EXHIBIT 23H(2)
INVESTMENT COMPANY SERVICES AGREEMENT
FOR
FAIRHOLME FUNDS, INC.
THIS AGREEMENT, dated as of the _______ day of __________________, 1999, is
made by and between Fairholme Capital Management, LLC , a Delaware limited
liability company ("Adviser"), Fairholme Funds, Inc. (the "Fund"), a corporation
duly organized and existing under the laws of the State of Maryland and
operating as an open-end, management investment company registered under the
Investment Company Act of 1940, as amended (the "Act"), and Mutual Shareholder
Services, LLC ("MSS") a limited liability company duly organized under the laws
of the State of Ohio (collectively, the "Parties").
RECITALS:
WHEREAS, The Fund is authorized by its Articles of Incorporation and
by-laws to issue separate series of shares representing interests in separate
investment portfolios (the "Portfolios"), and
WHEREAS, The Fund has authorized the issuance of the Portfolios which are
identified on Schedule "C" attached hereto, which Schedule "C" may be amended
from time to time by mutual agreement of the Fund, Adviser and MSS, and;
WHEREAS, Adviser and the Fund have entered into a previous contract wherein
Adviser is responsible for providing certain services to the Fund, and;
WHEREAS, Adviser is authorized, pursuant to its agreement with the Fund, to
enter into contracts with third parties and engage such parties to provide
services to the Fund on Adviser's behalf, and;
WHEREAS, the Parties desire to enter into an agreement whereby MSS will
provide the services to the Fund as specified herein and set forth in particular
in Schedule "A", which is attached hereto and made a part hereof;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and in exchange for good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, the Parties hereto,
intending to be legally bound, do hereby agree as follows:
GENERAL PROVISIONS
SECTION 1, APPOINTMENT.
Adviser and the Fund hereby appoint MSS as servicing agent for the Fund and
MSS hereby accepts such appointment. In order that MSS may perform its duties
under the terms of this Agreement, the Board of Directors of the Fund shall
direct the officers, Adviser, legal counsel, independent accountants and
custodian of the Fund to cooperate fully with MSS and, upon request of MSS, to
provide such information, documents and advice relating to the Fund which MSS
requires to execute its responsibilities hereunder. In connection with its
duties, MSS shall be entitled to rely, and will be held harmless by the Fund
when acting in reasonable reliance, upon any instruction, advice or document
relating to the Fund as provided to MSS by any of the aforementioned persons on
behalf of the Fund. All fees charged by any such persons acting on behalf of the
Fund will be deemed an expense of the Fund.
Any services performed by MSS under this Agreement will conform to the
requirements of:
(a) the provisions of the Act and the Securities Act of 1933, as amended, and
any rules or regulations in force thereunder;
(b) any other applicable provision of state and federal law;
(c) the provisions of the Fund's Articles of Incorporation and by-laws as
amended from time to time and delivered to MSS;
(d) any policies and determinations of the Board of Directors of the Fund which
are communicated to MSS, and
(e) the policies of the Fund as reflected in the Fund's Registration Statement
as filed with the U.S. Securities and Exchange Commission.
Nothing in this Agreement will prevent MSS or any officer thereof from
providing the same or comparable services for or with any other person, firm or
corporation. While the services supplied to the Fund may be different than those
supplied to other persons, firms or corporations, MSS will provide the Fund
equitable treatment in supplying services. The Fund recognizes that it will not
receive preferential treatment from MSS as compared with the treatment provided
to other MSS clients.
SECTION 2. DUTIES AND OBLIGATIONS OF MSS.
Subject to the provisions of this Agreement, MSS will provide to the Fund
the specific services as set forth in Schedule "A" attached hereto.
SECTION 3. DEFINITIONS.
For purposes of this Agreement:
"Certificate" will mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement. To be effective, such
Certificate shall be given to and received by the custodian and shall be
signed on behalf of the Fund by any two of its designated officers, and the
term Certificate shall also include Instructions communicated to the
custodian by MSS.
"Custodian" will refer to that agent which provides safekeeping of the
assets of the Fund.
"Instructions" will mean communications containing instructions transmitted
by electronic or telecommunications media including, but not limited to,
Industry Standardization for Institutional Trade Communications,
computer-to-computer interface, dedicated transmission line, facsimile
transmission (which may be signed by an officer or unsigned) and tested
telex.
