EXHIBIT (H)(21)
SERVICES AGREEMENT
XXXXXX XXXXXXX XX INC.
This Agreement is made as of the ___ day of ______________, 20__
between (i) Xxxxxx Xxxxxxx XX Inc. (formerly known as Xxxx Xxxxxx Xxxxxxxx Inc.)
and (ii) ________________ ("Fund Party").
W I T N E S S E T H
WHEREAS, Fund Party is either (i) an investment adviser to or
administrator for an open-end investment company with one or more series or
classes of shares (each such series or class of shares identified on Schedule I
hereto, as amended from time to time, being referred to as a "Fund"), or (ii)
the principal underwriter or distributor for a Fund; and
WHEREAS, Xxxxxx Xxxxxxx XX Inc., broker-dealers which clear securities
transactions through Xxxxxx Xxxxxxx XX Inc., banks and other intermediaries are
offering to its or their clients ("Clients") one or more programs pursuant to
which such clients will purchase shares of mutual funds at net asset value
without the imposition of initial or contingent deferred sales charges (the
"Programs"); and
WHEREAS, Xxxxxx Xxxxxxx XX Inc. will perform certain recordkeeping,
shareholder communication and other services for clients who invest in Funds
through one or more of the Programs; and
WHEREAS, Xxxxxx Xxxxxxx XX Inc. is willing to perform such services on
the terms and conditions set forth herein; and
WHEREAS, Fund Party on behalf of the shareholders of the Funds who are
participants in the Programs desires to compensate Xxxxxx Xxxxxxx XX Inc. for
providing such services.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. SERVICES. During the term of this Agreement, Xxxxxx Xxxxxxx XX Inc.
shall perform the services set forth on Exhibit A hereto, as such exhibit may be
amended from time to time (the "Services").
2. FEES. For providing the Services, Xxxxxx Xxxxxxx XX Inc. shall
receive a fee (the "Fee"), which shall be calculated and paid in accordance with
Exhibit B hereto. Fund Party and Xxxxxx Xxxxxxx XX Inc. shall be solely
responsible for the payment of their respective fees and expenses due to
National Securities Clearing Corporation ("NSCC") including, without limitation,
Fund/SERV membership and transaction fees.
3. OPERATING PROCEDURES. During the term of this Agreement, in
connection with performance of the Services, Xxxxxx Xxxxxxx XX Inc. and each
Fund Party will follow the operating procedures set forth in Exhibit C hereto.
In the event of any inconsistency between this Agreement and Exhibit C hereto,
this Agreement shall control.
4. EFFECTIVENESS OF AGREEMENT; TERM.
a. This Agreement will become effective as to any particular
Fund as of the later of (i) the date set forth on Schedule I opposite the name
of such Fund or (ii) such later date as Xxxxxx Xxxxxxx XX Inc. may, in its
discretion, designate in writing, but in no event, with respect to any Fund that
offers to the public more than one class of shares, before the effective time of
all agreements and other documents containing such representations, warranties,
covenants, and agreements as may be required by Rule 18f-3 under the Investment
Company Act of 1940 ("1940 Act") or by any order of the Securities and Exchange
Commission relating to the offer and sale of such multiple classes of shares.
Fund Party shall notify Xxxxxx Xxxxxxx XX Inc. if a particular Fund is to be
added to Schedule I no later than the date on which shares of the Fund are first
made available to Clients through a Program.
b. This Agreement may be terminated by either party as to any
Fund upon 90 days' written notice, or upon such shorter notice as is required by
law, order, or instruction by a court of competent jurisdiction or a regulatory
body or self-regulatory organization with jurisdiction over the terminating
party. This Agreement shall automatically terminate as to any Fund upon the
termination of Fund Party's engagement as the distributor, investment adviser or
administrator, as the case may be, to such Fund (except in connection with any
assignment of this Agreement approved by Xxxxxx Xxxxxxx XX Inc. pursuant to
Section 15 hereof). If at any time, as to any particular Fund, neither Fund
Party nor any person controlling, controlled by, or under common control with
Fund Party continues to be engaged by the Fund in any capacity, then Fund Party
shall be relieved of its obligation to continue to pay the Fee beginning at the
time that this Agreement is assigned to and Fund Party's obligations hereunder
are assumed by a successor approved by Xxxxxx Xxxxxxx XX Inc. in accordance with
Section 15 hereof.
c. After the date of termination as to any Fund, Fund Party
will not be obligated to pay the Fee with respect to any shares of that Fund
that are first purchased by Clients after the date of termination, except for
those shares reinvested through dividends or capital gains. However, after the
termination, for so long as any share of that Fund that was considered in the
calculation of the Fee as of the date of the termination is held by a Client (a
"Pre-Termination Share"), provided that the payment of such Fee complies with
applicable law, Fund Party will remain obligated to pay Xxxxxx Xxxxxxx XX Inc.
the Fee as to each Pre-Termination Share. For so long as Fund Party or some
other person or entity continues to pay the Fee, Xxxxxx Xxxxxxx XX Inc. will
continue to perform the Services hereunder with respect to each such
Pre-Termination Share and the agreements between the parties set forth in this
Agreement will remain in full force and effect, to the extent applicable, as to
such Pre-Termination Shares.
d. Upon being presented with an invoice, Fund Party shall
reimburse Xxxxxx Xxxxxxx XX Inc. promptly for any reasonable out-of-pocket
expenses Xxxxxx Xxxxxxx XX Inc. actually incurs in effecting any termination of
this Agreement, including delivery to any Fund or Fund Party of any records,
instruments, or documents requested by Fund Party, if such termination is by
Fund Party.
5. OPERATIONAL MATTERS. In processing purchase and redemption orders
placed by Xxxxxx Xxxxxxx XX Inc. on behalf of Clients, and in order to
facilitate Xxxxxx Xxxxxxx XX Inc.'s performance of the Services, Fund Party
agrees to follow and comply with, and to cause each Fund to follow and comply
with, the procedures, terms and conditions set forth in the operating procedures
set forth in Exhibit C hereto (the "Operating Procedures"). Other procedures
relating to the Funds shall be in accordance with the Prospectus and Statement
of the relevant Fund. The terms "Prospectus" and "Statement" as used herein
refer respectively to the then current prospectus and statement of additional
information relating to the shares of the Fund forming parts of the Registration
Statement on Form N-1A of a Fund under the Securities Act of 1933, as amended
(the "1933 Act"), and the 1940
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Act.
