EXHIBIT (h) (2)
AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
MORGAN KEEGAN & COMPANY, INC.
AND
MORGAN KEEGAN SELECT FUND, INC.
This Amended and Restated Transfer Agency and Service Agreement, made this
21st day of August, 2000 (the "Agreement"), by and between Morgan Keegan &
Company, Inc. ("Morgan Keegan"), a Tennessee corporation having its principal
place of business in Memphis, Tennessee, and Morgan Keegan Select Fund, Inc.
(the "Fund"), a Maryland corporation.
WHEREAS, the Fund is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act") with distinct series of shares of common stock (each a "Portfolio"
and collectively the "Portfolios"); and
WHEREAS, the shares of each Portfolio may be further divided into
separate classes (each a "Class"); and
WHEREAS, the Fund wishes to retain Morgan Keegan to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing agent to
each Portfolio listed on Exhibit A attached hereto and made a part hereof, as
such Exhibit A may be amended from time to time, and Morgan Keegan wishes to
furnish such services.
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. APPOINTMENTS. The Fund hereby appoints Morgan Keegan as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent for the
Fund and its Portfolios, and Morgan Keegan hereby accepts such appointment and
agrees to perform the duties thereof in accordance with the terms and conditions
set forth herein.
2. DOCUMENTATION. The Fund (or the applicable Portfolio, as appropriate)
will furnish Morgan Keegan with all documents, certificates, contracts, forms,
and opinions that Morgan Keegan, in its discretion, deems necessary or
appropriate in connection with the proper performance of its duties hereunder.
3. AUTHORIZED SHARES. The Fund represents to Morgan Keegan that its
Articles of Incorporation permit it to issue 2,000,000,000 full and fractional
shares of beneficial interest with par value of $.001, which may be issued in
series and classes.
<PAGE>
4. SERVICES TO BE PERFORMED.
a) In accordance with the Fund's current Registration Statement (the
"Prospectus") and procedures established from time to time by
agreement between the Fund and Morgan Keegan, Morgan Keegan shall:
i. Receive for acceptance, orders for the purchase of shares of
each Portfolio, and promptly deliver payment and appropriate
documentation therefor to the custodian of the Fund (the
"Custodian");
ii. Pursuant to purchase orders, issue the appropriate number of
shares of each Portfolio and Class and hold such shares in the
appropriate shareholder account;
iii. Receive for acceptance, redemption requests and redemption
directions and deliver the appropriate documentation therefor
to the Custodian;
iv. At the appropriate time as and when the Fund receives monies
paid to it by the Custodian with respect to any redemption,
pay over or cause to be paid over in the appropriate manner
such monies as instructed by the redeeming shareholders;
v. Effect transfers of shares by the shareholders of each
Portfolio upon receipt of appropriate instructions;
vi. Prepare and transmit payments for dividends and distributions
declared by the Fund (or a particular Portfolio);
vii. Maintain records of account for and advise the Fund and its
shareholders as to the foregoing; and
viii. Record the issuance of shares of the Fund and maintain
pursuant to Securities and Exchange Commission ("SEC") Rule
17Ad-10(e) a record of the total number of shares of the Fund
which are authorized, based upon and provided to it by the
Fund, and issued and outstanding. Morgan Keegan shall also
provide the Fund on a regular basis with the total number of
shares of each Portfolio and Class which are authorized and
issued and outstanding and shall have no obligation, when
recording the issuance of shares, to monitor the issuance of
such shares or to take cognizance of any laws relating to the
issue or sale of such shares, which functions shall be the
sole responsibility of the Fund.
b) In addition to and not in lieu of the services set forth in the
above paragraph (a), Morgan Keegan shall: (i) perform all of the
customary services of a transfer agent, shareholder servicing agent,
registrar, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan or
periodic withdrawal program); including but not limited to:
2
<PAGE>
maintaining all shareholder accounts, preparing shareholder meeting
lists, mailing proxies, receiving and tabulating proxies, mailing
shareholder reports and prospectuses to current shareholders,
withholding taxes on non-resident alien accounts, preparing and
filing U.S. Treasury Department Forms 1099 and other appropriate
forms required with respect to dividends and distributions by
federal authorities for all shareholders, preparing and mailing
confirmations and statements of account to shareholders for all
purchases and redemptions of shares of each Portfolio and other
confirmable transactions in shareholders accounts, preparing and
mailing activity statements of shareholders, and providing
shareholder account information and (ii) provide a system which will
enable the Fund to monitor the total number of shares of each
Portfolio and each Class thereof sold in each State. The Fund shall
(i) identify to Morgan Keegan in writing those transactions and
assets to be treated as exempt from the blue sky reporting for each
State and (ii) verify the establishment of transactions for each
State on the system prior to activation and thereafter monitor the
daily activity for each State. The responsibility of Morgan Keegan
for the Fund's blue sky State registration status is solely limited
to the initial establishment of transactions subject to blue sky
compliance by the Fund and the reporting of such transactions to the
Fund as provided above.
c) Procedures applicable to certain of these services described in
paragraphs (a) and (b) may be established from time to time by
agreement between the Fund and Morgan Keegan and shall be subject to
the review and approval of the Fund. The failure of the Fund to
establish such procedures with respect to any service shall not in
any way diminish the duty and obligation of Morgan Keegan to perform
such services hereunder.
