EX-99.(m2)
SHAREHOLDER SERVICE AGREEMENT
AGREEMENT made as of the 6th day of July 2004 by and among Boston
Financial Data Services, Inc. ("Recordkeeper"), U.S. Bancorp Fund Services, LLC
("USBFS"), Quasar Distributors, LLC ("Quasar") and Xxxxxx Xxxx Investment
Management, LLC. (the "Adviser") solely with respect to paragraph 9 and Schedule
C hereto.
WITNESSETH
WHEREAS: Xxxxxx Xxxx Investment Funds and Xxxxxx Xxxx Global Equity
Fund Inc. are open-end, management investment companies registered under the
Investment Company Act of 1940, as amended (the "Act"), identified on Schedule A
attached hereto, as such Schedule may be amended from time to time by the
parties hereto (the "Funds");
WHEREAS: The Funds desire that Recordkeeper, or an assignee of
Recordkeeper, as provided herein, serve as agent to the Funds solely for the
limited purpose of receiving orders for the purchase and redemption of shares of
the Funds by those certain employee benefit, profit-sharing and retirement plans
for which Recordkeeper now performs or intends to perform administrative and
recordkeeping services ("Plans"). Such orders may result from instructions
received by or on behalf of the Plans' participants and beneficiaries (both
collectively referred to as "Participants").
WHEREAS: Recordkeeper provides recordkeeping services for the Plans as
set forth in Schedule B and will maintain an omnibus account for each Plan with
each Fund.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. OPERATING PROCEDURES - NSCC
(a) The Recordkeeper or an affiliate and Quasar, USBFS, the Funds or
their affiliates are members of the NSCC and have access to the
DCC&S. Processing of Fund orders, registrations, net settlements
and the exchange of account related information will generally be
accomplished through DCC&S utilizing the NSCC Trust Fund/SERV,
Trust NETWORKING and Mutual Fund Profile Systems. Except where
otherwise provided herein, trade data and dividend and position
data shall be transmitted between the parties to this Agreement
through NSCC Trust Fund/SERV and Trust NETWORKING systems;
(b) The Recordkeeper, Quasar, USBFS, and the Funds shall perform any
and all duties, functions, procedures and responsibilities
assigned to them hereunder in compliance with all NSCC rules,
regulations and procedures relating to Trust Fund/SERV and Trust
NETWORKING; and
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(c) For each shareholder account opened or maintained pursuant to NSCC
Trust NETWORKING or otherwise, Quasar, USBFS, and the Funds shall
accept and effect changes in its records upon receipt of
instructions, communications and actions from the Recordkeeper or
its agent electronically through NSCC Trust NETWORKING without
supporting documentation from the shareholder. NETWORKING Level
Zero will be used.
2. PROCESSING AND TIMING OF TRANSACTIONS.
(a) Quasar hereby appoints the Recordkeeper as its agent for the
limited purpose of accepting purchase, redemption and exchange
orders for Fund shares from the Plans and Participants, for the
purchase, redemption and exchange of shares of Funds on behalf of
each Plan. On each day the New York Stock Exchange (the
"Exchange") is open for business (each a "Business Day"), the
Recordkeeper may receive instructions from the Plans including
Participants therein for the purchase, redemption or exchange of
shares of the Funds ("Orders"). Orders received and accepted by
the Recordkeeper prior to the close of regular trading on the
Exchange (the "Close of Trading") on any given Business Day and
(a) transmitted electronically through the Trust Fund/SERV system
of the NSCC to Quasar or USBFS by 6:00 a.m. Eastern time the next
Business Day or (b) otherwise transmitted by 11:00 a.m. Eastern
time the next Business Day will be executed by the Funds at the
net asset value determined as of the Close of Trading on the
Business Day the order was received by the Recordkeeper. Any
Orders received by the Recordkeeper on any Business Day after the
Close of Trading, and all Orders that are transmitted to the Funds
or distributor of the Funds after 11:00 a.m. Eastern time on the
next Business Day after the Business Day on which the orders were
received by Recordkeeper will be executed by the Funds at the net
asset value determined as of the next Close of Trading following
receipt of such Order by the Funds or distributor of the Funds.
