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Exhibit 99(h)(2)
XXXXXXXX INTERNATIONAL FUNDS
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT (this "Agreement") is made as of the 17th
day of April, 1998 by and between XXXXXXXX INTERNATIONAL FUNDS, a business trust
organized under the laws of the State of Delaware (the "Trust"), and XXXXXXXX
INTERNATIONAL CAPITAL MANAGEMENT LLC (the "Adviser").
WITNESSETH
WHEREAS, the Trust is registered as open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust, on behalf of certain series of the Trust listed on EXHIBIT A
hereto, as the same may be amended from time to time (each, a "Fund"), wishes to
retain the Adviser to coordinate the provision of services to shareholders of
the Funds, either by the Adviser directly or by broker-dealers, retirement plan
administrators, and other shareholder service providers ("Service Providers"),
which may include affiliates of the Adviser, and the Adviser is willing to
furnish those services and to arrange for the provision of those services,
subject to the oversight of the Trust's Board of Trustees.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust, on behalf of the Funds, hereby appoints the Adviser
to provide the shareholder services specified in Section 2 to all shareholders
of the Funds, some of whom may be client of the Service Providers. The Adviser
accepts the appointment and agrees to furnish through its own organization, or
through the Service Providers, as the case may be, those shareholder services in
return for compensation as provided in Section 6 of this Agreement. The Adviser
agrees that the shareholder services required to be furnished hereunder shall be
furnished in compliance with all relevant provisions of state and federal law,
and in compliance with all applicable rules and regulations of all relevant
regulatory agencies, including, without limitation, the 1940 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), the applicable rules and
regulations promulgated thereunder, and the conduct Rules of the National
Association of Securities Dealers, Inc.
2. SERVICES AND RESPONSIBILITIES ON A CONTINUING BASIS. The Adviser will arrange
for the provision of the following shareholder services on a regular basis which
shall be daily, weekly, or as otherwise appropriate, unless otherwise specified
by this Trust:
(a) responding to shareholder inquiries;
(b) processing purchases and redemptions of
shares of the funds, including reinvestment
of dividends;
(c) assisting shareholders in changing dividend
options, account designations and addresses;
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(d) transmitting proxy statements, annual
reports, prospectuses, and other
correspondence from the Funds 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 Funds
registered in the name of the Adviser, a
Service Provider, or their nominees; and
(e) providing such other information and
assistance to shareholder as may be
reasonably requested by such shareholders.
The Adviser and the Service Providers are under no obligation to, and shall not,
provide pursuant to this Agreement any services with respect to the sale or
distribution of shares of the Funds.
3. STANDARD OF CARE. The Adviser and the Service Providers shall be under no
duty to take any action on behalf of the Funds except as specifically set forth
herein or as may be specifically agreed to by the Adviser or the Service
Providers with the Trust in writing. In the performance of the duties hereunder,
the Adviser and the Service Providers shall be obligated to exercise due care
and diligence and to act in good faith and to use their best efforts. Agreements
with Service Providers shall provide for at least the same standard of care,
indemnification coverage, confidentiality, requirements for use of information
about the Funds, and other material requirements to which the Adviser is subject
under this Agreement. Without limiting the generally of the foregoing or of any
other provision of this Agreement, neither the Adviser nor any Service Provider
shall be liable for delays or errors or losses of data that result from acts or
war or terrorism, national emergencies or catastrophes directly affecting the
Adviser or Service Provider, but such relief from liability shall not extend to
delays, errors, or losses of data that result from power failures or other
contingencies that typically are addressed by contingency or emergency plans
meeting industry standards.
4. CONFIDENTIALITY. The Adviser agrees, on behalf of itself and its employees,
to treat confidentially all records and other information about the Funds and
the Trust and all prior, present, or potential shareholders of the Funds. This
confidential information may be disclosed only after prior notification to, and
approval of release of information in writing by, the Trust, which approval
shall not be unreasonably withheld, nor may it be withheld where the Adviser or
a Service Provider may be exposed to civil or criminal attorney proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
5. INDEPENDENT CONTRACTOR. The Adviser shall, for all purposes herein, be deemed
to be an independent contractor, and the Adviser and the Service Providers
shall, unless otherwise expressly provided and authorized to do so, have no
authority under this Agreement to act for or represent the Trust or the Funds in
any way, or in any way be deemed an agent for the Trust or for the funds, except
to the limited extent expressly provided in this Agreement. It is expressly
understood and agreed that the services to be rendered by the Adviser under the
provisions of this Agreement are not to be deemed exclusive, and the Adviser
shall be free to render similar or different
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services to others so long as its ability to render the services provided for in
this agreement shall not be impaired materially thereby.
6. COMPENSATION. As compensation for the services rendered by, and
responsibilities assumed by, the Adviser during the term of this Agreement, each
Fund will pay to the Adviser a service fee not to exceed the per annum
percentage of the average daily net asset value of such Fund's shares set forth
on EXHIBIT A. The Adviser will collect such fee applicable to clients of the
Service Providers that furnish the shareholder services specified in Section 2
above for the separate account of each Service Provider. The service fee shall
be accrued daily by the Funds and paid to the Adviser on a monthly basis.
