Exhibit (e)(19)
Addendum to the Mutual Fund Sales and Service Agreement
dated April 16, 2003 between One Group Dealer Services, Inc.,
One Group Administrative Services, Inc. and Xxxxxxx, Xxxxx & Co.
Addendum to the Mutual Fund Sales and Service Agreement Dated
April 16, 2003
Between
One Group Dealer Services, Inc.,
One Group Administrative Services, Inc.
and
Xxxxxxx, Sachs & Co.
This addendum (the "Addendum") to the Mutual Fund Sales and Service
Agreement (the "Agreement") relating to the servicing of shares of investment
companies sponsored or advised by One Group Dealer Services, Inc. and One Group
Administrative Services, Inc. ("Fund Party"), by Xxxxxxx, Xxxxx & Co.
("Goldman") through the Global Cash Services portal system ("Global Cash
Services") is entered into as of April 16, 2003, by and between Fund Party and
Goldman.
RECITALS
WHEREAS, Goldman and Fund Party have entered into the Agreement, which
relates to the servicing of shares of investment companies sponsored or advised
by Fund Party (the "Funds"), by Xxxxxxx, Xxxxx & Co. ("Goldman") through the
Global Cash Services portal system ("Global Cash Services"); and
WHEREAS, Goldman intends, through Global Cash Services, to provide support
and sub-transfer agency services for the Funds and/or shareholder services with
respect to Goldman clients who are shareholders of the Funds; and
WHEREAS, in light of the foregoing, Goldman and Fund Party wish to modify
the provisions of the Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, and intending to be legally bound, Goldman and Fund Party
agree as follows:
1. Maintenance of Shareholder Documents: Notwithstanding any contrary
provision in the Agreement, the Fund Party agrees to maintain a
website ("Company Site") which at all times will contain the
most-current versions of the prospectus, annual and semi-annual
reports to shareholders, and proxy statements issued by each Fund
("Shareholder Documents") offered by the Fund Party that is made
available on the Global Cash Services Program. Fund Party agrees to
provide access to this website to Goldman and each Goldman client
through a hyper-link or other similar mechanism that will reside on
the Global Cash Services website, and each Shareholder Document shall
be maintained in a manner to be agreed upon the parties that will
enable Goldman or Goldman clients to review and print any applicable
Shareholder Report. The Fund Company also agrees to provide Goldman
and each Goldman client with access to the Company Site (either
directly or through a hyper-link or similar mechanism) for purposes of
viewing any information relating to the Fund Party or its investment
portfolios ("Fund Party Information") that is to be provided to
Goldman or Goldman clients as part of the Global Cash Services
program. The Fund Company represents that the Shareholder Documents
and Fund Party Information maintained on the Company Site shall be
current and accurate in all material respects and that the Fund
Company shall be responsible for any material errors or omissions
relating to the content of the Shareholder Documents or Fund Party
Information.
The Fund Company shall provide reasonable notice to Goldman
immediately in any circumstance where the Company Site cannot be
accessed or is otherwise not available. Fund Company also agrees to
provide Goldman with at least thirty days notice (or immediately upon
determining that a change to a Shareholder Document will be made, if
this determination is in a shorter period of time) in advance of any
changes that are made to any existing Shareholder Documents. The Fund
Company agrees to indemnify and hold Goldman harmless against any
liabilities (including the cost of investigation and defense) to which
Goldman becomes subject as a result of the Fund Company's failure to
satisfy its obligations under this provision. In addition, Fund
Company agrees to provide Goldman with reasonable quantities of
printed hard copies all Shareholder Documents, including statements of
additional information, including any amendments or supplements to any
Shareholder Document.
2. Use of Fund Names. Notwithstanding anything to the contrary set forth
in the Agreement, Goldman is authorized to use the names or other
identifying marks of Fund Party and/or the Funds in connection with
the offer and sale of Fund shares. Fund Party may withdraw this
authorization as to any particular use of any such name or identifying
marks at any time (i) upon Fund Party's reasonable determination that
such use would have a material adverse effect on the reputation or
marketing efforts of Fund Party or such Funds, or (ii) if any of the
Funds cease to be offered by Goldman.
3. Use of Goldman Names. Notwithstanding anything to the contrary set
forth in the Agreement, Fund Party and the Funds will not, without
prior written consent of Goldman in each instance, (a) use in
advertising, publicity or otherwise the name of "Xxxxxxx Xxxxx,"
including the name of any affiliate, partner or employee of Goldman,
nor any trade name, trademark, trade device, service xxxx, symbol or
any abbreviation, contraction or simulation thereof owned by Goldman;
or (b) represent, directly or indirectly, that any product or any
service provided by Fund Party has been approved or endorsed by
Goldman. This provision will survive the expiration or termination of
the Agreement.
