Exhibit 99.23(h)(2)
XXXX XXXXXXXXX SERIES TRUST
EXPENSE LIMITATION AGREEMENT
This Agreement, dated as of January 30, 2004, is made and entered into
by and between Xxxxxxx Xxxxxx Investment Management, Inc. (the "Adviser") and
Xxxx Xxxxxxxxx Series Trust (the "Trust") on behalf of each series of the Trust
listed on SCHEDULE A hereto, as may be amended from time to time (each a "Fund"
and, collectively, the "Funds").
WHEREAS, the Trust is a Massachusetts business trust and is registered
under the Investment Company Act of 1940 (the "1940 Act") as an open-end
management investment company of the series type, and each Fund is a series of
the Trust;
WHEREAS, the Trust on behalf of each Fund and the Adviser have entered
into Management Contracts dated, for each Fund, as set forth on SCHEDULE A (each
a "Management Agreement"), pursuant to which the Adviser provides investment
management services to each Fund for compensation based on the value of the
average daily net assets of each Fund; and
WHEREAS, the Trust and the Adviser have determined that it is
appropriate and in the best interest of each Fund and its shareholders to
maintain the expenses of each Fund at a level below the level to which each Fund
may normally be subject.
NOW THEREFORE, the parties hereto agree as follows:
1. EXPENSE LIMITATION AND WAIVER. Until further notice from the
Adviser to the Trust and in any event through March 31, 2007,
the Adviser agrees that, to the extent that ordinary operating
expenses incurred by a Fund in any fiscal year, including but
not limited to investment advisory fees of the Adviser, but
excluding nonrecurring account fees, extraordinary expenses,
dividends on securities sold short, service fees, subtransfer
agency and subaccounting fees and distribution and shareholder
service fees (the "Fund Operating Expenses"), exceed the
Expense Limit for each Fund as set forth on SCHEDULE A, such
excess amount will be the liability of the Adviser.
2. REIMBURSEMENT. If on any month during which the Management
Agreement for a particular Fund is in effect, the estimated
annualized Fund Operating Expenses of such Fund for that month
are less than the Expense Limit for such Fund as set forth on
SCHEDULE A, the Adviser shall be entitled to reimbursement by
such Fund of the investment advisory fees waived or reduced
and other payments remitted to such Fund pursuant to Section 1
hereof (the "Reimbursement Amount"), to the extent that such
Fund's annualized Fund Operating Expenses plus the amount so
reimbursed equals, for such month, the Expense Limit for such
Fund as set forth in SCHEDULE A, PROVIDED that such
reimbursement may be paid, in each case, only during the
fiscal year in which the waiver, reduction or other payment
was made or during the following two fiscal years, and FURTHER
PROVIDED that such amount paid to the Adviser, together with
all other amounts reimbursed to the Adviser
pursuant to this agreement during the fiscal year in which
such amount is paid, will in no event exceed the total
Reimbursement Amount.
3. YEAR-END ADJUSTMENT. If necessary, on or before the last day
of the first month of the Trust's fiscal year, an adjustment
payment shall be made by the appropriate party in order that
the actual Fund Operating Expenses of a particular Fund for
the prior fiscal year (including any reimbursement payments
hereunder with respect to such fiscal year) do not exceed the
Expense Limit for such Fund as set forth on SCHEDULE A.
4. TERM AND TERMINATION. This Agreement will automatically
terminate with respect to a particular Fund upon termination
of the Management Agreement between such Fund and the Adviser.
This Agreement may be terminated by the Trust or, after March
31, 2007, by the Adviser, without payment of any penalty upon
sixty (60) days' prior written notice to the other party at
its principal place of business. After March 31, 2007, the
Adviser may, by sixty (60) days' prior written notice to the
Trust, change, with respect to one or more Funds, the Expense
Limit set forth on SCHEDULE A.
5. CAPTIONS. The captions in this Agreement are included for
convenience of reference and in no other way define or
delineate any of the provisions hereof or otherwise affect
their construction or effect.
6. INTERPRETATION. Nothing herein contained shall be deemed to
require the Trust or the Funds to take any action contrary to
the Trust's Declaration of Trust or Bylaws, each as in effect
from time to time, or any applicable statutory or regulatory
requirement, including without limitation any requirements
under the 1940 Act, to which it is subject or by which it is
bound, or to relieve or deprive the Trust's Board of Trustees
of its responsibility for or control of the conduct of the
affairs of the Trust or the Funds.
7. DEFINITIONS. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or
otherwise derived from the terms and provisions of a
Management Agreement or the 1940 Act, shall have the same
meaning as and be resolved by reference to such Management
Agreement or the 1940 Act.
8. AMENDMENT. This Agreement may be amended only by a written
instrument signed by each of the parties hereto.
A copy of the Agreement and Declaration of Trust of the Trust, as
amended, is on file with the Secretary of The Commonwealth of Massachusetts and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually, and that the obligations
of or arising out of this instrument are not binding upon any of the Trustees or
shareholders individually but are binding only upon the assets and property of
the Trust.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
respective officers thereunto duly authorized, as of the day and year first
above written.
XXXX XXXXXXXXX SERIES TRUST, XXXXXXX XXXXXX INVESTMENT
On behalf of each of its Funds MANAGEMENT, INC.
listed on SCHEDULE A hereto
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxx
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Title: President Title: President and Chief Executive Officer
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SCHEDULE A
FUND DATE OF MANAGEMENT CONTRACT EXPENSE LIMIT
Laudus Rosenberg U.S. Small Capitalization Fund January 30, 2004 1.14%
Laudus Xxxxxxxxx International Small
Capitalization Fund January 30, 2004 1.49%
Laudus Xxxxxxxxx Value Long/Short Equity Fund January 30, 2004 1.74%
Laudus Rosenberg U.S. Large/Mid Capitalization
Long/Short Equity Fund January 30, 2004 1.24%
Laudus Rosenberg U.S. Large Capitalization
Growth Fund January 30, 2004 0.99%
Laudus Xxxxxxxxx International Equity Fund January 30, 2004 1.34%
Laudus Xxxxxxxxx Global Long/Short Equity Fund January 30, 2004 1.99%
Laudus Rosenberg U.S. Discovery Fund January 30, 2004 1.14%
Laudus Xxxxxxxxx European Fund January 30, 2004 1.24%
Laudus Rosenberg U.S. Large Capitalization Fund January 30, 2004 0.99%
FUND DATE OF MANAGEMENT CONTRACT EXPENSE LIMIT
Laudus Rosenberg U.S. Long/Short Equity Fund January 30, 2004 1.49%
Dated: January 30, 2004
