Exhibit (h)(11)
AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT
AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT, dated this 15th
day of May, 2002, between XXXXXXX VALUE SERIES, INC. (the "Fund"), a Maryland
corporation and Deutsche Investment Management Americas Inc. ("DeIM" or
"Administrator"), a Delaware corporation.
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized to issue shares of capital stock
("Shares") in separate series, with each such series representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Fund has established multiple series designated as Xxxxxxx
Contrarian Fund, Xxxxxxx-Xxxxxx High Return Equity Fund and Xxxxxxx-Xxxxxx Small
Cap Value Fund (each a "Series"), each of which offers four classes of shares,
namely the Class A, Class B, Class C, Class I and Institutional Class Shares
(collectively, the "Classes"); and
WHEREAS, DeIM provides investment management services pursuant to a
separate Investment Management Agreement; and
WHEREAS, the Fund wishes to retain DeIM to provide administrative and
other services to the Fund with respect to the Series and Classes in the manner
and on the terms hereinafter set forth; and
WHEREAS, DeIM is willing to furnish such services
in the manner and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
I. APPOINTMENT. The Fund hereby appoints DeIM as Administrator to provide the
administrative and other services with respect to the Series for the period and
on the terms set forth in this Agreement. The Administrator accepts such
appointment and agrees during such period to render the services herein set
forth for the compensation herein provided. In the event the Fund establishes
and designates additional series with respect to which it desires to retain the
Administrator to render administrative and other services hereunder and the
Administrator is willing to render those services, Schedule A hereto shall be
amended to reflect the compensation payable to the Administrator on behalf of
that series and that series shall become a Series hereunder.
II. DUTIES. Subject to the general supervision of the Board of Directors of the
Fund (the "Board"), the Administrator shall provide or procure all
organizational, administrative and other services reasonably necessary for the
operation of the Series and certain other services, all as more particularly
described and except as provided below.
A. ADMINISTRATIVE SERVICES. Subject to the approval or consent of the
Board, the Administrator shall provide or procure, at the Administrator's
expense, services to each Series ("Serieswide Administrative Services") to
include the following: (i) coordinating matters relating to the operation of the
Series, including any necessary coordination among DeIM or other advisers to the
Series, the custodian(s), transfer agent(s), shareholder servicing and dividend
disbursing agent(s), subaccounting and recordkeeping agent(s), pricing agent(s),
independent public accountants, attorneys, and other parties performing services
or operational functions for the Series; (ii) providing the Series with the
services of a sufficient number of persons competent to perform such
administrative and clerical functions as are necessary to ensure compliance with
federal securities laws, as well as other applicable laws, and to provide
effective administration of the Series; (iii) maintaining, or supervising the
maintenance by third parties, of such books and records of the Fund and the
Series as may be required by applicable federal or state law other than the
records and ledgers maintained under the Investment Management Agreement; (iv)
preparing and arranging for the distribution of proxy materials to shareholders
of the Series as required by applicable law; (v) arranging for and paying for
services of the Series' custodian; (vi) arranging for and paying for preparation
of the Series' tax returns; and (vii) taking such other action with respect to
the Series as may be required by applicable law, including, without limitation,
the rules and regulations of the SEC and of state securities commissions and
other regulatory agencies.
Subject to the approval or consent of the Board, the
Administrator shall provide or procure, at the Administrator's expense, services
to each Class of the Series ("Class Administrative Services") to include the
following: (i) transfer agency, shareholder servicing and dividend disbursing
services, and, to the extent allocable to a particular Class, subaccounting and
recordkeeping services; (ii) internal fund accounting services performed on
behalf of each Series; and (iii) preparing and arranging for the printing and
distribution of prospectuses, periodic reports and notices to shareholders of
the Series as required by applicable law. To the extent that any Serieswide
Administrative Services described above are provided to a particular Class, they
may be deemed to be Class Administrative Services.
B. EXPENSES. During the term of this Agreement, the Administrator will
pay all expenses incurred by it in connection with its obligations under this
Agreement, except such expenses as are those of the Series under this Agreement.