6. TRANSACTION CHARGES. Except as set forth in this Agreement, Xxxxxx
Xxxxxxx XX Inc. shall not, during the term of this Agreement, assess against or
collect from its Clients any transaction fee upon the purchase or redemption of
any Fund shares that are considered in calculating the Fee. Notwithstanding the
foregoing, the parties acknowledge and agree that Xxxxxx Xxxxxxx XX Inc. shall
have the right to assess against Clients a fee for executing a purchase or sale
order where the customer has held such position for less than ninety (90) days,
or where Xxxxxx Xxxxxxx XX Inc. provides the Clients with a service not
contemplated by this Agreement.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
a. Fund Party represents and warrants to Xxxxxx Xxxxxxx XX
Inc. that Fund Party and the persons executing this Agreement on its behalf,
including on behalf of any Fund, are duly authorized and empowered to execute
and deliver this Agreement on behalf of Fund Party and, when executed and
delivered, this Agreement shall constitute the legal, valid and binding
obligation of Fund Party, enforceable in accordance with its terms. Fund Party
further represents and warrants to Xxxxxx Xxxxxxx XX Inc. that the payment to
Xxxxxx Xxxxxxx XX Inc. of any Fees pursuant hereto (i) has been duly authorized
by the Fund(s), the Board of Directors/Trustees of the Fund(s), or any other
person to the extent such authorization is required to make such payment; (ii)
is properly disclosed in the relevant Fund Prospectus and/or Statement to the
extent such disclosure may be required; and (iii) is in conformity with all
federal, state and industry laws or regulations to which the Fund(s) or its
agents are subject.
b. Fund Party further represents and warrants that, if it is
the underwriter or distributor of a Fund, it is in compliance with the
conditions and qualifications set out in Rule 2830 of the Conduct Rules of the
National Association of Securities Dealers, Inc. which enables a member of the
NASD to offer or sell shares of the Fund.
c. Each Fund listed on Schedule I to this Agreement is a
"no-load" or "no sales charge" Fund as defined in Rule 2830 of the NASD Conduct
Rules and, if such Fund has a plan adopted pursuant to Rule 12b-1 under the 1940
Act (a "12b-1 Plan"), the Fund's 12b-1 Plan does not exceed 25 basis points per
annum.
x. Xxxxxx Xxxxxxx XX Inc. represents and warrants that: (i) it
and the persons executing this Agreement on its behalf are duly authorized and
empowered to enter into this Agreement and, when executed and delivered, this
Agreement shall constitute the legal, valid and binding obligation of Xxxxxx
Xxxxxxx XX Inc., enforceable in accordance with its terms; (ii) the activities
of Xxxxxx Xxxxxxx XX Inc. contemplated by this Agreement comply with all
provisions of federal and state securities laws applicable to such activities;
(iii) Xxxxxx Xxxxxxx XX Inc. has obtained and shall maintain such registrations
and qualifications as are necessary to permit it to perform its obligations
hereunder; and (iv) the arrangements provided for in this Agreement will be
disclosed to Xxxxxx Xxxxxxx XX Inc.'s Clients, to the extent required by law.
x. Xxxxxx Xxxxxxx XX Inc. represents and warrants that it will
comply with all provisions of federal and state laws, rules and regulations,
including the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), applicable to its respective activities under this Agreement. The
receipt of compensation under this Agreement by Xxxxxx Xxxxxxx XX Inc. will not
violate any federal or state laws, rules or regulations, including ERISA.
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8. COMPLIANCE RESPONSIBILITIES; UNCONTROLLABLE EVENTS; INDEMNIFICATION.
a. Fund Party acknowledges and agrees that Xxxxxx Xxxxxxx XX
Inc. is not responsible for: (i) any information contained in any prospectus,
registration statement, annual report, proxy statement, or item of advertising
or marketing material (including profile information) of or relating to any Fund
or Fund Party (except for advertising or marketing materials prepared by Xxxxxx
Xxxxxxx XX Inc. to the extent any information therein is not furnished to Xxxxxx
Xxxxxxx XX Inc. by Fund Party, any Fund or any "affiliated person" (as that term
is defined under Section 2(a)(3) of the 0000 Xxx) of any of them (each an
"Affiliate") or accurately derived from information published or provided by any
of them); (ii) the tabulation of returned proxies; (iii) the registration or
qualification of any shares of any Fund under any federal or applicable state
laws; or (iv) the compliance or failure to comply by any Fund or Fund Party, or
any Affiliate, with any applicable federal or state law, rule or regulation
(including the 1940 Act, the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and the rules and regulations thereunder) or the rules and
regulations of any self-regulatory organization with jurisdiction over Fund
Party or such Fund or Affiliate, except to the extent the failure to so comply
by Fund Party or any Fund or Affiliate is caused by Xxxxxx Xxxxxxx XX Inc.'s
failure to comply with any of the applicable foregoing laws, rules, or
regulations or its breach of this Agreement. The matters listed in this Section
8(a)(i)-(iv) include, but are not limited to, information published, distributed
or made available, and activities conducted through, the Internet and any other
electronic medium.
x. Xxxxxx Xxxxxxx XX Inc. acknowledges and agrees that neither
Fund Party nor any Fund or Affiliate is responsible for Xxxxxx Xxxxxxx XX Inc.'s
compliance or failure to comply with any applicable law, rule, or regulation
governing Xxxxxx Xxxxxxx XX Inc.'s performance of the Services, except to the
extent that Xxxxxx Xxxxxxx XX Inc.'s failure to comply with any such law, rule,
or regulation is caused by the failure of Fund Party, any Fund or any Affiliate
to comply with any applicable law, rule, or regulation or Fund Party's breach of
this Agreement.
c. In providing the Services, Xxxxxx Xxxxxxx XX Inc. is
entitled to rely on any written records or instructions provided to it by Fund
Party or any Fund, by their authorized employees, officers or agents or by
Clients. Except as otherwise set forth in this Agreement, any communication,
instruction or notice made pursuant to this Agreement may be made orally,
provided that such oral communication is promptly confirmed in writing by
facsimile transmission or overnight mail.
