Exhibit (h)(8)
BLACK DIAMOND FUNDS
FORM OF
SHAREHOLDER SERVICE AGREEMENT II
AGREEMENT made this __ day of ____________, 2003, between Black Diamond
Funds (the "Trust") and the institution executing this document below
("Institution").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Act"), as an open-end management investment company that may
issue shares of beneficial interest of each series of the Trust;
WHEREAS, the Trust has adopted a Shareholder Service Plan II (the "Service
Plan") with respect to the shares of beneficial interest ("Shares") of certain
series of the Trust or class thereof (each a "Series," collectively the
"Series") that authorizes the Trust to pay fees to institutions for maintaining
and providing services to shareholders accounts invested in those Shares;
WHEREAS, the Trust desires that Institution perform certain service
activities with respect to the Series identified in Appendix A hereto, as such
Appendix may be amended from time to time, and Institution is willing to perform
those services on the terms and conditions set forth in this Agreement; and
NOW, THEREFORE, for and in consideration of the representations, covenants
and agreements contained herein and other valuable consideration, the
undersigned parties do hereby agree as follows:
SECTION 1. SERVICE ACTIVITIES
In connection with providing services and maintaining shareholder accounts
of the Trust with respect to its various customers, Institution may provide one
or more of the following services:
(a) handling shareholder inquiries regarding the Trust (e.g., responding
to questions concerning investments in the Trust, capital account
balances and reports and tax information provided by the Trust);
(b) assisting in the enhancement of relations and communications between
shareholders and the Trust;
(c) assisting in the establishment and maintenance of shareholder accounts
with the Trust;
(d) assisting in the maintenance of Trust records containing shareholder
information; and
(e) providing such other information and shareholder liaison services as
the Trust's distributor or investment adviser may reasonably request.
Institution's appointment shall be nonexclusive, and the Trust may enter
into similar agreements with other persons.
SECTION 2. COMPENSATION
(a) As compensation for Institution's service activities with respect to
the Series, the Trust shall pay Institution a fee (the "Payments") at an annual
rate (as a percentage of the average daily net assets of the Shares of each of
the Series represented by the shareholder accounts for which Institution
maintains a service relationship) as specified in Appendix A, subject to the
maximum rate authorized under the Service Plan.
(b) The Payments shall be accrued and paid monthly or at such other
interval as the Trust and Institution shall agree.
(c) On behalf of the Trust, Institution may spend such amounts and incur
such expenses as it deems appropriate or necessary on any service activities.
Such expenses may include compensation to employees and expenses, including
overhead and telephone and other communication expenses, of the Institution.
Institution shall be solely liable for any expenses it incurs.
SECTION 3. REPRESENTATIONS OF INSTITUTION
Institution represents that:
(a) the compensation payable to it under this Agreement in connection with
the investment in the Trust of the assets of its customers: (i) will, to the
extent required by law, be disclosed by Institution to its customers, and (ii)
will not result in an excessive fee to Institution;
(b) the performance of all its obligations hereunder will comply with all
applicable laws and regulations, including any applicable state and federal
securities laws and self-regulatory organization regulations, any requirements
to deliver confirmations to its customers, the provisions of its charter
documents and bylaws and all material contractual obligations binding upon
Institution; and
(c) it will promptly inform the Trust of any change in applicable laws or
regulations (or interpretations thereof) or in its charter or bylaws or material
contracts that would prevent or impair full performance of any of its
obligations hereunder.
SECTION 4. TRUST LITERATURE
Institution is not authorized to make any representations concerning shares
of the Series except those contained in the appropriate then current prospectus
and statement of additional information ("SAI") and printed information issued
by the Trust. The Trust will supply Institution upon its request with
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prospectuses, SAIs and additional information. Institution shall have no
responsibility with regard to the accuracy or completeness of any of the printed
information furnished by the Trust and shall be held harmless by the Trust from
and against any cost or loss arising therefrom.