"Oral Instruction" will mean an authorization, instruction, approval, item
or set of data, or information of any kind transmitted to MSS in person or
by telephone, telegram, telecopy or other mechanical or documentary means
lacking original signature, by a person or persons reasonably identified to
MSS to be a person or persons so authorized by a resolution of the Board of
Trustees of the Fund or an officer or director of Adviser to give Oral
Instructions to MSS on behalf of the Fund.
"Shareholders" will mean the registered owners of the shares of the Fund in
accordance with the share registry records maintained by MSS for the Fund.
"Shares" will mean the issued and outstanding shares of the Fund.
"Signature Guarantee" will mean the guarantee of signatures by an "eligible
guarantor institution" as defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Eligible guarantor
institutions include banks, brokers, dealers, credit unions, national
securities exchanges, registered securities associations, clearing agencies
and savings associations. Broker-dealers guaranteeing signatures must be
members of a clearing corporation or maintain net capital of at least
$100,000. Signature guarantees will be accepted from any eligible guarantor
institution that participates in a signature guarantee program.
"Written Instruction" will mean an authorization, instruction, approval,
item or set of data or information of any kind transmitted to MSS in an
original writing containing an original signature or a copy of such
document transmitted by telecopy including transmission of such signature
reasonably identified to MSS to be the signature of a person or persons so
authorized by a resolution of the Board of Trustees of the Fund, or so
identified by the Fund or by ADVISER to give Written Instructions to MSS on
behalf of the Fund.
Concerning Oral and Written Instructions For all purposes under this
Agreement, MSS is authorized to act upon receipt of the first of any
Written or Oral Instruction it receives from the Fund or its agents. In
cases where the first instruction is an Oral Instruction that is not in the
form of a document or written record, a confirmatory Written Instruction or
Oral Instruction in the form of a document or written record shall be
delivered. In cases where MSS receives an Instruction, whether Written or
Oral, to enter a portfolio transaction onto the Fund's records, the Fund
shall cause the broker/dealer executing such transaction to send a written
confirmation to the Custodian.
MSS shall be entitled to rely on the first Instruction received. For any
act or omission undertaken by MSS in compliance therewith, MSS shall be free of
liability and fully indemnified and held harmless by the Fund and Adviser
provided however, that in the event a Written or Oral Instruction received by
MSS is countermanded by a subsequent Written or Oral Instruction received prior
to MSS acting upon such countermanded Instruction, MSS shall act upon such
subsequent Written or Oral Instruction. The sole obligation of MSS with respect
to any follow-up or confirmatory Written Instruction or Oral Instruction in
documentary or written form shall be to make reasonable efforts to detect any
discrepancy between the original Instruction and such confirmation and to report
such discrepancy to the Fund. The Fund shall be responsible for, and bear the
expense of, taking any action, including any reprocessing, necessary to correct
any discrepancy or error. To the extent such action requires MSS to act, the
Fund or Adviser shall give MSS specific Written Instruction as to the action
required.
The Fund will file with MSS a certified copy of each resolution of the
Fund's Board of Trustees authorizing execution of Written Instructions or the
transmittal of Oral Instructions as provided above.
SECTION 4. INDEMNIFICATION.
(a) MSS, its directors, officers, employees, shareholders, and agents will be
liable for any loss suffered by the Fund resulting from the willful
misfeasance, bad faith, negligence or reckless disregard on the part of MSS
in the performance of its obligations and duties under this Agreement.
(b) Any director, officer, employee, shareholder or agent of MSS who may be or
become an officer, director, employee or agent of the Fund or Adviser will
be deemed, when rendering services to the Fund or acting on any business of
the Fund (other than services or business in connection with MSS's duties
hereunder), to be rendering such services to or acting solely for the Fund
and not as a director, officer, employee, shareholder or agent of, or under
the control or direction of MSS even though such person may be receiving
compensation from MSS.