d. Fund Party confirms that, in the event that a Client's
account holds five percent (5%) or more of the outstanding shares of a Fund,
Fund Party and not Xxxxxx Xxxxxxx XX Inc. is responsible for requesting Xxxxxx
Xxxxxxx XX Inc. to confirm its status as shareholder of record and to confirm
whether any Xxxxxx Xxxxxxx XX Inc. investor beneficially owns five percent (5%)
or more of the outstanding Fund shares through its Xxxxxx Xxxxxxx XX Inc.
brokerage account. For this purpose, Fund Party will indicate in its inquiry the
number of Fund shares that equal five percent (5%) of the outstanding Fund
shares. Xxxxxx Xxxxxxx XX Inc. will promptly reply to any such inquiries.
e. Fund Party has full authority to take such action as Fund
Party may deem advisable in respect of all matters pertaining to the continuous
offering of shares. Fund Party reserves the right in its sole discretion to
suspend sales or withdraw the offering of shares of any Fund at any time after
Xxxxxx Xxxxxxx XX Inc. has received reasonable notice that such shares will no
longer be available to the public, provided, however, that in the event that
Fund Party is required by law or regulation to suspend sales or withdraw the
offering of shares of any Fund, Fund Party may immediately suspend sales or
withdraw the offering of such shares and will use its best efforts to notify
Xxxxxx Xxxxxxx XX Inc. prior to such suspension or withdrawal.
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f. Except to the extent specifically set forth in this
Agreement or in the Operating Procedures, neither party assumes any
responsibility hereunder, and will not be liable to the other (and Xxxxxx
Xxxxxxx XX Inc. will not be liable to any Fund or any Affiliate) for any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control.
g. Fund Party shall indemnify, defend and protect Xxxxxx
Xxxxxxx XX Inc. and each director, officer, employee, shareholder, agent and
Affiliate of Xxxxxx Xxxxxxx XX Inc. and hold Xxxxxx Xxxxxxx XX Inc. and each
such director, officer, employee, shareholder, agent and Affiliate harmless from
and against any and all claims, demands, actions, losses, damages, liabilities,
costs, charges, reasonable counsel fees and expenses of any nature ("Losses") it
or they incur arising out of: (i) any material inaccuracy or material omission
in any Prospectus, Statement, registration statement, annual report, proxy
statement or other publicly disseminated material of any Fund, or any
advertising or promotional material generated by any Fund or Fund Party or based
on information published or generated by Fund Party or any Fund or Affiliate of
the Fund; (ii) any material breach by Fund Party of any representation,
warranty, covenant or agreement contained in this Agreement or the Operating
Procedures (except to the extent such Losses result from Xxxxxx Xxxxxxx XX
Inc.'s material breach of this Agreement, willful misconduct, or gross
negligence); or (iii) any action taken or omitted to be taken by Fund or Fund
Party pursuant to this Agreement (except to the extent such Losses result from
Xxxxxx Xxxxxxx XX Inc.'s material breach of this Agreement, willful misconduct,
or gross negligence).
x. Xxxxxx Xxxxxxx XX Inc. shall indemnify, defend and protect
Fund Party, each Fund, each trust or corporation of which a Fund is a series and
each of their respective directors, trustees, controlling persons, officers,
employees, and agents, and hold each Fund, Fund Party, each such trust or
corporation, and each such director, trustee, controlling person, officer,
employee and agent harmless from and against any and all Losses it or they incur
arising out of: (i) any material inaccuracy or material omission in any
advertising or promotional material generated by Xxxxxx Xxxxxxx XX Inc. that is
not accurately derived from (a) the Prospectus, Statement, registration
statement, annual report, proxy statement or other publicly disseminated
material of any Fund provided to Xxxxxx Xxxxxxx XX Inc., or (b) any advertising
or promotional material generated by any Fund or Fund Party and provided to
Xxxxxx Xxxxxxx XX Inc., or (c) information published or generated by Fund Party
or any Fund or Affiliate of the Fund and provided to Xxxxxx Xxxxxxx XX Inc.;
(ii) any material breach by Xxxxxx Xxxxxxx XX Inc. of any representation,
warranty, covenant or agreement contained in this Agreement or the Operating
Procedures (except to the extent such Losses result from Fund's or Fund Party's
material breach of this Agreement, willful misconduct, or gross negligence); or
(iii) any action taken or omitted to be taken by Xxxxxx Xxxxxxx XX Inc. pursuant
to this Agreement (except to the extent such Losses result from Fund's or Fund
Party's material breach of this Agreement, willful misconduct, or gross
negligence).
i. Neither party hereto shall be liable for any special,
consequential or incidental damages.
9. ROLE AND RELATIONSHIP OF XXXXXX XXXXXXX XX INC.
a. The parties acknowledge and agree that the Services are
recordkeeping, shareholder communication and related services only, and are not
the services of any underwriter or a principal underwriter of any Fund within
the meaning of the 1933 Act or the 1940 Act. This Agreement does not xxxxx
Xxxxxx Xxxxxxx XX Inc. any right to purchase shares from any Fund (although it
does not preclude Xxxxxx Xxxxxxx XX Inc. from purchasing Fund shares), nor does
it constitute Xxxxxx Xxxxxxx XX Inc. as an agent of Fund Party or any Fund for
purposes of selling shares of any Fund to any dealer or the public. To the
extent Xxxxxx Xxxxxxx XX Inc. is involved in the purchases of shares
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of any Fund by Xxxxxx Xxxxxxx XX Inc.'s Clients, Xxxxxx Xxxxxxx XX Inc.'s
involvement will be as agent of the Client only.
b. Purchase and redemption orders, and payment for shares of a
Fund ordered from Fund Party, must be received at the time, and in the manner,
set forth in the Operating Procedures. All orders are subject to acceptance or
rejection by Fund Party or the relevant Fund in the sole discretion of either,
or by the relevant Fund's transfer agent acting on Fund Party's or the Fund's
behalf, and orders shall be effective only upon receipt in proper form. The
Funds may, if necessary, delay redemption of shares of a Fund to the extent
permitted by the 1940 Act.
