EXHIBIT 99B.23(h)-16
SHAREOWNER SERVICING AGREEMENT
This AGREEMENT (the "Agreement") made as of the 1st day of June, 2000,
by and between XXXXXX LLC, a Nevada limited liability company, having its
principal office and place of business at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000 ("Xxxxxx"), and among each investment management company listed
on Schedule A to the Agreement, on behalf of its respective series ("Fund")
identified thereon.
This Agreement shall be deemed for all purposes to constitute a
separate and discrete agreement between Xxxxxx and each Fund listed on Schedule
A (each a "Client" and collectively, the "Clients") as it may be amended by the
parties, and no Client shall be responsible or liable for any of the obligations
of any other Client under this Agreement or otherwise, notwithstanding anything
to the contrary contained herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, each of the parties does hereby covenant and agree as follows:
1. Appointment of Xxxxxx
1.1 Appointment. Subject to the terms and conditions set forth in this
Agreement, Xxxxxx agrees to perform certain shareowner servicing on
behalf of the Clients identified in Schedule A, which Schedule may be
amended to add or eliminate Funds by the delivery to Xxxxxx of a new or
amended Schedule A, executed by the Clients, containing the names of
such Funds.
1.2 Shareowner Servicing. Xxxxxx agrees that it will respond to shareowner
inquiries (via the telephone, e-mail, or other correspondence)
regarding account balances, account status, account maintenance
requests, purchases, redemptions, exchanges, transfers, net asset value
prices, and dividend amounts and payment dates.
2. Fees and Expenses
2.1 Fees. For the performance by Xxxxxx pursuant to this Agreement, the
Clients agree to pay Xxxxxx: (i) $2.03 per call for calls answered
within a 20-second standard; (ii) $1.78 per call for calls answered
over the 20-second standard and for outgoing calls; and (iii) $5.00 per
response to e-mail inquiries.
2.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 2.1
above, the Clients agree to reimburse Xxxxxx for reasonable
out-of-pocket expenses, including but not limited to: postage and other
delivery services, telephone charges, forms, letterhead, and envelopes
and other similar items.
2.3 Invoices. The Clients agree to pay all fees and expenses within thirty
(30) calendar days following the receipt of the respective billing
notice.
3. Term and Termination
3.1 Term. This Agreement shall become effective as of the date first set
forth above and shall continue in effect until the last day of April,
2001, unless sooner terminated in accordance with its terms, and shall
continue in effect from year to year thereafter only so long as such
continuance is specifically approved at least annually by the vote of a
majority of the Directors/Trustees of the Clients who are not parties
hereto or interested persons of such Clients.
3.2 Termination. This Agreement may be terminated by either party upon
sixty (60) days written notice to the other.
4. Representation and Warranties of Xxxxxx
Xxxxxx represents and warrants to the Clients that:
4.1 It is a limited liability company duly organized and existing, and in
good standing under the laws of the State of Nevada.
4.2 It is empowered under applicable laws and by its charter to enter into
and perform this Agreement and all requisite proceedings have been
taken to authorize it to enter into and perform this Agreement.
4.3 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
5. Representations and Warranties of the Clients
The Clients represent and warrant to Xxxxxx that:
5.1 The Clients are duly organized and existing and in good standing as
registered investment companies under the Investment Company Act of
1940.
5.2 The Clients are empowered under applicable laws and charters to enter
into and perform this Agreement and all proceedings required by said
charters have been taken to authorize it to enter into and perform this
Agreement.
6. Indemnification
6.1 Xxxxxx shall not be responsible for, and the Clients shall hold
harmless and indemnify Xxxxxx, and its directors, officers, managers,
shareholders, members, employees and agents, and any controlling person
thereof from and against any loss by or liability to the Fund or a
third party, including reasonable attorney's fees, in connection with
any claim
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or suit asserting any such liability arising out of or attributable to
actions taken or omitted by Xxxxxx pursuant to this Agreement, unless
Xxxxxx has acted negligently or in bad faith.
6.2 The Clients shall not be responsible for, and Xxxxxx shall hold
harmless and indemnify the Clients, and each of their
Directors/Trustees, officers, shareholders, members, employees and
agents from and against any loss or liability arising out of Xxxxxx'x
negligence or bad faith in performing its duties under this Agreement,
including reasonable attorney's fees.
7. Standard of Care
7.1 Xxxxxx shall at all times act in good faith and agrees to use its best
efforts within reasonable limits to ensure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of
its employees or agents.