(c) The Fund agrees to indemnify and hold MSS harmless, together with its
directors officers, employees, shareholders and agents from and against any
and all claims, demands, expenses and liabilities (whether with or without
basis in fact or law) of any and every nature which MSS may sustain or
incur or which may be asserted against MSS by any person by reason of or as
a result of:
(i) any action taken or omitted to be taken by MSS except claims, demands,
expenses and liabilities arising from willful misfeasance, bad faith,
negligence or reckless disregard on the part of MSS in the performance
of its obligations and duties under this Agreement; or
(ii) any action taken or omitted to be taken by MSS in reliance upon any
Certificate, instrument, order or stock certificate or other document
reasonably believed by MSS to be genuine and signed, countersigned or
executed by any duly authorized person, upon the Oral Instructions or
Written Instructions of an authorized person of the Fund or Adviser,
or upon the Written opinion of legal counsel for the Fund, Adviser or
MSS; or
(iii)the offer or sale of shares of the Fund to any person, natural or
otherwise, which is in violation of any state or federal law.
(d) Adviser agrees to indemnify and hold MSS harmless, together with its
directors officers, employees, shareholders and agents from and against any
and all claims, demands, expenses and liabilities (whether with or without
basis in fact or law) of any and every nature which MSS may sustain or
incur or which may be asserted against MSS by any person by reason of or as
a result of:
(1) any action taken or omitted to be taken by MSS except claims, demands,
expenses and liabilities arising from willful misfeasance, bad faith,
negligence or reckless disregard on the part of MSS in the performance
of its obligations and duties under this Agreement; or
(2) any action taken or omitted to be taken by MSS in reliance upon any
Certificate, instrument, order or stock certificate or other document
reasonably believed by MSS to be genuine and signed, countersigned or
executed by any duly authorized person, upon the Oral Instructions or
Written Instructions of an authorized person of the Fund or Adviser,
or upon the Written opinion of legal counsel for the Fund, Adviser or
MSS ;or
(3) the offer or sale of shares of the Fund to any person, natural or
otherwise, which is in violation of any state or federal law.
If a claim is made against MSS as to which MSS may seek indemnity under
this Section, MSS will notify the Fund or Adviser promptly after receipt of any
written assertion of such claim threatening to institute an action or proceeding
with respect thereto and will notify the Fund or Adviser promptly of any action
commenced against MSS within ten (10) days after MSS has been served with a
summons or other legal process. Failure to notify the Fund or Adviser will not,
however, relieve the Fund or Adviser from any liability, which either may have
on account of the indemnity under this Section so long as the Fund or Adviser
has not been prejudiced in any material respect by such failure.
The Parties will cooperate in the control of the defense of any action,
suit or proceeding in which MSS is involved and for which indemnity is being
sought from the Fund or Adviser to MSS. The Fund may negotiate the settlement of
any action; suit or proceeding, subject to MSS's approval, which approval will
not be unreasonably withheld by MSS. MSS reserves the right, but not the
obligation, to participate in the defense or settlement of a claim, action or
proceeding by use of its own counsel. Costs or expenses incurred by MSS in
connection with, or as a result of such participation, will be borne solely by
the Fund if:
(i) MSS has received an opinion of counsel from counsel to the Fund
stating that the use of counsel to the Fund by MSS would present an
impermissible conflict of interest;
(ii) the defendants in, or targets of, any such action or proceeding
include both MSS and the Fund, and legal counsel to MSS has reasonably
concluded that there are legal defenses available to it which are
different from or additional to those available to the Fund or which
may be adverse to or inconsistent with defenses available to the Fund
(in which case the Fund will not have the right to direct the defense
of such action on behalf of MSS, or
(iii)the Fund authorizes MSS to employ separate counsel at the expense of
the Fund.
(e) The terms of this Section will survive the termination of this Agreement
Section 5. Representations and Warranties.
(a) MSS represents and warrants that:
(i) it is a limited liability company duly organized and existing and in
good standing under the laws of Ohio;
(ii) it is empowered under applicable laws and by its Certificate of
Organization and by-laws to enter into and perform this Agreement;
(iii)all requisite corporate proceedings have been taken to authorize MSS
to enter into and perform this Agreement;
(iv) it has and will continue to have access to the facilities, personnel
and equipment required to fully perform its duties and obligations
hereunder;
(v) no legal or administrative proceedings have been instituted or
threatened which would impair MSS's ability to perform its duties and
obligations under this Agreement;
(vi) its entrance into this Agreement shall not cause a material breach or
be in material conflict with any other agreement or obligation of MSS
or any law or regulation applicable to it;
(vii)it is registered as a transfer agent under Section 17A(c)(2) of the
Exchange Act
(viii) this Agreement has been duly authorized by MSS and, when executed
and delivered, will constitute a valid, legal and binding obligation
of MSS, enforceable in accordance with its terms.
