EXHIBIT (H)(13)
AMENDED AND RESTATED REIMBURSEMENT AGREEMENT
THIS AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this "Agreement") is made as
of this 1st day of April, 2007 by and among between Xxxxxxxx Investment
Management, Inc., a Delaware Corporation ("XXX" or the "Adviser"), and Xxxxxxxx
Xxxxx Funds, Inc., a Wisconsin corporation and registered open-end management
investment company (the "Company"), on behalf of its various mutual fund series
(the "Funds").
RECITALS:
WHEREAS, the Adviser has entered and expects to enter into various agreements
with broker-dealers, trust companies, banks and other financial institutions,
professional investment consultants and others (collectively, the "Service
Providers"), pursuant to which the Adviser pays the Service Providers a fee for
various shareholder services that the Service Providers provide in connection
with investments by their clients in the Funds;
WHEREAS, the shareholder services provided by the Service Providers (the
"Services") in exchange for the fee paid by the Adviser include, among other
matters, maintaining records of client holdings in the Funds (which may involve
maintaining omnibus accounts); communicating with clients regarding their
holdings in the Funds, responding to their inquiries about the Funds,
facilitating client compliance with purchase, redemption and exchange procedures
and other shareholder services offered by the Funds, and forwarding
prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements and other information furnished to Fund shareholders;
communicating with, and providing information to, the Funds regarding purchase,
redemption and exchange orders received from clients; and preparing, filing and
distributing tax information and reports;
WHEREAS, the Board of Directors of the Company, including a majority of the
directors who are "interested persons" (as defined in the Investment Company
Act) of the Company or the Adviser, has determined that the Services benefit the
Funds by eliminating or reducing some of the costs, fees and expenses that the
Funds would otherwise have to pay in the absence of agreements for the provision
of the Services, and that it would be appropriate for the Funds to reimburse the
Adviser for a portion of the fees it pays to the Service Providers for the
Services;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, and for other valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Reimbursement.
a. Each relevant Fund shall reimburse the Adviser, on a monthly basis in
arrears, an amount (the "Reimbursement Amount") calculated in accordance with
Section 1(b) below, representing a portion of the fees that the Adviser paid to
the Service Providers for the Services during the month. The Reimbursement
Amount shall be supported by a detailed accounting provided to the Company by
the Adviser. Copies of records supporting the accounting will be maintained by
the Adviser for at least six years and will be available for inspection upon
request by the Company. The Reimbursement Amount shall be paid by the Company on
behalf of, and out of the assets of, the relevant Fund within 30 days following
receipt of the statement for the Reimbursement Amount.
b. The Reimbursement Amount for a Fund shall be equal to the lessor of (i)
the costs, fees and expenses that the Fund would have been required to pay
during the applicable period (such as transfer agency fees and mailing and
fulfillment costs) in the absence of agreements with the Service Providers for
the provision of the Services and assuming that the clients of the Service
Providers had invested in the Fund directly and not through or with the
assistance of the Service Providers, or (ii) 0.10% per annum of the aggregate
average daily net assets of accounts in the Funds for which the Service
Providers are responsible. Moreover, in no event shall the Reimbursement Amount
be more than the fees paid by the Adviser to the Service Providers under the
agreements for the provision of the Services. For purposes of determining the
amount described in clause (i) above, it is understood and agreed that if a
Service Provider maintains an omnibus account, the Funds will save transfer
agency fees (which are based in part on the number of Fund accounts) because of
that service and could reimburse the Adviser for an amount equal to those
savings. If the Service Provider discloses the number of its client accounts
that are invested in each Fund through the Service Provider's omnibus account, a
determination of the transfer agency fee savings will be made by reference to
the transfer agency fees paid per Fund account. If a Service Provider does not
disclose the number of its client accounts that are invested in a Fund through
the Service Provider's omnibus account, the Adviser will estimate such number
based on the average size of the Service Provider's client accounts' investments
in the Fund or if such average is not available based on the average size of
other Service Providers' client accounts' investments in the Fund. If the
Service Providers, as part of their Services, deliver a Fund's prospectuses,
statements of additional information, annual reports, semi-annual reports, proxy
statements and other information required to be delivered to shareholders of the
Fund or delivered at their client's request, the Fund will save mailing and/or
fulfillment costs and the Adviser may determine those mailing and/or fulfillment
cost savings with information provided by the Company. In all cases, the Adviser
shall determine the Reimbursement Amount in its reasonable, good faith
discretion, subject to Board review and rejection.
2. Company Board Review. Information as to the Reimbursement Amounts, including
the detailed accounting and such other information the Company's Board of
Directors requests will be provided to the Board at least quarterly. The Board
of Directors of the Company may reject any Reimbursement Amounts paid under this
Agreement. If the Board, by a majority of the directors who are not "interested
persons" (as defined in the Investment Company Act of 1940) of the Company or
the Adviser, acting in good faith, rejects any of the Reimbursement Amounts for
a Fund, the Adviser shall issue to the Fund a credit equal to the rejected
portions of the Reimbursement Amount, which credit may be applied against future
Reimbursement Amounts or investment advisory fees owed by the Fund.
3. Term and Termination. This Agreement shall continue for a period of one year
from the date hereof and thereafter so long as its continuance is specifically
approved at least annually by the Board of Directors of the Company.
Notwithstanding the above, either party hereto may terminate this Agreement for
any reason on at least 60 days' prior written notice. This Agreement shall
automatically terminate in the event of its assignment (as defined in the
Investment Company Act of 1940).
4. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, except to the extent
superseded or preempted by the Investment Company Act of 1940. This Agreement
may not be modified except in writing signed by each party hereto. This
Agreement embodies the entire agreement between the parties with respect to the
subject matter hereof and supersedes any prior or contemporaneous agreements,
arrangements, understandings, negotiations or discussions regarding such subject
matter. This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which shall together constitute a single
agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXXX PLUMB FUNDS, INC.
By:
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Title:
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XXXXXXXX INVESTMENT MANAGEMENT, INC.
By:
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Title:
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