Exhibit 99(m5)
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
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not 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:
-------------------------------- Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxx
Title: President
Title: Vice 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
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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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