(m)(2)
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT (THE "AGREEMENT") is made as of
_____________ 2008, by__________________, a___________________ company
("Company") having an address at __________________________ , on behalf of
__________________________ Funds., ("Fund Company") and
__________________________ a __________________ company, having an address at
_______________________________ ("Service Provider") (collectively, the
"Parties").
WHEREAS, the Company is a Transfer Agent registered with the
Securities and Exchange Commission (the "SEC") and provides services as
transfer agent, dividend disbursing agent and shareholder servicing agent to
the Fund Companies (each a "Fund") listed on SCHEDULE A annexed hereto, as may
be amended from time to time;
WHEREAS, the Fund Company is registered under the Investment Company
Act of 1940, as amended ("1940 Act"), as an open-end management investment
company and currently offers for public sale shares of common stock ("Shares")
in the separate series of the Fund Company listed on Schedule A, as may be
amended from time to time;
WHEREAS, the Service Provider, directly or through its affiliates,
subsidiary or designee (collectively, the "Service Provider") provides
shareholder support services (the "Services"), that may include, but are not
limited to, some or all of the Services contained in SCHEDULE B annexed hereto
for the underlying clients and/or defined contribution plan participants (the
"Clients") of Service Provider's Institutional Customer which may include,
banks, third party administrators, broker-dealers and registered investment
advisors (the "Customers");
WHEREAS, Company desires to engage Service Provider to provide the
Services to the Clients of the Customers, subject to the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Parties, intending to be legally
bound, agree as follows:
AGREEMENT
1. Incorporation of the Rules of the NSCC . The Rules & Procedures
Manual of the NSCC, including the rules and procedures applicable to the
utilization of the Defined Contribution Clearing and Settlement System, as
amended from time to time (the "Procedures), are hereby made a part of this
Agreement as if fully set forth herein and shall be a part of each trade
cleared by Service Provider on behalf of or at the request of the Company.
Notwithstanding the contrary provisions of Sections 4 and 5 hereof, the
Procedures applicable to the transmission of information and instructions, and
the settlement of transactions, shall be followed in all instances. Sections 4
and 5 shall apply as the operational procedures for this Agreement only in the
event that the NSCC is unavailable for whatever reason.
2. Term. The term of this Agreement shall commence on the date hereof
and shall continue until the earliest to occur of the following (the
"Termination Date"):
(A) This Agreement is terminated by mutual written consent of the
parties hereto. Consent shall not be unreasonably withheld by
either Party hereto;
(B) This Agreement is terminated upon the occurrence of the
following: (i) the occurrence of a material breach by the
Company of any of its representations, warranties, covenants or
agreements hereunder, and (ii) the failure to cure such breach
by Company for 60 (Sixty) days following receipt of notice to
Company of such breach;
(C) This Agreement is terminated upon the occurrence of the
following: (i) the occurrence of a material breach by Service
Provider of any of its representations, warranties, covenants
or agreements hereunder, and (ii) the failure to cure such
breach by Service Provider for 60 (Sixty) days following
receipt of notice to Service Provider of such breach; or
(D) The first anniversary of the date of this Agreement; provided
that, this Agreement shall be automatically renewed for
successive one (1) year terms unless (i) either party not less
than 30 days prior to the expiration date of the initial term
or any renewal term notifies the other party in writing that
the Agreement will not be renewed or (ii) the Agreement is
otherwise terminated pursuant to (A) (B) or (C) above.
The termination of this Agreement shall not relieve either Party of
any obligation hereunder that accrued prior to such termination.
3. Services Provided by the Service Provider. Service Provider agrees
to provide various types of Services with respect to a Fund's Shares. Such
Services may include those items that are enumerated in SCHEDULE B attached
hereto. Company hereby appoints Service Provider as its agent for the sole and
limited purpose of accepting purchase, exchange or redemption orders for mutual
fund shares (the "Shares") purchased, exchanged or redeemed by the Client
("Orders"). Service Provider hereby accepts its appointment on the terms and
conditions set forth herein. Notwithstanding anything in this Agreement to the
contrary, Service Provider shall not be acting as agent for Company in any
manner whatsoever, except in accepting such Orders.
