EX-99.B9-h2ssa
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, made as of the 1ST day of November, 1992, by and between
UNITED HIGH INCOME FUND II, INC., and Xxxxxxx & Xxxx Services Company (the
"Agent"), as amended and restated as of April 1, 1996,
W I T N E S S E T H :
WHEREAS, The Company wishes, as applicable, to appoint the Agent or to
continue the appointment of the Agent 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 Company;
Acceptance.
(1) The Company hereby appoints the Agent to act as Shareholder
Servicing Agent for the Company upon, and subject to, the terms and
provisions of this Agreement.
(2) The Agent hereby accepts the appointment as Shareholder Servicing
Agent for the Company 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
Company 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 the Company registered
on the books of the Company 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 Company, as may now or in the future exist;
(e) The term "Fund" shall mean each separate class of shares of
the Company, as may now or in the future exist;
(f) The term "officers' instruction" means an instruction given
on behalf of the Company to the Agent and signed on behalf of the
Company by any one or more persons authorized to do so by the
Company'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 the Company, whether or not such shares are evidenced
by an outstanding stock certificate issued by the Company;
(i) The term "shareholder" shall mean the owner of record of
shares of the Company;
(j) The term "stock certificate" means a certificate representing
shares in the form then currently in use by the Company.
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
(3) above.
(1) Transfers.
Subject to the provisions of this Agreement the Agent hereby
agrees to perform the following functions as transfer agent for the
Company:
(a) Recording the ownership, transfer, exchange and cancellation
of ownership of shares of the Company on the books of the Company;
(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 and notices of reinvestment
in additional shares of dividends, stock dividends or stock
splits declared by the Company on shares and of redemption proceeds
due by the Company on redemption of shares;
(e) Furnishing to shareholders such information as may be
reasonably required by the Company, including appropriate income tax
information;
(f) Addressing and mailing to shareholders prospectuses, annual
and semi-annual reports and proxy materials for shareholder meetings
prepared by or on behalf of the Company;
(g) 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;
(h) 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 Company 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
Company such information as to such transactions and at such time as
may be reasonably required by it to comply with applicable laws and
regulations;
(i) Providing such services and carrying out such
responsibilities on behalf of the Company, or imposed on the Agent as
the Company's 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.
The Company 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 Company 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
Company: (i) costs of
stationery, appropriate forms, envelopes, checks, postage, printing (except cost
of printing prospectuses, annual and semi-annual reports and proxy materials)
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 Company under this Agreement; (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 Company
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 Company 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 the
Company'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 Company under this
Agreement.
5. Right of Company to Inspect Records, etc.
The Company will have the right under this Agreement to perform on site
inspection of records and accounts and to perform audits directly pertaining to
the Company shareholder accounts serviced by the Agent hereunder at the Agent's
or any Subagent's facilities in accordance with reasonable procedures at the
frequency necessary to assure proper administration of the Agreement. The Agent
will cooperate with the Company'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
Fund in advance of any change, except the Agent, after giving reasonable notice
to the Company, may eliminate or decrease any coverage if the premiums for such
coverage are substantially increased.
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 Company 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 Company 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, 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 Company, (c) any
authorization or instruction contained in any officers' instruction, or (d) with
respect to the functions performed for the Company listed under Paragraph 3(1)
of this Agreement, any advice of counsel approved by the Company who may be
internally employed counsel or outside counsel, in either case for the Company
and/or the Agent.
In order for the rights to indemnification to apply, it is understood that
if in any case the Company may be asked to indemnify or hold the Agent harmless,
the Company 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 Company promptly concerning any situation which
presents or appears likely to present a claim for indemnification against the
Company. The Company 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
Company so elects, it will so notify the Agent and thereupon the Company 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 Company will be asked to
indemnify the Agent except with the Company'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 Company 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 Company, 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 the Company 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 Company; (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 Company 120 days' written notice (which notice may be
waived by the Company) and may be terminated by the Company 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 Company shall be
directed or approved by the vote of a majority of the Board of Directors of the
Company 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 Company.
(2) On termination, the Agent will deliver to the Company or its designee
all files, documents and records of the Company used, kept or maintained by the
Agent in the performance of its services hereunder, including such of the
Company's 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 Company's acting as such on its own
behalf, the Company 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 Company and at the Company'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 Company
to fully assume and commence to perform the agency functions described in this
Agreement with a minimum disruption to the Company's 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.
UNITED HIGH INCOME FUND II, INC.
By:_________________________________
Xxxxxx X. Xxxxxx, Vice President
ATTEST:
By:____________________________
Xxxxxx Xxxxxxx, Assistant Secretary
XXXXXXX & XXXX SERVICES COMPANY
By:_________________________________
Xxxxxx X. Xxxxxxx, President
ATTEST:
By:___________________________
Xxxxxx X. Xxxxxx, 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 Company'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
Company as set forth in an officers' instruction. In the event a signature
guarantee is required by the Company, 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 Company 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 Company and the Agent and evidenced on behalf of the Company
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.
EXHIBIT B
COMPENSATION
Class A Shares
An amount payable on the first day of each month of $1.3125 for each account of
the Company which was in existence during any portion of the immediately
preceding month and, in addition, to pay to the Agent the sum of $0.30 for each
account for which, during such month, a record date was established for payment
of a dividend, in cash or otherwise (which term includes a distribution),
irrespective of whether such dividend was payable in that month or later or was
payable directly or was to be reinvested.
Class Y Shares
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.
EXHIBIT C
Bond or
Name of Bond Policy No. Insurer
Investment Company 87015198B ICI
Blanket Bond Form Mutual
Insurance
Company
Fidelity $20,400,000
Audit Expense 50,000
On Premises 20,400,000
In Transit 20,400,000
Forgery or Alteration 20,400,000
Securities 20,400,000
Counterfeit Currency 20,400,000
Uncollectible Items of
Deposit 25,000
Phone-Initiated Transactions 500,000
Total Limit 20,400,000
Directors and Officers/ 87015198D ICI
Errors and Omissions Liability Mutual
Insurance Form Insurance
Total Limit $ 5,000,000 Company
Blanket Lost Instrument Bond (Mail Loss) 30S100639551 Aetna Life & Casualty
Blanket Undertaking Lost Instrument
Waiver of Probate 42SUN339806 Hartford Casualty Insurance