Exhibit(h)(32)
SUB TRANSFER AGENCY AGREEMENT
AGREEMENT made as of December 16, 2003 by and between Vertical Management
Systems, Inc. ("Recordkeeper"), One Group Mutual Funds (the "Trust") and Banc
One Investment Advisors Corporation.
WHEREAS, the Trust desires to enter into a Sub Transfer Agency Agreement
pursuant to which the Trust will retain the Recordkeeper to perform certain
recordkeeping and accounting services and functions with respect to transactions
in Trust shares ("Shares") of available Funds, as set forth in Exhibit A, made
by or on behalf of participants in non-qualified deferred compensation plans
sponsored by the respective participant's employer and obtained through Bank One
Corporation or any of its affiliates or subsidiaries (the "Plans"), and with
respect to holdings of Shares maintained by or on behalf of such participants,
when with respect to the Trust such Plans each maintain with the Trust's
transfer agent ("Transfer Agent") a single master shareholder account; and
NOW, THEREFORE, in consideration of the following premises and mutual
covenants, the parties agree as follows:
1. Services Provided by The Recordkeeper
When and to the extent requested by the Trust, the Recordkeeper agrees to
perform recordkeeping and account services and functions with respect to
transactions in Shares made by or on behalf of participants in the Plan
("Participants"), and with respect to holding of Shares maintained by or on
behalf of Participants, when with respect to the Trust the Plan maintains with
the Transfer Agent Plan level shareholder accounts. To the extent requested, the
Recordkeeper will provide the following services:
A. Maintain separate records for each Participant reflecting Shares
purchased, redeemed and exchanged on behalf of such Participant and
outstanding balances of Shares owned by or for the benefit of such
Participant.
B. Prepare and transmit to Plan and/or its Participants periodic account
statements indicating the number of shares of the Trust owned by or for the
benefit of Participants and purchases, redemptions and exchanges made on
behalf of Participants.
C. With respect to the Plan, aggregate all purchase, redemption and
exchange orders made by or on behalf of the Plan's Participants and
transmit instructions based on such aggregate orders ("Instructions") to
the Transfer Agent for acceptance.
D. Provide to the Trust, the Transfer Agent and/or other parties designated
by them such other information relating to transactions in and holdings of
Shares by or on behalf of Participants as is reasonably requested.
E. As agreed upon with the Trust, deliver or arrange for the delivery of
appropriate documentation in connection with orders.
2. Appointment as Agent For Limited Purpose
The Recordkeeper shall be deemed the agent of the Trust for the sole and
limited purpose of receiving purchase, redemption and exchange orders from
Participants and transmitting corresponding instructions to the Transfer Agent
in accordance with the procedures outlined in Exhibit B. Except as provided
specifically herein, neither the Recordkeeper nor any person to which the Trust
may delegate any of its duties hereunder shall be or hold itself out as an agent
of the Transfer Agent or the Trust.
3. Appointment of Agents
The Trust hereby acknowledges and agrees that, at the expense of
Recordkeeper, the Recordkeeper may appoint a third party as its agent, including
affiliates of Recordkeeper ("the Recordkeeper's Agent") to provide the services
hereunder, including, to the extent required hereunder, plan-level and
participant-level recordkeeping, data processing, data entry, maintenance of
records, client contact and client servicing, publication and assembly of
reports, accounting, distribution administration, bookkeeping and tax reporting
services, safekeeping, custody, brokerage and clearing agency services with
respect to the Plans. The Recordkeeper shall be fully responsible to the Trust
for the acts and omissions of each Recordkeeper's Agent as Recordkeeper is for
its own acts and omissions.
4. Recordkeeper Acts as Agent for its Customers.
The parties agree that in each transaction in the Shares of any Fund and
with regard to any services rendered pursuant to this Agreement:
(a) Recordkeeper is acting as agent for the Plans;
(b) The Plans are for all purposes the customers of Recordkeeper
(c) Each transaction is initiated solely upon the order of the Plans;
(d) As between Recordkeeper and its customer, the customer will have full
beneficial ownership of all Shares of the Funds;
(e) Each transaction shall be for the account of the customer and not for
Recordkeeper's account; and
(f) Each transaction shall be without recourse to Recordkeeper provided
that Recordkeeper acts in accordance with the terms of this Agreement.
Recordkeeper will offer and sell the Shares of the Funds only in accordance with
the terms and conditions of the applicable thencurrent Prospectus and Statement
of Additional Information ("SAI") and will make no representations not included
in said Prospectus or SAI or in any authorized supplemental material supplied by
the Trust. Recordkeeper shall not have any authority in any transaction to act
as agent for the Trust, except as stated in Section 2 above.