SECTION 5. REPORTS
Institution shall prepare and furnish to the Trust, at the Trust's request,
written reports identifying the activities performed by Institution and setting
forth such other information as the Trust shall reasonably request.
SECTION 6. INDEMNIFICATION
Institution agrees to indemnify and hold harmless the Trust from any
claims, expenses, or liabilities incurred by the Trust as a result of any act or
omission of Institution in connection with its services under this Agreement
except such acts or omissions in reliance upon or relative to printed materials
supplied by the Trust.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to a Series on the
date such Series is added to Appendix A.
(b) This Agreement may be terminated with respect to a Series as follows:
(i) automatically in the event of the termination of the Service
Plan; or
(ii) by either party to the Agreement without cause by giving the
other party at least sixty (60) days' written notice of its
intention to terminate.
SECTION 8. NOTICES
Any notice under this Agreement shall be in writing and shall be addressed
and delivered, or mailed postage prepaid, to the other party's principal place
of business, or to such other place as shall have been previously specified by
written notice given to the other party. Notices, requests, instructions and
communications received by the parties at their respective principal places of
business, or at such other address as a party may have designated in writing,
shall be deemed to have been properly given.
SECTION 9. AMENDMENTS
This Agreement may be amended by the parties at any time. In addition, this
Agreement may be amended by the Trust from time to time by the following
procedure: the Trust will mail a copy of the amendment to Institution at its
principal place of business or such other address as Institution shall in
writing provide to the Trust. If Institution does not object to the amendment
within ten (10) days after its receipt, the amendment will become part of the
Agreement. Institution's objection must be in writing and be received by the
Trust within ten (10) days of being placed in the mail by the Trust.
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SECTION 10. USE OF THE TRUST NAME
Institution shall not use the name of the Trust on any checks, bank drafts,
bank statements or forms for other than internal use in a manner not approved by
the Trust prior thereto in writing; provided, however, that the approval of the
Trust shall not be required for the use of the Trust's name which merely refers
in accurate and factual terms to the Trust in connection with Institution's role
hereunder or which is required by any appropriate regulatory, governmental or
judicial authority; and further provided that in no event shall such approval be
unreasonably withheld or delayed.
SECTION 11. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees and the shareholders of the Trust shall not be liable for any
obligations of the Trust under this Agreement. Institution agrees that, in
asserting any rights or claims under the Agreement, it shall look only to the
assets and property of the Trust to which Institution's rights or claims relate
in settlement of those rights or claims and not to the Trustees or the Trust. No
Series of the Trust shall be liable to Institution with respect to any services
hereunder relating to another Series.
SECTION 12. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement.
(b) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(c) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
(d) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both the
Trust and Institution and no presumptions shall arise favoring any party by
virtue of authorship of any provision of this Agreement.
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(f) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(g) Nothing contained in this Agreement is intended to or shall require
the parties to perform any functions or duties on any day other than a Trust
business day. Functions or duties normally scheduled to be performed on any day,
which is not a Trust business day shall be performed on, and as of, the next
Trust business day, unless otherwise required by law.
(h) No affiliated person, employee, agent, director, officer or manager of
the Trust shall be liable at law or in equity for the Trust's obligations under
this Agreement.
(i) Each of the undersigned warrants and represents that it has full power
and authority to sign this Agreement on behalf of the party indicated and that
its signature will bind the party indicated to the terms hereof. Each party
hereto warrants and represents that this Agreement, when executed and delivered,
will constitute a legal, valid and binding obligation of the party, enforceable
against the party in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(j) The terms "affiliated person" and "assignment" shall have the meanings
ascribed thereto in the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
BLACK DIAMOND FUNDS
By:
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Name:
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Title:
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INSTITUTION
By:
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Name:
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Title:
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APPENDIX A TO THE
SHAREHOLDER SERVICE AGREEMENT II
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SERIES SUBJECT TO THE AGREEMENT: COMPENSATION
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0.25% of the average daily net
assets of the Shares of each of
the Series represented by the
shareholder accounts for which
Institution maintains a service
relationship
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