EX-99.B(h)selssa
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, originally made as of the November 15, 2000, by and
between Xxxxxxx & Xxxx Advisors Value Fund, Inc. and Xxxxxxx & Xxxx
Services Company, is hereby amended and restated as of May 21, 2003 by and
between Xxxxxxx & Xxxx Advisors Select Funds, Inc. (f/k/a Xxxxxxx & Xxxx
Advisors Value Fund, Inc.) ("Corporation"), a Maryland Corporation and
Xxxxxxx & Xxxx Services Company, a Missouri Corporation ("Agent"),
W I T N E S S E T H :
WHEREAS, the Corporation wishes, as applicable, to appoint the Agent
or to continue the appointment of the Agent with respect to each of its
series (each a "Fund") to be its shareholder servicing agent upon, and
subject to, the terms and provisions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the parties agree as follows:
1. Appointment of Agent as Shareholder Servicing Agent for the
Corporation; Acceptance.
(1) The Corporation hereby appoints the Agent to act as
Shareholder Servicing Agent for each Fund upon, and subject to, the terms
and provisions of this Agreement.
(2) The Agent hereby accepts the appointment as Shareholder
Servicing Agent for each Fund and agrees to act as such upon, and subject
to, the terms and provisions of this Agreement.
(3) The Agent may appoint an entity or entities approved by the
Corporation in writing to perform any portion of Agent's duties hereunder
(the "Subagent").
2. Definitions.
(1) In this Agreement -
(a) The term the "Act" means the Investment Company Act of
1940 as amended from time to time;
(b) The term "account" means the shares of each Fund
registered on the books of the Corporation in the name of a shareholder
under a particular account registration number and includes shares subject
to instructions by the shareholder with respect to periodic redemptions
and/or reinvestment in additional shares of any dividends payable on said
shares;
(c) The term "affiliate" of a person shall mean a person
controlling, controlled by, or under common control with that person;
(d) The term "Class" shall mean each separate sub-class of
a class of shares of the Corporation, as may now or in the future exist;
(e) The term "Fund" shall mean each separate class of
shares of the Corporation, as may now or in the future exist;
(f) The term "officers' instruction" means an instruction
given on behalf of the Corporation to the Agent and signed on behalf of the
Corporation by any one or more persons authorized to do so by the
Corporation's Board of Directors;
(g) The term "prospectus" means the prospectus and
statement of additional information of the applicable Fund or Class from
time to time in effect;
(h) The term "shares" means shares including fractional
shares of capital stock of each Fund, whether or not such shares are
evidenced by an outstanding stock certificate issued by the Fund;
(i) The term "shareholder" shall mean the owner of record
of shares of a Fund;
(j) The term "stock certificate" means a certificate
representing shares in the form then currently in use by the Fund.
3. Duties of the Agent.
The Agent shall perform such duties as shall be set forth in this
Paragraph 3 and in accordance with the practice stated in Exhibit A of this
Agreement or any amendment thereof, any or all of which duties may be
delegated to or performed by one or more Subagents pursuant to Paragraph 1
above.
(1) Transfers.