The day as of which an Order is executed by the Funds pursuant to
the provisions set forth above is referred to herein as the
"Effective Trade Date".
(b) By 7:00 p.m. Eastern time on each Business Day the Exchange is
open for business, USBFS or its designees will provide to the
Recordkeeper via facsimile or other electronic transmission
acceptable to the Recordkeeper the Funds' net asset values,
dividend and capital gain information, and in the case of income
funds, the daily accrual or interest rate factor (mil rate),
determined at the Close of Trading.
(c) The NSCC Orders referred to above will state whether the Orders
received by the Recordkeeper from Plans and Participants by the
Close of Trading of the Business Day on which the orders were
received by the Recordkeeper resulted in each Plan being a net
purchaser or net seller of shares of the Funds.
(d) Upon the timely receipt from the Recordkeeper of the Orders
described in (a) above, USBFS will execute the purchase or
redemption transactions (as the case may be) at the net asset
value computed as of the Close of Trading on the Effective Trade
Date. For orders placed through DCC&S payments for net purchase
and net redemption orders shall be made in accordance with NSCC
rules and procedures. The settlement of Orders not
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placed through DCC&S will be no later than the close of the
Fedwire System on the Business Day next following the Effective
Trade Date.
3. REPRESENTATIONS OF RECORDKEEPER. Recordkeeper represents that:
(a) it has full power and authority to enter into and perform this
Agreement;
(b) it will comply with all applicable requirements of laws, rules and
regulations of governmental or self-regulatory authorities having
jurisdiction for the acts and duties of Recordkeeper under this
Agreement;
(c) it will only forward to Quasar or USBFS for purchase or redemption
as of the Close of Trading on each Business Day Orders it receives
prior to the Close of Trading on such day; and
(d) it will promptly notify Quasar and USBFS in the event that
Recordkeeper is for any reason unable to perform any of its
obligations under this Agreement.
4. REPRESENTATIONS OF QUASAR AND USBFS. Quasar and USBFS
represent that:
(a) Quasar and USBFS have full power and authority to enter into and
perform this Agreement and is duly authorized to appoint
Recordkeeper as agent for the Funds;
(b) Quasar is a member in good standing of the National Association of
Securities Dealers, Inc. ("NASD") and agree to maintain membership
in the NASD;
(c) USBFS is registered with the Securities and Exchange Commission as
a transfer agent pursuant to Section 17A of the 1934 Act;
(d) Quasar and USBFS will promptly notify Recordkeeper in the event
that it is for any reason unable to perform any of its obligations
under this Agreement;
(e) Quasar and USBFS will comply with all applicable requirements of
laws, rules and regulations of governmental or self-regulatory
authorities having jurisdiction for their acts and duties under
this Agreement;
(f) Quasar and USBFS shall, or shall cause the Funds to, suppress
delivery to the Plans and Plan Participants of all confirmations
of purchases, sales and redemption transactions.
5. CONFIDENTIALITY; SECURITY.
Quasar and USBFS: (a) shall keep confidential by using the same care
and discretion it uses with respect to its own confidential property
and trade secrets, (b) shall not without the express prior written
consent of Recordkeeper (which shall be deemed given hereby with
respect to the Funds and their representatives, to the extent necessary
or appropriate for the proper operation of the Funds, and to any
governmental body or self-regulatory organization, to the extent
required to comply with legal requirements and lawful
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requests) make or permit disclosure of, and (c) shall use reasonable
care to cause others to which it makes permitted disclosure to keep
confidential: (i) all proprietary data, software, processes,
information and documentation provided by Recordkeeper or relating to
any of the Plans (including the identity of the Plans and information
regarding Participants) ("Proprietary Information") and (ii) the
provisions of this Agreement. Each party hereby irrevocably authorizes
the other to act in accordance with and rely upon Instructions and
notices received by it from the other. Each party acknowledges that it
is its own responsibility to assure that only its authorized persons
use its respective internal systems on its behalf; provided, however,
that each party shall only be liable hereunder for use of its system by
unauthorized persons who have obtained access thereto as a result of
the bad faith or willful misconduct of such party or any of its
officers or employees.
