SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
ADVANTUS CORNERSTONE FUND, INC.
AND
THE MINNESOTA MUTUAL LIFE INSURANCE COMPANY
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 23rd of July, 1998, by and between Advantus
Cornerstone Fund, Inc., a Minnesota corporation, having its principal office
and place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
(the "Fund"), The Minnesota Mutual Life Insurance Company, a Minnesota
corporation having its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ("MML") and Advantus Capital
Management, Inc., a Minnesota corporation, having its principal office and
place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (the
"Adviser").
WHEREAS, the Fund is in the process of contracting with First Data
Investor Services Group, Inc., a Massachusetts corporation (the "Transfer
Agent"), to provide customary transfer agent services to the Fund; and
WHEREAS, the Fund has reserved certain shareholder servicing tasks and
responsibilities ("Shareholder Services") which are to be performed by MML
rather than the Transfer Agent; and
WHEREAS, the Fund has further reserved certain accounting, auditing, legal
and other administrative tasks and responsibilities ("Administrative Services")
to be performed by MML; and
WHEREAS, the Fund desires to appoint MML as its Shareholder Services
agent and agent in connection with certain other Administrative Services, and
MML desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT AND DUTIES OF MML
1.01 Subject to the terms and conditions set forth in this
Agreement, and in accordance with procedures established from time to time by
agreement between the Fund and MML, MML hereby agrees to provide the
following Administrative Services:
(a) Register or qualify, and maintain the registrations or qualifications,
of the Fund and its common stock ("Shares") under state or other
securities laws;
(b) Calculate the Fund's net asset value per Share at such times and in
such manner as specified in the Fund's current prospectus and
statement of additional information and at such other times as the
parties hereto may from time to time agree upon;
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(c) Upon the Fund's distribution of dividends and capital gains, calculate
the amount of such dividends and capital gains to be received per
Share and calculate the number of additional Shares to be received by
each Shareholder, other than any shareholder who has elected to
receive such dividends and capital gains in cash;
(d) Prepare and maintain all accounting records required by the Fund,
including a general ledger;
(e) Prepare the Fund's annual and semi-annual financial statements;
(f) Prepare and file the Fund's income, excise and other tax returns;
(g) Provide audit assistance in conjunction with the Fund's independent
auditors;
(h) Provide such legal services as the parties hereto may from time to
time agree upon, including without limitation preparation and filing
with the Securities and Exchange Commission of the annual or more
frequent post-effective amendments to the Fund's registration
statement and the Fund's proxy materials; and
(i) Provide such other Administrative Services as the parties hereto may
from time to time agree upon.
1.02 As Shareholder Services agent, MML agrees to provide or
perform the following Shareholder Services in accordance with procedures
established from time to time by agreement between the Fund and MML:
(a) Receive telephone redemption requests, telephone redemption
directions, wire order purchase requests and telephone transfer
instructions, and deliver such requests, directions and instructions
together with other appropriate information, to the Transfer Agent;
(b) Provide customer service representatives to respond to telephone
inquiries relating to the Fund from customers, shareholders and/or
registered representatives and forward any pertinent information,
including without limitation instructions pertaining to any periodic
investment plan, periodic withdrawal plan or other plan set out in the
currently effective prospectus, or requests to the Transfer Agent.
MML shall transmit electronically, via U.S. mail or any other delivery
means MML determines to be suitable, any Shareholder or account
transaction instructions received, to the Transfer Agent in a timely
fashion; and
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(c) MML will calculate any minimum required distribution amounts for plans
qualified under Section 401(a) or 408 of the Internal Revenue Code, as
that term is defined under the Code or delegate such responsibility to
a suitable agent, with the Fund's approval.
Article 2 ADDITIONAL DUTIES
2.01 MML shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as
amended, and the Rules thereunder, MML agrees that all such records prepared
or maintained by MML relating to the services to be performed by MML
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
2.02 MML and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any
other person, except as may be required be law.
2.03 MML will endeavor to notify the Fund and to secure
instructions from an authorized officer of the Fund in case of any requests
or demands for the inspection of Shareholder records. MML reserves the
right, however, to exhibit the Shareholder records to any person whenever it
is advised by its counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person.
Article 3 FEES AND EXPENSES
3.01 For Shareholder Services performed by MML pursuant to this
agreement, the Adviser will pay MML an annual account servicing fee as agreed
by Adviser and MML. In addition to the fees the Adviser will reimburse MML
for out-of-pocket expenses or advances incurred by MML. Such fees,
out-of-pocket expenses and advances may be changed from time to time subject
to mutual agreement between the Adviser and MML.
