SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
ADVANTUS ENTERPRISE FUND, INC.
AND
MINNESOTA LIFE INSURANCE COMPANY
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
-------------------------------------------------
AGREEMENT made as of the 26th of July, 2000, by and between
Advantus Enterprise Fund, Inc., a Minnesota corporation, having its principal
office and place of business at 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx
00000 (the "Fund"), and Minnesota Life Insurance Company, a Minnesota
corporation having its principal office and place of business at 000 Xxxxxx
Xxxxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx 00000 ("ML").
WHEREAS, the Fund has contracted with PFPC Inc. formerly
"First Data Investor Services Group, Inc.", (the "Transfer Agent"), to provide
customary transfer agent services to the Fund; and
WHEREAS, the Fund has reserved certain shareholder
servicing tasks and responsibilities ("Shareholder Services") which are to be
performed by ML rather than the Transfer Agent; and
WHEREAS, the Fund has further reserved certain accounting,
auditing, legal and other administrative tasks and responsibilities
("Administrative Services") to be performed by ML; and
WHEREAS, the Fund desires to appoint ML as its Shareholder
Services agent and agent in connection with certain other Administrative
Services, and ML desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT AND DUTIES OF ML
-------------------------------------
1.01 Subject to the terms and conditions set forth in
this Agreement, and in accordance with procedures established from time to
time by agreement between the Fund and ML, ML hereby agrees to provide the
following Administrative Services:
(a) Register or qualify, and maintain the registrations
or qualifications, of the Fund and its common stock
("Shares") under state or other securities laws;
(b) Calculate the Fund's net asset value per Share at
such times and in such manner as specified in the
Fund's current prospectus and statement of
additional information and at such other times as
the parties hereto may from time to time agree
upon;
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(c) Upon the Fund's distribution of dividends and
capital gains, calculate the amount of such
dividends and capital gains to be received per
Share and calculate the number of additional Shares
to be received by each Shareholder, other than any
shareholder who has elected to receive such
dividends and capital gains in cash;
(d) Prepare and maintain all accounting records
required by the Fund, including a general ledger;
(e) Prepare the Fund's annual and semi-annual financial
statements;
(f) Prepare and file the Fund's income, excise and
other tax returns;
(g) Provide audit assistance in conjunction with the
Fund's independent auditors;
(h) Provide such legal services as the parties hereto
may from time to time agree upon, including without
limitation preparation and filing with the
Securities and Exchange Commission of the annual or
more frequent post-effective amendments to the
Fund's registration statement and the Fund's proxy
materials; and
(i) Provide such other Administrative Services as the
parties hereto may from time to time agree upon.
1.02 As Shareholder Services agent, ML agrees to
provide or perform the following Shareholder Services in accordance with
procedures established from time to time by agreement between the Fund and ML:
(a) Receive telephone redemption requests, telephone
redemption directions, wire order purchase requests
and telephone transfer instructions, and deliver
such requests, directions and instructions together
with other appropriate information, to the Transfer
Agent;
(b) Provide customer service representatives to respond
to telephone inquiries relating to the Fund from
customers, shareholders and/or registered
representatives and forward any pertinent
information, including without limitation
instructions pertaining to any periodic investment
plan, periodic withdrawal plan or other plan set
out in the currently effective prospectus, or
requests to the Transfer Agent. ML shall transmit
electronically, via U.S. mail or any other delivery
means ML determines to be suitable, any Shareholder
or account transaction instructions received, to
the Transfer Agent in a timely fashion; and
(c) ML will calculate any minimum required distribution
amounts for plans qualified under Section 401(a) or
408 of the Internal Revenue Code, as
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that term is defined under the Code or delegate such
responsibility to a suitable agent, with the Fund's
approval.
Article 2 ADDITIONAL DUTIES
-----------------
2.01 ML shall keep records relating to the services
to be performed hereunder, in the form and manner as it may deem advisable.
To the extent required by Section 31 of the Investment Company Act of 1940,
as amended, and the Rules thereunder, ML agrees that all such records
prepared or maintained by ML relating to the services to be performed by ML
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
2.02 ML and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed
to any other person, except as may be required be law.
2.03 ML will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund in case of any
requests or demands for the inspection of Shareholder records. ML reserves
the right, however, to exhibit the Shareholder records to any person whenever
it is advised by its counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person.
Article 3 FEES AND EXPENSES
-----------------
3.01 For Shareholder Services performed by ML pursuant
to this Agreement, the Fund will pay ML an annual account servicing fee as
set forth in Schedule A. In addition to the fees, the Fund will reimburse ML
for out-of-pocket expenses or advances incurred by ML. Such fees,
out-of-pocket expenses or advances may be changed from time to time subject
to mutual written agreement between the Fund and ML.
3.02 For Administrative Services performed by ML
pursuant to this Agreement, the Fund will pay ML a monthly Administrative
Services Fee as set forth in Schedule A. In addition to the fees, the Fund
will reimburse ML for out-of-pocket expenses or advances incurred by ML. Such
fees, out-of-pocket expenses or advances may be changed from time to time
subject to mutual written agreement between the Fund and ML.
