Exhibit (5)(b)(4)
XXXXXXX X. XXXXXXXXX FUND, INC.
SHAREHOLDER SERVICING AND ADMINISTRATIVE AGREEMENT
SHAREHOLDER SERVICING AND ADMINISTRATIVE AGREEMENT, dated as of October 11,
1995, between XXXXXXX X. XXXXXXXXX FUND, INC., a Maryland Corporation (the
"Fund"), on behalf of the Xxxxxxxxx Emerging Markets Value Portfolio (the
"Portfolio"), and XXXXXXX X. XXXXXXXXX & CO., INC., a New York Corporation
("Xxxxxxxxx").
In consideration of the mutual agreements herein made, the parties hereto agree
as follows:
1. Duties of Xxxxxxxxx.
a. Shareholder Servicing.
Xxxxxxxxx shall provide shareholder servicing to the Fund, the Portfolio, or its
shareholders, including, but not limited to: (i) processing share purchase and
redemption requests transmitted or delivered to the office of Xxxxxxxxx; (ii)
proxy solicitations and providing information to shareholders concerning their
mutual fund investments, systematic withdrawal plans, dividend payments and
reinvestments, shareholder account or transaction status, net asset value of
shares, Portfolio performance, Fund services, plans and options, investment
policies, Portfolio holdings and distributions and the taxation thereof; and
(iii) dealing with shareholder complaints and correspondence directed to or
brought to the attention of Xxxxxxxxx. Xxxxxxxxx may enter into agreements with
other organizations whereby some or all of Xxxxxxxxx'x duties in this regard may
be delegated, and such organizations will be compensated therefor by Xxxxxxxxx.
b. Administration.
Xxxxxxxxx shall also manage the corporate affairs of the Portfolio including,
but not limited to (i) providing office space, clerical, secretarial, and
administrative services (exclusive of, and in addition to, any such service
provided by any others retained by the Fund on behalf of the Portfolio) and
executive and other personnel necessary for the operations of the Fund and of
the Portfolio, (ii) supervising those responsible for the financial and
accounting records required to be maintained by the Fund and (iii) overseeing
the performance of services provided to the Fund on behalf of the Portfolio by
others, including the Custodian and Transfer Agent. Xxxxxxxxx'x performance of
its duties under this Agreement shall be subject in each case to oversight by
the Board of Directors of the Fund (the "Board") and in accordance with the
objectives and policies set forth in the
Registration Statement and the current Prospectus and Statement of
Additional Information relating to the Fund or the Portfolio, as amended
from time to time, the requirements of the Investment Company Act of
1940, as amended (the "Act") and other applicable law.
2. Limitation of Liability. Subject to Section 36 of the Act, Xxxxxxxxx, and the
directors, officers and employees of Xxxxxxxxx, shall not be liable to the Fund
or the Portfolio for any error of judgment or mistake of law or for any loss
arising out of the performance or non-performance of duties under this
Agreement, except for willful misfeasance, bad faith or gross negligence in the
performance of, or by reason of reckless disregard of, obligations and duties
under this Agreement.
3. Indemnification. The Fund, on behalf of the Portfolio, shall indemnify and
hold harmless Xxxxxxxxx, and the directors, officers, and employees of
Xxxxxxxxx, against any loss, liability, claim, damage or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damage or expenses and reasonable counsel fees incurred in connection
therewith) arising out of the performance or non-performance of any duties under
this Agreement, provided, however, that nothing herein shall be deemed to
protect Xxxxxxxxx or any director, officer or employee thereof against any
liability to the Fund or its stockholders, to which Xxxxxxxxx or any director,
officer or employee thereof would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties under this Agreement.
4. Expenses. Xxxxxxxxx shall pay all of its expenses arising from the
performance of its obligations under Section 1 of this Agreement and shall pay
any salaries, fees and expenses of the Directors who are employees of Xxxxxxxxx.
Xxxxxxxxx shall not be required to pay any other expenses of the Fund or the
Portfolio, including (a) the fees payable to Xxxxxxxxx under this Agreement and
the Investment Management Agreement; (b) the fees and expenses of Directors who
are not affiliated with Xxxxxxxxx; (c) the fees and expenses of the Custodian
and Transfer Agent, including but not limited to fees and expenses relating to
Fund accounting, pricing of the shares of the Portfolio and computation of net
asset value; (d) the fees and expenses of calculating yield and/or performance
of the Portfolio; (e) the charges and expenses of legal counsel and independent
accountants; (f) all taxes and corporate fees payable to governmental agencies;
(g) the fees of any trade association of which the Fund is a member; (h)
reimbursement of the Portfolio's share of the organization expenses of the
Portfolio or the Fund; (i) the fees and expenses involved in registering and
maintaining registration of the Fund
and the Portfolio's shares with the Securities and Exchange Commission,
registering the Fund as a broker or dealer and qualifying the shares of
the Portfolio under state securities laws, including the preparation and
printing of the registration statements and prospectuses for such
purposes, allocable communications expenses with respect to investor
services, all expenses of shareholders' and Board of Directors' meetings
and preparing, printing and mailing proxies, prospectuses and reports to
shareholders; (j) brokers' commissions, dealers' xxxx-ups and any issue
or transfer taxes chargeable in connection with the Portfolio's
transactions; (k) the cost of stock certificates representing shares of
the Portfolio; (l) insurance expenses, including, but not limited to,
the cost of a fidelity bond, directors and officers insurance and errors
and omissions insurance; and (m) litigation and indemnification
expenses, expenses incurred in connection with mergers, and other
extraordinary expenses not incurred in the ordinary course of the
Portfolio's business.
5. Compensation. As compensation for the services performed and the facilities
and personnel provided by Xxxxxxxxx pursuant to Section 1 of this Agreement, the
Fund, on behalf of the Portfolio, will pay to Xxxxxxxxx, promptly after the end
of each month, a fee assessed at an annual rate of .25 of 1% of the average
daily net assets of the Portfolio during the month. If Xxxxxxxxx shall serve
hereunder for less than the whole of any month, the fee hereunder shall be
prorated. Nothing herein shall prohibit the Directors from approving the payment
by the Fund, or the Portfolio, of additional compensation to others for
consulting services, supplemental research and security and economic analysis.
6. Term of Agreement. This Agreement shall continue in effect with respect to
the Portfolio for a period of more than two years from the date hereof only so
long as such continuance is specifically approved at least annually in
conformity with the requirements of the Act with regard to investment advisory
contracts; provided, however, that this Agreement may be terminated at any time
without the payment of any penalty, on behalf of the Portfolio, by the Fund, by
the Board or, with respect to the Portfolio, by vote of a majority of the
outstanding voting securities (as defined in the Act) of the Portfolio, or by
Xxxxxxxxx, on not more than 60 days' nor less than 30 days' written notice to
the other party. This Agreement shall terminate automatically in the event of
its assignment (as defined in the Act).
7. Miscellaneous. This Agreement may be amended by mutual written consent. This
Agreement contains the entire agreement between the parties hereto and
supersedes all prior agreements,
understandings and arrangements with respect to the subject matter
hereof. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. Anything herein to the contrary
notwithstanding, this Agreement shall not be construed to require, or to
impose any duty upon, either of the parties to do anything in violation
of any applicable laws or regulations. Xxxxxxxxx may perform the same
services for other persons or entities, including other investment
companies.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolio, and Xxxxxxxxx have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXX X. XXXXXXXXX & CO., INC.
By: Xxxxx X. Xxxxxxx, Chairman
XXXXXXX X. XXXXXXXXX FUND, INC.
By: Xxxxxx X. Xxxxxx, Senior Vice President
