Instructions of the Fund and will transfer Share
Certificates registered in the name of Shareholders from one Shareholder to
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another in the usual manner. Company may rely conclusively and act without
further investigation upon any list, instruction, certification, authorization,
Share Certificate or other instrument or paper believed by it in good faith to
be genuine and unaltered, and to have been signed, countersigned, or executed by
duly authorized person or persons, or upon the instructions of any officer of
the Fund, or upon the advice of counsel for the Fund or for Company. Company may
record any transfer of Share Certificates which is believed by it in good faith
to have been duly authorized or may refuse to record any transfer of Share
Certificates if in good faith Company in its capacity as Transfer Agent deems
such refusal necessary in order to avoid any liability either to the Fund or to
Company. The Fund agrees to indemnify and hold harmless Company from and against
any and all losses, costs, claims, and liability which it may suffer or incur by
reason of so relying or acting or refusing to act.
Section 13. In case of any request or demand for the inspection of the
Share records of the Fund, Company as Transfer Agent, shall endeavor to notify
the Fund and to secure instructions as to permitting or refusing such
inspection. However, Company may exhibit such records to any person in any case
where it is advised by its counsel that it may be held liable for failure to do
so.
ISSUANCE OF SHARES
Section 14. Prior to the daily determination of net asset value in
accordance with the Fund's Prospectus and Statement of Additional Information,
Company shall process all purchase orders received since the last determination
of the Fund's net asset value.
Company shall calculate daily the amount available for investment in Shares
at the net asset value determined by the Company as pricing agent (see
Accounting Services Agreement) as of the close of trading on the New York Stock
Exchange, the number of Shares and fractional Shares to be purchased and He net
asset value to be deposited with the Custodian. Company as agent for the
Shareholders, shall place a purchase order daily with the Fund for the proper
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number of Shares and fractional Shares to be purchased and confirm such number
to the Fund in writing.
Section 15. Company having made the calculations provided for in Section
14, shall thereupon pay over the net asset value of Shares purchased to the
Custodian. The proper number of Shares and fractional Shares shall then be
issued daily and credited by Company to the Unissued Certificate Account. The
Shares and fractional Shares purchased for each Shareholder will be credited by
Company to his separate account. Company shall mail to each Shareholder a
confirmation of each purchase, with copies to the Fund if requested. Such
confirmations will show the prior Share balance, the new Share balance, the
Shares for which Stock Certificates are outstanding (if any), the amount
invested and the price paid for the newly purchased Shares.
REDEMPTIONS
Section 16. Company shall, prior to the daily determination of net asset
value in accordance with the Fund's Prospectus and Statement of Additional
Information, process all requests from Shareholders to redeem Shares and
determine the number of Shares required to be redeemed to make monthly payments,
automatic payments or the like. Thereupon, Company shall advise the Fund of the
total number of Shares available for redemption and the number of Shares and
fractional Shares requested to be redeemed. The Company as Pricing Agent shall
then determine the applicable net asset value, whereupon Company shall furnish
the Fund with an appropriate confirmation of the redemption and process the
redemption by filing with the Custodian an appropriate statement and making the
proper distribution and application of the redemption proceeds in accordance
with the Fund's Prospectus and Statement of Additional Information. The stock
registry books recording outstanding Shares, the Unissued Certificate Account
and the individual account of the Shareholder shall be properly debited.
Section 17. The proceeds of redemption shall be remitted by Company in
accordance with the Fund's Prospectus and Statement of Additional Information,
by check mailed to the
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Shareholder at his registered address or wired to an authorized bank account. If
Share Certificates have been issued for Shares being redeemed, then such Share
Certificates and a stock power with a Signature Guarantee pursuant to Rule 17Ad-
15 under the Securities Exchange Act of 1934 (as defined in Section 1 of this
Agreement), shall accompany the redemption request. If Share Certificates have
not been issued to the redeeming Shareholder, the signature of the Shareholder
on the redemption request must be similarly guaranteed. The Fund may authorize
Company to waive the signature guarantee in certain cases by Written
Instructions.