5. RECORD KEEPING AND OTHER INFORMATION. Morgan Keegan shall, commencing
on the effective date of this Agreement, create and maintain all necessary
shareholder accounting records in accordance with all applicable laws, rules and
regulations, including but not limited to records required by Section 31(a) of
the Investment Company Act of 1940, as amended (the "1940 Act"), and the Rules
thereunder, as amended from time to time. All such records shall be the property
of the Fund and shall be available for inspection and use by the Fund. Where
applicable, such records shall be maintained by Morgan Keegan for the periods
and in the places required by Rule 31a-2 under the 1940 Act.
6. AUDIT, INSPECTION AND VISITATION. Morgan Keegan shall make available
during regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the SEC, the
Fund or any person retained by the Fund.
7. COMPENSATION. Morgan Keegan shall be compensated by the Fund on a
monthly basis for the services performed for each Portfolio hereunder, the rate
of compensation being set forth in Exhibit B attached hereto and made a part
hereof, as such Exhibit B may be amended from time to time. Expenses incurred by
Morgan Keegan and not included within Exhibit B hereto shall be reimbursed to
Morgan Keegan by the Fund, as appropriate; such expenses may include, but are
3
<PAGE>
not limited to, special forms and postage for mailing of said forms. Such
charges shall be payable in full upon receipt of billing invoice; in lieu of
reimbursing Morgan Keegan for such expenses, the Fund may, in its discretion,
directly pay such expenses.
8. USE OF NAMES. The Fund shall not use the name of Morgan Keegan in any
prospectus, sales literature or other material relating to the Fund in any
manner not approved prior thereto by Morgan Keegan; provided, however, that
Morgan Keegan shall approve all uses of its name which merely refer in accurate
terms to its appointment hereunder or which are required by the SEC or a State
Securities Commission; and provided further, that in no event shall such
approval be unreasonably withheld.
9. SECURITY. Morgan Keegan represents and warrants that, to the best of
its knowledge, the various procedures and systems which Morgan Keegan proposes
to implement with regard to safeguarding from loss or damage attributable to
fire, theft or any other cause (including provision for twenty-four hour a day
restricted access) the Fund's blank checks, records and other data and Morgan
Keegan's records, data, equipment, facilities and other property used in the
performance of its obligations hereunder are adequate and that it will implement
them in the manner proposed and make such changes therein from time to time as
in its judgment are required for the secure performance of obligations
hereunder.
10. RESPONSIBILITY OF MORGAN KEEGAN; LIMITATION OF LIABILITY. Morgan
Keegan shall be held to the exercise of reasonable care in carrying out the
provisions of this Agreement, but the Fund shall indemnify and hold Morgan
Keegan harmless against any losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit brought by any person (including a shareholder naming the
Fund as a party) other than the Fund arising out of, or in connection with,
Morgan Keegan's performance of its obligations hereunder, provided, that Morgan
Keegan does not act with bad faith, willful misfeasance, reckless disregard of
its obligations and duties, or gross negligence.
The Fund shall also indemnify and hold Morgan Keegan harmless against any
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim, demand, action or suit (except to
the extent contributed to by Morgan Keegan's bad faith, willful misfeasance,
reckless disregard of its obligations and duties, or gross negligence) resulting
from the negligence of the Fund, or Morgan Keegan's acting upon any instructions
reasonably believed by it to have been executed or communicated by any person
duly authorized by the Fund, or as a result of Morgan Keegan's acting in
reliance upon advice reasonably believed by Morgan Keegan to have been given by
counsel for the Fund, or as a result of Morgan Keegan's acting in reliance upon
any instrument reasonably believed by it to have been genuine and signed,
countersigned or executed by the proper person.
In no event shall Morgan Keegan be liable for indirect, special, or
consequential damages (even if Morgan Keegan has been advised of the possibility
of such damages) arising from the obligations assumed hereunder and the services
provided for by this Agreement, including but not limited to lost profits, loss
of use of the shareholder accounting system, cost of capital, cost of substitute
facilities, programs or services, downtime costs, or claims of the Fund's
shareholders for such damage.
