U.S. LARGE STOCK FUND
AMENDED AND RESTATED SHAREHOLDER SERVICES AGREEMENT
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The SHAREHOLDER SERVICES AGREEMENT made as of May 19, 1993 between U.S.
LARGE STOCK FUND, a Delaware business trust (the "Trust"), and XXXXXXXXX, WERBA,
BOWEN, INC., a California corporation, d/b/a Xxxxxxxxx Xxxxx Xxxxx Advisory
Services ("RWB") is amended and restated in its entirety as of the first day of
April, 1996.
W I T N E S S E T H :
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and RWB is an investment adviser registered under the Investment Advisers Act of
1940, as amended;
WHEREAS, the Trust wishes to continues to retain RWB to provide
services to clients of RWB who are shareholders of the Trust and RWB is willing
to continue to provide such shareholder services to such Clients; and, the Trust
and RWB wish to amend and restate the Shareholder Services Agreement dated May
19, 1993 between the Trust and RWB for the purposes of reducing the fees payable
therein.
NOW, THEREFORE, the parties agree as follows:
1. RWB shall provide shareholder services for its Clients who own
shares of the Trust as described in the Trust's current Prospectus and Statement
of Additional Information. RWB shall provide to its Clients a schedule of any
fees that it and any institutions engaged by it may charge directly to their
Clients for these or other services in connection with an investment in the
Trust and comply with all other applicable disclosure requirements, including
any requirement to disclose receipt of fees pursuant to this Agreement. The
services of RWB to the Trust are not to be deemed exclusive, and RWB shall be
free to render similar services to others as long as its services to the Trust
are not impaired thereby.
2. RWB shall provide such office space and equipment, telephone
facilities and personnel (which may be all or any part of the space, equipment
and facilities currently used in its businesses, or all or any personnel
employed by it) as is necessary or beneficial for providing information and
services to its Clients. RWB shall promptly transmit to its Clients all
communications sent to it and any institutions engaged by it for transmittal by
or on behalf of the Trust, its investment adviser, custodian or transfer or
dividend disbursing agent.
3. Neither RWB nor any of its employees or agents shall be authorized
to make any representation concerning the shares of the Trust except those
contained in
the then current Prospectus and Statement of Additional Information relating to
the Trust, copies of which will be supplied by the Trust to RWB; and RWB shall
have no authority to act as agent for the Trust except as expressly provided
herein or in a writing signed by the Trust.
4. RWB will receive a fee payable by the Trust for services performed
pursuant to this Agreement. This fee shall be equal on an annual basis to 0.14%
of the Trust's average daily net assets. Such fee shall be accrued daily and
paid monthly. For the purposes of determining the fees payable hereunder, the
average daily net asset value of the Trust shall be computed in the manner
specified in the then current Prospectus of the Trust. If this agreement is
terminated prior to the end of any month, the fee for such month will be
prorated.
5. The Trust reserves the right, at its discretion and without notice,
to suspend the sale of shares or withdraw the sale of shares of the Trust.
6. The Trust shall pay all costs and expenses in connection with
preparation and printing of the Trust's Prospectus and Statement of Additional
Information to existing shareholders.
7. This Agreement may be amended at any time by an instrument signed by
the parties.
8. This Agreement shall be effective on the date hereof and shall
continue in effect from year to year until and unless terminated in accordance
with paragraph 9 below.
9. This Agreement is terminable at any time, without payment of any
penalty, by (a) the Trust, pursuant to the vote of a majority of the Trustees
who are not "interested persons" (as defined in the 0000 Xxx) of the Trust or
(b) by RWB, in either instance, upon not more than sixty days' written notice to
the other party.
10. Neither party may assign its rights or obligations under this
Agreement without the express written consent of the other.
11. RWB agrees to provide to the Trust, its officers and Trustees such
information concerning its Clients and services provided to them as they may
reasonably request (a) in order to permit the Trust to monitor compliance with
federal and state securities registration and tax withholding requirements; (b)
in order to permit the Trustees of the Trust in the exercise of their duties as
Trustees, to evaluate the services being provided and the reasonableness of the
compensation paid by the Trust to RWB; and (c) for other reasonable purposes.