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5. Representations of Recordkeeper
The Recordkeeper agrees, represents and warrants that:
A. It will forward Instructions within such time periods and to such
parties as are specified by the Trust, the Transfer Agent, the Trust's
prospectuses and applicable law and regulation.
B. If and to the extent required under applicable federal and state
securities laws and regulations, it is duly registered pursuant to such
laws and regulations, it is not a "fiduciary" of any Plan as such term is
defined in Section 3(21) of the Employment Retirement Income Security Act
of 1974, as amended ("ERISA"), and Section 4975 the Internal Revenue Code
of 1986, as amended (the "Code"), and the receipt of any fees by it from
the Trust, and the corresponding reduction of fees payable to the
Recordkeeper by the Plan (or by the P1an sponsor, according to
Recordkeeper's agreement with the Plan) will not constitute a "prohibited
transaction" for purposes of Title I of ERISA and Section 4975 of the Code.
C. At all times during the term of this contract, the Recordkeeper will
maintain errors and omissions coverage in an amount not less than
$1,000,000 per occurrence, and in the aggregate. A certificate of insurance
evidencing such coverage will be provided by the Recordkeeper to the Trust
as soon as is practicable after commencement of this Agreement.
6. Records and Reporting
The Recordkeeper will maintain and preserve all records as required by law
in connection with its provision of services under this Agreement. Upon the
reasonable request of the Trust or the Transfer Agent, the Recordkeeper will
provide copies of historical records relating to transactions involving the
Trust and Participants, written communications regarding the Trust to or from
participants, and other materials relating to the provision of services by the
Recordkeeper under this Agreement. The Recordkeeper will comply with any
reasonable request for such information and documents made by the Trust, or its
board of Trustees or any governmental body or self-regulatory organization. The
Recordkeeper agrees that, with respect to the Plans regarding which it is
providing services under this Agreement, upon advance written notice, the
Recordkeeper will permit the Trust, the Transfer Agent, or their representatives
to have reasonable access to its personnel and records during normal business
hours and at the expense of the Trust, Transfer Agent or their representative.
Notwithstanding anything herein to the contrary, the Recordkeeper shall not be
required to provide the names and addresses of Participants to the Transfer
Agent or the Trust, unless applicable law or regulation otherwise requires.
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7. Delivery of Prospectuses and Reports to Customers
Recordkeeper will deliver or cause to be delivered to each Participant, at
or prior to the time of any purchase of Shares, a copy of the thencurrent
prospectus of the Fund and, upon request by a customer or shareholder, a copy of
the Fund's then current SAI. Recordkeeper agrees to deliver to Participants upon
the request of the Trust, copies of amended prospectuses and to deliver or cause
to be delivered to shareholders proxy solicitation materials and copies of the
Funds' annual and semi-annual reports. The Trust, Transfer Agent or its
representative will provide Recordkeeper with an adequate number of
prospectuses, in electronic format and/or hard copy, for distribution to the
Participants. Such delivery shall be at the expense of the Trust, Transfer Agent
or its representative.
8. Ability to Provide Services
The Recordkeeper agrees to notify the Trust promptly if for any reason it is
unable to perform its obligations under this Agreement.
9. Compensation
A. In consideration of performance of the services by the Recordkeeper
hereunder, the Trust will compensate the Recordkeeper at an annual rate of
.15% of the average daily net assets of the Trust in Participants'
accounts. The Trust shall pay a portion of the fee equivalent to $12.00 per
participant account per year. Any remainder of the fee shall be paid by
Banc One Investment Advisors Corporation out of its legitimate profits.
B. The Recordkeeper will permit the Trust and their representatives
(including counsel and independent accountants) with reasonable access to
its records to enable the Trust to verify that the Recordkeeper's charges
hereunder comply with the provisions of this Agreement. Such access shall
include, but not be limited to, up to four on-site inspections of the
Recordkeeper's records each calendar year. Such inspections shall be upon
advance written notice, during normal business hours and at the expense of
the Trust and their representatives.
C. The Recordkeeper shall calculate the compensation due under this section
9 at the end of each quarter and shall send an invoice therefor to the
Trust. Each invoice shall be accompanied by a statement setting forth the
calculation of such compensation amount.