6. WARRANTIES; LIABILITY FOR DATA TRANSMISSION. Notwithstanding
anything else in this Agreement to the contrary, Recordkeeper
shall have no liability to Quasar and USBFS for any losses,
damages, injuries, claims, cost or expenses arising as a result of
a delay, omission or error in the transmission of an Order or for
machine or computer breakdown or malfunction, interruption or
malfunction of communication facilities, labor difficulties or any
other similar or dissimilar acts of God.
7. PRICE ERRORS. USBFS will follow its internal policies to determine
whether an adjustment is necessary to correct any error in the
computation of the net asset value per share for any Fund.
(a) NOTIFICATION. If an adjustment is required to correct any
error in the computation of the net asset value of shares
("Price Error"), USBFS shall notify Recordkeeper as soon as
practicable after discovering the Price Error. Notice may be
made via facsimile or via direct or indirect systems access
and shall state the incorrect price, the correct price and,
to the extent communicated to the Fund's other shareholders,
the reason for the price change.
(b) UNDERPAYMENTS. If a Price Error causes a Plan to receive less
than the amount to which it would otherwise have been
entitled prior to a price adjustment, Recordkeeper shall make
adjustments to accurately reflect the number of shares held
by the Plan.
(c) OVERPAYMENTS. If a Price Error causes a Plan to receive more
than the amount to which it otherwise would have been
entitled, Recordkeeper, when requested by USBFS, will make a
good faith attempt to collect such excess amount from the
affected Plan. Absent Recordkeeper's failure to make such a
good faith attempt, however, Recordkeeper will in no event be
liable to any of the parties for any such amounts if, prior
to notice from USBFS of a price adjustment, such amounts were
distributed to the Plan.
(d) EXPENSES. If a Price Error causes Recordkeeper to make
adjustments to the accounts for the Plans, USBFS will
reimburse Recordkeeper for all reasonable costs and expenses
(including reasonable hourly compensation for any personnel
utilized
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by Recordkeeper in making such adjustments) incurred by
Recordkeeper in making such adjustments.
8. INFORMATION REGARDING PLANS. Recordkeeper shall transmit to
Quasar, USBFS or the Funds (or to any agent designated by either
of them) such information concerning Plans (including participants
in the Plans) as shall reasonably be necessary for Quasar and
USBFS to provide the services provided by Quasar and USBFS
contemplated by this Agreement and as the Funds shall reasonably
conclude is necessary to enable the Funds to comply with
applicable state Blue Sky laws.
9. COMPENSATION OF RECORDKEEPER. The Adviser acknowledges that it
and/or the Funds will derive substantial savings in administrative
expenses related to postage, shareholder communications and
participant recordkeeping, by virtue of having a single
shareholder account per Fund for each Plan rather than having each
Participant as a shareholder. In consideration of these savings
the Adviser will derive by the Recordkeeper's providing such
services to the Plans under this Agreement, the Funds shall pay
Recordkeeper the fee set forth in Schedule C attached hereto.
10. INDEMNIFICATION. Except with respect to matters excluded from
liability pursuant to paragraphs 5, 6 or 7 hereof or this
paragraph 10, each of Quasar, USBFS and Recordkeeper (an
"Indemnitor") shall indemnify and hold harmless each other, and
their respective officers, directors, partners, trustees,
shareholders and agents ("Indemnitees"), against any claims or
liabilities suffered by all or any of such Indemnitees to the
extent arising out of any negligent act of commission or omission
by the responsible Indemnitor relating to this Agreement or the
services rendered hereunder (and not arising out of the negligence
of the Indemnitees), including reasonable legal fees and other
out-of-pocket costs of defending against any such claim or
liability.
