EXHIBIT 99B.23(h)-15
SHAREHOLDER SERVICES AGREEMENT
XXXXXX SMALL CAP VALUE FUND II
SERVICE SHARES CLASS
(A SERIES OF XXXXXX INVESTMENT PORTFOLIO TRUST)
This SHAREHOLDER SERVICES AGREEMENT (the "Agreement") is made this 28th day
of March, 2002, between XXXXXX FINANCIAL GROUP LLC, a Nevada limited liability
company ("Xxxxxx"), and XXXXXX INVESTMENT PORTFOLIO TRUST, a Delaware business
trust (the "Trust"), with respect to the Service Shares Class of the XXXXXX
SMALL CAP VALUE FUND II, a series of the Trust (the "Fund").
RECITALS
A. The Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and has
registered its shares for public offering under the Securities Act of 1933, as
amended (the "1933 Act").
B. The Trust is authorized to create separate series of shares, each with
its own separate investment portfolio, one of such series created by the Trust
being the Fund, and to create separate classes of shares for each series, one
such class created by the Trust being the Service Shares Class.
C. The Trust wishes to retain Xxxxxx to provide services to shareholders of
the Service Shares Class of the Fund, and Xxxxxx is willing to furnish such
services.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Xxxxxx to provide to the Service
Shares Class of the Fund the shareholder services specified in Section 2 of this
Agreement. Xxxxxx accepts such appointment and agrees to furnish such
shareholder services in return for compensation as provided in Section 3 of this
Agreement. Xxxxxx agrees to comply with all relevant provisions of the 1940 Act
and applicable rules and regulations thereunder.
2. Services. In its capacity as service provider under the terms of this
Agreement, Xxxxxx shall be generally responsible for providing shareholder
services to shareholders of the Fund and for interaction with shareholders of
the Fund on behalf of the Trust. Xxxxxx may provide services itself or may cause
or arrange for others to provide some or all such services to certain
shareholders. In addition to providing services directly to shareholders of the
Fund, Xxxxxx is hereby appointed the Fund's agent to select, negotiate and
subcontract for the performance of services through other financial
intermediaries. The shareholder services provided by Xxxxxx hereunder are
distinct from services provided by Xxxxxx in any other capacity, such as
Distributor, pursuant to
separate agreements with the Trust. The shareholder services to be provided by
Xxxxxx under this Agreement include the following:
(a) responding to shareholder inquiries;
(b) handling shareholder requests for redemptions of Fund shares;
(c) assisting shareholders in changing dividend options, account
designations and addresses;
(d) transmitting proxy statements, annual reports, prospectuses and
other correspondence from the Fund to shareholders (including, upon
request, copies, but not originals, of regular correspondence,
confirmations or regular statements of account) where such
shareholders hold shares of the Fund registered in the name of
Xxxxxx or its nominee; and
(e) providing such other information and assistance to shareholders as
may be reasonably requested by such shareholders.
3. Compensation. The Trust shall pay to Xxxxxx for its services under this
Agreement a fee, payable in United States dollars, at an annual rate of 0.25% of
the average daily net assets of the Fund. This fee shall be computed and accrued
daily and payable monthly as of the last day of each month during which or part
of which this Agreement is in effect. For the month during which this Agreement
becomes effective and the month during which it terminates, however, there shall
be an appropriate proration of the fee payable for such month based on the
number of calendar days of such month during which this Agreement is effective.
Xxxxxx shall waive or reimburse the Fund for any portion of the fee not paid by
Xxxxxx to other financial intermediaries.
4. Termination. This Agreement may be terminated at any time, without
penalty, by the Trustees of the Trust, or by the shareholders of the Fund acting
by vote of at least a majority of its outstanding voting securities, provided in
either case that sixty (60) days' advance written notice of termination be given
to Xxxxxx at its principal place of business. This Agreement may be terminated
by Xxxxxx at any time, without penalty, by giving sixty (60) days' advance
written notice of termination to the Trust, addressed to its principal place of
business.
5. Term. This Agreement shall continue in effect until April 30, 2003,
unless sooner terminated in accordance with its terms, and shall continue in
effect from year to year thereafter only so long as such continuance is
specifically approved at least annually by the vote of a majority of the
Trustees of the Trust who are not parties hereto or interested persons of any
such party, and by either the Trustees of the Trust or the affirmative vote of a
majority of the outstanding voting securities of the Fund.
6. Amendments and Assignment. This Agreement may be amended or assigned by
the parties only if such amendment or assignment is specifically approved by the
written consent of the
other party, including approval by a majority of the Trustees, including a
majority of the Trustees who are not interested persons of the Fund or Xxxxxx.
7. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the Trust
is a business trust organized under the Delaware Business Trust Act pursuant to
a Certificate of Trust filed in the office of the Secretary of State of the
State of Delaware. All parties to this Agreement acknowledge and agree that the
Trust is a series trust and all debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a particular
series shall be enforceable against the assets held with respect to such series
only, and not against the assets of the Trust generally or against the assets
held with respect to any other series and further that no Trustee, officer or
holder of shares of beneficial interest of the Trust shall be personally liable
for any of the foregoing.
8. Limitation of Liability of Xxxxxx. Xxxxxx shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission taken with respect to the Fund, except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder and except to the extent otherwise provided by law. As used in this
Section 8, "Xxxxxx" shall include any affiliate of Xxxxxx performing services
for the Trust contemplated hereunder and managers, members, owners, officers and
employees of Xxxxxx and such affiliates.
9. Activities of Xxxxxx. The services of Xxxxxx to the Trust hereunder are
not to be deemed to be exclusive, and Xxxxxx and its affiliates are free to
render services to other parties, so long as its services under this Agreement
are not materially adversely affected or otherwise impaired thereby. Nothing in
this Agreement shall limit or restrict the right of any manager, member, owner,
officer or employee of Xxxxxx to engage in any other business or to devote his
or her time and attention in part to the management or other aspects of any
other business, whether of a similar nature or a dissimilar nature. It is
understood that Trustees, officers and shareholders of the Trust are or may
become interested in Xxxxxx as managers, members, owners, officers and
shareholders of Xxxxxx, that managers, members, owners, officers, employees and
shareholders of Xxxxxx are or may become similarly interested in the Trust, and
that Xxxxxx may become interested in the Trust as a shareholder or otherwise.
10. Certain Definitions. The terms "vote of a majority of the outstanding
voting securities," "assignment," "approved at least annually" and "interested
persons" when used herein, shall have the respective meanings specified in the
1940 Act, as now in effect or hereafter amended, and the rules and regulations
thereunder, subject to such orders, exemptions and interpretations as may be
issued by the Securities and Exchange Commission under said Act and as may be
then in effect. Where the effect of a requirement of the federal securities laws
reflected in any provision of this Agreement is made less restrictive by a rule,
regulation, order, interpretation or other authority of the Securities and
Exchange Commission, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation, order,
interpretation or other authority.
11. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Colorado (without giving effect to the conflicts of laws
principles thereof) and the 1940 Act. To the extent that the applicable laws of
the State of Colorado conflict with the applicable provisions of the 1940 Act,
the latter shall control.
12. Miscellaneous. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Shareholder Services Agreement as of the date and year first
above written.
XXXXXX FINANCIAL GROUP LLC,
a Nevada Limited Liability Company
By:
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Name: Xxxx X. Xxxxxxxx
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Title: President
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XXXXXX INVESTMENT PORTFOLIO TRUST,
with respect to the series known as the
Xxxxxx Small Cap Value Fund II,
and its class, the Service Shares Class
By:
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Name: Xxxx X. Xxxxxxxx
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Title: President
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