4. Information Provided by the Company. (a) The Company agrees to
provide to the Service Provider on each business day that the New York Stock
Exchange ("NYSE") is open for business (the "Business Day") with (i) net asset
value information as determined at or about the close of trading (currently
4:00 P.M. Eastern Time ("ET") on the NYSE or at such other time at which the
Fund's net asset value is calculated as specified in each Fund's current
prospectus (the "Close of Trading"); (ii) dividend and capital gains
distribution information as it becomes available; (iii) in the case of income
Funds, the daily accrual for interest rate factor (mil rate); and (iv) any
other information that the Service Provider needs to perform the Services
listed in SCHEDULE B. The Company will provide net asset value information, and
income accrual, dividend payment and capital gains information to the Service
Provider by 9:00 P.M. ET on each Business Day.
(b) The Company will provide the Service Provider with (i) a
confirmation with respect to each instruction as defined below, to the Service
Provider under Section 5 herein no later than the start of trading of the NYSE
on the Business Day following the date on which the instruction is deemed to be
received by the Company; (ii) share positions for each Fund on each Business
Day; (iii) quarterly statements detailing activity in each Account within
fifteen Business Days after the end of each quarter; and (iv) such other
reports as may be reasonably requested by the Service Provider.
5. Instructions and Settlement. (a) Instructions to purchase and
redeem Shares by the Company for Service Provider shall be effected as provided
in this Section 5. The Service Provider shall transmit to the Company
instructions to purchase or redeem Shares of the Funds for accounts that have
been or will be opened with the Funds for the Clients (the "Instructions").
(b) The Service Provider will facilitate the clearing for the purchase
and redemption of trades of various mutual fund shares (the "Trades") in
accordance with the Rules of the NSCC. Purchases and redemptions for the Plans
shall be made at the net asset value determined as of the Close of Trading on
the Business Day that an Instruction to purchase or redeem shares is received
by the Service Provider, provided that (i) Service Provider receives
Instructions from Participants or Plan Representatives prior to the Close of
Trading on that Business Day; and (ii) the Company receives the Instructions
from the Service Provider by 6:00 A.M. ET on the next following Business Day.
Instructions received by the Service Provider from Participants or Plan
Representatives after the Close of Trading on any given Business Day shall be
treated as if received on the next following Business Day. The Service Provider
has in place and at all times during the term of this Agreement will maintain,
internal controls reasonably designed to prevent Participant and Plan orders
received after the Close of Trading on a Business Day from being aggregated
with orders properly received before that time.
(c) Payment for net purchases of Shares attributable to all
Instructions executed for the Accounts on a given Business Day will be wired by
the Service Provider no later than 3:00 P.M. ET on the next Business Day to a
custodial account designated by the Company. The Company agrees that payment
for redemptions of Shares attributable to all Instructions executed for the
Accounts on a given Business Day will be wired by the Company on the next
Business Day no later than 3:00 P.M. ET to an account designed by the Service
Provider.
6. Compensation to Service Provider. The Service Provider will receive
a fee as listed in SCHEDULE C in consideration for the services provided
pursuant to this Agreement.
7. Representations, Warranties and Covenants.
(A) Each of the Parties represents and warrants to the other as
follows:
(1) Such Party is an entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization and is duly qualified to transact business in each
other jurisdiction where it is required to be so qualified;
(2) This Agreement has been duly authorized and executed by
such Party, and represent the legal, valid and binding
obligations of such Party, enforceable against such party in
accordance with their respective terms;
(3) The execution, delivery and performance by such Party of
the Agreement does not violate, conflict with or constitute a
breach of any provision of any Federal, state or local law
applicable to such Party, the organizational documents of such
Party or any material agreement, contract, consent decree,
order or other instrument to which such Party is a Party or by
which such Party is bound;
(4) Other than a consent previously obtained, no consent or
other action of any third party is necessary for such Party to
execute, deliver or perform under the Agreement;
(5) The Parties are not affiliated with each other in any way.