3.02 For Administrative Services performed by MML pursuant to this
agreement, the Fund will pay MML a monthly Administrative Services Fee as set
forth in Schedule A. In addition to the fees the Fund will reimburse MML for
out-of-pocket expenses or advances incurred by MML. Such fees, out-of-pocket
expenses and advances may be changed from time to time subject to mutual
written agreement between the Fund and MML.
Article 4 REPRESENTATIONS AND WARRANTIES OF MML
MML represents and warrants to the Fund that:
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4.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Minnesota.
4.02 It is duly qualified to carry on its business in the State of
Minnesota
4.03 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
4.04 It agrees to obtain and maintain, all regulatory licensing as may
be required of it, if any, under this Agreement.
Article 5 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to MML that:
5.01 It is a corporation duly organized and existing and in good
standing under the laws of Minnesota.
5.02 It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform this Agreement.
5.03 All corporate proceedings required by said Articles of
Incorporation and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
5.04 It is an open-end and diversified management investment
company registered under the Investment Company Act of 1940.
5.05 A registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with
respect to all Shares of the Fund being offered for sale.
Article 6 INDEMNIFICATION
6.01 MML shall not be responsible for, and the Fund shall
indemnify and hold MML harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to:
(a) All actions of MML or its agent or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are taken in
good faith without negligence or willful misconduct.
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(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
(c) The reliance on or use by MML or its agents or subcontractors
of information, records and documents which (i) are received by MML or is
agents or subcontractors and furnished to it by or on behalf of the Fund, and
(ii) have been prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund.
(d) The reliance on, or the carrying out by MML or its agents or
subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or in
violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state.
6.02 MML shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or
failure or omission to act by MML as a result of MML's lack of good faith,
negligence or willful misconduct, or MML's refusal or failure to comply with
the terms of this Agreement, or which arise out of the breach of any
representation or warranty of MML hereunder.
6.03 At any time MML may apply to any officer of the Fund for
instructions, and may consult with legal counsel to the Fund with respect to
any matter arising in connection with the services to be performed by MML
under this Agreement, and MML and its agents or subcontractors shall not be
liable and shall be indemnified by the Fund for any action taken or omitted
by it in good-faith reliance upon such instructions or upon the opinion of
such counsel. MML, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Fund, reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon any instruction, information, data, records
or documents provided MML or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the Fund,
and shall not be held to have notice of any change or authority of any
person, until receipt of written notice thereof from the Fund. MML, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the
proper manual or facsimile signatures of the officers of the Fund, and the
proper countersignature of any transfer agent or registrar, or of a
co-transfer agent or co-registrar.
6.04 In the event any party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment
or transmission failure or damage reasonably beyond its control, or other
causes reasonably beyond its control, the party shall not be liable for
damages to the other parties for any damages resulting from such failure to
perform or otherwise from such causes.
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6.05 No party to this Agreement shall be liable to any other
party for consequential damages, whether under any provision of this
Agreement or for any act or failure to act hereunder.
6.06 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 7 TERMINATION OF AGREEMENT
7.01 This Agreement may be terminated by either party upon sixty
(60) days written notice to the other party.
Article 8 ASSIGNMENT
8.01 Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the written consent of the
other party.
8.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
Article 9 AMENDMENT
9.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution
of the Board of Directors of the Fund.
Article 10 GOVERNING LAW
10.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of
Minnesota.
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Article 11 ENTIRE AGREEMENT
11.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
Article 12 EFFECTIVE DATE
12.01 This Agreement shall be effective as of the date agreed to
by MML and First Data Investor Services Group, Inc. ("First Data") for the
conversion of transfer agent services from MML to First Data, or such other
date as selected by management of the Fund.
IT WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of the day and year first above
written.
ADVANTUS CORNERSTONE FUND, INC.
By
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Attest
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Treasurer
THE MINNESOTA MUTUAL LIFE
INSURANCE COMPANY
By
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
Attest
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice
President, General Counsel and Secretary
ADVANTUS CAPITAL MANAGEMENT, INC.
By
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Attest
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Second Vice President - Equity Investments
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SCHEDULE A
TO THE
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
FOR
ADVANTUS CORNERSTONE FUND, INC.
Minnesota Mutual shall receive, as compensation for its accounting,
auditing, legal and other administrative services pursuant to this Agreement,
a monthly fee determined in accordance with the following table:
Monthly Administrative
Services Fee
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$3,700.00
The above monthly fees shall be paid to Minnesota Mutual not later
than five days following the end of each calendar quarter in which said
services were rendered.
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