EXHIBIT 9(D)
BERKELEY CAPITAL MANAGEMENT FUNDS
SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT (this "Agreement") is made as of
the [_____] day of [_______], 1997 by and between BERKELEY CAPITAL MANAGEMENT
FUNDS, a business trust organized under the laws of the State of Delaware
(the "Trust"), and BERKELEY CAPITAL MANAGEMENT (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 clients 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 the 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;
(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
shareholders 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 generality 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
of 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 contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so
requested by the Trust.
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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 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 such 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 Funds'
shareholders (or any expenses incident to such liability) arising out of the
Adviser's or any Service Provider's own willful misfeasance, bad faith,
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,
negligence, or reckless disregard of the duties and obligations under this
Agreement.
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(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 and 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.
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 in 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) The Adviser acknowledges that it has received notice of and
accepts the limitations of the Funds' liability set forth in the Trust's
Agreement and Declaration of Trust.
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The Adviser agrees that each Fund's obligations under this Agreement shall be
limited to the Fund and to its assets, and that neither the Adviser nor any
Service Provider shall seek satisfaction of any such obligation from the
shareholders of the Fund or from any trustee, officer, employee, or agent of
the Trust or the Fund.
(f) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
(g) This Agreement may not be assigned without the prior mutual
written consent of all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below on the day and year first
above written.
BERKELEY CAPITAL MANAGEMENT FUNDS
By: /s/ Xxxxxx Beechwood
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Xxxxxx Beechwood,
Treasurer, Chief Accounting Officer,
and Chief Financial Officer
BERKELEY CAPITAL MANAGEMENT
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Chairman
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EXHIBIT A
Funds Covered by the
Shareholder Services Agreement
Annual
Name of Fund Service Fee Rate
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Berkeley Capital Management Money Market Fund 0.25%
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