Neither will represent or imply in any way that either Party
has any relationship with the other Party except as described
in this Agreement. Neither Party will use the other's name in
advertising or marketing material, or otherwise, without the
other's prior written consent, except that each party may use
the name of the other as may be necessary in their respective
regulatory filings; and
(6) At all times, the Parties shall comply with all federal and
state laws and regulations, including, but not limited to, the
Investment Company Act of 1940, the Securities Act of 1933, the
Securities and Exchange Act of 1934 and the Employee Retirement
Income Security Act (all as amended).
(B) The Company represents, warrants, and covenants that:
(1) The Company is an entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization and is duly qualified to transact business in each
other jurisdiction where it is required to be so qualified;
(2) The Funds are series of investment companies registered
under the '40 Act and Shares sold by the Funds are, and will
be, registered under the '33 Act;
(3) Except as indicated on Schedule A, Shares of the Funds are
properly registered with the U.S. Securities and Exchange
Commission and all regulatory requirements necessary to permit
Shares to be sold in accordance with the terms of this
Agreement have been satisfied for all fifty states and the
District of Columbia. The Company will notify the Service
Provider immediately if there is any change in the registration
or qualification for sale of any Shares; and
(4) The Service Provider is not responsible for any information
contained in any prospectus, registration statement, annual
report, proxy statement, or item of advertising, marketing
material or any other document prepared by the Company or its
affiliate that relates to any Fund.
(C) Service Provider represents, warrants and covenants that:
(1) To the extent Service Provider engages one or more third
parties (including any of its affiliates or designees) to act
as subcontractor(s) or agent(s) ("Subcontractor") to perform
the Services required by this Agreement, Service Provider
represents it has determined that each such Subcontractor is
capable of performing the Services, and that Service Provider
will take such measures as may be necessary to ensure that such
Subcontractors perform the Services in accordance with the
terms of this Agreement and applicable law. All references to
Service Provider in this Agreement shall also cover
Subcontractors to the extent that Services are provided by
Subcontractors.
8. Indemnification. (a) The Company does hereby agree to indemnify,
defend and hold harmless the Service Provider its affiliates, subsidiary,
parent company, officers, managers, representatives, and employees
(collectively, the "Service Provider Parties") from and against any claims,
liabilities, costs, attorneys' fees and legal costs, expenses, indirect or
direct losses, damages and penalties (collectively, "Costs") incurred by any
such Service Provider Party arising from or relating to (A) any breach by the
Company of any representation, warranty, agreement or other obligation
contained in this Agreement; (B) such Service Provider acting in accordance
with any instructions given by or on behalf of the Company and/or Plan for the
Funds; (C) any untrue statement or alleged untrue statement of material fact
contained in the Company registration statement, prospectus of the Funds, any
sales literature of the Funds or any other document prepared by the Company
Parties or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; (D) any error or omission by the Company and/or Plan in an
Instruction that results in Costs; and (E) such Service Provider's Party's
investigation, preparation or defense of any of the foregoing.
(b) The Service Provider does hereby agree to indemnify, defend and
hold harmless the Company its affiliates, parent company, officers, managers,
representatives, and employees (collectively, the "Company Parties") from and
against any Costs incurred by any such Company Party arising from or relating
to (A) any breach by the Service Provider of any representation, warranty,
agreement or other obligation contained in this Agreement; and (B) such Company
Party's investigation, preparation or defense of any of the foregoing.
The provisions of this Section 8 shall survive the termination of this
Agreement.
9. Non-Exclusivity. Both Parties may enter into other similar
Servicing Agreements with any other person or persons without the other's
consent.
10. Amendment and Waiver. Any of the terms of this Agreement may be
waived, amended or modified in whole or in part only by a writing signed by the
Parties hereto. No failure of any Party to insist upon strict performance of
any provision of this Agreement shall constitute a waiver.
11. Entire Agreement. This Agreement, together with its accompanying
schedule(s), constitutes the entire Agreement between the Parties with respect
to the subject matter herein and there are no agreements, representations or
warranties between the Parties other than those set forth or provided for
herein.