The Administrator shall pay for maintaining its staff and personnel and shall,
at its own expense provide the equipment, office space, and facilities necessary
to perform its obligations under this Agreement. In addition, the Administrator
shall, at its expense, furnish to the Fund, any Series or a particular Class
thereof, as applicable, or procure and pay for: (a) usual and customary auditing
services of each Series' independent public accountants; (b) services of each
Series' transfer agent(s), shareholder servicing and dividend disbursing
agent(s), and shareholder recordkeeping agent(s); (c) services of each Series'
custodian, including any recordkeeping services provided by the custodian; (d)
services of each Series' accounting agent(s); (e) services of obtaining
quotations for calculating the value of each Series' net assets; (f) services of
maintaining the Series' tax records; (g) services, including procurement of
legal services, incident to meetings of the Fund's shareholders, the preparation
and filing of registration statements under the Securities Act of 1933, as
amended, and the 1940 Act and any amendments thereto, and reports of the Fund to
its shareholders, the preparation and filing of reports to regulatory bodies,
the maintenance of the Fund's existence and qualification to do business, and
the registration of shares with federal and
2
state securities authorities (except as described in subsection (gg) below); (h)
procurement of ordinary legal services, including the services that arise in the
ordinary course of business for a Maryland corporation registered as an open-end
management investment company; (i) the Fund's pro rata portion of the fidelity
bond required by Section 17(g) of the 1940 Act, or other insurance premiums; (j)
association membership dues; (k) services to organize and offer shares of the
Fund and the Series; and (l) printing and postage expenses related to the
mailing of periodic reports, prospectuses, statements of additional information
and other shareholder mailings, excluding proxy solicitations; (m) expenses that
are the obligation of a Series pursuant to a special servicing agreement with a
registered investment company that is a holder of shares of the Series and that
may be deemed to be an affiliated person, or an affiliated person of such a
person, as defined in the 1940 Act; and (n) expenses in the nature of avoided
transfer agency costs payable to a person that is a shareholder of record for an
omnibus account on the transfer agency records of the Series. The Fund shall
bear the following expenses: (aa) salaries and other compensation of any of the
Fund's executive officers and employees, if any, who are not officers,
directors, stockholders, or employees of the Administrator or its subsidiaries
or affiliates; (bb) taxes, if any, levied against the Fund or any of its Series;
(cc) brokerage fees and commissions in connection with the purchase and sale of
portfolio securities for any of the Series; (dd) costs, including the interest
expenses, of borrowing money; (ee) fees and expenses of Board members who are
not officers, employees, or stockholders of the Administrator or its
subsidiaries or affiliates, and the fees and expenses of any counsel,
accountants, or any other persons engaged by such Board members in connection
with the duties of their office with the Fund; (ff) extraordinary expenses,
including extraordinary legal expenses to the extent authorized by the Board, as
may arise, including expenses incurred in connection with litigation,
proceedings, other claims and the legal obligations of the Fund to indemnify its
Board members, officers, employees, shareholders, distributors, and agents with
respect thereto; (gg) organizational and offering expenses of the Fund and the
Series to the extent authorized by the Board, and any other expenses which are
capitalized in accordance with generally accepted accounting principles; and
(hh) any expenses allocated to a specific Series pursuant to a shareholder
services or Rule 12b-1 distribution plan.
C. ORGANIZATIONAL SERVICES. The Administrator shall provide the Fund
and the Series, at the Administrator's expense, with the services necessary to
organize any Series that commence operations on or after the date of this
Agreement so that such Series can conduct business as described in the Fund's
Registration Statement.
D. The Administrator shall also make its officers and employees
available to the Board and officers of the Fund for consultation and discussions
regarding the administration of the Series and services provided to the Series
under this agreement.
E. In performing these services, the Administrator: (i) shall conform
with the 1940 Act and all rules and regulations thereunder, all other applicable
federal and state laws and regulations, with any applicable procedures adopted
by the Board, and with the provisions of the Fund's Registration Statement filed
on Form N-1A, as supplemented or amended from time to time, (ii) will make
available to the Fund, promptly upon request, any of the Series' books and
records as are maintained under this Agreement, and will furnish to regulatory
authorities having the requisite authority any such books and records and any
information or reports in connection with the Administrator's services under
this Agreement that may be requested in order to ascertain whether the
operations of the Fund are being conducted in a manner consistent with
3
applicable laws and regulations, and (iii) will regularly report to the Board on
the services provided under this Agreement and will furnish the Board with
respect to the Series such periodic and special reports as the Board may
reasonably request.
The Administrator shall keep books and records relating to the
services performed hereunder, in the form and manner, and for such period as it
may deem advisable and is agreeable to the Fund but not inconsistent with the
rules and regulations of appropriate government authorities, in particular,
Section 31 of the 1940 Act and the rules thereunder. The Administrator agrees
that all such records prepared or maintained by the Administrator relating to
the services to be performed by the Administrator pursuant to this Agreement are
the property of the Fund and will be preserved, maintained, and made available
in accordance with such section and rules of the 1940 Act and will be promptly
surrendered to the Fund on and in accordance with its request.
F. The services provided by the Administrator under this Agreement are
in addition to those required to be provided by it under the Investment
Management Agreement entered into between the Administrator and the Fund on
behalf of each Series. Notwithstanding any other provision of the Agreement, all
other services provided by the Administrator under the Investment Management
Agreement will continue to be provided by the Administrator and paid for by the
Fund pursuant to that agreement.