10. USE OF OTHER PARTY'S NAME.
a. Fund Party or Fund may describe or refer to Xxxxxx Xxxxxxx
XX Inc. or the Services or the relationship contemplated by this Agreement in
any advertisement or promotional materials or activities, provided that the
description or reference is provided in writing to Xxxxxx Xxxxxxx XX Inc. at
least five business days in advance of its use and Xxxxxx Xxxxxxx XX Inc. does
not object thereto.
x. Xxxxxx Xxxxxxx XX Inc. may describe or refer to Fund Party
or any Fund or the relationship contemplated by this Agreement in any
advertisement or promotional materials or activities, provided that the
description or reference is provided in writing to Fund Party at least five
business days in advance of its use and Fund Party does not object thereto.
11. PROPRIETARY INFORMATION. Xxxxxx Xxxxxxx XX Inc., on the one hand,
and Fund Party, on the other hand, acknowledge that the identities of the other
party's customers (other than such information as may be independently developed
or compiled by a party from information supplied to it by the other party's
customers who also maintain accounts directly with it outside the Programs or
from information which is otherwise publicly available), as well as information
maintained by such other party regarding those customers, and all computer
programs, technical, trade secret or business information, including, without
limitation, financial information, business or marketing strategies or plans,
product development and procedures developed by such other party or such other
party's agents in connection with this arrangement which is disclosed to the
other party hereto or otherwise obtained by the other party, its Affiliates,
agents or representatives during the term of this Agreement, constitute the
valuable property of such other party ("Proprietary Information"). Xxxxxx
Xxxxxxx XX Inc. and Fund Party agree that should either of them be furnished any
Proprietary Information, the party who acquired such Proprietary Information
shall use its best efforts to hold such information or property in confidence
and refrain from using, disclosing, or distributing any of such information or
other property except (i) with the other party's prior written consent, or (ii)
as required by law or judicial process. Xxxxxx Xxxxxxx XX Inc. and Fund Party
acknowledge that any breach of the foregoing agreements as to the other party
would result in immediate and irreparable harm to such other party for which
there would be no adequate remedy at law and agree that in the event of a breach
such other party will be entitled to seek equitable relief, as well as such
other relief as any court of competent jurisdiction deems appropriate. Xxxxxx
Xxxxxxx XX Inc. and Fund Party shall promptly notify the other in writing of any
unauthorized, negligent or inadvertent use or disclosure of Proprietary
Information. Xxxxxx Xxxxxxx XX Inc. and Fund Party shall be liable under this
Agreement for any use or disclosure in violation of this Agreement by its
employees, attorneys, accountants, or other advisors or agents. This Section 11
shall continue in full force and effect notwithstanding the termination of this
Agreement.
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12. USE OF CLIENT INFORMATION. The names and addresses and other
information concerning Clients are and shall remain the sole property of Xxxxxx
Xxxxxxx XX Inc. and neither Fund Party nor its Affiliates shall use such names,
addresses or other information for any purpose except in connection with the
performance of Fund Party's duties and responsibilities hereunder and except for
servicing and informational mailings related to the Funds. Notwithstanding the
foregoing, this paragraph shall not prohibit Fund Party or its affiliates from
utilizing for any purpose the names, addresses or other information concerning
Clients if such names, addresses or other information are obtained in any manner
other than from Xxxxxx Xxxxxxx XX Inc. pursuant to this Agreement. The
provisions of this paragraph shall survive the termination of this Agreement.
13. INFORMATION TO BE PROVIDED. Fund Party has provided to Xxxxxx
Xxxxxxx XX Inc. and, as to each Fund, shall provide to Xxxxxx Xxxxxxx XX Inc.
prior to the effectiveness of this Agreement as to such Fund, at the address
listed in Section 16 hereto, the following information and documents (in
addition to the information and documents required by the Operating Procedures):
a. A list of the officers or other representatives of Fund
Party who are authorized to instruct Xxxxxx Xxxxxxx XX Inc. in connection with
the Services with respect to such Fund, together with specimen signatures of
those persons; and
b. Two copies of the then-current Prospectus and Statement for
each such Fund. Fund Party shall furnish Xxxxxx Xxxxxxx XX Inc. with written
copies of any amendments or supplements to or changes in any of the documents
referred to in this Section 13 no later than the effective date of any such
amendments or changes.
14. NONEXCLUSIVITY.
a. Fund Party acknowledges that Xxxxxx Xxxxxxx XX Inc. may
perform services similar or identical to those to be provided under this
Agreement to other investment companies, investment company sponsors, or service
providers to investment companies, and that it may make the Programs available
to Clients of broker-dealers, banks and other intermediaries which clear
securities transactions through Xxxxxx Xxxxxxx XX Inc. so long as Fund shares
are offered in a manner consistent with the Funds' prospectuses.
x. Xxxxxx Xxxxxxx XX Inc. acknowledges that Fund Party may
enter into similar agreements with other service providers or other third
parties.
15. ASSIGNABILITY. This Agreement is not assignable by Xxxxxx Xxxxxxx
XX Inc. or Fund Party without the other party's prior written consent, provided
that Xxxxxx Xxxxxxx XX Inc. may, without Fund Party's consent, assign its rights
and obligations under this Agreement to any Affiliate and to any corporation
that: (i) succeeds to its business as investment advisor and/or broker-dealer or
controls, is controlled by, or is under common control with Xxxxxx Xxxxxxx XX
Inc.; (ii) is registered as a transfer agent under Section 17A(c) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"); or (iii) is
otherwise capable of performing the obligations and making the representations
and warranties of Xxxxxx Xxxxxxx XX Inc. hereunder.
16. NOTICES. All notices required by this Agreement shall be in writing
and delivered personally or sent by first class mail, overnight courier or by
facsimile that is promptly followed in writing. All notices and other
communications concerning this Agreement will be deemed to have been received as
of the earlier of actual physical receipt or three days after deposit, first
class postage prepaid, in the United States mail. All such notices and other
communications shall be made:
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if to Xxxxxx Xxxxxxx XX Inc., to:
Xxxxxx Xxxxxxx XX Inc.
Two World Trade Center, 63rd Floor
New York, New York 10048
Attention: External Funds Marketing
with copies to:
Xxxxxx Xxxxxxx XX Inc.
