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EXHIBIT (H)(13)
PROSPECT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of June,
2001, by and among Xxxxxxxx Xxxxx Funds, Inc., a Wisconsin corporation
(hereinafter referred to as the "Corporation"), Xxxxxxxx Plumb & Associates, a
Wisconsin corporation (hereinafter referred to as the "Adviser"), and Firstar
Mutual Fund Services, LLC, a Wisconsin limited liability company, (hereinafter
referred to as "FMFS").
WHEREAS, the Corporation is registered under the Investment Company Act
of 1940, as amended, as an open-end management company, and is authorized to
issue shares of common stock in separate series, with each such series
representing interests in a separate portfolio of securities and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers
Act of 1940, as amended, and any applicable state securities laws, as an
investment adviser;
WHEREAS, the Adviser serves as investment adviser to each series of the
Corporation;
WHEREAS, FMFS provides fulfillment services to mutual funds; and
WHEREAS, the Corporation and the Adviser desire to retain FMFS to
provide fulfillment services for each series of the Corporation and any
additional series of the Corporation listed on Exhibit A attached hereto (each a
"Fund" and collectively the "Funds"), as amended from time to time.
NOW, THEREFORE, the parties agree as follows:
1. DUTIES AND RESPONSIBILITIES OF FMFS
A. Answer all prospective shareholder calls concerning the
Fund(s).
B. Send all available Fund material requested by the
prospect within 24 hours from time of call.
C. Receive and update all Fund fulfillment literature so
that the most current information is sent and quoted.
D. Provide 24 hour answering service to record prospect
calls made after hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Corporation as
agreed upon between the parties.
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2. DUTIES AND RESPONSIBILITIES OF THE CORPORATION
A. Provide Fund fulfillment literature updates to FMFS as
necessary.
B. File with the National Association of Securities Dealers,
Inc., Securities and Exchange Commission and state regulatory agencies, as
appropriate, all fulfillment literature that the Fund(s) request FMFS send to
prospective shareholders.
C. Supply FMFS with sufficient inventory of fulfillment
materials as requested from time to time by FMFS.
D. Provide FMFS with any sundry information about the Fund(s) in
order to answer prospect questions.
3. COMPENSATION
As compensation for the services performed and the expenses assumed by
FMFS under this Agreement, the Corporation shall, to the extent
permissible under applicable law, pay FMFS such fees and expenses as
set forth in Exhibit A to this Agreement, which are payable within ten
days of receipt of invoice. To the extent such fees are not payable by
the Corporation, the Adviser shall be responsible for paying the
remaining amount of fees to FMFS.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the
Corporation all records and other information relative to the
Corporation and prior, present, or potential shareholders of the
Corporation (and clients of said shareholders), and not to use such
records and information for any purpose other than the performance of
its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Corporation, which
approval shall not be unreasonably withheld and may not be withheld
where FMFS may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Corporation.
5. INDEMNIFICATION
The Corporation agrees to indemnify FMFS from any liability arising out
of the distribution of fulfillment literature that has not been filed
with the appropriate Federal and State Regulatory Agencies. FMFS agrees
to indemnify the Corporation from any liability arising from the
improper use of fulfillment literature during the performance of its
duties and responsibilities identified in this Agreement. FMFS will be
liable for bad faith, gross negligence or willful misconduct on its
part in its duties under this Agreement.
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6. TERMINATION
This Agreement may be terminated by either party upon 90 days' written
notice.
FMFS is hereby expressly put on notice of the limitation of shareholder
liability as set forth in the Corporation's Articles of Incorporation
and agrees that obligations assumed by the Corporation pursuant to this
Agreement shall be limited in all cases to the Corporation and its
assets, and if the liability relates to one or more series, the
obligations hereunder shall be limited to the respective assets of such
series. FMFS further agrees that it shall not seek satisfaction of any
such obligation from the shareholders or any individual shareholder of
a series of the Corporation, or from the directors or any individual
director of the Corporation.
7. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower FMFS
to act as agent for any other party to this Agreement, or to conduct
business in the name of, or for the account of any other party to this
Agreement.
8. DATA NECESSARY TO PERFORM SERVICES
The Corporation or its agent, which may be FMFS, shall furnish to FMFS
the data necessary to perform the services described herein at such
times and in such form as mutually agreed upon. If FMFS is also acting
in another capacity for the Corporation, nothing herein shall be deemed
to relieve FMFS of any of its obligations in such capacity.
9. NOTIFICATION OF ERROR
The Corporation will notify FMFS of any discrepancy between FMFS and
the Corporation, including, but not limited to, failing to account for
a security position in a Fund's portfolio, by the later of: within
three (3) business days after receipt of any reports rendered by FMFS
to the Corporation; within three (3) business days after discovery of
any error or omission not covered in the balancing or control
procedure; or within three (3) business days of receiving notice from
any shareholder.
10. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
state of Wisconsin. However, nothing herein shall be construed in a
manner inconsistent with the Investment Company Act of 1940 or any rule
or regulation promulgated by the Securities and Exchange Commission
thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the day
and year first written above.
XXXXXXXX XXXXX FUNDS, INC. XXXXXXXX PLUMB & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: President Title: Vice President
FIRSTAR MUTUAL FUND SERVICES, LLC:
By: /s/
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Title: Senior Vice President
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FIRSTAR MUTUAL FUND SERVICES, LLC
PROSPECT SERVICING
ANNUAL FEE SCHEDULE
FULL SERVICE (INBOUND TELESERVICING AND KIT ASSEMBLY AND MAILING)
TIER 1 (0-50) orders per month)
Account Management $300/month
TIER 2 (51-250 orders per month)
Account Management $300/month
First 50 orders NC
Per order over 50 $4.00/order
TIER 3 (251-500 orders per month)
Account Management $1,000/month
First 250 orders NC
Per order over 250 $3.50/order
TIER 4 (over 500 order per month)
Account Management $2,000/month
First 500 orders NC
Per order over 500 $3.00/order
Service includes account management, lead reporting, call servicing, database
management, kit assembly and mailing (excluding postage and materials).
INBOUND TELESERVICING (ONLY)
Account Management $100/month
Call Servicing .99/minute
Base Reporting Services Included.
Assumes that client is responsible for costs associated
with order delivery.
LEAD CONVERSION REPORTING
Account Management $700/month
Database Installation, Setup $1,500/fund group
WEB ON-LINE FULFILLMENT
Account Management $500/month
Installation, Setup $0 (NC)
Per Intermediary Request $.60/intermed request
FOLLOW-UP SERVICES
Correspondence $2.00/letter
E-mail Correspondence (Separate Quote)*
Telemarketing (Separate Quote)*
Customized Services (Separate Quote)*
*Dependent upon client requirements
All fees are billed monthly plus out-of-pocket expenses, including, but not
limited to:
Customized reporting development ($150.00/hour)
Postage, stationery
Programming, special reports
Retention of records
File transmission charges
Legal expenses
All other out-of-pocket expenses
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