(b) The Fund represents and warrants that:
(i) it is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland;
(ii) it is empowered under applicable laws and by its Articles of
Incorporation and by-laws to enter into and perform this Agreement;
(iii)all requisite proceedings have been taken to authorize the Fund to
enter into and perform this Agreement;
(iv) no legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its duties
and obligations under this Agreement;
(v) the Fund's entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligations of the Fund, or any law or regulation applicable to
either;
(vi) the Shares are properly registered or otherwise authorized for
issuance and sale;
(vii)this Agreement has been duly authorized by the Fund and, when
executed and delivered, will constitute a valid, legal and binding
obligation of the Fund, enforceable in accordance with its terms.
(c) Adviser represents and warrants that:
(ix) it is a limited liability company duly organized and existing and in
good standing under the laws of Delaware;
(x) it is empowered under applicable laws and by its Certificate of
Organization and by-laws to enter into and perform this Agreement;
(xi) all requisite corporate proceedings have been taken to authorize MSS
to enter into and perform this Agreement;
(xii)it has and will continue to have access to the facilities, personnel
and equipment required to fully perform its duties and obligations
hereunder;
(xiii) no legal or administrative proceedings have been instituted or
threatened which would impair Adviser's ability to perform its duties
and obligations under this Agreement;
(xiv)its entrance into this Agreement shall not cause a material breach or
be in material conflict with any other agreement or obligation of
Adviser or any law or regulation applicable to it;
(xv) this Agreement has been duly authorized by Adviser and, when executed
and delivered, will constitute a valid, legal and binding obligation
of Adviser, enforceable in accordance with its terms.
(d) Delivery of Documents
The Fund will furnish or cause to be furnished to MSS the following
documents (i) current Prospectus and Statement of Additional Information; (ii)
most recent Annual Report; (iii) most recent Semi-Annual Report for registered
investment companies on Form N-SAR (iv) certified copies of resolutions of the
Fund's Board of Directors/Trustees authorizing the execution of Written
Instructions or the transmittal of Oral Instructions and those persons
authorized to give such Instructions.
(e) Record Keeping and Other Information
MSS will create and maintain all records required of it pursuant to its
duties hereunder and as set forth in Schedule "A" in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the Act. All such records will be the property of the Fund and will be
available during regular business hours for inspection, copying, and use by the
Fund. Where applicable, such records will be maintained by MSS for the periods
and in the places required by Rule 31a-2 under the Act. Upon termination of this
Agreement, MSS will deliver all such records to the Fund or such other person or
persons as the Fund may designate.
In case of any request or demand for the inspection of the Share records of the
Fund, MSS shall notify the Fund and secure instructions permitting or refusing
such inspection. MSS may, however, exhibit such records to any person in any
case where MSS is advised by its counsel in writing that it may be held liable
for failure to do so.
SECTION 6. COMPENSATION.
Adviser agrees to pay MSS compensation for its services, and to reimburse
it for expenses at the rates, times, manner and amounts as set forth in Schedule
"B" attached hereto and incorporated herein by reference. Adviser further agrees
to pay MSS compensation as may be set forth in any amendments to such Schedule
"B" when agreed upon in writing by the Parties. In addition, Adviser agrees to
reimburse MSS for any out-of-pocket expenses paid by MSS on behalf of the Fund
within five (5) calendar days of Adviser's receipt of an invoice therefor.
For the purpose of determining fees payable to MSS, the value of the Fund's
net assets will be computed at the times and in the manner specified in the
Fund's Prospectus and Statement of Additional Information then in effect.
During the term of this Agreement, should the Fund seek services or
functions in addition to those outlined below or in Schedule "A" attached
hereto, a written amendment to this Agreement specifying the additional services
and corresponding compensation will be executed by the Parties.
In the event that Adviser is more that thirty (30) days delinquent in its
payments of monthly ▇▇▇▇▇▇▇▇ in connection with this Agreement (with the
exception of specific amounts which may be contested in good faith by the
Adviser or fund), this Agreement may be terminated upon thirty (30) days written
notice to the Fund and Adviser by MSS. The Adviser and/or Fund must notify MSS
in writing of any contested amounts within five (5) calendar days of receipt of
a billing for such amounts. Disputed amounts are not due and payable while they
are being disputed.
