EXHIBIT (e)(4)
AGENCY TRADING AGREEMENT
AGREEMENT made as of the __day of __, 2001 by ________________, a
national banking association ("NBA") and Xxxxxxxx-Xxxxxxxxx Securities (the
"Distributor").
WITNESSETH:
WHEREAS: Distributor is distributor for the Xxxxxxxx-Xxxxxxxxx
Institutional Funds, open-end investment company registered under the
Investment Company Act of 1940, as amended (the "Funds" or each a "Fund"),
identified on Exhibit A attached hereto, as such exhibit may be amended in
writing from time to time by the parties hereto; and
WHEREAS: Distributor desires that NBA serve as limited agent to
accept orders for the purchase, exchange and redemption of securities of the
Funds ("Shares") by certain employee benefit plans for which NBA performs
non-discretionary, administrative and directed trustee services, and which
are identified on Exhibit B hereto, as such exhibit may be amended from time
to time by the parties hereto (each a "Plan") and to perform certain
administrative and record keeping services with respect to the Plans'
investments in Shares, as identified on Exhibit C hereto, as such exhibit may
amended from time to time by the parties here to;
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, the parties hereto hereby agree as follows:
1. APPOINTMENT OF NBA. Distributor hereby appoints NBA as its agent for the
sole and limited purpose of accepting purchase, exchange or redemption orders
for Shares purchased, exchanged or redeemed by the Plan ("Orders"). NBA
hereby accepts its appointment on the terms and conditions set forth herein.
Notwithstanding anything in this Agreement to the contrary, NBA shall not be
acting as agent for Distributor in any manner whatsoever, except in accepting
such Orders.
2. ORDERS AND ACCEPTANCE. NBA, as agent of Distributor, shall accept from the
Plan, Orders for the purchase, exchange or redemption of Shares of the Funds.
If such Orders are received by NBA prior to the close of trading on the New
York Stock Exchange (the "Close of Trading") on a day the New York Stock
Exchange is open for business (a "Business Day"), they shall be treated as
having been received by Xxxxxxxx-Xxxxxxxxx Capital Management on such
Business Day ("Trade Date").
3. PRICING INFORMATION. By 7:00 p.m. Eastern Time ("ET") each Business Day,
Distributor or its Agent will supply the following information ("Price
Information") to NBA via facsimile transmission: (1) the confirmed net asset
value for each Fund at the Close of Trading, (2) the change in each Fund's
net asset value from the Close of Trading on the prior Business Day, (3) in
the case of Funds which pay a daily dividend, the latest daily accrual for
interest rate factor ("mil rate"), and (4) on ex dividend date, if
applicable, dividend and capital gain information. If on any Business Day
Distributor or its Agent does not provide such Price Information to NBA; NBA
will process associated transaction activity in its computer systems using
the unaudited Price or the last available Price. The detailed pricing
procedures to be followed by Distributor and NBA are outlined in Exhibit D
attached hereto, as such exhibit may be
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amended from time to time by the parties hereto.
4. TRADE REPORTING. By 8:00 a.m. ET each Business Day following Trade Date
("TD + 1"), NBA will provide, via Fund/SERV instructions for the net purchase
or net redemption of Shares of the Funds based on Orders accepted by NBA
prior to Close of Trading on the prior Business Day. In the event that such
instructions represent estimated trade activity, NBA shall provide final
instructions to Distributor by no later than 9:00 a.m. ET. Such instructions
shall be effected at the public offering price of the Shares of the
respective Fund calculated as of the Close of Trading on the Business Day on
which the Order was accepted by NBA (that is, Trade Date, as specified in
Section 2 above). The detailed activity reporting procedures to be followed
by Distributor and NBA are outlined in Exhibit E attached hereto; as such
Exhibit may be amended from time to time by the parties hereto.
5. SETTLEMENT. Settlements shall be made for each Business Day, by net
settlement with the Federal Reserve. Each Business Day NBA shall calculate
net purchases and redemptions with respect to all Funds occurring on that
Business Day. The daily wire transfers between NBA and Xxxxxxxx-Xxxxxxxxx
Capital Management shall operate as follows:
(a) Via Fund/SERV (NSCC) will settle net trades though the Federal
Reserve. On Xx0, XXXX makes as single net settlement debit or credit via Fed
funds to each trustee and fund.