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12. (a) The Trust agrees to indemnify, defend and hold RWB, its
officers and directors and any person who controls RWB within the meaning of
Section 15 of the Securities Act of 1933 (the "1933 Act"), free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any reasonable counsel fees incurred in connection therewith)
which RWB, its officers, directors or any such controlling person may incur
under the 1933 Act, or under common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus of the Trust or arising out of or based
upon any alleged omission to state a material fact required to be stated in
either thereof or necessary to make the statements in either thereof not
misleading, except insofar as such claims, demands, liabilities or expenses
arise out of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished in writing by RWB to the Trust for use in the Registration
Statement or Prospectus; provided, however, that this indemnity agreement, to
the extent that it might require indemnity of any person who is also an officer
or Trustee of the Trust or who controls the Trust within the meaning of Section
15 of the 1933 Act, shall not inure to the benefit of such officer, Trustee or
controlling person unless a court of competent jurisdiction shall determine, or
it shall have been determined by controlling precedent, that such result would
not be against public policy as expressed in the 1933 Act; and further provided,
that in no event shall anything contained herein be so construed as to protect
RWB against any liability to the Trust or its shareholders to which RWB would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations under this Agreement. The Trust's agreement to
indemnify RWB, its officers and directors and any such controlling person as
aforesaid is expressly conditioned upon the Trust's being promptly notified of
any action brought against RWB, its officers or directors, or any such
controlling person, such notification to be given by letter or telegram
addressed to the Trust at its principal business office. The Trust agrees
promptly to notify RWB of the commencement of any litigation or proceedings
against the Trust or any of its officers or Trustees in connection with the
issue and sale of the shares of the Trust.
(b) In the performance of its duties hereunder, RWB shall be
obligated to exercise due care and diligence and to act in a timely manner and
in good faith to assure the accuracy and completeness of all services
performance under this Agreement. RWB shall be under no duty to take any action
on behalf of the Portfolio except as specifically set forth herein or as may be
specifically agreed to by RWB in writing. RWB shall be responsible for its own
negligent failure to perform its duties under this Agreement. In assessing
negligence for purposes of this Agreement, the parties agree that the standard
of care applied to RWB's conduct shall be the care that would be exercised by a
similarly situated service provider, supplying substantially the same services
under substantially similar circumstances.
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(c) No provision of this Agreement shall be deemed to protect
RWB against any liability to the Fund or its shareholder to which it might
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or the reckless disregard of its
obligations under this Agreement.
(d) RWB agrees to indemnify, defend and hold the Trust, its
officers and Trustees and any person who controls the Trust, if any, within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expense (including the cost of
investigating or defending against such claims, demand or liabilities and any
reasonable counsel fees incurred in connection therewith) which the Trust, its
Trustees or officers or any such controlling person may incur under the 1933 Act
or under common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its Trustees or officers or such controlling
person resulting from such claims or demands shall arise out of or be based upon
any alleged untrue statement of a material fact contained in: (a) information
furnished in writing by RWB to the Trust for use in the Registration Statement
or Prospectus or (b) any alleged untrue statement of a material fact about the
Trust made by RWB to the public without the Trust's express written consent, or
shall arise out of or be based upon any alleged omission to state a material
fact necessary to make such information or statement not misleading. RWB's
agreement to indemnify the Trust, its Trustees and officers, and any such
controlling person as aforesaid is expressly conditioned upon RWB's being
promptly notified of any action brought against the Trust, its officers or
Trustees or any such controlling person, such notification being given to RWB at
its principal business office.
13. Any notice required to be given pursuant to this Agreement shall be
deemed duly given if delivered or mailed by registered mail, postage prepaid,
(1) to RWB at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, or
(2) to the Trust at Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX 00000.
14. This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
15. 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.
16. 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. This Agreement shall be
binding and shall inure to the benefit of the parties hereto and their
respective successors.
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17. It is understood and expressly stipulated that none of the
Trustees, officers, agents or shareholders in the Trust shall be personally
liable hereunder. The name "U.S. Large Stock Fund" is the designation of the
Trustees for the time being under a Declaration of Trust dated February 16,
1993, as amended from time to time, and all persons dealing with the Trust must
look solely to the property of the Trust for the enforcement of any claims
against the Trust, as neither the Trustees, officers, agents nor shareholders
assume any personal liability for obligations entered into on behalf of the
Trust. No series of the Trust shall be liable for any claims against or relating
to any other services of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed as of the 1st day of April 1996.
XXXXXXXXX XXXXX XXXXX, INC.
d/b/a XXXXXXXXX XXXXX XXXXX
ADVISORY SERVICES
By:___________________________
Title:
U.S. LARGE STOCK FUND
By:___________________________
Title:
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