10. Indemnification
The Recordkeeper shall indemnify and hold harmless the Trust from and
against any and all losses and liabilities that it may incur, including without
limitation reasonable attorneys' fees, expenses and costs arising out of or
related to the performance or non-performance of the Recordkeeper of its
responsibilities under this Agreement, excluding, however, any such claims,
suits, loss, damage or costs caused by, contributed to or arising from any
non-compliance by the
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Trust with its obligations under this Agreement, as to which the Trust as
pertinent, shall indemnify, hold harmless and defend the Recordkeeper on the
same basis as set forth above. The Trust shall also indemnify and hold harmless
the Recordkeeper on the same basis as set forth above if any such claims, suits,
loss, damage or costs are caused by, contributed to or arising from the alleged
untrue statement of a material fact contained in any Fund's Registration
Statement or Prospectus, or as a result of or based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading.
11. Termination
This Agreement may be terminated at any time by either party hereto upon
ninety (90) days written notice to the other. The provisions of paragraphs 6 and
10 shall continue in full force and effect after termination of this Agreement.
12. Anti-Money Laundering
The Recordkeeper will comply with all applicable laws and regulations aimed
at preventing, detecting, and reporting money laundering and suspicious
transactions and will take all necessary and appropriate steps, consistent with
applicable regulations and generally accepted industry practices, to (i) obtain,
verify, and retain information with regard to investor identification and source
of investor funds, and (ii) to maintain records of all investor transactions.
The Recordkeeper will (but only to the extent consistent with applicable law)
take all steps necessary and appropriate to provide the Trust with any requested
information about investors and accounts in the event that the Trust shall
request such information due to an inquiry or investigation by any law
enforcement, regulatory, or administrative authority. To the extent permitted by
applicable law and regulations, the Recordkeeper will notify the Trust of any
concerns that the Recordkeeper may have in connection with any investor in the
context of relevant anti-money laundering legislation/regulations.
13. Limitation of Liability of the Trustees and Shareholders
The names 'One Group Mutual Funds' and 'Trustees of One Group Mutual Funds'
refer respectively to the Trust created and the Declaration of Trust dated May
23, 1985, as amended and restated February 18, 1999, to which reference is
hereby made and a copy of which is on file at the office of the Secretary of the
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of 'One
Group Mutual Funds' entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, Shareholders or
representatives of the Trust personally, but bind only the assets of the Trust,
and all persons dealing with any series of Shares of the Trust must look solely
to the assets of the Trust belonging to such series for the enforcement of any
claims against the Trust.
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14. Miscellaneous
This Agreement represents the entire Agreement between the parties with
regard to the matters described herein and may not be modified or amended except
by written instrument executed by both parties. This Agreement may not be
assigned by either party hereto without the prior written consent of the other
party. This Agreement is made and shall be construed under the laws of the
Commonwealth of Pennsylvania. This Agreement supersedes all previous agreements
and understandings between the parties with respect to its subject matter. If
any provision of the Agreement shall be held or made invalid by a statute, rule,
regulation, decision of a tribunal or otherwise, the remainder of the Agreement
shall not be affected thereby.
15. Third Party Beneficiary
This Agreement does not and shall not be construed to itself confer any
rights whatsoever upon any person or entity except the parties to this
Agreement, whether upon a theory of third party beneficiary or otherwise. Only
the parties to this Agreement shall have any rights under or be entitled to
enforce this Agreement.
16. Notice
Except as otherwise provided herein, any notice required or permitted to be
given shall be given in writing and shall be addressed and delivered to the
parties at the address set forth below, or such other address as may be
designated in writing by either party.
To: One Group Mutual Funds or Banc One Investment Advisors Corporation
If via U.S. Mail:
C/o One Group Administrative Services, Inc.
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
If via any other means:
C/o One Group Administrative Services, Inc.