4. Confidentiality of Identity of Goldman Clients. Notwithstanding
anything to the contrary set forth in the Agreement, all information
relating to Xxxxxxx'x clients, including, but not limited to, the
names and addresses of Xxxxxxx'x clients, will remain Xxxxxxx'x sole
property and neither Fund Party, the Funds nor their respective
directors, trustees, officers, partners, employees, agents or
affiliates may copy, reproduce, sell, assign, license, market,
transfer or otherwise dispose of, give or disclose such information to
third parties or use such information for any purposes except as
provided in the Agreement. Fund Party and the Funds will advise each
of their respective directors, trustees, officers, partners,
employees, agents and affiliates who may be exposed to such
proprietary and confidential information to keep such information
confidential. This provision will survive expiration or termination of
the Agreement.
5. Fund Party Services. Fund Party will provide (or cause to be provided)
to Goldman the information set forth in the Operational Specification
Package ("Ops Package"), a draft of which is attached as Attachment A
to the Addendum and which may be modified from
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time to time by Fund Party. Fund Party agrees that the information
provided to Goldman pursuant to this Section and the Ops Package will
be accurate and complete and that Goldman may use such information in
connection with the offer and sale of Fund shares.
6. Indemnification. All provisions in the Agreement relating to the
liability and/or indemnification of or by Goldman or Fund Party
thereunder shall have no force or effect whatsoever, and in
substitution thereof the following shall apply:
Indemnification of Goldman by Fund Party
Fund Party hereby agrees to indemnify and hold harmless Goldman, each
person, if any, who controls Goldman within the meaning of Section 15 of
the Securities Act of 1933, as amended, and each of their directors,
trustees, officers, partners and employees from and against all losses,
liabilities, claims, demands, damages or expenses (including the reasonable
cost of investigating and defending against any claims therefor and
reasonable counsel fees incurred, in connection with or arising out of: (a)
any failure of Fund Party, its employees, agents, directors, trustees,
officers, partners and/or affiliates, acting within or outside the scope of
their employment, to fully comply with the terms of the Agreement; (b) any
breach of any representation or warranty provided by Fund Party in the
Agreement; (c) any misleading or untrue or alleged untrue statement of
material fact contained in the registration statements (including the
related prospectuses and statements of additional information), annual or
other periodic reports or proxy statements of the Funds, and any amendments
or supplements thereto, and/or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except to the extent that such
statement or omission is based upon information provided by Goldman for
inclusion therein; (d) any misleading or untrue or alleged untrue statement
of material fact contained in any advertising or sales literature prepared
or approved by or for Fund Party, its employees, agents, directors,
trustees, officers and/or affiliates, and/or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the
extent that such statement or omission is based upon information provided
by Goldman for inclusion therein; (e) any information provided to Goldman
pursuant to Section 1 of this Addendum or the Ops Package that is
inaccurate or incomplete; and (f) any material breach by Fund Party, its
employees, agents, directors, trustees, officers and/or affiliates, in
connection with the offer or sale of shares of a Fund, of any federal or
state law including, without limitation, any federal or state securities
law; provided, that no such indemnification will extend to any loss,
liability, claim, demand, damage or expense directly caused by the failure,
act or omission of Goldman, its employees, agents, directors, trustees,
officers and/or affiliates to comply with the terms of the Agreement.
Indemnification of Fund Party by Goldman
Goldman hereby agrees to indemnify and hold harmless Fund Party, and each
of its directors, trustees, officers, partners and employees from and
against all losses, liabilities, claims, demands, damages or expenses
(including the reasonable cost of investigating and defending against any
claims therefor and reasonable counsel fees incurred, in connection with or
arising out of: (a) any failure of Goldman, its employees, agents,
directors, trustees, officers, partners and/or affiliates, acting within or
outside the scope of their employment, to fully comply with the terms of
the Agreement; (b) any breach of any representation or warranty provided by
Goldman in the Agreement; (c) any advertising or sales literature relating
to a Fund or Fund Party that
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Goldman prepared and used without Fund Party's consent except to the extent
that the same is accurately based on information published or provided by
Fund Party or a Fund; provided that no such indemnification shall extend to
any loss, liability, claim, demand, damage or expense directly caused by
the failure, act or omission of Fund Party, its employees, agents,
directors, trustees, officers and/or affiliates to comply with the terms of
the Agreement, (d) any material breach by Goldman, its employees, agents,
directors, trustees, officers, partners and/or affiliates, in connection
with the offer or sale of shares of a Fund, of any federal or state law
including, without limitation, any federal or state securities law;
provided, that no such indemnification will extend to any loss, liability,
claim, demand, damage or expense directly caused by the failure, act or
omission of Fund Party, its employees, agents, directors, trustees,
officers and/or affiliates to comply with the terms of the Agreement and,
(e) any actions or omissions of Fund Party, its employees, agents,
directors, trustees, officers and/or affiliates in reliance upon any oral,
written or computer or electronically transmitted instructions, documents
or materials believed to be genuine and to have been given by or on behalf
of Goldman.
