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Exhibit 99.2(k)(4)
XXXXXXX XXXXXX CAPITAL ENTREPRENEURS FUND
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
AGREEMENT dated this __ day of January, 2001, by and between XXXXXXX XXXXXX
CAPITAL ENTREPRENEURS FUND (the "Fund"), a Delaware business trust, and Xxxxxxx
Xxxxxx Capital LLC, a Delaware limited liability company ("Xxxxxxx Xxxxxx").
In consideration of the mutual covenants hereinafter contained, it is hereby
agreed by and between the parties hereto as follows:
1. The Fund hereby appoints Xxxxxxx Xxxxxx to provide information and services
for the benefit of the Fund and its shareholders. In this regard, SWC shall
appoint various broker-dealer firms and other service or administrative firms
("Firms") to provide services including (A) shareholder services and (B)
administrative assistance for persons who are investors in the Fund.
(A) Such shareholder services may include, but shall not be limited to,
the provision of personal, continuing services to their customers who
are investors in the Fund, establishment and maintenance of shareholder
accounts, maintaining retirement plan accounts, communicating
periodically with shareholders and providing information and responding
to questions about the Fund, the Fund's Shares, the availability of
Shares in any continuous offering, and repurchase offers, and handling
correspondence from shareholders about their accounts.
(B) Such administrative assistance may include, but shall not be
limited to, maintaining account records, receiving, aggregating and
processing purchase and redemption transactions, providing and keeping
retirement plan records, acting as the sole shareholder of record and
nominee for shareholders, providing beneficial owners with account
statements, processing dividend payments, issuing shareholder reports
and transaction confirmations, providing subaccounting services for
Shares held beneficially, forwarding shareholder communications to
beneficial owners, receiving, tabulating and transmitting proxies
executed by beneficial owners, general account administration
activities, and such other services as may be agreed upon from time to
time and as may be permitted by applicable statute, rule or regulation.
In addition, the Firms shall make available an account for each of their
customers through the Fund and shall provide such office space and equipment,
telephone facilities, personnel and literature distribution as is necessary or
appropriate for providing information and services to their customers. The
amount of administrative and shareholder service fees payable by the Fund under
this Plan is not related directly to the expenses incurred by SWC and this Plan
does not obligate the Fund to reimburse SWC for such expenses. Firms may include
affiliates of Xxxxxxx Xxxxxx. Xxxxxxx Xxxxxx may also provide some of the above
services for the Fund and its shareholders directly.
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2. Xxxxxxx Xxxxxx accepts such appointment and agrees during such period to
render such services and to assume the obligations herein set forth for the
compensation herein provided. Xxxxxxx Xxxxxx shall for all purposes herein
provided be deemed to be an independent contractor and, unless otherwise
expressly provided or authorized, shall have no authority to act for or
represent the Fund in any way or otherwise be deemed an agent of the Fund.
Xxxxxxx Xxxxxx, by separate agreement with the Fund, may also serve the Fund in
other capacities. In carrying out its duties and responsibilities hereunder,
Xxxxxxx Xxxxxx will appoint various Firms to provide administrative and
shareholder services described herein directly to or for the benefit of
investors in the Fund. Such Firms shall at all times be deemed to be independent
contractors retained by Xxxxxxx Xxxxxx and not the Fund. Xxxxxxx Xxxxxx and not
the Fund will be responsible for the payment of compensation to such Firms for
such services.
3. For the services and facilities described above in Section 1, the Fund will
pay to Xxxxxxx Xxxxxx at the end of each calendar month an administrative and
shareholder services fee computed at an annual rate of up to 0.50 of 1% of the
average daily net assets of the Fund attributable to each class of the Shares.
The initial fee schedule is set forth as Appendix I hereto. The administrative
and shareholder services fee will be calculated separately for each class of the
Fund as an expense of each such class. For the month and year in which this
Agreement becomes effective or terminates, there shall be an appropriate
proration on the basis of the number of days that the Agreement is in effect
during such month and year, respectively. The services of Xxxxxxx Xxxxxx to the
Fund under this Agreement are not to be deemed exclusive, and Xxxxxxx Xxxxxx
shall be free to render similar services or other services to others. Firms that
provide only shareholders services included in paragraph (A) of Section 1, and
provide no administrative assistance included in paragraph (B) of Section 1,
shall be paid a fee not to exceed on an annual basis 0.25 of 1% of the average
daily net asset value of the shares of the Fund for which such shareholder
services are provided.