SECTION 7. DAYS OF OPERATION.
Nothing contained in this Agreement is intended to or will require MSS in
any capacity hereunder, to perform any functions or duties on any holiday, day
of special observance or another day on which the New York Stock Exchange
("NYSE") is closed. Functions or duties normally scheduled to be performed on
such days will be performed on the next succeeding business day on which the
NYSE is open. Notwithstanding the foregoing, MSS will compute the net asset
value of the Fund on each day required pursuant to Rule 22c-1 under the Act.
SECTION 8. ACTS OF GOD, ETC.
MSS will not be liable or responsible for delays or errors caused by acts of God
or by reason of circumstances beyond its control, including, acts of civil or
military authority, national emergencies, labor difficulties, mechanical
breakdown, insurrection, war, riots, or failure or unavailability of
transportation, communication, or power supply, fire, flood or other
catastrophe.
In the event of equipment failures beyond MSS's control, MSS will, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions, but will have no liability with respect thereto. The foregoing
obligation will not extend to computer terminals located outside of premises
maintained by MSS wherein MSS has entered into and maintains in effect
agreements making reasonable provision for emergency use of electronic data
processing equipment to the extent appropriate equipment is available.
SECTION 9. INSPECTION AND OWNERSHIP OF RECORDS.
In the event of a request or demand for inspection of the records of the
Fund, MSS will use its best efforts to notify the Fund and to secure
instructions from the Fund permitting or refusing such inspection. MSS may,
however, make such records available for inspection to any person in any case
where it is advised in writing by its counsel that it may be held liable for
failure to do so after notice to the Fund.
MSS recognizes that the records it maintains for the Fund are the property
of the Fund and such records be surrendered to the Fund upon written notice to
MSS as outlined under Section 10(c) below. The Adviser is responsible for the
payment in advance of any fees owed to MSS. MSS agrees to maintain the records
and all other information of the Fund in a confidential manner and will not use
such information for any purpose other that the performance of MSS's duties
under this Agreement.
SECTION 10. DURATION AND TERMINATION.
(a) The initial term of this Agreement will be for a period of one (1) year,
commencing on the date hereinabove first written (the "Effective Date") and
will continue thereafter subject to termination by either party as set
forth in subsection (c) below.
(b) The fee schedules set forth in Schedule "B" attached hereto will be fixed
for the initial term commencing on the Effective Date of this Agreement and
will continue thereafter subject to their review and any adjustment.
(c) After the initial term of this Agreement, any Party may terminate this
Agreement upon ninety days (90) prior written notice to the other parties
(the "Notice Date"). The date upon which this Agreement shall be terminated
is referred to herein as the Termination Date. The period of time between
the Notice Date and the Termination Date is hereby identified as the
"Notice Period". Any time up to, but not later that fifteen (15) days prior
to the Termination Date, Adviser will pay to MSS such compensation as may
be due as of the Termination Date and will likewise reimburse MSS for any
out-of-pocket expenses and disbursements reasonably incurred or expected to
by incurred by MSS up to and including the Termination Date.
(d) In connection with the termination of this Agreement, if a successor to any
of MSS's duties or responsibilities under this Agreement is designated by
the Fund by written notice to MSS, MSS will promptly, on the Termination
Date and upon receipt by MSS of any payments owed to it as set forth in
Section 10(c) above, transfer to the successor, at the Fund's expense, all
records which belong to the Fund and will provide appropriate, reasonable
and professional cooperation in transferring such records to the named
successor.
(e) Should the Fund desire to move any of the services outlined in this
Agreement to a successor prior to the Termination Date, MSS shall make a
good faith effort to facilitate the conversion on such prior date. However,
there can be no guarantee that MSS will be able to facilitate such
conversion of services prior to the end of the Notice Period. Should
services be converted to a successor prior to the end of the Notice Period,
or if the Fund is liquidated or its assets merged or purchased or the like
with another entity, payment of fees to MSS shall be accelerated to a date
prior to the conversion or termination of services and calculated as if
such services had remained at MSS until the expiration of the Notice Period
and shall be calculated at the asset levels on the Notice Date.
