EXHIBIT 15(b)
SERVICES AGREEMENT
THIS SERVICES AGREEMENT is made as of the _____ day of April,
199 by and between XXXXXXX DISCOVERY FUND (the "Fund"), a series of
Professionally Managed Portfolios, a Massachusetts business trust (the "Trust"),
and XXXXXXX CAPITAL MANAGEMENT, INC. ("Xxxxxxx").
WITNESSETH
WHEREAS, the Trust is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund wishes to retain Xxxxxxx to provide services
to shareholders of the Fund, and to clients of certain broker-dealers who have
entered, or will enter, into dealer agreements respecting the sale of shares of
the Fund ("Service Providers"), who are shareholders of the Fund, and Xxxxxxx is
willing to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Xxxxxxx to provide to
the Fund the shareholder services specified in Section 2 of this Agreement to
all shareholders of the Fund and to clients of the Service Providers that are
shareholders of the Fund. Xxxxxxx accepts such appointment and agrees to furnish
through its own organization, or through the Service Providers, as the case may
be, such shareholder services in return for compensation as provided in Section
6 of this Agreement. Xxxxxxx agrees that the shareholder services required to be
furnished hereunder shall be furnished in compliance with all relevant
provisions of state, federal and foreign law and 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 applicable
rules and regulations promulgated thereunder, and the Rules of Fair Practice of
the National Association of Securities Dealers, Inc.
2. Services and Responsibilities on a Continuing Basis.
Xxxxxxx will provide for the following shareholder services on a regular basis
which shall be daily, weekly or as otherwise appropriate, unless otherwise
specified by the Fund:
(a) responding to shareholder inquiries;
(b) processing purchases and redemptions of the Fund's
shares, including reinvestment of dividends;
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(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
Xxxxxxx, a Service Provider, or their nominees;
and
(e) providing such other information and assistance to
shareholders as may be reasonably requested by such
shareholders.
Xxxxxxx 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 Fund.
3. Standard of Care. Xxxxxxx and the Service Providers shall
be under no duty to take any action on behalf of the Fund except as specifically
set forth herein or as may be specifically agreed to by Xxxxxxx or the Service
Providers with the Fund in writing. In the performance of the duties hereunder,
Xxxxxxx 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. Without
limiting the generality of the foregoing or of any other provision of this
Agreement, neither Xxxxxxx nor any Service Provider shall be liable for delays
or errors or loss of data occurring by reason of circumstances beyond Xxxxxxx'
or the Service Provider's control.
4. Confidentiality. Xxxxxxx agrees, on behalf of itself and
its employees, to treat confidentially all records and other information
relative to the Fund and the Trust, and all prior, present or potential
shareholders of the Fund, except after prior notification to, and approval of
release of information in writing by, the Fund, which approval shall not be
unreasonably withheld, and may not be withheld where Xxxxxxx 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 Fund.
5. Independent Contractor. Xxxxxxx shall, for all purposes
herein, be deemed to be an independent contractor, and Xxxxxxx and the Service
Providers shall, unless otherwise expressly provided and authorized to do so,
have no authority to act for or represent the Trust or the Fund in any way, or
in any way be deemed an agent for the Trust or for the Fund. It is expressly
understood and agreed that the services to be rendered by Xxxxxxx under the
provisions of this Agreement are not to be deemed exclusive, and Xxxxxxx shall
be free to render similar or
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different services to others so long as its ability to render the services
provided for in this Agreement shall not materially be impaired thereby.
6. Compensation. As compensation for the services rendered by,
and responsibilities assumed by, Xxxxxxx during the term of this Agreement, the
Fund will pay to Xxxxxxx a service fee in an amount up to 0.25% (25 basis
points) per annum of the average daily net asset value of the Fund's shares.
Xxxxxxx 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 Fund and paid to Xxxxxxx on a monthly basis.
7. Indemnification.
(a) The Fund agrees to indemnify and hold harmless Xxxxxxx
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the Securities Act of
1933, the Securities Exchange Act of 1934, 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 Xxxxxxx 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 Fund or (ii) upon oral or written instructions
from an officer of the Fund, provided that Xxxxxxx shall not be indemnified
against any liability to the Fund or to the Fund's shareholders (or any expenses
incident to such liability) arising out of Xxxxxxx' or any Service Provider's
own willful misfeasance, bad faith, negligence or reckless disregard of its
duties and obligations under this Agreement. Xxxxxxx agrees to indemnify and
hold harmless the Fund, the Trust and its officers and Trustees from all claims
and liabilities (including, without limitation, liabilities arising under the
Securities Act of 1933, the Securities Exchange Act of 1934, 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
Xxxxxxx or any Service Provider takes or does or omits to take or do which is in
violation of this Agreement or not in accordance with instructions properly
given by an officer of the Fund or arising out of Xxxxxxx' or the Service
Provider's own willful misfeasance, bad faith, negligence or reckless disregard
of the duties and obligations under this Agreement.
(b) Xxxxxxx shall provide such security as is necessary to
prevent unauthorized use of any on-line computer facilities. Xxxxxxx agrees to
release, indemnify and hold harmless the Trust and the Fund from any and all
direct or indirect liabilities or losses resulting from requests, directions,
actions or inactions of or by Xxxxxxx or any Service
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Provider, its officers, employees or agents regarding the redemption, transfer
or registration of the Fund's shares for accounts of shareholders or the Service
Provider, its clients and other shareholders. Principals of Xxxxxxx will be
available to consult from time to time with officers of the Trust and the
Trustees concerning performance of the services contemplated by this Agreement.
8. Fund Information. No person is authorized to make any
representations concerning the Fund, or shares of the Fund or shareholder
services except in accordance with the terms of this Agreement. Neither Xxxxxxx
or 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 Fund's current Prospectus or Statement of Additional
Information or in such supplemental literature as may be authorized by the Fund.
9. Duration and Termination. This Agreement shall continue
until termination by the Fund or Xxxxxxx on 60 days' written notice to the
other. 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 Minnesota as applicable to contracts
between Minnesota residents entered into and to be performed entirely within
Minnesota.
(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) Xxxxxxx acknowledges that it has received notice of and
accepts the limitations of the Fund's liability set forth in the Trust's
Agreement and Declaration of Trust. Xxxxxxx agrees that the Fund's obligations
under this Agreement shall be limited to the Fund and to its assets, and that
neither Xxxxxxx nor any Service Provider shall seek satisfaction of any such
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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 mutual
consent of the 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.
XXXXXXX DISCOVERY FUND
By:
Title:
XXXXXXX CAPITAL MANAGEMENT, INC.
By:
Title:
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