4
<PAGE>
11. FORCE MAJEURE. Morgan Keegan shall not be liable for delays or errors
occurring by reason of circumstances beyond its control, including but not
limited to acts of civil or military authority, national emergencies, work
stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riot, or
failure of communication or power supply. In the event of equipment breakdowns
beyond its control, Morgan Keegan shall take reasonable steps to minimize
service interruptions but shall have no liability with respect thereto.
12. AMENDMENTS. Morgan Keegan and the Fund shall regularly consult with
each other regarding Morgan Keegan's performance of its obligations hereunder.
Any change in the Fund's registration statements under the Securities Act of
1933, as amended, or the 1940 Act or in the forms relating to any plan, program
or service offered by the Prospectus which would require a change in Morgan
Keegan's obligations hereunder shall be subject to Morgan Keegan's approval,
which shall not be unreasonably withheld. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged, or terminated orally, but
only by written instrument which shall make specific reference to this Agreement
and which shall be signed by the party against which enforcement of such change,
waiver, discharge or termination is sought.
13. TERM OF AGREEMENT. This Agreement shall become effective as of its
execution. Thereafter, the Agreement will be renewed automatically on an annual
basis; provided, however, that this Agreement may be terminated at any time by
either party upon at least sixty days' prior written notice to the other party
and provided further that this Agreement may be terminated immediately at any
time for cause either by the Fund or Morgan Keegan. Any such termination shall
not affect the rights and obligations of the parties under Paragraphs 10 and 11
hereof. In the event that the Fund designates a successor to any of Morgan
Keegan's obligations hereunder, Morgan Keegan shall, at the expense and
direction of the Fund, transfer to such successor all relevant books, records
and other data of the Fund established or maintained by Morgan Keegan hereunder
and shall cooperate in the transfer of such duties and responsibilities,
including provision for assistance from Morgan Keegan's cognizant personnel in
the establishment of books, records and other data by such successor. Historical
records will be transferred in accordance with all then current laws and
industry regulations.
14. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Maryland. The captions in this Agreement
are included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
5
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
MORGAN KEEGAN & COMPANY, INC.
By___________________________________
Name:
Title:
MORGAN KEEGAN SELECT FUND, INC.
By___________________________________
Name:
Title:
6
<PAGE>
EXHIBIT A
THIS EXHIBIT A, dated as of August 21, 2000, is Exhibit A to that certain
Amended and Restated Transfer Agency and Service Agreement between Morgan Keegan
& Company, Inc. and Morgan Keegan Select Fund, Inc.
PORTFOLIOS
Morgan Keegan Intermediate Bond Fund
Morgan Keegan High Income Fund
Morgan Keegan Core Equity Fund
Morgan Keegan Utility Fund
Morgan Keegan Select Financial Fund
Morgan Keegan Select Capital Growth Fund
<PAGE>
EXHIBIT B
THIS EXHIBIT B, dated as of August 21, 2000, is Exhibit B to that certain
Amended and Restated Transfer Agency and Service Agreement between Morgan Keegan
& Company, Inc. and Morgan Keegan Select Fund, Inc.
For its services under this Transfer Agency and Service Agreement, Morgan
Keegan & Company, Inc., is entitled to receive from Morgan Keegan Select Fund,
Inc. transfer agency fees as follows:
MORGAN KEEGAN INTERMEDIATE BOND FUND: an annual fee of $2,000 per month or
$24,000 per year until such time as the net assets of the series reaches
$20,000,000 or more, at which time the fee will become $2,500 per month or
$30,000 per year.
MORGAN KEEGAN HIGH INCOME FUND: an annual fee of $2,000 per month or
$24,000 per year until such time as the net assets of the series reaches
$20,000,000 or more, at which time the fee will become $2,500 per month or
$30,000 per year.
MORGAN KEEGAN SELECT CAPITAL GROWTH FUND: an anuual fee of $4,000 per
month or $48,000 per year until such time as the net assets of the series
reaches $36,000,000 or more, at which time the fee will become $5,000 per month
or $60,000 per year.
MORGAN KEEGAN SELECT FINANCIAL FUND: an annual fee of $2,000 per month or
$24,000 per year until such time as the net assets of the series reaches
$20,000,000 or more, at which time the fee will become $2,500 per month or
$30,000 per year.
MORGAN KEEGAN CORE EQUITY FUND: an annual fee of $4,000 per month or
$48,000 per eyar until such time as the net assets of the series reaches
$20,000,000 or more, at which time the fee will become $5,000 per month or
$60,000 per year.
MORGAN KEEGAN CORE EQUITY FUND: an annual fee of $4,000 per month or
$48,000 per year until such time as the net assets of the series reaches
$20,000,000 or more, at which time the fee will become $5,000 per month or
$60,000 per year.
2