8. Assignment
8.1 Except as provided in Section 8.2 below, neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
8.2 Xxxxxx may assign its interest in the Agreement to an affiliated
entity.
9. Miscellaneous
9.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties.
9.2 Delaware Law to Apply. This Agreement shall be construed and provisions
thereof interpreted under and in accordance with the laws of the State
of Delaware.
9.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other cause reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
9.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for consequential damages under any provision of
this Agreement or for any consequential damages arising out of any act
or failure to act hereunder.
9.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, shall survive and termination of this
Agreement.
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9.6 Severability. If any provision or provisions of this Agreement shall be
held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
9.7 Merger of Agreement. This Agreement and Schedule A constitute the
entire agreement between the parties hereto and supersedes any prior
agreement with respect to the subject hereof whether oral or written.
9.8 Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
9.9 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, hand delivery, or by courier delivery, addressed as follows or
to such other address or addresses of which the respective party shall
have notified the other.
(a) If to Xxxxxx:
000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention Xxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Clients:
000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention Xxxx X. Xxxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXXX LLC,
a Nevada limited liability company
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX INVESTMENT PORTFOLIO
TRUST, a Delaware business trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX OMNI INVESTMENT TRUST,
a Massachusetts business trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX GROWTH FUND,
a Maryland corporation
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX GROWTH AND INCOME FUND,
a Maryland corporation
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX WORLDWIDE FUNDS TRUST,
a Delaware business trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
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SCHEDULE A
Dated: March 8, 2002 to Shareowner Servicing Agreement dated June 1, 2000.
Xxxxxx Growth Fund
Xxxxxx Large Cap Growth Fund
Xxxxxx Investment Portfolio Trust
Xxxxxx Mid Cap Growth Fund
Xxxxxx Small Company Growth Fund
Xxxxxx New Generation Fund
Xxxxxx Select Fund
Xxxxxx Information Technology Fund
Xxxxxx Large Cap Value Fund
Xxxxxx Mid Cap Value Fund
Xxxxxx Balanced Fund
Xxxxxx Small Cap Value Fund II
Xxxxxx Omni Investment Trust
Xxxxxx Small Cap Value Fund
Xxxxxx Worldwide Funds Trust
Xxxxxx International Fund
International Equity Fund
Xxxxxx International CORE Fund
Executed by each Investment Company as
follows:
Xxxxxx Growth Fund, Inc.
Xxxxxx Large Cap Growth Fund, Inc.
Xxxxxx Investment Portfolio Trust
Xxxxxx Omni Investment Trust
Xxxxxx Worldwide Funds Trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
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ASSIGNMENT AGREEMENT
This Assignment Agreement ("Assignment"), effective as of February 16,
2001, is by and between Xxxxxx LLC, a Nevada Limited Liability Company
("Xxxxxx"), and Xxxxxx Distributors LLC ("BD"), a Colorado Limited Liability
Company.
WHEREAS, Xxxxxx and the Xxxxxx Investment Portfolio Trust, the Xxxxxx
Omni Investment Trust, the Xxxxxx Growth Fund, Inc., the Xxxxxx Growth and
Income Fund, Inc., and the Xxxxxx Worldwide Funds Trust executed a Shareowner
Servicing Agreement as of June 1, 2000 wherein Xxxxxx agreed to perform certain
services related to inquiries made via telephone, electronic mail, or other
correspondence for the Xxxxxx Information Technology Fund, the Xxxxxx New
Generation Fund, the Xxxxxx Select Fund, the Xxxxxx Small Company Growth Fund,
the Xxxxxx Mid Cap Value Fund, the Xxxxxx Balanced Fund, the Xxxxxx Small Cap
Value Fund, the Xxxxxx Growth Fund, the Xxxxxx Growth and Income Fund, the
Xxxxxx International Fund, the International Equity Fund, and the Xxxxxx
International CORE Fund (collectively, the "Funds"); and
WHEREAS, BD is registered as a broker-dealer with the Securities and
Exchange Commission, and supervises representatives registered with the National
Association of Securities Dealers (the "Registered Representatives"); and
WHEREAS, Xxxxxx and BD both desire that BD assume the rights and
obligations of, and that the Registered Representatives perform the services
arising under, said Shareowner Servicing Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Pursuant to Paragraph 8.2 of the Shareowner Servicing Agreement,
Xxxxxx hereby assigns its interests in the Shareowner Servicing Agreement to BD.