(f) Notwithstanding any other provisions of Paragraph 10, in the event the Fund
deregisters as an Investment Company with the United States Securities and
the Exchange Commission ("SEC"), this Agreement may be terminated by the
Fund upon ninety (90) days written notice to MSS. The Termination Date
shall be ninety (90) days after the receipt of such notice by MSS. Any time
up to, but not later than fifteen (15) days prior to the Termination Date,
the Fund will pay to MSS such compensation as may be due as of the
Termination Date and will likewise reimburse MSS for any out-of-pocket
expenses and disbursements reasonably incurred or expected to be incurred
by MSS up to and including the Termination Date.
(g) Notwithstanding the foregoing, this Agreement may be terminated at any time
by either Party in the event of a material breach by the other Party
involving negligence, willful misfeasance, bad faith or a reckless
disregard of a Party's obligations and duties under this Agreement,
provided that such breach shall have remained unremedied for sixty (60)
days or more after receipt by the breaching Party of written specification
thereof.
Section 11. Rights of Ownership. All computer programs and procedures
developed to perform services required to be provided by MSS under this
Agreement are the property of MSS. All records and other data except such
computer programs and procedures are the exclusive property of the Fund, and all
such other records and data will be furnished to the Fund in an appropriate form
as soon as practicable after termination of this Agreement for any reason.
Section 12. Amendments to Documents. The Fund will furnish MSS with written
copies of any amendments to, or changes in, The Fund's Articles of
incorporation, by-laws, Prospectus or Statement of Additional Information within
a reasonable time prior to such amendments or changes becoming effective. In
addition, the Fund agrees that no amendments will be made to the Prospectus or
Statement of Additional Information of the Fund which might have the effect of
changing the procedures employed by MSS in providing the services agreed to
hereunder or which amendment might affect the duties of MSS hereunder, unless
the Fund first obtains MSS's approval of such amendments or changes.
Section 13. Confidentiality. The Parties hereto agree that any
non-public information obtained hereunder concerning the other Party is
confidential and may not be disclosed to any other person without the prior
written consent of the other Party, except as may be required by applicable law
or at the request of the U.S. Securities and Exchange Commission or other
governmental agency. MSS agrees that it will not use any non-public information
for any purpose other than performance or its duties or obligations hereunder.
The obligations of the Parties under this Section will survive the termination
of this Agreement. The Parties further agree that a breach of this Section would
irreparably damage the other Party, and accordingly agree that each Party shall
be entitled, without bond or other security, to secure an injunction or
injunctions against the offending Party to halt or prevent breaches of this
Section.
Section 14. Notices. Except as otherwise provided in this Agreement, any
notice or other communication required by or permitted to be given in connection
with this Agreement shall be in writing and shall be delivered in person or sent
by first class mail, postage prepaid or by prepaid overnight delivery service to
the respective parties as follows:
If to the Fund: If to Adviser:
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Fairholme Funds, Inc. Fairholme Capital Management, LLC
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Senior Attn: ▇▇▇▇▇▇▇ Senior
If to MSS:
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Mutual Shareholder Services, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
Section 15. Amendments. No provision of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by the Parties. This Agreement may be amended from time to time by
supplemental agreement executed by the Parties, and the compensation stated in
Schedule "B" attached hereto may be adjusted accordingly as mutually agreed
upon.
Section 16. Authorization. The Parties represent and warrant to each other
that the execution and delivery of this Agreement by the undersigned officer of
each Party has been duly and validly authorized; and when duly executed, this
Agreement will constitute a valid, legally binding and fully enforceable
obligation of each Party.
Section 17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed will be deemed to be an original,
but such counterparts will together constitute but one and the same instrument.
Section 18. Assignment. This Agreement will extend to and be binding upon
the Parties hereto and their respective successors and assigns; provided,
however, that this Agreement will not be assignable by the Fund or Adviser
without the consent of MSS or by MSS without the written consent of the Fund and
Adviser, which consent shall be authorized or approved by a resolution by its
respective Boards of Directors/Trustees.
Section 19. Governing Law. This Agreement will be governed by the laws of
the State of Ohio and the exclusive venue of any action arising under this
Agreement will be Cuyahoga County, Ohio.