Two World Trade Center, 64th Floor
New York, New York 10048
Attention: Choice Marketing
Xxxxxx Xxxxxxx XX Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Director of Business Delivery
if to Fund Party, to the address given below in the signature block.
17. EXHIBITS. All Exhibits, Schedules (including the Operating
Procedures), and Addenda to this Agreement, as they may be amended or included
from time to time, are by this reference incorporated into and made a part of
this Agreement.
18. ENTIRE AGREEMENT; AMENDMENT. This Agreement, as well as the
Exhibits, Schedules and Addenda hereto, constitute the entire agreement between
the parties as to the Programs and supersede any and all agreements,
representations, and warranties, written or oral, regarding such subject matter
made prior to the time at which this Agreement has been executed and delivered
by Xxxxxx Xxxxxxx XX Inc. and Fund Party, provided, however, that this Agreement
shall not supersede or in any way affect any dealer or other agreement between
Xxxxxx Xxxxxxx XX Inc. and Fund Party relating to Xxxxxx Xxxxxxx XX Inc.'s
serving as a dealer in Fund shares. Nor shall Xxxxxx Xxxxxxx XX Inc.'s serving
as a dealer in Fund shares under any such agreement be deemed to cause Xxxxxx
Xxxxxxx XX Inc. to be acting in a dealer capacity under this Agreement. This
Agreement and the Exhibits and Schedules hereto may be amended only by a writing
executed by each party hereto that is to be bound by such amendment.
19. MAINTENANCE OF RECORDS. Xxxxxx Xxxxxxx XX Inc. will maintain all
records required by law, including records detailing the services it provides in
return for the fees to which it is entitled under this Agreement. Such records
shall be preserved, maintained and made available to the extent required and in
accordance with the 1940 Act and the rules thereunder. Upon the request of Fund
Party, Xxxxxx Xxxxxxx XX Inc. shall make copies or originals (if required) of
such of these records available to Fund Party. Xxxxxx Xxxxxxx XX Inc. agrees
that it will permit Fund Party or its designees to have reasonable access to its
personnel and records in order to facilitate the monitoring of the quality of
the services provided under this Agreement. Xxxxxx Xxxxxxx XX Inc. shall have
the right to delete Client names from the records produced. Xxxxxx Xxxxxxx XX
Inc. also agrees to notify promptly the Fund or Fund Party if Xxxxxx Xxxxxxx XX
Inc. experiences any difficulty in maintaining the records described in this
Section in an accurate and complete manner. This provision shall survive the
termination of this Agreement.
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20. GOVERNING LAW. This Agreement will be governed by and interpreted
under the laws of the State of New York as applied to contracts entered into and
to be performed entirely within that state (without reference to conflict of
laws provisions thereof).
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
22. LIMITATION OF LIABILITY. Any printed information that is furnished
by Fund Party other than the Prospectus, the Statement, information supplemental
to the Prospectus and the Statement, periodic reports, proxy solicitation
materials and other publicly disseminated material of any Fund, are the sole
responsibility of Fund Party, and not the responsibility of any Fund, and Xxxxxx
Xxxxxxx XX Inc. agrees that the Funds, the shareholders of the Funds and the
officers and governing Boards of the Funds shall have no liability or
responsibility to Xxxxxx Xxxxxxx XX Inc. in these respects. Xxxxxx Xxxxxxx XX
Inc. agrees that the payment of the Fee is solely the responsibility of Fund
Party and not that of any Fund and Xxxxxx Xxxxxxx XX Inc. agrees that the Funds,
the shareholders of the Funds and the officers and governing Boards of the Funds
shall have no liability or responsibility to Xxxxxx Xxxxxxx XX Inc. with respect
to any indebtedness, liability or obligation hereunder. Further, it is
understood, in the case of each Fund that is organized as a Massachusetts
business trust or series thereof, that the declarations of trust for each trust
refers to the trustees collectively as trustees and not as individuals
personally, and that the declaration of trust provides that no shareholder,
trustee, officer, employee or agent of the trust shall be subject to claims
against or obligations of the trust to any extent whatsoever, but that the trust
estate only shall be liable. No Fund shall be liable for the obligations or
liabilities of any other Fund. No series of any Fund, if any, shall be liable
for obligations of any other series.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX XXXXXXX XX INC.
By: ___________________________
Name: _________________________
Title: __________________________
-------------------------------
(Name of Fund Party)
By: ___________________________
Name: _________________________
Title: __________________________
Address:
-------------------------------
_______________________________
_______________________________
_______________________________
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SCHEDULE I
(List of Funds/Portfolios/Classes
to which Agreement is applicable)
SUBJECT TO FUND-
FUND CLASS DATE OF INITIAL IMPOSED FEE (E.G., CUSIP NUMBER SYMBOL
---- ----- PARTICIPATION SHORT-TERM REDEMPTION)* ------------ ------
------------- -----------------------
---------------------
* Please state the type of fee, the amount of the fee, and describe its
operation (e.g., when or in what situations the fee applies).
EXHIBIT A
SERVICES
Capitalized terms used in this Exhibit have the meanings given them in
the agreement to which this Exhibit is attached (the "Agreement").
1. RECORD MAINTENANCE. Xxxxxx Xxxxxxx XX Inc. or its agents, and Fund
Party, each shall establish an account and maintain records for each Client who
holds shares of any Fund, which records shall include:
a. Number of shares;
b. Date and price of purchases and redemptions (including
dividend reinvestments) and dates and amounts of dividends paid available
on-line the next business day after effected and for at least the twelve month
period; available thereafter in accordance with the record retention
requirements of the 1940 Act and the 1934 Act;
c. Client identification information, in conformity with the
requirements of NSCC's Matrix Level 3 (broker-controlled);
d. Records of distributions and dividend payments;
e. Any transfers of shares; and
f. Overall control records.
2. FUND COMMUNICATIONS. Fund Party shall prepare a monthly report of
the average asset value for each Client on which the Fee is to be paid pursuant
to the Agreement. Such monthly reports shall be subject to verification by
Xxxxxx Xxxxxxx XX Inc. based on such reports of Fund Party that shall be made
available to Xxxxxx Xxxxxxx XX Inc. at reasonable times and as reasonably
necessary for such verification.