12. Choice of Law. 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.
13. Liability; Acts Beyond Control. Notwithstanding anything herein to
the contrary, Service Provider shall not be liable to the Company for any act
or omission of Service Provider provided that Service Provider acted in good
faith, unless such conduct was found to constitute gross negligence or willful
misconduct. Service Provider shall not be liable for undertaking any act on
instructions from the Company or for failing to act in the absence of such
Instructions. Service Provider shall be entitled to conclusively rely on the
authenticity of any notice or other communication received from the Company so
long as Service Provider reasonably believes the notice or other communication
to be genuine. Under no circumstances shall Service Provider be liable to the
Company for (A) any losses or unrealized gains resulting from Instructions not
authorized on a timely basis, or (B) any indirect, incidental, special,
consequential or punitive damages, including without limitation any damages
claimed as a result of lost profits.
Service Provider shall not be responsible for losses caused directly
or indirectly by conditions beyond its reasonable control, including but not
limited to war, natural disaster, government or NSCC restrictions or changes,
exchange, market or NSCC rulings, strikes, interruptions of communications or
data processing services, or disruptions in orderly trading on any exchange or
market. The Parties acknowledge that unforeseen circumstances may temporarily
prohibit Service Provider from performing its services under the NSCC system.
The provisions of this Section 13 shall survive the termination of
this Agreement.
14. Arbitration. Company, and its affiliates, officers, directors,
representatives and employees (collectively, the "Company Parties") hereby
agree to settle by arbitration any controversy between Company and Service
Provider or any of its affiliates, officers, directors, representatives, and
employees, (collectively, the "Service Provider Parties") which controversy
arises out of this Agreement or any related agreement or the transactions
contemplated hereby and thereby between Company and Service Provider. Such
arbitration will be conducted in Milwaukee, Wisconsin, by, and according to the
securities arbitration rules then in effect of, the NASD Code of Arbitration
Procedure. Arbitration may be initiated by serving or mailing a written notice.
The Parties acknowledge the following with respect to this arbitration
clause:
(A) Arbitration is final and binding on the Parties;
(B) The Parties are waiving their right to seek remedies in court,
including the right to a jury trial;
(C) Pre-arbitration discovery is generally more limited than and
different from court proceedings;
(D) The arbitrators' award is not required to include factual
findings or legal reasoning and any Party's right to appeal or
to seek modification of rulings by the arbitrators is strictly
limited; and
(E) The panel of arbitrators will typically include arbitrators who
were or are affiliated with the securities industry.
Any award the arbitrator makes will be final, and judgment on it may
be entered in any court having jurisdiction. The prevailing Party shall be
entitled to reasonable attorneys' fees together with any costs and expenses.
This arbitration agreement shall be enforced and interpreted exclusively in
accordance with applicable federal law, including the Federal Arbitration Act.
This arbitration provision shall survive: (i) termination or changes
in the Agreement; and (ii) the bankruptcy of any Party. If any portion of this
arbitration provision is deemed invalid or unenforceable, the remaining
portions shall nevertheless remain in force.
15. Assignment by Service Provider. Service Provider without the
consent of the Company may assign its rights and obligations under this
Agreement to any subsidiary, affiliate or successor by merger or consolidation
upon written notice to Company. The Company may not assign its rights and
obligations under this Agreement without the written consent of Service
Provider.
16. Attorneys' Fees. In any arbitration, or other proceeding by which
one Party either seeks to enforce its rights under this Agreement (whether in
contract, tort or both) or seeks a declaration of any rights under this
Agreement, the prevailing Party shall be awarded reasonable attorneys' fees,
together with any costs and expenses, to resolve the dispute and enforce the
final judgment.
17. Notice. Any notice, demand, consent, election, offer, approval,
request or other communication (collectively, a "Notice") required or permitted
under this Agreement must be in writing and either delivered personally, by a
nationally recognized overnight courier, or sent by certified or registered
mail, postage prepaid, return receipt requested. A Notice must be addressed to
a Party as follows:
if to Service Provider, to
Attention:
if to Company, to
Attention:
A Notice delivered personally will be deemed given only when
acknowledged in writing by the party to whom it is delivered. A Notice
delivered via a nationally recognized overnight courier shall be deemed given
as of the next Business Day after it is sent. A Notice that is sent via mail
will be deemed given three (3) Business Days after it is mailed. The address
specified by a party above for notices to be sent may be changed by such party
by written notice to the other party.