The indemnification provisions herein will survive the expiration or
termination of the Agreement.
7. Non-Exclusivity. Notwithstanding anything to the contrary set forth in
the Agreement, each of the parties acknowledges and agrees that the
Agreement is intended to be non-exclusive and that each of the parties
is free to enter into similar agreements with other entities.
8. Amendment. Notwithstanding anything to the contrary set forth in the
Agreement, the Agreement may be amended, modified or supplemented at
any time only by mutual written agreement of the parties.
9. Termination. Notwithstanding anything to the contrary set forth in the
Agreement, either party may terminate the Agreement by providing sixty
(60) days' advance written notice to the other party.
10. Construction. Notwithstanding anything to the contrary set forth in
the Agreement:
(a) If any provision of this Addendum shall be deemed void, invalid or
ineffective for any reason, the remainder of this Addendum shall
remain in full force and effect.
(b) The Agreement and this Addendum may be executed in one or more
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(c) In the event of any conflicting terms or provisions between this
Addendum and the Agreement, the provisions as stated in this Addendum
shall supersede and govern any and all terms in the Agreement.
11. Investment Minimums. Notwithstanding anything to the contrary set
forth in the Agreement, Goldman may waive any applicable account
investment minimums with respect to purchase orders for Fund shares
placed on behalf of Xxxxxxx'x clients pursuant to the Agreement.
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12. Assignment. Notwithstanding anything to the contrary set forth in the
Agreement, the Agreement may not be assigned or transferred by either
party without the prior written consent of the other party, provided
however, that either party may assign the Agreement to any entity
which controls, is controlled by, or is under common control with such
party, by providing written notice of such assignment to the other
party.
13. Confidentiality. Fund Party acknowledges that it or its employees may,
in connection with the transactions contemplated by the Agreement and
this Addendum, be exposed to or acquire information that is
proprietary or confidential to Goldman or its affiliates or their
clients or to third parties to whom Goldman or its affiliates owe a
duty of confidentiality. Any and all non-public information of any
form obtained by Fund Party or its employees in connection with the
transactions contemplated by the Agreement and this Addendum will be
deemed confidential and proprietary information. Fund Party will hold
such information in strict confidence and will not copy, reproduce,
sell, assign, license, market, transfer or otherwise dispose of, give
or disclose such information to third parties or use such information
for any purposes whatsoever other than the purposes contemplated by
the Agreement and this Addendum and will advise each of its employees
who may be exposed to such proprietary and confidential information of
their obligations to keep such information confidential. Confidential
information will not include information which is (a) in or becomes
part of the public domain other than by disclosure by Fund Party in
violation of the Agreement and this Addendum, (b) demonstrably known
to Fund Party previously, (c) independently developed by Fund Party
outside of the Agreement or this Addendum or (d) rightfully obtained
by Fund Party from third parties. It is understood and agreed that in
the event of a breach of this Section damages may not be an adequate
remedy and Goldman will be entitled to injunctive relief to restrain
any such breach, threatened or actual.
Fund Party acknowledges that they are solely responsible for the
accuracy of the information contained on their web site, reflecting
changes to the information contained therein, and providing Goldman
with immediate notification in the event the web site is not
available.
14. Pricing Errors. The Fund Party agrees to indemnify and hold harmless
Goldman for any loss incurred by Goldman due to errors or delays in
the calculation of a Fund's daily net asset value or yield information
made by Fund Party or its designee, when transmitting such information
to Goldman. The Fund Party also agrees to compensate Goldman for any
reasonable cost of any adjustments made to Client accounts arising
from such information errors.
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15. Inspections. To the extent permitted by law of the applicable
jurisdiction governing the One Group Mutual Funds ("One Group Funds"),
the controls surrounding the information posted by One Group Funds to
the Global Cash Services portal shall be subject to auditing and
inspection by Xxxxxxx, Xxxxx & Co.'s auditors. Upon request, One Group
Funds shall provide Xxxxxxx, Sachs & Co.'s auditors with all
reasonable assistance and any necessary information.
IN WITNESS WHEREOF, this Addendum has been executed by a duly authorized
representative of each of the parties hereto as of the date first set forth
above.
One Group Dealer Services, Inc. Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx XxXxxxxx
----------------------------------------- ---------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx XxXxxxxx
Title: President Title: Managing Director
One Group Administrative Services, Inc.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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ATTACHMENT A
[Ops Package to be Inserted]
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