BD hereby expressly: (i) undertakes, assumes, and agrees to perform and/or
satisfy each and every one of Xxxxxx'x obligations, duties, burdens,
responsibilities and liabilities under the Shareowner Servicing Agreement; (ii)
agrees to be bound by the provisions of the Shareowner Servicing Agreement to
the same extent as if BD had initially executed and delivered such agreement;
(iii) undertakes, assumes and agrees to pay, satisfy, discharge and/or perform
all other indebtedness, obligations or liabilities of Xxxxxx, absolute or
contingent, known or unknown, liquidated or unliquidated, whether due or to
become due and regardless of when or by whom asserted (together with the
obligations set forth in clauses (i) and (ii) of this Paragraph 1, the "Assumed
Liabilities"); and (iv) agrees to indemnify Xxxxxx from and against any
liability, loss or damage arising under the Shareowner Servicing Agreement or
the Assumed Liabilites.
2. Nothing herein is intended to be construed or shall be construed as
enlarging or extending in any manner or to any extent the period of limitations
prescribed by any statute of limitations applicable to any of the Assumed
Liabilities or as enlarging
or extending to any extent or in any manner whatsoever the rights which any
owner, holder or obligee of any Assumed Liability has had, now has, or hereafter
can, shall or may have or as rendering valid or enforceable against BD any
liability assumed which for any reason would not have been valid or enforceable
against Xxxxxx except to the extent specifically stated herein.
3. The interpretation and construction of this Assignment, and all
matters relating thereto, shall be governed by the laws of the State of
Colorado, without regard to its principles of conflicts of law.
4. This Assignment may not be transferred, assigned, pledged or
hypothecated by any party, except with the prior written consent of the other
party; provided, however, that Xxxxxx Distributors LLC may assign its interests,
rights and obligations to an affiliate without prior written consent. This
Assignment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
5. The transfer pursuant to this Assignment shall be effective February
16, 2001.
6. This Assignment contains the entire understanding of the parties
hereto, and supersedes all prior agreements and understandings between the
parties, with respect to the subject matter of this Assignment.
IN WITNESS WHEREOF, each of the parties has executed this Assignment as
of the day and year first set forth above.
XXXXXX LLC XXXXXX DISTRIBUTORS LLC
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------- ---------------------
By: Xxxx X. Xxxxxxxx By: Xxxxx X. Xxxxxxx
Title: President Title: President
FIRST AMENDMENT TO SHAREOWNER SERVICING AGREEMENT
This Amendment to the Shareowner Servicing Agreement, by and between
Xxxxxx Distributors LLC ("BD") and among each investment management company
listed on Schedule A to the Agreement, on behalf of its respective series
("Fund") identified thereon, shall be effective as of March 8, 2002.
WHEREAS, on June 1, 2000, Xxxxxx LLC entered into the Shareowner
Servicing Agreement (the "Agreement") with the investment management companies
listed on Schedule A; and
WHEREAS, on February 16, 2001, Xxxxxx LLC assigned its interests in the
Agreement to BD; and
WHEREAS, at a meeting of the directors/trustees of Xxxxxx Funds on
March 7, 2002, the parties agreed to make certain amendments to the Agreement,
effective as of March 8, 2002.
NOW, THEREFORE, in consideration of the mutual covenants in the
Agreement, each of the parties does hereby covenant and agree that the Agreement
shall be amended as follows:
Paragraph 2.1 shall be deleted and replaced with the following language:
2.1 Fees. For the performance by Xxxxxx pursuant to this Agreement, the
Clients agree to pay Xxxxxx: (i) $5.00 per call for calls answered
within a 20-second standard; (ii) $4.00 per call for calls answered
over the 20-second standard and for outgoing calls; and (iii) $5.00 per
response to e-mail inquiries.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to the Agreement to be executed in their names and on their behalf by and
through their duly authorized officers, effective as of the day and year first
above written.
XXXXXX DISTRIBUTORS LLC, a Colorado
limited liability company
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX INVESTMENT PORTFOLIO
TRUST, a Delaware business trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
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XXXXXX OMNI INVESTMENT TRUST,
a Massachusetts business trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX GROWTH FUND, INC.,
a Maryland corporation
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX LARGE CAP GROWTH FUND,
INC., a Maryland corporation (formerly Xxxxxx
Growth and Income Fund, Inc.)
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
XXXXXX WORLDWIDE FUNDS TRUST,
a Delaware business trust
/s/ Xxxx X. Xxxxxxxx
--------------------
By: Xxxx X. Xxxxxxxx
Title: President
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