Section 20. Severability. If any part, term, or provision of this Agreement
is held by a court of competent jurisdiction to be illegal, in conflict with any
law or otherwise invalid, the remaining portion or portions of the Agreement
shall be considered severable and unaffected by such ruling, and the rights and
obligations of the parties will be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid, provided that the Agreement is not thereby materially impaired.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement, together
with Schedules "A", "B", "C" attached, to be signed by their duly authorized
officers as of the day and year first above written.
FAIRHOLME CAPITAL
FAIRHOLME FUNDS, INC. MANAGEMENT, LLC
------------------------ -------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ Senior
President, Trustee Chief Financial Officer
MUTUAL SHAREHOLDER SERVICES, LLC
-----------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
President
SCHEDULE A
ACCOUNTING SERVICES PROVIDED BY MSS
o Journalize each portfolio's investment, capital share, and income and
expense activities.
o Verify investment buy/sell trade tickets when received from the Adviser.
o Maintain individual ledgers for investment securities.
o Maintain historical tax lots for each security.
o Reconcile cash and investment balances of each Portfolio with the
custodian, and provide the advisor with the beginning cash balance
available for investment purposes.
o Update the cash availability throughout the day as required by the advisor.
o Post to and prepare each Portfolio's Statement of Assets and Liabilities
and Statement of operations.
o Calculate expenses payable pursuant to the Fund's various contractual
obligations.
o Control all disbursements from the Fund on behalf of each Portfolio and
authorize such disbursements upon instructions of the Fund
o Calculate capital gains and losses.
o Determine each portfolio's net income
o At the Portfolio's expense, obtain security market prices or if such market
prices are not readily available, then obtain such prices from services
approved by the advisor, and in either case calculate the market or fair
value of each Portfolio's investments.
o Where applicable, calculate the amortized cost value of debt instruments.
o Transmit or mail a copy of the portfolio valuations to the advisor.
o Compute the net asset value of each portfolio.
o Compute each Portfolio's yields, total returns, expense ratios and
portfolio turnover rate.
o Prepare and monitor the expense accruals and notify Fund management of any
proposed adjustments.
o Prepare semi-annual financial statements, which will include, without
limitation, the Schedule of Investments, the Statement of Assets and
Liabilities, the Statement of Operations, the Statement of Changes in Net
Assets, the Cash Statement, and the Schedule of Capital Gains and Losses.
o Prepare monthly security transactions listings.
o Prepare monthly broker security transactions summaries.
o Assist in the preparation of support schedules necessary for completion of
Federal and State tax returns.
o Assist in the preparation and filing of the Fund's annual and semi-annual
reports with the SEC on Form N-SAR.
o Assist in the preparation of the Fund's annual and semi-annual reports to
shareholders and proxy statements.
o Determine the amount of dividends and other distributions payable to
shareholders as necessary to, among other things, maintain the
qualification of the Fund as a regulated investment company of each
portfolio of the Fund under the Code.
o Provide other accounting services as may be agreed upon from time to time
in writing by the Fund and MSS.
ADMINISTRATIVE SERVICES PROVIDED BY MSS
o Prepare and file the following Federal and State reports:
o Form N-SAR, Semi-annual report for Registered Investment Companies.
o The Fund's Annual and Semi-annual Report.
o Rule 24f-2 Notice- filing regarding sales of securities.
o Ongoing monitoring and filing of State Blue Sky Registrations.
o Prepare and file such reports, applications and documents as may be
necessary or desirable to register the Fund's shares with the Federal and
State securities authorities, and monitor the sale of Fund shares for
compliance with Federal and State securities laws.
o Coordinate and mail reports to shareholders, including the annual report to
shareholders, and coordinate mailing Prospectuses, notices, proxy
statements, proxies and other reports to shareholders.
o Monitor and pay Fund bills, maintain Fund budget and report budget expenses
and variances to Fund management.
o Monitor the Fund's compliance with the investment restrictions and
limitations imposed by State Blue Sky Laws and applicable regulations
thereunder, the fundamental and non-fundamental investment policies and
limitations set forth in the Fund's Prospectus and Statement of Additional
Information, and the investment restrictions and limitations necessary for
each portfolio of the Fund to qualify as a regulated investment company
under Subchapter M of the Internal Revenue Code of 1986, as amended, or any
successor statute.
o Prepare and distribute to shareholders notices announcing the declaration
of dividends and other distributions to shareholders.
o Provide other administrative services as may be agreed from time to time in
writing by the Fund and MSS.