3. SHAREHOLDER COMMUNICATIONS. Xxxxxx Xxxxxxx XX Inc. or its agents
shall:
a. Mail Fund Prospectuses, Statements, and any supplements
thereto, upon Client request and, as applicable, with confirmation statements;
b. As to each Fund, at the expense of such Fund, provide for
the mailing of updated Prospectuses, annual and semiannual reports, proxy
statements, and other shareholder communications;
c. Mail statements to Client on a monthly basis (or, as to
accounts in which there has been no activity in a particular month, no less
frequently than quarterly), showing among other things, the number of shares of
each Fund owned by such Client and the net asset values of such Funds as of a
recent date;
d. Produce and mail to Client confirmation statements
reflecting purchases and redemptions of shares of each Fund in the Client's
accounts;
e. Respond to Client inquiries regarding, among other things,
share prices, account balances and dividend amounts; and
f. Distribute sales literature, answer routine customer
inquiries regarding the Funds, assist customers in changing dividend options,
account designations and addresses, and in enrolling into any of several special
investment plans offered in connection with the purchase of the Funds' shares,
assist in the establishment and maintenance of customer accounts and records and
in the processing of purchase and redemption transactions, and provide such
other services as the Funds or the customer may reasonably request.
4. TRANSACTIONAL SERVICES. Xxxxxx Xxxxxxx XX Inc. or its agents shall
communicate, as to shares of each Fund, purchase, redemption and exchange orders
reflecting the orders it receives from its Clients, in accordance with the
procedures contemplated in the Agreement.
5. INFORMATION RETURNS AND REPORTS. Xxxxxx Xxxxxxx XX Inc. or its
agents shall prepare and file with the appropriate governmental agencies such
information, returns and reports as are required to be so filed for reporting
(i) dividends and other distributions made, (ii) amounts withheld on dividends
and other distributions and payments under applicable federal and state laws,
rules and regulations, and (iii) gross proceeds of sales transactions as
required. Fund Party shall provide to Xxxxxx Xxxxxxx XX Inc. in a timely manner
the information regarding the Fund to be included in shareholder tax statements
during the year.
6. OTHER SERVICES.
x. Xxxxxx Xxxxxxx XX Inc. and Fund Party shall each perform
any and all duties, functions, procedures and responsibilities assigned to it
and as otherwise established by the NSCC applicable to Fund/SERV and NETWORKING
Matrix Level 3 (broker-controlled).
b. NSCC rules and procedures relating to Fund/SERV and
NETWORKING, as applicable, shall govern any matter in which any provision of
this Agreement conflicts with any such NSCC rule or procedure, provided,
however, that this sentence shall not prohibit modifications to the NSCC's
standard Matrix Levels that are agreed to by the parties hereto.
EXHIBIT B
CALCULATION OF FEE
Capitalized terms used in this Exhibit have the meanings given them in
the agreement to which this Exhibit is attached (the "Agreement").
1. The Fee shall be calculated each month by multiplying the
average Daily Value of Qualifying Shares (defined below) for the month times 25
basis points per annum. Notwithstanding the foregoing, the minimum Fee for each
Fund shall be $2,000 per month commencing with the first month and terminating
with the last full month such Fund is effective under this Agreement. This Fee
shall be paid quarterly in arrears in accordance with Section 5 below.
2. The Daily Value of Qualifying Shares is the aggregate daily
value of all shares of a Fund held by or on behalf of Clients, subject to the
following exclusions ("Qualifying Shares"). There shall be excluded shares first
held by or on behalf of Clients after the termination of the Agreement as to the
Fund (except that Pre-Termination Shares resulting from reinvested dividends or
capital gains under Section 4(c) of the Agreement shall also be Qualifying
Shares).
3. For purposes of this Exhibit, the daily value of the shares
of each Fund on a given day will be the net asset value reported by such Fund on
that day to the National Association of Securities Dealers, Inc., Automated
Quotation System. No adjustments will be made to the net asset values to correct
errors in the net asset values so reported for any day unless such error is
corrected and the corrected net asset value per share is reported to Xxxxxx
Xxxxxxx XX Inc. before 9:15 p.m. EST on the day on which the error occurs.
4. Within 15 business days after the end of each month, for
each Fund, Fund Party shall send Xxxxxx Xxxxxxx XX Inc. a statement of the
average Daily Value of Qualifying Shares, together with a statement of the
amount of such Fee. In the calculation of such Fee, Xxxxxx Xxxxxxx XX Inc.'s
records shall govern unless the error can be shown in the number of shares used
in such calculation.
5. Fund Party shall pay Xxxxxx Xxxxxxx XX Inc. the Fee by wire
transfer within thirty (30) days after the end of each calendar quarter. The
wire transfer shall be separate from wire transfers of redemption proceeds or
distributions under this Agreement. Payment of the fee shall be by wire transfer
to the following account and in the manner specified in Exhibit C hereto:
CitiBank
ABA # 000000000
DW Account # 406-11172
Final Account # 000-000000-0
Attention: Xxxxxxx Xxxxxxxx/direct participation
EXHIBIT C
OPERATING PROCEDURES
Capitalized terms used in this Exhibit have the meanings given them in
the agreement to which this Exhibit is attached (the "Agreement").
1. OPERATING PROCEDURES.
x. Xxxxxx Xxxxxxx XX Inc. and Fund Party each agrees to comply
with all the terms, conditions, agreements and obligations contained herein, and
to cause any of their respective agents performing services related to the
Agreement to comply with those respective obligations.
x. Xxxxxx Xxxxxxx XX Inc. will open accounts with Fund Party
on behalf of each Client that selects such Fund as an investment alternative
through the Programs. Fund Party shall maintain an account for each such Client
as is customary in NSCC's Matrix Level 3 (broker-controlled). Without limiting
the generality of the foregoing, Fund Party and each Fund will process purchase
and redemption transactions placed by Xxxxxx Xxxxxxx XX Inc. on behalf of
Clients, and pay dividends to Clients at the times and in the manner provided in
the rules and procedures relating to Matrix Level 3.
x. Xxxxxx Xxxxxxx XX Inc. may submit a purchase, exchange or
redemption order (an "Order") for shares of a Fund on behalf of a Client to such
Fund Party's designated contact ("Fund Contact") by telephone, by fax or, where
feasible, by direct systems access via NSCC Fund/SERV and NETWORKING Systems.