Subject to the provisions of this Agreement the Agent hereby
agrees to perform the following functions as transfer agent for each Fund:
(a) Recording the ownership, transfer, exchange and
cancellation of ownership of shares of each Fund on the books of the
Corporation;
(b) Causing the issuance, transfer, exchange and
cancellation of stock certificates;
(c) Establishing and maintaining records of accounts;
(d) Computing and causing to be prepared and mailed or
otherwise delivered to shareholders payment checks including bank wire
transfers and notices of reinvestment in additional shares of dividends,
stock dividends or stock splits declared by each Fund on shares and of
redemption proceeds due by each Fund on redemption of shares;
(e) Causing checking accounts to be available and
maintained for shareholders who elect to redeem shares by drawing checks on
such accounts, including accepting or rejecting signatures on all checks
drawn on the checking account and notifying the payor bank to dishonor any
check the Agent deems not to be validly signed;
(f) Furnishing to shareholders such information as may be
reasonably required by the Corporation, including appropriate income tax
information;
(g) Addressing and mailing to shareholders prospectuses,
annual and semi-annual reports and proxy materials for shareholder meetings
prepared by or on behalf of the Funds;
(h) Replacing allegedly lost, stolen or destroyed stock
certificates in accordance with and subject to procedures and conditions
agreed upon and set out in officers' instructions;
(i) Maintaining such books and records relating to
transactions effected by the Agent pursuant to this Agreement as are
required by the Act, or by rules or regulations thereunder, or by any other
applicable provisions of law, to be maintained by the Corporation or its
transfer agent with respect to such transactions; preserving, or causing to
be preserved, any such books and records for such periods as may be
required by any such law, rule or regulation; furnishing the Corporation
such information as to such transactions and at such time as may be
reasonably required by it to comply with applicable laws and regulations;
(j) Providing such services and carrying out such
responsibilities on behalf of the Corporation, or imposed on the Agent as
the Funds' transfer agent, not otherwise expressly provided for in this
Paragraph 3, as may be required by or be reasonably necessary to comply
with any statute, act, governmental rule, regulation or directive or court
order, including, without limitation, the requirements imposed by the Tax
Equity and Fiscal Responsibility Act of 1982 and the Income and Dividend
Tax Compliance Act of 1983 relating to the withholding of tax from
distributions to shareholders.
(2) Correspondence.
The Agent agrees to deal with and answer all correspondence
from or on behalf of shareholders relating to its functions under this
Agreement.
4. Compensation of the Agent.
With respect to each Fund, the Corporation agrees to pay the
Agent for its services under this Agreement in accordance with the schedule
as then in effect set forth in Exhibit B of this Agreement or any amendment
thereof. In addition, the Corporation agrees to reimburse the Agent for the
following "out-of-pocket" expenses of the Agent within five days after
receipt of an itemized statement of such expenses, to the extent that
payment of such expenses has not been or is not to be made directly by the
Corporation: (i) costs of stationery, appropriate forms, envelopes, checks,
postage, printing and mailing charges, including returned mail and proxies,
incurred by the Agent with respect to materials and communications sent to
shareholders in carrying out its duties to the Corporation under this
Agreement, bank charges for wire transfers pursuant to Section 3(1)(d)
herein above, and maintenance of shareholder checking accounts pursuant to
Section 3(1)(e) herein above; (ii) long distance telephone costs incurred
by the Agent for telephone communications and microfilm and storage costs
for transfer agency records and documents; (iii) costs of all ancillary and
supporting services and related expenses (other than insurance premiums)
reasonably required by and provided to the Agent, other than by its
employees or employees of an affiliate, with respect to functions of the
Corporation being performed by it in its capacity as Agent hereunder,
including legal advice and representation in litigation to the extent that
such payments are permitted under Paragraph 7 of this Agreement and charges
to Agent made by any Subagent; (iv) costs for special reports or
information furnished on request pursuant to this Agreement and not
specifically required by the Agent by Paragraph 3 of this Agreement; and
(v) reasonable costs and expenses incurred by the Agent in connection with
the duties of the Agent described in Paragraph (3)(1)(i). In addition, the
Corporation agrees to promptly pay over to the Agent any fees or payment of
charges it may receive from a shareholder for services furnished to the
shareholder by the Agent.
Services and operations incident to the sale and distribution of
each Fund's shares, including sales communications, confirmations of
investments (not including reinvestment of dividends) and the clearing or
collection of payments will not be for the account or at the expense of the
Corporation under this Agreement.