TRANSFER AGENT, SHAREHOLDER SERVICING AGENT AND DIVIDEND DISBURSING AGENT
SERVICES PROVIDED BY MSS
o Examine and process new accounts, subsequent payments, liquidations,
exchanges, transfers, telephone transactions, check redemptions, automatic
withdrawals, and wire order trades.
o Reinvest or pay dividends and make other distributions.
o Answer investor and dealer telephone and/or written inquiries, except as
otherwise agreed by the Transfer Agent and the Fund.
o Process and confirm address changes.
o Process standard account record changes as required, i.e., Dividend Codes,
etc.
o Safely store source documents for transactions, such as account
applications and correspondence.
o Perform backup withholding for those accounts requiring such action in
accordance with Federal regulations.
o Solicit missing taxpayer identification numbers.
o Provide remote access inquiry to Fund records via Fund supplied hardware
(Fund responsible for connection line and monthly fees).
o Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
o Name and address, including zip code.
o Balance of shares
o Number of shares, issuance date of each share outstanding, and cancellation
date of each share no longer outstanding, if issued.
o Balance of dollars available for redemption.
o Dividend Code (daily accrual, etc.)
o Type of account code.
o Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available.
o Original establishment date for accounts opened by exchange.
o W-9 withholding status and periodic reporting.
o State of residence code.
o Social Security or taxpayer identification number, and indication of
certification.
o Historical transactions on the account for the last 18 months, or such
other period as mutually agreed to from time to time.
o Indication as to whether telephone transactions are permitted for an
account.
o Beneficial owner code, i.e., male, female, joint tenant, etc.
o Provide the following reports and statements:
o Prepare daily journals for Fund reflecting all shares and dollar activity
for the previous day.
o Supply information monthly for Fund's preparation of Blue Sky Reporting.
o Supply monthly purchase, redemption and liquidation information for use in
Fund's N-SAR report.
o Provide monthly average daily balance reports for the Fund.
o Prepare and mail copies of summary statements to dealers and investment
advisors.
o Mail cumulative transaction confirmation statements to investors whenever a
transaction occurs and quarterly.
o Address and mail periodic financial reports and statements to investors.
o Compute, prepare and furnish all necessary reports to governmental
authorities: Forms 1099R, 1099DIV, 1099B, 1042, 5498 and 1042S.
o Enclose various marketing materials provided by the Fund in statement
mailings.
o Prepare and mail confirmation statements to dealers as required.
o Prepare certified list of stockholders for proxy mailings.
SCHEDULE B
COMPENSATION SCHEDULE
FOR SERVICES PROVIDED BY MSS
ACCOUNTING FEES
If the average value of each Portfolio
is between the following Yearly Fee Monthly Fee
--------------------------------------------------------------------------------
$ 0.00 25,000,000 21,000 1,750
$ 25,000,000 50,000,000 30,500 2,542
$ 50,000,000 75,000,000 36,250 3,021
$ 75,000,000 100,000,000 42,000 3,500
$100,000,000 125,000,000 47,750 3,979
$125,000,000 150,000,000 53,500 4,458
$150,000,000+ 59,250 4,938
SHAREHOLDER SERVICING FEES
$11.50 annual fee per shareholder with a minimum monthly fee of $775.00.
BLUE SKY SERVICING FEES
$100.00 per state per filing
EXAMPLE OF CALCULATING MONTHLY CHARGES FOR SMALL NEW FUND
Monthly Fees
Approximate Total Net Assets 2,000,000 1,750
No. of Shareholders 150 ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ __ ----
--------
2,525
Less 45% discount* 1,136
Discounted monthly fee 1,389
Discounted Annual Fee 16,665
*Discount calculated as follows:
60% 0.00 500,000
50% 500,000 1,000,000
45% 1,000,000 2,000,000
40% 2,000,000 3,000,000
35% 3,000,000 4,000,000
30% 4,000,000 5,000,000
25% 5,000,000 6,000,000
20% 6,000,000 7,000,000
15% 7,000,000 8,000,000
10% 8,000,000 9,000,000
5% 9,000,000 10,000,000
0% 10,000,000+
SCHEDULE C
PORTFOLIOS COVERED BY THIS AGREEMENT
THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