11. NON-SOLICITATION. Quasar agrees on behalf of itself and its
affiliates that during the course of this Agreement, it will not
attempt to deprive Recordkeeper of business opportunities or
existing business by providing information to competitors of
Recordkeeper or its affiliates concerning Recordkeeper's or its
affiliates business plans, marketing efforts, existing
relationships with plan sponsors, or proposals for business that
they have outstanding with plan sponsors (other than information
that a competitor has already obtained from another source or is
generally known within the industry).
12. NON-EXCLUSIVITY. Quasar and USBFS acknowledge and agree that
Recordkeeper may enter into agreements similar to this Agreement
with organizations other than Quasar and USBFS which serve as
transfer agents, distributors, or shareholder servicing agents for
mutual funds. Recordkeeper acknowledges and agrees that, except as
set forth in this paragraph 12, nothing contained herein shall
prohibit Quasar and USBFS or any affiliate of Quasar and USBFS
from providing administrative, subaccounting or recordkeeping
services to any Plan or from soliciting any such Plan or sponsor
thereof to enter into any arrangement with Quasar and USBFS or any
affiliate of Quasar and USBFS for such services
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13. TERM OF AGREEMENT. This Agreement shall become effective as of the
date first set forth above. It shall continue in effect until
terminated in accordance with the provisions hereof. This
Agreement may be terminated at any time by either party upon one
hundred twenty days written notice to the other party.
Notwithstanding the foregoing, this Agreement shall be terminated
immediately upon either: (i) a material breach by either party not
cured within the shorter of a reasonable time or 30 days after
notice from the other, or (ii) with regard to any single Plan,
upon termination of services from either party to such Plan. Upon
the termination of this Agreement for any reason, Quasar and USBFS
shall return to Recordkeeper all copies of all Proprietary
Information which are in the possession or control of Quasar and
USBFS or any party, including, without limitation, affiliates of
Quasar and USBFS, to which Quasar or USBFS distributed such
Proprietary Information, although this provision shall not apply
to any information, records or material which Quasar and USBFS are
required to retain pursuant to applicable laws and regulations.
The provisions of paragraph 5, 10 and this paragraph 13 shall
survive any termination of this Agreement. In the event that this
Agreement terminates, and Recordkeeper, or any affiliate thereof,
continues to provide administrative and recordkeeping services of
the nature provided for herein to any Plan which continues to
invest in the Funds, the compensation provided for in paragraph 9
herein shall continue and the NSCC provisions shall continue for
these Plans.
14. NOTICES. All notices and other communications hereunder (other
than information required to be provided from Quasar and USBFS to
Recordkeeper pursuant to paragraph 1) shall be in writing and
shall be hand delivered or mailed by certified mail or overnight
courier to the other party at the following address or such other
address as each party may give notice to the other and shall be
effective upon receipt:
If to Quasar:
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
If to USBFS:
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx XxXxx
If to Recordkeeper:
Boston Financial Data Services, Inc.
Legal Department - 0xx Xxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
With a copy to:
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President
Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
15. AMENDMENT, ASSIGNMENT AND OTHER MATTERS. This Agreement may not be
amended except by writing signed by the party against which
enforcement is sought. The other parties to this Agreement shall
be notified of such an amendment. This Agreement shall not be
assigned by either party without the written consent of the other
parties except that the responsibilities of a party may be
delegated or assigned to an affiliate without the consent of the
other parties to this Agreement. This Agreement may be executed in
several counterparts, each of which shall be an original but all
of which together shall constitute one and the same instrument.