For the purposes of redemption of Shares which have been purchased within
15 days of a redemption request, the Fund shall provide Company, from time to
time, with Written Instructions concerning the time within which such requests
may be honored.
DIVIDENDS
Section 18. Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund, the Fund shall notify
Company of the date of such declaration, the amount payable per share, the
record date for determining the shareholders entitled to payment, the payment,
and the reinvestment date price.
Section 19. On or before each payment date the Fund will transfer, or cause
the Custodian to transfer, to Company in its capacity as Dividend Disbursing
Agent, the total amount of the dividend or distribution currently payable.
Company will, on the designated payment date, automatically reinvest all
dividends in additional Shares except in cases where Shareholders have elected
to receive distribution in cash, in which case Company will mail distribution
checks to the Shareholders for the proper amounts payable to them.
GENERAL PROVISIONS
Section 20. Company shall maintain records (which may be part of the stock
transfer records) in connection with the issuance and redemption of Shares, and
the disbursement of
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dividends and dividend reinvestments, in which will be noted the transactions
effected for each Shareholder and the number of Shares and fractional Shares
owned by each for which no Share Certificates are outstanding. Company agrees to
make available upon request and to preserve for the periods prescribed in Rule
31a-2 under the Investment Company Act of 1940 any records relating to services
provided under this Agreement which are required to be maintained by Rule 31a-1
under the Act.
Section 21. In addition to the services as Transfer Agent and Dividend
Disbursing Agent as above set forth, Company will perform other services for the
Fund as agreed from time to time, including but not limited to, preparation of
and mailing Federal Tax Information Forms, mailing semi-annual reports of the
Fund, preparation of one annual list of Shareholders, and mailing notices of
Shareholders' meetings, proxies and proxy statements.
Section 22. Nothing contained in this Agreement is intended to or shall
require Company in any capacity hereunder, to perform any functions or duties on
any holiday, day of special observance or any other day on which the Custodian
or the New York Stock Exchange are closed. Functions or duties normally
scheduled to be performed on such days shall be performed on, and as of, the
next business day on which both the New York Stock Exchange and the Custodian
are open.
Section 23. The Fund agrees to pay Company compensation for its services
and to reimburse it for expenses, as set forth in Schedule A attached hereto, or
as shall be set forth in amendments to such Schedule approved by the Fund and
the Company. The Fund authorizes the Company to debit the Fund's custody account
for invoices which are rendered for the services performed for the applicable
function. The invoices for the service will be sent to the Fund after the
debiting with the indication that payment has been made.
Section 24. (a) The Company, its directors, officers, employees,
shareholders and agents shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund in connection with the performance
of this Agreement, except a loss resulting from
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willful misfeasance, bad faith or gross negligence on the part of the Company in
the performance of its obligations and duties under this Agreement.
(b) Any person, even though also a director, officer, employee, shareholder
or agent of the Company, who may be or become an officer, trustee, employee, or
agent of the Fund, shall be deemed, when rendering services to the Fund or
acting on any business of the Fund (other than services or business in
connection with the Company's duties hereunder), to be rendering such services
to or acting solely for the Fund and not as a director, officer, employee,
shareholder or agent of, or one under the control or direction of the Company
even though paid by it.
(c) Notwithstanding any other provision of this Agreement, the Fund shall
indemnify and hold harmless the Company, its directors, officers, employees,
shareholders and agents from and against any and all claims, demands, expenses
and liabilities (whether with or without basis in fact or law) of any and every
nature which the Company may sustain or incur or which may be asserted against
the Company by any person by reason of, or as a result of: (i) any action taken
or omitted to be taken by the Company in good faith hereunder; (ii) in reliance
upon any certificate, instrument, order, or stock certificate or other document
reasonably believed by it to be genuine and to be signed, countersigned or
executed by any duly authorized person, upon the Oral Instructions or Written
Instructions of an authorized person of the Fund or upon the opinion of legal
counsel for the Fund or its own counsel; or (iii) any action taken or omitted to
be taken by the Company in connection with its appointment in good faith in
reliance upon any law, act, regulation or interpretation of the same even though
the same may thereafter have been altered, changed, amended, or repealed.
