EXHIBIT (m)(5)
XXX XXXXXX FUNDS INC.
SHAREHOLDER SERVICING AGREEMENT
This Agreement is entered into as of the _____day of _____, 200__, by and
between Xxx Xxxxxx Funds Inc. (the "Company") and the undersigned (the
"Financial Intermediary").
WHEREAS, the Company is the principal underwriter of certain open-end
investment companies (hereinafter individually the "Fund" or collectively the
"Funds"); and
WHEREAS, each respective Fund has adopted a Service Plan (the "Service
Plan") relating to such Fund, the Service Plan being described in the Fund's
Prospectus and Statement of Additional Information; and
WHEREAS, each respective Fund's Service Plan authorizes the Company to
enter into shareholder service and maintenance agreements such as this Agreement
with financial intermediaries selected by the Company, and the Financial
Intermediary has been so selected; and
WHEREAS, each respective Fund's Service Plan authorizes the Company to make
payments at a rate specified in an agreement such as this Agreement varying
directly with the aggregate average daily net asset value of shares of each
respective Fund serviced by such financial intermediary on or after the
effective date of this Agreement, as determined pursuant to Section 3 hereof,
and held at the close of each day in accounts of clients or customers serviced
by a particular financial intermediary, such amount being referred to herein as
the "Holding Level"; for purposes of calculating the Holding Level, shares of
such Fund which are redeemed or otherwise disposed of from any account existing
prior to such effective date shall be deemed to have been shares sold prior to
such effective date to the extent of the number of shares held in such account
immediately after the close of business on the day prior to such effective date.
NOW, THEREFORE, the Company and the Financial Intermediary agree as
follows:
1. Subject to continuing compliance with its obligations pursuant to
Section 2 hereof, the Financial Intermediary shall be entitled to service fee
payments, if any, to be paid by the Company at the annual percentage rate of the
Holding Level set forth from time to time in the then current Prospectus of the
Fund on a quarterly basis (prorated for any portion of such period during which
this Agreement is in effect for less than the full amount of such period); it is
understood and agreed that the Company may make final and binding determinations
as to whether such continuing compliance and as to whether or not any Fund
shares are to be considered in determining the Holding Level of any particular
financial intermediary and what Fund shares, if any, are to be attributed to
such purpose to a particular financial intermediary, to
a different financial intermediary or to no financial intermediary. Payments
shall be made to the Financial Intermediary named above and portions of the
payments may be, in the discretion of the Financial Intermediary, paid over to
individual registered representatives of said Financial Intermediary to whom
there have been assigned accounts of clients or customers serviced by the
Financial Intermediary with respect to which the respective Holding Level was
determined.
2. In consideration for the service fee payments to be made in
accordance with Section 1 hereof, the Financial Intermediary shall provide to
its clients or customers who hold shares of each respective Fund with respect to
which payments to the Financial Intermediary may be made under such Fund's
Service Plan such services and other assistance as may from time to time be
reasonably requested by the Company (which services and assistance shall not
constitute distribution services primarily intended to result in the sale of
Fund shares), including but not limited to answering inquiries regarding the
Fund, providing information programs regarding the Fund, assisting in selected
dividend payment options, account designations and addresses and maintaining the
investment of such customer or client in the Fund.
3. The Company shall have the right at any time and from time to time
without notice to the Financial Intermediary to amend its Prospectus with
respect to the amount of the service free to be paid pursuant hereto. Such
amendments shall be effective as of the date of the amended Prospectus.
4. This Agreement shall go into effect on the later of the date set
forth above or the date on which it is approved by a vote of each Fund's Board
of Directors (or Trustees, as the case may be), and of those Directors/Trustees
(the "Qualified Directors/Trustees") who are not interested persons (as defined
in the 1940 Act), of the Fund and have no direct or indirect financial interest
in the operations of the Service Plan or any agreement related to the Service
Plan cast in person at a meeting called for the purpose of voting on this
Agreement and shall continue in effect (unless terminated) until the June 30th
next succeeding such effective date and will continue thereafter only if such
continuance is specifically approved at least annually in the manner heretofore
specified for initial approval. This agreement will terminate automatically in
the event of its assignment or if the Service Plan is terminated. This Agreement
may also be terminated at any time, without the payment of any penalty, on sixty
(60) days written notice to the Financial Intermediary, by vote of a majority of
the Qualified Directors/Trustees or by vote of a majority (as that term is used
in the Rule) of the outstanding voting securities of the Fund.
5. The Financial Intermediary agrees that it shall provide only
shareholder services pursuant to this agreement and that it shall not provide
distribution services primarily intended to result in the sale of Fund shares;
moreover, the Financial Intermediary agrees to indemnify and hold harmless the
Company and the Funds for all liability, damages, losses and expenses (including
legal fees and expenses) arising from any determination that the Financial
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Intermediary's services provided hereunder are distribution services primarily
intended to result in the sale of Fund shares or that the Financial Intermediary
must be registered as a broker-dealer under the Securities Exchange Act of 1934,
as amended, in order to provide such services.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
XXX XXXXXX FUNDS INC.
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By:
Title:
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Financial Intermediary Firm Name Financial Intermediary Firm Address
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By:
Title:
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