Orders received by Xxxxxx Xxxxxxx XX Inc. prior to 4:00 p.m. Eastern Time (the
"Close of Business") on any given business day ("Trade Date") and transmitted to
Fund Party by 7:30 p.m. Eastern Time on that Trade Date shall be executed by
Fund Party at the net asset value determined as of the Close of Business on the
Trade Date. Orders received by Xxxxxx Xxxxxxx XX Inc. after the Close of
Business on a Trade Date, whether transmitted to Fund Party prior to or after
7:30 p.m. Eastern Time on that Trade Date, shall be executed by Fund Party at
the net asset value determined as of the Close of Business on the next business
day after the Trade Date.
x. Xxxxxx Xxxxxxx XX Inc. will transmit the dollar amount of
each purchase order to the relevant Fund or its agent and in accordance with
written instructions as provided to Xxxxxx Xxxxxxx XX Inc. by Fund Party for the
applicable Fund by wire transfer. Anything in this Agreement to the contrary
notwithstanding, Orders shall be placed and settlement shall be made at the time
and in the manner provided in the rules and procedures relating to Fund/SERV and
NETWORKING where a Fund participates in those systems.
2. PRICING. As to each Fund, every business day prior to 7 p.m.,
Eastern Time, Fund Party will use its best efforts to provide Xxxxxx Xxxxxxx XX
Inc. such Fund's closing net asset value for that day and/or notification of no
price for that day via fax, or direct systems access acceptable to Xxxxxx
Xxxxxxx XX Inc. If by fax, send to:
Xxx Xxxxx
Fax number: 000-000-0000
3. PRICE ERRORS.
a. In the event adjustments are required to correct any error
in the computation of the net asset value ("price") of Fund shares made by Fund
Party or a Fund or to make NSCC adjustments Fund Party or the Fund shall notify
Xxxxxx Xxxxxxx XX Inc. as soon as possible after discovering the need for such
adjustments. Notification can be made verbally but must be confirmed in writing.
Written confirmation will be made by Fund Party on Fund letterhead and must
state for each day for which an error occurred the incorrect price, the correct
price, and the reason for the price change. Fund Party or Fund each agrees that
Xxxxxx Xxxxxxx XX Inc. may send this writing, or derivation thereof, to Clients
whose accounts are affected by the price change.
b. Fund Party or a Fund shall reimburse Xxxxxx Xxxxxxx XX Inc.
for all reasonable out-of-pocket expenses incurred by Xxxxxx Xxxxxxx XX Inc. in
effecting such adjustments upon submission of any expense accounting Fund Party
reasonably may require. Expenses to be reimbursed may include, but are not
limited to, the costs of performing any additional reconciliation, canceling and
rebilling, sending notifications of the error to Clients, requesting remittance
and pursuing collection of amounts received (through redemptions or otherwise)
in excess of the amount to which such Clients would otherwise have been
entitled, and all reasonable expenses related to personnel in connection
therewith, but shall not include Xxxxxx Xxxxxxx XX Inc.'s overhead expenses.
c. If Clients have received amounts in excess of the amounts
to which they otherwise would have been entitled prior to an adjustment for an
error, Xxxxxx Xxxxxxx XX Inc., unless Fund Party and a Fund otherwise agree,
will make a good faith attempt to collect such excess amounts from those
Clients. In no event, however, shall Xxxxxx Xxxxxxx XX Inc. be liable to Fund or
Fund Party for any such amounts provided the overpayment was not caused by
Xxxxxx Xxxxxxx XX Inc.
d. If an adjustment is necessary to correct an error made by
Fund Party or a Fund which has caused Clients to receive amounts less than
amounts to which they are entitled, the Fund, by utilizing NSCC procedures,
shall make all necessary adjustments to the number of shares owned by these
Clients, and distribute to these Clients any and all amounts of the
underpayment.
4. SHAREHOLDER COMMUNICATIONS.
a. Fund Party and each Fund shall provide the following
shareholder communications material to Xxxxxx Xxxxxxx XX Inc. or to its mailing
agent in quantities sufficient to allow mailing thereof to all Clients which are
beneficial owners of the Fund's shares or, as appropriate, upon Client request:
(1) All proxy statements prepared for
circulation to a Fund's record shareholders;
(2) Annual reports, semi-annual reports and
other periodic reports;
(3) All updated Prospectuses, supplements and
amendments thereto, and Statements; and
(4) Corporate actions.
b. Fund Party or Fund shall provide without charge the
above-mentioned materials to Xxxxxx Xxxxxxx XX Inc. or to its mailing agent.
Xxxxxx Xxxxxxx XX Inc. will distribute all such materials to Clients and will
xxxx the applicable Fund or Fund Party as Fund Party directs for all reasonable
expenses incurred in connection therewith. Xxxxxx Xxxxxxx XX Inc. has no
responsibility to pay for these charges.
c. In addition to the materials listed above, Fund Party and
Fund each agrees to provide without charge directly to Xxxxxx Xxxxxxx XX Inc. or
its mailing agent certain materials, including sales materials, reasonably
requested by Xxxxxx Xxxxxxx XX Inc. and readily available from Fund Party or a
Fund for distribution to Clients. Neither Fund Party nor a Fund has
responsibility to pay for charges to mail these materials to Clients.
d. Fund Party will ensure that either the Prospectus, or the
Statement, if the Statement is incorporated in the Prospectus, of each Fund
discloses that:
(1) The Fund has authorized one or more brokers
to receive on its behalf purchase and
redemption orders;
(2) These brokers are authorized to designate
other intermediaries to receive purchase and
redemption orders on the Fund's behalf;
(3) The Fund will be deemed to have received a
purchase or redemption order when an
authorized broker or, if applicable, a
broker's authorized designee, receives the
order;
(4) Client Orders will be priced at the Fund's
net asset value next computed after they are
received by an authorized broker or the
broker's authorized designee;
(5) The performance of the Fund may be compared
in publications to the performance of
various indices and investments for which
reliable performance data is available;
(6) The performance of the Fund may be compared
in publications to averages, performance
rankings, or other information prepared by
recognized mutual fund statistical services;
and
(7) The annual report contains additional
performance information and will be made
available to investors upon request and
without charge.