The headings in this Agreement are for reference only and shall
not affect the interpretation or construction of this Agreement.
This Agreement contains the entire agreement of the parties as to
the subject matter hereof and supersedes any prior agreements,
written or oral. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin, without
giving effect to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
QUASAR DISTRIBUTORS, LLC
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx Xxxxxxxxx
-------------------------------- -----------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx
Title: Vice President Title: President
U.S. BANCORP FUND SERVICES, LLC
By: /s/ Xxxxxxx XxXxx
--------------------------------
Xxxxxxx XxXxx
Title: Senior Vice President
XXXXXX XXXX INVESTMENT MANAGEMENT, LLC.
(solely with respect to paragraph 9 and Schedule C hereto)
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
Title: President
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE A
LIST OF FUNDS
XXXXXX XXXX FUNDS TICKER CUSIP#
---------------------------
Xxxxxx Xxxx International Equity Fund Class A BJBIX 481370104
Class I JIEIX 481370500
Xxxxxx Xxxx Total Return Fund Class A BJBGX 481370302
Class I JBGIX 481370609
Xxxxxx Xxxx Global High Yield Bond Fund Class A BJBHX 481370708
Class I JHYIX 481370807
Xxxxxx Xxxx Global Equity Fund Class A 481368108
*(effective July 1, 2004) Class I 481368207
*0.25% bps are only paid on the Class A shares. 0.00% bps paid on Class I
shares.
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SCHEDULE B
Recordkeeper shall perform the following services, all in accordance with the
terms of this Agreement:
1. Maintain separate records for each Plan, which records shall reflect the
dollar amount of shares purchased and redeemed, including the date and
price for all transactions; dollar value of account balances; Plan
participant's name and address, social security or taxpayer identification
numbers.
2. Prepare, and transmit to Plan participants confirmations of purchases and
redemptions and periodic account statements showing the investment by Plans
in the Funds as of the statement closing date, and such pertinent
information as Recordkeeper, Quasar and USBFS may agree from time to time.
3. To the extent information is provided to Plans concerning Funds, it will be
factual and only as is provided in the Fund's prospectus and statement of
additional information. .
Both parties acknowledge that one or more responsibilities of Recordkeeper
under this Agreement (including the responsibilities set for in paragraphs 1 and
2) may be performed by the financial institution on behalf of whom Recordkeeper
is performing the services covered by this Agreement. The financial institution
will be performing such responsibilities pursuant to a separate agreement
between USBFS, Quasar and or the Adviser.
The cost of preparing, printing and shipping prospectuses, proxy materials,
periodic reports and other materials of each Fund and the distribution of such
documents shall not be the responsibility of Recordkeeper.
Recordkeeper is not a bank, trust company, investment advisor, broker, dealer or
distributor of shares of the Funds but only acts as a participant recordkeeper
to the Plans.
Plan accounts may be opened by an account application faxed to USBFS or its
designees.
Recordkeeping for the interests of Participants in the Plans shall be the
responsibility of the Recordkeeper and not of the other parties to this
Agreement or the Funds, and nothing in this Agreement shall be construed to deem
such recordkeeping an activity on behalf of the other parties to this Agreement
or any Fund or such records to be deemed records of the other parties to this
Agreement or any Fund. Such recordkeeping services by Recordkeeper are not in
the capacity of a transfer agent or sub-transfer for the Funds .
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SCHEDULE C
The Funds shall pay a fee to Recordkeeper, calculated daily and paid monthly in
arrears equal to 0.25% per annum of the daily net asset value of the total
number of shares of each Fund held by Plans.
The parties acknowledge that the Plans are customers of financial institutions.
Recordkeeper will receive no fees under this Agreement from the Adviser for
those customers of a financial institution where the Adviser has paid such
financial institution for such recordkeeping services and the financial
institution has paid Recordkeeper for such services.
* 0.25% bps to be paid for Class A Shares only.
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