5. Right of Corporation to Inspect Records, etc.
The Corporation will have the right under this Agreement to
perform on site inspection of records and accounts and to perform audits
directly pertaining to the Corporation shareholder accounts serviced by the
Agent hereunder at the Agent's or any Subagent's facilities in accordance
with reasonable procedures and at the frequency necessary to assure proper
administration of the Agreement. The Agent will cooperate with the
Corporation's auditors or representatives of appropriate regulatory
agencies and furnish all reasonably requested records and data.
6. Insurance.
The Agent now has the insurance coverage described in Exhibit C,
attached hereto, and the Agent will not take any action to eliminate or
decrease such coverage during the term of this Agreement without receiving
the approval of the Corporation in advance of any change, except the Agent,
after giving reasonable notice to the Corporation, may eliminate or
decrease any coverage if the premiums for such coverage are substantially
increased.
Each Fund, at its expense, will include as part of its insurance
coverages maintained pursuant to Section 17(j) of the Act fidelity
insurance with respect to forgery or alteration of checks drawn on its
checking account referred to in Section 3(1)(e) of this Agreement subject
to such deductible for this particular coverage as it may deem appropriate.
The Agent will maintain at is expense such insurance coverages with respect
to the Agent's duties under Section 3(1)(e) for loss caused by errors or
omissions as it deems appropriate. Any loss to a Fund by reason of the
deductible on coverages maintained by it hereunder shall be paid by the
Agent.
7. Standard of Care; Indemnification.
The Agent will at all times exercise due diligence and good faith
in performing its duties hereunder. The Agent will make every reasonable
effort and take all reasonably available measures to assure the adequacy of
its personnel and facilities as well as the accurate performance of all
services to be performed by it hereunder within, at a minimum, the time
requirements of any applicable statutes, rules or regulations or as set
forth in the prospectus.
The Agent shall not be responsible for, and the Corporation
agrees to indemnify the Agent for any losses, damages or expenses
(including reasonable counsel fees and expenses) (i) resulting from any
claim, demand, action or suit not resulting from the Agent's failure to
exercise good faith or due diligence and arising out of or in connection
with the Agent's duties on behalf of the Corporation hereunder; (ii) for
any delay, error or omission by reason of circumstances beyond its control,
including acts of civil or military authority, national emergencies, labor
difficulties (except with respect to the Agent's employees), fire,
mechanical breakdown beyond its control, flood or catastrophe, acts of God,
insurrection, war, riots, terrorist attacks or failure beyond its control
of transportation, communication or power supply; or (iii) for any action
taken or omitted to be taken by the Agent in good faith in reliance on (a)
the authenticity of any instrument or communication reasonably believed by
it to be genuine and to have been properly made and signed or endorsed by
an appropriate person, (b) the accuracy of any records or information
provided to it by the Corporation, (c) any authorization or instruction
contained in any officers' instruction, or (d) with respect to the
functions performed for the Corporation listed under Paragraph 3(1) of this
Agreement, any advice of counsel approved by the Corporation who may be
internally employed counsel or outside counsel, in either case for the
Corporation and/or the Agent.
In order for the rights to indemnification to apply, it is
understood that if in any case the Corporation may be asked to indemnify or
hold the Agent harmless, the Corporation shall be advised of all pertinent
facts concerning the situation in question, and it is further understood
that the Agent will use reasonable care to identify and notify the
Corporation promptly concerning any situation which presents or appears
likely to present a claim for indemnification against the Corporation. The
Corporation shall have the option to defend the Agent against any claim
which may be the subject of this indemnification and, in the event that the
Corporation so elects, it will so notify the Agent and thereupon the
Corporation shall take over complete defense of the claim and the Agent
shall sustain no further legal or other expenses in such situation for
which the Agent shall seek indemnification under this Paragraph. The Agent
will in no case confess any claim or make any compromise in any case in
which the Corporation will be asked to indemnify the Agent except with the
Corporation's prior written consent.