7. INDEMNIFICATION.
(a) The Funds agree to indemnify and hold harmless the Adviser and its
officers and directors from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, liabilities arising under the
Securities Act of 1933, the 1934 Act, the 1940 Act, and any state and foreign
securities laws, all as amended from time to time) and expenses, including
(without limitation) reasonable attorneys' fees and disbursements, arising
directly or indirectly from any action or thing which the Adviser takes or does
or omits to take or do (i) at the request or on the direction of or in reliance
on the advice of the Funds or (ii) upon oral or written instructions from an
officer of the Funds, provided that the Adviser shall not be indemnified against
any liability to the Funds or to the Fund's shareholders (or any expenses
incident to such liability arising out of the Adviser's or any Service
Provider's own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement.
(b) The Adviser agrees to indemnify and hold harmless the Funds, the Trust
and its officers and Trustees from all claims and liabilities (including,
without limitation, liabilities arising under the Securities Act of 1933, the
1934 Act, the 1940 Act, and any state and foreign securities laws, all as
amended from time to time) and expenses, including (without limitation)
reasonable attorneys' fees and disbursements, arising directly or indirectly
from any action or thing which the Adviser or any Service Provider takes or does
or omits to take or do which is in violation of this Agreement, not in
accordance with written instructions given by an officer of the Trust, in
violation of written procedures then in effect, or arising out of the Adviser's
or the Service Provider's own willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties and obligations under this Agreement.
(c) The Adviser shall provide such security as is necessary to prevent
unauthorized use of any on-line computer facilities. The Adviser agrees to
release, indemnify and hold harmless the Trust and the Funds from any all direct
or indirect liabilities or losses resulting from requests, directions, actions,
or inactions of or by the Adviser or any Service Provider, its officers,
employees or agents regarding the redemption, transfer or registration of the
Funds' shares for accounts of shareholders or the Service Provider, its clients
and other shareholders. Principals of the Adviser will be available to consult
from time to time with officers of the Trust and the Trustees concerning
performance of the services contemplated by Section 2 of this Agreement.
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8. FUNDS INFORMATION. No person is authorized to make any representations
concerning the Funds, or shares of the Funds or shareholder services that are
inconsistent with the terms of this Agreement. Neither the Adviser nor any
Service Provider, nor any of their respective agents will use or distribute, or
authorize the use or distribution of, any statements other than those contained
in the Funds' current Prospectuses or Statements of Additional Information or in
such current supplemental literature as may be authorized by the Funds.
9. DURATION AND TERMINATION. This Agreement shall continue until termination by
the Trust or the Adviser on 60 days' prior written notice to the other. The
Adviser's Indemnification obligations under Section 7(b) shall survive the
termination of this Agreement. All notices and other communications hereunder
shall be writing.
10. AMENDMENTS. This Agreement or any part hereof may be changed or waived only
by an instrument in writing signed by the party against which enforcement of
such charge or waiver is sought.
11. MISCELLANEOUS.
(a) This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof.
(b) The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applicable to contracts
between California residents entered into and to be performed entirely within
California.
(d) 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.
(e) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors.
(f) This Agreement may not be assigned without the prior
mutual written consent of all parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their officers designated below on the day and year first above
written.
XXXXXXXX INTERNATIONAL FUNDS
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By: /s/ G. Xxxx Xxxxxxxx
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G. Xxxx Xxxxxxxx
President, Xxxxxxxx International Funds
XXXXXXXX INTERNATIONAL
CAPITAL MANAGEMENT, LLC
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Managing Director
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XXXXXXXX INTERNATIONAL FUNDS
EXHIBIT A
FUNDS COVERED BY THE
SHAREHOLDER SERVICES AGREEMENT
(as amended _________, 1999)
Name of Fund Annual Service Fee
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Rate
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(Not to Exceed)
Xxxxxxxx Pacific Tiger Fund 0.25%
(as adopted April 17, 1998)
Xxxxxxxx Asian Convertible Securities Fund 0.25%
(as adopted April 17, 1998)
Xxxxxxxx Korea Fund 0.25%
(as adopted April 17, 1998)
Xxxxxxxx Dragon Century China Fund 0.25%
(as adopted April 17, 1998)
Xxxxxxxx Japan Fund 0.25%
(as adopted October 9, 1998)
Xxxxxxxx International Growth Fund
(as adopted April 16, 1999) 0.25%
XXXXXXXX ASIAN TECHNOLOGY FUND (CLASS I)
[(as adopted October 15, 1999)] 0.25%
Dated as of October 15, 1999
XXXXXXXX INTERNATIONAL FUNDS XXXXXXXX INTERNATIONAL
CAPITAL MANAGEMENT LLC
By: /s/ G. Xxxx Xxxxxxxx By: /s/ G. Xxxx Xxxxxxxx
--------------------- ---------------------
President President