However, indemnification under this subparagraph shall not apply to actions or
omissions of the Company or its directors, officers, employees, shareholders, or
agents in cases of its or their own negligence, willful misconduct, bad faith,
or reckless disregard of its or their own duties hereunder.
(d) The Company shall give written notice to the Fund within ten (10)
business days of receipt by the Company of a written assertion or claim of any
threatened or
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pending legal proceeding which may be subject to this indemnification. However,
the failure to notify the Fund of such written assertion or claim shall not
operate in any manner whatsoever to relieve the Fund of any liability arising
from this Section or otherwise, except to the extent failure to give notice
prejudices the Fund.
(e) For any legal proceeding giving rise to this indemnification, the
Fund shall be entitled to defend or prosecute any claim in the name of the
Company at its own expense and through counsel of its own choosing if it gives
written notice to the Company within ten (10) business days of receiving notice
of such claim. Notwithstanding the foregoing, the Company may participate in the
litigation at its own expense through counsel of its own choosing. If the Fund
does choose to defend or prosecute such claim, then the parties shall cooperate
in the defense or prosecution thereof and shall furnish such records and other
information as are reasonably necessary.
(f) The Fund shall not settle any claim without the Company's express
written consent which shall not be unreasonably withheld. The Company shall not
settle any claim without the Fund's express written consent which shall not be
unreasonably withheld.
Section 25. Company is authorized, upon receipt of Written Instructions
from the Fund, to make payment upon redemption of Shares without a signature
guarantee. The Fund hereby agrees to indemnify and hold Company, its successors
and assigns, harmless of and from any and all expenses, damages, claims, suits,
liabilities, actions, demands, losses whatsoever arising out of or in connection
with a payment by Company upon redemption of Shares without a signature
guarantee and upon the request of Company the Fund shall assume the entire
defense of any action, suit or claim subject to the foregoing indemnity. Company
shall notify the Fund of any such action, suit or claim with thirty (30) days
after receipt by Company of notice thereof.
Section 26. (a) The term of this Agreement shall be for a period of two (2)
years, commencing on the date hereof and shall continue in force from year to
year thereafter, but only
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so long as such continuance is approved, (1) by the Company, (2) by vote, cast
in person at a meeting called for the purpose, of a majority of the Fund's
Directors who are not parties to this Agreement or interested person (as defined
in the Act) of any such party, and (3) by vote of a majority of the Fund's Board
of Directors or a majority of the Fund's outstanding voting securities.
(b) The fee schedule will be fixed for a two (2) year period from the date
of the Agreement. After the initial two (2) year period, the fee will be subject
to annual review.
(c) The Fund or the Company may give written notice to the other of the
termination of this Agreement, such termination to take effect at the time
specified in the notice, not less than one hundred twenty (120) days after the
giving of the notice. Upon the effective termination date, the Fund shall pay to
the Company such compensation as may be due as of the date of termination and
shall likewise reimburse the Company for any out-of-pocket expenses and
disbursements reasonably incurred by the Company to such date.
(d) In the event that in connection with termination of this Agreement a
successor to any of the Company's duties or responsibilities under this
Agreement is designated by the Fund by written notice to the Company, the
Company shall, promptly upon such termination and at the expense of the Fund,
transfer all Required Records and shall cooperate in the transfer of such duties
and responsibilities.
(e) The Fund acknowledges that in order for the Company to perform the
services contemplated hereunder, Company has made and will make significant
investments of time and money. If this Agreement is terminated for reasons other
than a material breach by the Company prior to the expiration of the initial
term of this contract, the Fund will pay the Company twenty percent (20%) of the
minimum fees remaining for the unexpired term of the Agreement.
Section 27. The Fund shall file with Company a certified copy of each
resolution of its Board of Directors authorizing the execution of Written
Instructions or the transmittal of Oral
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Instructions, as provided in Section 1 of this Agreement.
Section 28. This Agreement may be amended from time to time by a
supplemental agreement executed by the Fund and the Company.