8. Term of the Agreement; Taking Effect; Amendments.
This Agreement shall become effective at the start of business on
the date hereof and shall continue, unless terminated as hereinafter
provided, for a period of one year and from year to year thereafter,
provided that such continuance shall be specifically approved as provided
below.
This Agreement shall go into effect, or may be continued, or may
be amended or a new agreement between the Corporation and the Agent
covering the substance of this Agreement may be entered into only if the
terms of this Agreement, such continuance, the terms of such amendment or
the terms of such new agreement have been approved by the Board of
Directors of the Corporation, including the vote of a majority of the
directors who are not "interested persons," as defined in the Act, of
either party to this Agreement or of Xxxxxxx & Xxxx Investment Management
Company, cast in person at a meeting called for the purpose of voting on
such approval. Such a vote is hereinafter referred to as a "disinterested
director vote."
Any disinterested director vote shall include a determination
that (i) the Agreement, amendment, new agreement or continuance in question
is in the best interests of each Fund and its shareholders; (ii) the
services to be performed under the Agreement, the Agreement as amended, new
agreement or agreement to be continued, are services required for the
operation of the Funds; (iii) the Agent can provide services the nature and
quality of which are at least equal to those provided by others offering
the same or similar services; and (iv) the fees for such services are fair
and reasonable in the light of the usual and customary charges made by
others for services of the same nature and quality.
9. Termination.
(1) This Agreement may be terminated by the Agent at any time
without penalty upon giving the Corporation 120 days' written notice (which
notice may be waived by the Corporation) and may be terminated by the
Corporation at any time without penalty upon giving the Agent sixty (60)
days' written notice (which notice may be waived by the Agent), provided
that such termination by the Corporation shall be directed or approved by
the vote of a majority of the Board of Directors of the Corporation in
office at the time or by the vote of the holders of a majority (as defined
in or under the Act) of the outstanding shares of the Funds.
(2) On termination, the Agent will deliver to the Corporation or
its designee all files, documents and records of the Funds used, kept or
maintained by the Agent in the performance of its services hereunder,
including such of the Funds' records in machine readable form as may be
maintained by the Agent, as well as such summary and/or control data
relating thereto used by or available to the Agent.
(3) In the event of any termination which involves the
appointment of a new shareholder servicing agent, including the
Corporation's acting as such on its own behalf, the Corporation shall have
the non-exclusive right to the use of the data processing programs used by
the Agent in connection with the performance of its duties under this
Agreement without charge.
(4) In addition, on such termination or in preparation
therefore, at the request of the Corporation and at the Corporation's
expense the Agent shall provide to the extent that its capabilities then
permit such documentation, personnel and equipment as may be reasonably
necessary in order for a new agent or the Corporation to fully assume and
commence to perform the agency functions described in this Agreement with a
minimum disruption to the Funds' activities.
10. Construction; Governing Law.
The headings used in this Agreement are for convenience only and
shall not be deemed to constitute a part hereof. Whenever the context
requires, words denoting singular shall be read to include the plural. This
Agreement and the rights and obligations of the parties hereunder, shall be
construed and interpreted in accordance with the laws of the State of
Kansas, except to the extent that the laws of the State of Maryland apply
with respect to share transactions.
11. Representations and Warranties of Agent.
Agent represents and warrants that it is a corporation duly
organized and existing and in good standing under the laws of the State of
Missouri, that it is duly qualified to carry on its business in the State
of Kansas and wherever its duties require, that it has the power and
authority under laws and by its Articles of Incorporation and Bylaws to
enter into this Shareholder Servicing Agreement and to perform the services
contemplated by this Agreement.
12. Entire Agreement.
This Agreement and the Exhibits annexed hereto constitutes the
entire and complete agreement between the parties hereto relating to the
subject matter hereof, supersedes and merges all prior discussions between
the parties hereto, and may not be modified or amended orally.
IN WITNESS WHEREOF, the parties have hereto caused this Agreement
to be duly executed on the day and year first above written.