Article 4 REPRESENTATIONS AND WARRANTIES OF ML
------------------------------------
ML represents and warrants to the Fund that:
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4.01 It is a corporation duly organized and existing and
in good standing under the laws of the State of Minnesota.
4.02 It is duly qualified to carry on its business in
the State of Minnesota
4.03 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4.04 It agrees to obtain and maintain, all regulatory
licensing as may be required of it, if any, under this Agreement.
Article 5 REPRESENTATIONS AND WARRANTIES OF THE FUND
------------------------------------------
The Fund represents and warrants to ML that:
5.01 It is a corporation duly organized and existing and
in good standing under the laws of Minnesota.
5.02 It is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into and perform this Agreement.
5.03 All corporate proceedings required by said Articles
of Incorporation and Bylaws have been taken to authorize it to enter into
and perform this Agreement.
5.04 It is an open-end and diversified management
investment company registered under the Investment Company Act of 1940.
5.05 A registration statement under the Securities Act
of 1933 is currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale.
Article 6 INDEMNIFICATION
---------------
6.01 ML shall not be responsible for, and the Fund
shall indemnify and hold ML harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to:
(a) All actions of ML or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that such actions
are taken in good faith without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the
terms of this Agreement, or which arise out of the Fund's lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund hereunder.
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(c) The reliance on or use by ML or its agents or
subcontractors of information, records and documents which (i) are received
by ML or is agents or subcontractors and furnished to it by or on behalf of
the Fund, and (ii) have been prepared and/or maintained by the Fund or any
other person or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by ML or its
agents or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state
or in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such Shares
in such state.
6.02 ML shall indemnify and hold the Fund harmless
from and against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to any action
or failure or omission to act by ML as a result of ML's lack of good faith,
negligence or willful misconduct, or ML's refusal or failure to comply with
the terms of this Agreement, or which arise out of the breach of any
representation or warranty of ML hereunder.
6.03 At any time ML may apply to any officer of the
Fund for instructions, and may consult with legal counsel to the Fund with
respect to any matter arising in connection with the services to be performed
by ML under this Agreement, and ML and its agents or subcontractors shall not
be liable and shall be indemnified by the Fund for any action taken or
omitted by it in good-faith reliance upon such instructions or upon the
opinion of such counsel. ML, its agents and subcontractors shall be protected
and indemnified in acting upon any paper or document furnished by or on
behalf of the Fund, reasonably believed to be genuine and to have been signed
by the proper person or persons, or upon any instruction, information, data,
records or documents provided ML or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means authorized by
the Fund, and shall not be held to have notice of any change or authority of
any person, until receipt of written notice thereof from the Fund. ML, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the
proper manual or facsimile signatures of the officers of the Fund, and the
proper countersignature of any transfer agent or registrar, or of a
co-transfer agent or co-registrar.
6.04 In the event any party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, the party shall not
be liable for damages to the other parties for any damages resulting from
such failure to perform or otherwise from such causes.
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6.05 No party to this Agreement shall be liable to any
other party for consequential damages, whether under any provision of this
Agreement or for any act or failure to act hereunder.
6.06 In order that the indemnification provisions
contained in this Article 6 shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall have
the option to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which the other party
may be required to indemnify it except with the other party's prior written
consent.
Article 7 TERMINATION OF AGREEMENT
------------------------
7.01 This Agreement may be terminated by either party
upon sixty (60) days written notice to the other party.
Article 8 ASSIGNMENT
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8.01 Neither this Agreement nor any rights or
obligations hereunder may be assigned by either party without the written
consent of the other party.
8.02 This Agreement shall inure to the benefit of and
be binding upon the parties and their respective permitted successors and
assigns.
Article 9 AMENDMENT
---------
9.01 This Agreement may be amended or modified by a
written agreement executed by both parties and authorized or approved by a
resolution of the Board of Directors of the Fund.
Article 10 GOVERNING LAW
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10.01 This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of the
State of Minnesota.
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Article 11 ENTIRE AGREEMENT
----------------
11.01 This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
Article 12 EFFECTIVE DATE
--------------
12.01 This Agreement shall be effective as of May 1, 2000.
IT WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf under their seals
by and through their duly authorized officers, as of the day and year first
above written.
ADVANTUS ENTERPRISE FUND, INC.
By /s/Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx, President
Attest /s/Xxxxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxxx, Treasurer
MINNESOTA LIFE INSURANCE COMPANY
By /s/Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, Executive Vice President
Attest /s/Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, Senior Vice
President, General Counsel and Secretary
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SCHEDULE A
TO THE
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
FOR
ADVANTUS ENTERPRISE FUND, INC.
(As effective May 1, 2000)
(1) Minnesota Life shall receive, as compensation for services
performed as its shareholder servicing agent, an annual account servicing fee
for each shareholder account, determined in accordance with the following table:
ANNUAL ACCOUNT FEE
------------------
$5.00
(2) Minnesota Life shall receive, as compensation for its
accounting, auditing, legal and other administrative services pursuant to this
Agreement, a monthly fee determined in accordance with the following table:
Monthly Administrative
SERVICE FEE
-----------
$6,200.00
The above monthly fees shall be paid to Minnesota Life not
later than five days following the end of each calendar quarter in which said
services were rendered.
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