Section 29. Except as otherwise provided in this Agreement, any notice or
other communication required by or permitted to be given in connection with this
Agreement shall be in writing, and shall be delivered in person or sent by first
class mail, postage prepaid, to the respective parties as follows:
If to the Fund:
The Xxxxxxxx Funds, Inc.
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Chairman
If to the Company:
Fund/Plan Services, Inc.
0 Xxxx Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Senior Vice President
Section 30. The Fund represents and warrants to Company that the execution
and delivery of this Shareholder Services Agreement by the undersigned officers
of the Fund has been duly and validly authorized by resolution of the Board of
Directors of the Fund.
Section 31. This Agreement may be executed in two or more counterparts,
each of which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
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Section 32. This Agreement shall extend to and shall be binding upon the
parties hereto and their respective and assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the written consent of
Company or by Company without the written consent of the Fund, authorized or
approved by a resolution of its Board of Directors.
Section 33. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers and their corporate seals hereunto duly
affixed and attested, as of the day and year first above written.
(SEAL) THE XXXXXXXX FUNDS, INC.
Attest: /s/ Xxxxxxxx X. Xxxxx By:/s/Xxxxx X. Xxxxxxxx
---------------------- --------------------
Name: Xxxxx X. Xxxxxxxx
-----------------
Title: Chairman
--------
(SEAL) FUND/PLAN SERVICES, INC.
Attest: /s/ Xxxxxxx Xxxxx Xxxxxx By:/s/ Xxxxx X. Xxxx
------------------------ --------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
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FEE SCHEDULE SCHEDULE A
FOR
THE XXXXXXXX FUNDS, INC.
Xxxxxxxx Small Cap Yield Fund
(The Schedule is fixed for a period of two (2) years from the effective date of
the Fund.)
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TRANSFER AGENT/SHAREHOLDER SERVICES
-----------------------------------
I. The following is our schedule for Shareholder Services and Transfer Agent
Services:
$13.00 per account per year
No minimum monthly fee.
OUT-OF-POCKET EXPENSES
----------------------
The Fund will reimburse Fund/Plan Services monthly for all reasonable out-of-
pocket expenses, including telephone, postage, telecommunications, special
reports, record retention, special transportation costs as incurred, and unusual
expenses incurred while establishing viable agreements between the Fund and
Fund/Plan Services. The cost of copying and sending materials to auditors for
off-site audits will be an additional expense.
ADDITIONAL SERVICES
-------------------
Activities of a non-recurring nature such as fund consolidations, mergers or
reorganizations will be subject to negotiation. To the extent the Fund should
decide to issue multiple/separate classes of shares, additional fees will apply.
Any additional/enhanced services or reports will be quoted upon request.
The Schedule will be amended as necessary to reflect the addition of other
services for additional portfolios or Funds of the Series.
FEE SCHEDULE FOR
THE XXXXXXXX FAMILY OF FUNDS
Xxxxxxxx Monthly Dividend Shares
Xxxxxxxx Growth Fund
Xxxxxxxx Small-CAP YIELD FUND
PRESENT PROPOSED
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SMDS SGF SMDS SGF SSCY
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ACCOUNTING $21,000 $20,000 $26,000 $20,000 $20,000
(flat fee,
no basis points
included)
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CUSTODY Same as Same as Same as
.00065 on 10 million ) present present present
.00035 next 20 million ) Applies to
.00025 next 20 million ) SMDS & SGF
.000175 next 50 million)
.00015 over 100 million)
DTC $14.00
Physical $24.50
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TRANSFER AGENT $12.00 $9.60 $13.00 $13.00 $13.00
(per account fee,
no monthly
minimums imposed)
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ADMINISTRATION $20,000 $20,000 $30,000 $30,000 $10,000
(flat fee, no
basis points
included)
--------------------------------------------------------------------------------
BROKER/DEALER $3,000 $3,000 $3,000 $3,000 $3,000
(flat annual fee;
plus $2.00 per
kit for inquiry/
fulfillment)
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NOTE: New fees effective 3/1/93