XXXXXXX & XXXX ADVISORS
SELECT FUNDS, INC.
By:_________________________________
Xxxxx X. Xxxxxxxx, President
ATTEST:
By:____________________________
Xxxxxxx X. Xxxxxxxx, Secretary
XXXXXXX & XXXX SERVICES COMPANY
By:__________________________________
Xxxxxxx X. Xxxxxx, President
ATTEST:
By:___________________________
Xxxxxx X. Xxxxxxx, Secretary
EXHIBIT A
A. DUTIES IN SHARE TRANSFERS AND REGISTRATION
1. The Agent in carrying out its duties shall follow general
commercial practices and the Rules of the Stock Transfer Association, Inc.
except as they may conflict or be inconsistent with the specific provisions
of the Corporation's Articles of Incorporation and Bylaws, prospectus,
applicable Federal and state laws and regulations and this Agreement.
2. The Agent shall not require that the signature of the appropriate
person be guaranteed, witnessed or verified in order to effect a
redemption, transfer, exchange or change of address except as may from time
to time be directed by the Corporation as set forth in an officers'
instruction. In the event a signature guarantee is required by the
Corporation, the Agent shall not inquire as to the genuineness of the
guarantee.
3. The Agent shall not replace a lost, stolen or misplaced stock
certificate without requiring and being furnished with an open penalty
surety bond protecting the Corporation and the Agent against loss.
B. The practices, procedures and requirements specified in A above may be
modified, altered, varied or supplemented as from time to time may be
mutually agreed upon by the Corporation and the Agent and evidenced on
behalf of the Corporation by an officers' instruction. Any such change
shall not be deemed to be an amendment to the Agreement within the meaning
of Paragraph 8 of the Agreement.
XXXXXXX & XXXX ADVISORS SELECT FUNDS, INC.
EXHIBIT B
COMPENSATION
Class A Shares of Dividend Income Fund
An amount payable on the first day of each month of $1.5792 for each
account of the Company which was in existence during any portion of the
immediately preceding month.
Class A Shares of Value Fund
An amount payable on the first day of each month of $1.5042 for each
account of the Company which was in existence during any portion of the
immediately preceding month.
Class B Shares of Dividend Income Fund
An amount payable on the first day of each month of $1.5792 for each
account of the Company which was in existence during any portion of the
immediately preceding month.
Class B Shares of Value Fund
An amount payable on the first day of each month of $1.5042 for each
account of the Company which was in existence during any portion of the
immediately preceding month.
Class C Shares of Dividend Income Fund
An amount payable on the first day of each month of $1.5792 for each
account of the Company which was in existence during any portion of the
immediately preceding month.
Class C Shares of Value Fund
An amount payable on the first day of each month of $1.5042 for each
account of the Company which was in existence during any portion of the
immediately preceding month.
Class Y Shares of Dividend Income Fund and Value Fund
An amount payable on the first day of each month equal to 1/12 of .15 of 1%
of the average daily net assets of the Class for the preceding month.
Effective May 21, 2003
EXHIBIT C
Bond or
Name of Bond Policy No. Insurer
Investment Company 87015102B ICI
Blanket Bond Form Mutual
Insurance
Company
Fidelity $24,200,000
Audit Expense 50,000
On Premises 24,200,000
In Transit 24,200,000
Forgery or Alteration 24,200,000
Securities 24,200,000
Counterfeit Currency 24,200,000
Uncollectible Items of
Deposit 25,000
Phone-Initiated Transactions 24,200,000
Directors/Trustees and Officers/ 87015102D ICI
Errors and Omissions Liability Mutual
Insurance Form Insurance
Total Limit $20,000,000 Company
Blanket Lost Instrument Bond (Mail Loss)30S100639551 Travelers
Blanket Undertaking Lost Instrument
Waiver of Probate 42SUN339806
Hartford
Casualty
Insurance
Effective August 31, 2002.