18. Severability. Should any provision of this Agreement be held
invalid or unenforceable by any arbitrator, statute, rule or otherwise, the
remaining provisions of this Agreement will continue in full force and effect.
Upon such determination that provision is invalid or unenforceable, the parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
19. Anti-Money Laundering Program. Service Provider represents and
warrants that it has adopted an anti-money laundering program ("AML Program")
that complies with the Bank Secrecy Act, as amended by the USA PATRIOT Act, and
any future amendments (the "PATRIOT Act," and together with the Bank Secrecy
Act, the "Act"), the rules and regulations under the Act, and the rules,
regulations and regulatory guidance of the SEC, the Financial Industry
Regulatory Authority ("FINRA") or any other applicable self-regulatory
organization (collectively, "AML Rules and Regulations"). Service Provider
further represents that its AML Program, at a minimum, (1) designates a
compliance officer to administer and oversee the AML Program, (2) provides
ongoing employee training, (3) includes an independent audit function to test
the effectiveness of the AML Program, (4) establishes internal policies,
procedures, and controls that are tailored to its particular business, (5) will
include a customer identification program for its institutional customers
consistent with the rules under section 326 of the Act, (6) provides for the
filing of all necessary anti-money laundering reports including, but not
limited to, currency transaction reports and suspicious activity reports, (7)
provides for screening all new and existing customers against the Office of
Foreign Asset Control ("OFAC") list and any other government list that is or
becomes required under the Act, and (8) allows for appropriate regulators to
examine Service Provider's AML books and records.
20. Market Timing. Service Provider represents that it has and will
maintain policies and procedures to help assist the funds in identifying any
market timing transaction that contravenes the restrictions or prohibitions on
market timing, if any, as found in the then current Funds' prospectus and/or
statement of additional information.
21.Shareholder Information Agreement. If the Service Provider is a
"financial intermediary" other than a "indirect financial intermediary" each as
defined in Rule 22c-2, Service Provider agrees to enter into the Rule 22c-2
Shareholder Information Agreement, substantially in the form attached hereto,
with Company contemporaneously with the execution of this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first written above.
SERVICE PROVIDER
By:
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Name:
Title:
COMPANY
By:
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Name:
Title:
SCHEDULE A
THE FUNDS
Funds and Cusips
TICKER CUSIP
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SCHEDULE B
THE SERVICES
Services provided may include, but are not limited to, some or all of
the following:
(A) processing dividend and distribution payments from the Funds;
(B) providing periodic statements showing their positions in the
Shares or share equivalents;
(C) arranging for bank wires;
(D) responding to routine inquiries from authorized representatives
of the Customers relating to Services performed by Service
Provider;
(E) providing sub-accounting with respect to the Shares or the
information necessary for sub-accounting;
(F) if required by law, forwarding shareholder communications from
the Funds (such as proxies, shareholder reports, annual and
semi-annual financial statements and dividend, distribution and
tax notices);
(G) forwarding proxy statements and proxies containing any
proposals regarding this Agreement or the Customer related
hereto;
(H) aggregating and processing purchase, exchange and redemption
requests with the Funds and placing net purchase, exchange and
redemption orders with the Funds ;
(I) providing a service that invests the assets of their accounts
in the Shares pursuant to specific or pre-authorized
instructions;
(J) establishing and maintaining accounts and records relating to
transactions in the Shares;
(K) assisting the Company and/or the Funds in changing dividend or
distribution options, account designations and addresses; and
(L) other similar services if requested by the Company.
SCHEDULE C
COMPENSATION
Capitalized terms used in this Schedule have the meanings given them in the
Agreement to which this SCHEDULE C is annexed.
Annual rate of up to 0.00 % of the average daily net asset value of Fund's
shares held of record by you from time to time on behalf of Customers.