5. REGISTRATION REQUIREMENTS. Fund Party will only accept Orders for
shares of a Fund on behalf of Clients whose addresses are recorded on Xxxxxx
Xxxxxxx XX Inc.'s books as being in states or other jurisdictions in which such
Fund is registered or qualified for sale or exempt from registration and
qualification under applicable law as confirmed in writing to Xxxxxx Xxxxxxx XX
Inc. by a Fund. Fund Party and each Fund shall advise Xxxxxx Xxxxxxx XX Inc.
immediately or as soon as reasonably practicable if any such registration or
qualification is terminated or if the Fund wishes to prevent Xxxxxx Xxxxxxx XX
Inc. from placing or continuing to place Orders on behalf of Clients who reside
in a particular state or other jurisdiction. Fund Party shall indemnify, defend
and protect Xxxxxx Xxxxxxx XX Inc. and each officer, director, employee,
shareholder, agent and Affiliate of Xxxxxx Xxxxxxx XX Inc., and hold Xxxxxx
Xxxxxxx XX Inc. and each such officer, director, employee, shareholder, agent
and Affiliate harmless from and against any and all losses, claims, damages,
liabilities, costs, charges and expenses (including reasonable attorneys' fees)
it or they incur arising in a state or jurisdiction out of any violation of any
law, rule, or regulation relating to the registration or qualification of shares
of any Fund except to the extent such violation results from the sale or
offering of shares of any Fund in a state or jurisdiction other than those in
which Fund Party or the Fund has indicated that shares of such Fund are
registered or qualified for sale. Xxxxxx Xxxxxxx XX Inc. shall indemnify, defend
and protect Fund Party and each officer, director, trustee, employee of Fund
Party and its agents from and against any and all losses, claims, damages,
liabilities, costs, charges and expenses (including reasonable attorneys' fees)
it or they incur arising out of any law, rule, or regulation relating to the
registration or qualification of shares of any Fund to the extent such violation
results from the sale or offering of shares of any Fund by Xxxxxx Xxxxxxx XX
Inc. in a state or jurisdiction other than those in which Fund Party or the Fund
has indicated that shares of such Fund are registered or qualified for sale.
6. FUND CONTACTS. Inquiries and contacts to Fund Party and any Fund can
be made to the following individuals, departments or groups. Contacts for any
particular Fund, which may be different from those listed below, shall be noted
accordingly.
CONTACT INFORMATION
The financial institution(s) the Fund(s) use(s) to accept wire transfer for
purchases:
Name of
Institution
--------------------------------------------------------------------
Address
------------------------------------------------------------------------
ABA Number
---------------------------------------------------------------------
Name of Contact Phone Number
------------------------ ----------------
Fax No.
--------------------------------------------------
MARKETING
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
TRANSFER AGENT/OPERATIONS OFFICER
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
ORDER PLACEMENT
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
DISTRIBUTIONS
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
PRICING
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
TAX REPORTING
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
TRANSFER OF ACCOUNTS
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
RECONCILIATION/QUALITY CONTROL
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
PROSPECTUS/FUND LITERATURE
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
FUND ACCOUNTANT/BILLING
Name
---------------------------------------------------------------------------
Title
--------------------------------------------------------------------------
Phone Number (direct)
----------------------------------------------------------
Back up Contact
----------------------------------------------------------------
EXHIBIT (I)
[XXXXXXX & XXXXX LLP LETTERHEAD]
May 17, 2002
Xxxxxxxx Plumb Funds, Inc.
1200 Xxxx X. Xxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
In connection with the registration of an indefinite number of shares
of common stock, par value $.01 per share ("Common Stock"), of Xxxxxxxx Plumb
Funds, Inc., a Wisconsin corporation (the "Registrant"), under the Securities
Act of 1933, you have requested that we furnish you with the following opinion,
which we understand will be used in connection with and filed with the
Securities and Exchange Commission as an exhibit to Post-Effective Amendment No.
19 to the Registration Statement on Form N-1A (as amended, the "Registration
Statement") (1933 Act Registration No. 33-6418).
We understand that the Common Stock to which the Registration Statement
relates are currently issued and offered to the public in five series of the
Registrant, consisting of the Xxxxxxxx Xxxxx Growth Fund, Xxxxxxxx Plumb Select
Fund, Xxxxxxxx Xxxxx Blue Chip Fund, Xxxxxxxx Plumb Balanced Fund and Xxxxxxxx
Xxxxx Bond Fund in the manner and on the terms described in the Registration
Statement. For purposes of rendering this opinion, we have examined originals or
copies of such documents as we consider necessary, including those listed below.
In conducting such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies.
The documents we have examined include:
1. The Registration Statement;
2. The Registrant's Articles of Incorporation, including all
restatements thereof and amendments thereto, filed to date
with Wisconsin Department of Financial Institutions (and its
predecessor, the Wisconsin Secretary of State);
3. A certificate of active status, recently issued by the
Wisconsin Department of Financial Institutions; and
4. Such other documents and certificates as to matters of fact
and such matters of law as we have deemed relevant to the
opinions expressed herein.
Based upon and subject to the foregoing, after having given due regard
to such issues of law as we have deemed relevant, and assuming that:
1. The Registration Statement remains effective, and the
Prospectus which is a part thereof and your Prospectus
delivery procedures with respect thereto fulfill all the
requirements of the Securities Act of 1933 and the Investment
Company Act of 1940 throughout all periods relevant to this
opinion;
2. All offers and sales of Common Stock of the Registrant
(including each series thereof) registered by means of the
Registration Statement are conducted in a manner complying
with the terms of the Registration Statement; and
3. All offers and sales of Common Stock of the Registrant are
made in compliance with the securities laws of the states
having jurisdiction thereof;
we are of the opinion that the Common Stock of the Registrant (including each
series thereof), when issued, will be legally and validly issued, fully paid and
non-assessable, except as provided under Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law (as it and its predecessor statute have been judicially
interpreted).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the references to our firm in the Prospectus and
Statement of Additional Information constituting parts of the Registration
Statement.
Very truly yours,
XXXXXXX & XXXXX LLP
/s/Xxxxxxx & Xxxxx LLP
--------------------------------