4. The net asset value for each Share of the Fund shall be calculated in
accordance with the provisions of the Fund's current prospectus. On each day
when net asset value is not calculated, the net asset value of a Share of the
Fund shall be deemed to be the net asset value of such a Share as of the close
of business on the last day on which such calculation was made for the purpose
of the foregoing computations.
5. Xxxxxxx Xxxxxx shall be contractually bound hereunder by the terms of any
publicly announced fee cap or waiver of its fee or by the terms of any written
document provided to the Board of Trustees of the Fund announcing a fee cap or
waiver of its fee, or any limitation of the Fund's expenses, as if such fee cap,
fee waiver or expense limitation were fully set forth herein.
6. The Fund shall assume and pay all charges and expenses of its operations not
specifically assumed or otherwise to be provided by Xxxxxxx Xxxxxx under this
Agreement.
7. This Agreement may be terminated at any time without the payment of any
penalty by a majority of the Board of Trustees or by a majority of the Trustees
who are not "interested persons of the Fund," as that term is defined in the
Investment Company Act of 1940, as amended ("1940 Act"), or with respect to a
class of Shares, by a vote of a majority of outstanding Shares of the class or
by Xxxxxxx Xxxxxx on sixty (60) days' written notice to the other party.
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Termination of this Agreement shall not affect the right of Xxxxxxx Xxxxxx to
receive payments on any unpaid balance of the compensation described in Section
3 hereof earned prior to such termination. This Agreement shall terminate
automatically in the event of its "assignment," as that term is defined in the
1940 Act. This Agreement may not be amended for any class to increase the amount
to be paid to Xxxxxxx Xxxxxx for services hereunder above 0.50 of 1% of the
average daily net assets of such class without the vote of a majority of the
outstanding voting securities of such class. All material amendments to this
Agreement must in any event be approved by vote of the Board of Trustees of the
Fund.
8. Each agreement between Xxxxxxx Xxxxxx and the Firms related to the services
described hereunder with respect to any class of Shares of the Fund shall be
terminated without penalty to the Fund by Xxxxxxx Xxxxxx in the event that the
Administrative and Shareholder Services Plan with respect to such class of
Shares is terminated or upon the direction of a majority of the Independent
Trustees or by vote of a majority of the outstanding Shares of such class, on
not more than 60 days' written notice to any other party to the agreement.
9. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
10. Any notice under this Agreement shall be in writing, addressed and delivered
or mailed, postage prepaid, to the other party at such address as such other
party may designate for the receipt of such notice.
11. All parties hereto are expressly put on notice of the Fund's Amended and
Restated Declaration of Trust and all amendments thereto, all of which are on
file with the Securities and Exchange Commission, and the limitation of
shareholder and trustee liability contained therein. This Declaration of Trust
has been executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations to the Fund thereunder
are not binding upon any of the trustees, officers or shareholders of the Fund
individually but are binding upon only the assets and property of the Fund.
12. This Agreement shall be construed in accordance with applicable federal law
and the laws of the State of Delaware.
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IN WITNESS WHEREOF, the Fund and Xxxxxxx Xxxxxx have caused this Agreement to be
executed as of the day and year first above written.
XXXXXXX XXXXXX CAPITAL ENTREPRENEURS FUND
By:
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Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXXX XXXXXX CAPITAL LLC
By:
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Name: Xxxxx X. Xxxxxxx
Title: President
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APPENDIX I
FEE SCHEDULE FOR
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
Pursuant to Section 3 of the Administrative and Shareholder Services Agreement
("Agreement") to which this Appendix is attached, the Fund and Xxxxxxx Xxxxxx
agree that the administrative and shareholder services fee will be computed at
an annual rate of 0.50 of 1% based upon assets with respect to which a Firm
provides services under the Agreement, except that Firms that provide only
shareholders services included in paragraph (A) of Section 1, and provide no
administrative assistance included in paragraph (B) of Section 1, shall be paid
a fee on an annual basis of 0.25 of 1% of the average daily net asset value of
the shares of the Fund for which such shareholder services are provided.
XXXXXXX XXXXXX CAPITAL ENTREPRENEURS FUND
By:
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Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXXX XXXXXX CAPITAL LLC
By:
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Name: Xxxxx X. Xxxxxxx
Title: President
Dated: January __, 2001
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