0000 Xxxxxxx Xxxxxxx
XX0-0000, Xxxxx 0-X/X/X
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Vice President
To: Recordkeeper
Vertical Management Systems
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0000 Xxxxxxxxxx Xxxxxx Xxxxx
--------------------------------
Xxxxxxxx, XX 00000
--------------------------------
Attention: Xxxx Xxxxxxxx
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IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
ONE GROUP MUTUAL FUNDS
By: /s/ Xxxxx X. Xxxxxxx
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Title: Secretary
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BANC ONE INVESTMENT ADVISORS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Title: President and CEO
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VERTICAL MANAGEMENT SYSTEMS, INC. (Recordkeeper)
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President
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Exhibit A
List of available Funds:
One Group(R) Mutual Funds
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FUND Class A
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1. Small Cap Growth X
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2. Small Cap Value X
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3. Mid Cap Growth X
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4. Mid Cap Value X
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5. Diversified Mid Cap X
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6. Large Cap Growth X
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7. Large Cap Value X
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8. Equity Income X
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9. Diversified Equity X
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10. Balanced X
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11. Equity Index X
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12. Market Expansion Index X
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13. International Equity Index X
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14. Diversified International X
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15 Ultra Short-Term Bond X
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16. Short-Term Bond X
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17. Intermediate Bond X
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18. Bond X
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19. Income Bond X
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20. Government Bond X
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21. Treasury & Agency X
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22. High Yield Bond X
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23. Investor Growth X
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24. Investor Growth & Income X
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25. Investor Balanced X
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26. Investor Conservative Growth X
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27. Prime Money Market X
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28. U.S. Treasury Securities Money Market X
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29. U.S. Government Securities Money Market X
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30. Mortgage-Backed Securities X
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31. Market Neutral Fund X
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Exhibit B
Execution of Orders for Purchase and Redemption of Shares.
(a) All orders for the purchase of any Shares shall be executed at the
then-current public offering price per share (i.e., the net asset
value per share plus the applicable initial sales load, if any) and
all orders for the redemption of any Shares shall be executed at the
net asset value per share, in each case as described in the applicable
Fund prospectus. Recordkeeper shall notify the Trust of any applicable
deferred sales charges (contingent or otherwise), redemption fee, or
similar charge or fee which will be deducted by the Trust prior to the
transmission of the redemption proceeds to Recordkeeper's customers.
Recordkeeper will pay the deducted fees and charges to the Trust. The
Trust reserves the right to reject any purchase request in their sole
discretion.
The procedures relating to all orders will be subject to the terms of
the prospectus of each Fund and the Trust's written instructions to
Recordkeeper from time to time. Specifically,
(i) orders to purchase and redeem shares received by Recordkeeper
prior to the close of trading on the New York Stock Exchange
(generally, 4:00 p.m., Eastern Time ("ET")) ("Market Close") on
any day that a Fund is open for business ("Day 1") will be
electronically transmitted to the Trust by 8:00 a.m., ET on the
next day that the Fund is open for business ("Day 2")(such orders
are referred to as "Day 1 Trades"); and
(ii) orders to purchase and redeem shares received by Recordkeeper
after the Market Close on Day 1, but prior to the Market Close on
Day 2 ("Day 2 Trades") will be electronically transmitted to the
Trust on the second day that a Fund is open for business
following Day 1.
(iii) If the Recordkeeper cannot electronically transmit Day 1 Trades
by 8:00 a.m. on Day 2, Recordkeeper will transmit such orders by
facsimile prior to the beginning of trading on the New York Stock
Exchange (generally 9:30 a.m ET) ("Market Open") on Day 2.
(b) Day 1 Trades will be effected at the NAV calculated as of the Market
Close on Day 1 and Day 2 Trades will be effected at the NAV calculated
as of the Market Close on Day 2. The Trust agrees that, consistent
with the foregoing, Day 1 Trades will have been received by the Trust
prior to the Market Close on Day 1 for all purposes, including,
without limitation, effecting distributions.
(c) Payments for Shares shall be made as specified in the applicable Fund
prospectus, (i.e., by wire directly to the Trust's Transfer Agent). If
payment for any purchase order is not received in accordance with the
terms of the applicable Fund prospectus, the Trust reserves the right,
without notice, to cancel the sale and to hold Recordkeeper
responsible for any loss sustained as a result thereof, including loss
of profit.
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(d) Recordkeeper confirms that it will be considered One Group's agent for
purposes of Rule 22c-1 under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). Recordkeeper may authorize
such Recordkeeper's Agents as it deems appropriate to receive orders
on One Group's behalf for purposes of Rule 22c-1 under the Investment
Company Act. Recordkeeper shall be liable to One Group for each
Recordkeeper's Agent's compliance with this Section (d) to the same
extent as if Recordkeeper itself had acted or failed to act instead of
the Recordkeeper's Agent. Recordkeeper acknowledges that it has:
(i) adopted and implemented procedures reasonably designed to prevent
orders received after the Market Close on any day that a Fund is
open for business from being improperly aggregated with orders
received prior to the Market Close; and
(ii) determined that each Recordkeeper's Agent has adopted and
implemented its own internal procedures reasonably designed to
prevent orders received after the Market Close on any day that a
Fund is open for business from being improperly aggregated with
orders received prior to the Market Close.
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