III. INDEPENDENT CONTRACTOR. The Administrator shall for all purposes herein be
deemed to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized by the Board from time to time, have no authority
to act for or represent the Fund in any way or otherwise be deemed its agent.
IV. COMPENSATION. The Fund shall pay the Administrator on behalf of the Series a
Serieswide Administrative Fee as compensation for the Serieswide Administrative
Services set forth in Section II.A above. Each Class of the Series shall pay the
Administrator on its own behalf a Class Administrative Fee as compensation for
the Class Administrative Services provided to the Class as set forth in Section
II.A above. The Serieswide Administrative Fee and the Class Administrative Fee
shall be at the rates set forth in Schedule A hereto. The amount of any credit
received from the Series' custodian for cash balances maintained at the
custodian shall be subtracted from the Serieswide Administrative Fee required to
be paid by Fund under this Agreement.
V. NON-EXCLUSIVITY. It is understood that the services of the Administrator
hereunder are not exclusive, and the Administrator shall be free to render
similar services to other investment companies and other clients.
VI. LIABILITY. The Administrator shall give the Fund the benefit of the
Administrator's best efforts in rendering services under this Agreement. The
Administrator may rely on information reasonably believed by it to be accurate
and reliable. As an inducement for the Administrator's undertaking to render
services under this Agreement, the Fund agrees that neither the Administrator
nor the stockholders, officers, directors, or employees of the Administrator
shall be subject to any liability for, or any damages, expenses or losses
incurred in connection with, any act, omission or mistake in judgment connected
with or arising out of any services rendered under this Agreement, except by
reason of willful misfeasance, bad faith, or
4
negligence in the performance of the Administrator's duties, or by reason of
reckless disregard of the Administrator's obligations and duties under this
Agreement. This provision shall govern only the liability to the Fund of the
Administrator and that of the stockholders, officers, directors, and employees
of the Administrator, and shall in no way govern the liability to the Fund or
the Administrator of any other person or provide a defense for such other
person, including persons that provide services for the Series as described in
Section II.B or C of this Agreement.
VII. TERM AND CONTINUATION. This Agreement shall take effect as of the date
hereof, and shall remain in effect, unless sooner terminated as provided herein,
until September 30, 2003, and shall continue thereafter on an annual basis with
respect to each Series, provided that such continuance is specifically approved
at least annually (a) by the vote of a majority of the Board, or (b) by vote of
a majority of the outstanding voting securities of the Series, and provided
continuance is also approved by the vote of a majority of the Board who are not
parties to this Agreement or "interested persons" (as defined in the 0000 Xxx)
of the Fund, cast in person at a meeting called for the purpose of voting on
such approval. This Agreement may be terminated at any time, without the payment
of any penalty with respect to the entire Fund or only with respect to one or
more Series thereof: (a) by the Fund at any time with respect to the services
provided by the Administrator by vote of (1) a majority of the Board members who
are not "interested persons" (as such term is defined in the 1940 Act) of the
Fund, or (2) a majority of the outstanding voting shares of the Fund or, with
respect to a particular Series, by vote of a majority of the outstanding voting
shares of such Series, on 60 days' written notice to the Administrator; and (b)
by the Administrator on or after September 30, 2003, without the payment of any
penalty, upon 60 days' written notice to the Fund.
VIII. NOTICES. Notices of any kind to be given to the Administrator by the Fund
shall be in writing and shall be duly given if mailed or delivered to the
Administrator at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or to such other
address or to such individual as shall be specified by the Administrator.
Notices of any kind to be given to the Fund by the Administrator shall be in
writing and shall be duly given if mailed or delivered to 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, or to such other address or to such individual as shall
be specified by the Fund.
IX. FUND OBLIGATION. The obligations of this Agreement to pay the Administrator
for services provided to or procured for a Series shall be binding only upon the
assets and property of that Series and shall not be binding upon any Board
member, officer, or shareholder of the Fund individually.
X. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original.
XI. MISCELLANEOUS. This Agreement shall be governed by the laws of
Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby and, to this extent, the provisions of this Agreement shall
be deemed to be severable. To the extent that any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise
with regard to any party hereunder, such provisions with respect to other
parties hereto shall not be affected thereby. The captions in this Agreement are
included for convenience only and in no way define any of the provisions hereof
or otherwise
5
affect their construction or effect. This Agreement may not be assigned by the
Fund or the Administrator without the consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below on the day and year first above
written.
XXXXXXX VALUE SERIES, INC.
By: /s/Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC.
By: /s/Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Managing Director
6