6. CONFIRMATION AND RECONCILIATION. NBA will receive a daily file from NSCC
with all confirmed/rejected trades. All confirmed transactions are set up for
settlement at NSCC. On the morning of Xx0, XXXX will provide NBA and the
outside Fund Company with a net settlement figure and a summary of purchases
and redemptions. Xxxxxxxx-Xxxxxxxxx Capital Management will submit account
position data to NSCC. NSCC then sends to NBA the position information for
accounts they support. NBA shall notify Xxxxxxxx-Xxxxxxxxx Capital Management
of any material differences within ten (10) Business Days of receipt of the
weekly position file. NBA and Xxxxxxxx-Xxxxxxxxx Capital Management will
jointly determine the action to be taken to rectify any material differences.
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7. REPRESENTATIONS BY NBA. NBA represents that:
(a) it has full power and authority to enter into and perform this
Agreement;
(b) the arrangements provided for in this Agreement will be disclosed
to the Plan through its representatives; and
(c) it will promptly notify Distributor in the event that NBA is for
any reason unable to perform any of its obligations under this Agreement.
8. REPRESENTATIONS OF DISTRIBUTOR: Distributor represents that:
(a) it has full power and authority to enter into and perform this
Agreement and is duly authorized to appoint NBA as its agent;
(b) it is registered as a broker-dealer pursuant to the Securities
Exchange Act of 1934, as amended;
(c) the Funds listed on Exhibit A attached hereto are registered under
applicable state securities laws in each of the 50 states of the United States;
and
(d) it will promptly notify NBA in the event that it is for any reason
unable to perform any of its obligations under this Agreement.
9. FUND WAIVERS. Except for any shareholder service or Rule 12b-1
fees, Distributor hereby agrees to waive any and all loads or fees associated
with purchase, exchange and redemption transactions. Any trading
restrictions, including those related to the size and frequency of
transactions, are also waived.
10. COMPENSATION. For its services under this Agreement, NBA shall be
entitled to the fees set forth on Exhibit F, attached to this Agreement, as
said Exhibit may be amended from time to time.
11. PROSPECTUS DELIVERY. NBA shall be responsible for mailing Fund
prospectuses to Plan participants who request them and may retain the
services of a third-party vendor to handle such mailings. Distributor shall
be responsible for all materials and production costs, and hereby agrees to
provide the prospectuses to NBA or its third-party vendor. Distributor shall
bear the costs of mailing periodic Fund reports to Plan participants. NBA
shall bear the costs of mailing prospectuses to Plan participants who request
them.
12. PROXIES. Distributor shall be responsible for all costs associated
with the production of proxy materials. NBA may retain the services of a
third-party vendor to handle proxy solicitation mailings and vote tabulation.
Expenses associated with such services shall be billed directly to
Distributor by the third-party vendor.
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13. PARTICIPANT COMMUNICATIONS. Distributor agrees to provide internally
prepared fund descriptive information approved by the Funds' legal counsel
for use by NBA in its written Plan participant communication materials. NBA
shall utilize historical performance data obtained from third-party vendors
(currently Morningstar, Inc. and Lipper Analytical Services) in telephone
conversations with Plan participants and in quarterly participant statements.
Distributor hereby consents to NBA's use of such materials. NBA shall seek
the approval of Distributor prior to retaining any other third-party vendor
to render such data or materials under this Agreement.
14. INFORMATION REGARDING THE PLANS. Subject to applicable law and
Section 17, below, NBA shall transmit to Distributor or the Fund (or to any
agent designated by either of them) such information concerning the Plans and
participants in the Plans as shall reasonably be necessary for Distributor to
fulfill its obligations under this Agreement and as the Funds shall
reasonably conclude is necessary to enable the Funds to comply with
applicable state Blue Sky laws. Distributor will reimburse NBA for any
reasonable out of pocket expenses incurred in providing such information.
15. INDEMNIFICATION. Distributor shall indemnify and hold harmless NBA,
its affiliates, employees, and agents from any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against NBA, its affiliates, employees, or agents, by reason of any
claim, regulatory proceeding, or litigation arising from any act done or
omitted to be done by any individual or person with respect to this
Agreement, excepting only any and all loss, etc., arising solely from NBA's
negligence or bad faith.
(a) In the event that Distributor fails to provide Price Information
on any Business Day, as detailed in Section 3 of this Agreement, NBA shall be
entitled to compensation for the amount of any resulting loss to any related
Plan investment option. For this purpose, a related Plan investment option is
defined as any Plan investment option (including, but not limited to, NBA
mutual funds, non-NBA mutual funds, employer stock, commingled pools,
guaranteed investment contracts, and customized separately managed
portfolios) impacted by held transaction activity due to Distributor's
failure to provide timely Price Information to NBA.
(b) In the event that Distributor provides an incorrect price and
said error causes a monetary loss to any Plan participant account maintained
by NBA, then Distributor shall be responsible for compensating the account(s)
so that any Plan participant who has incurred such a loss shall be made whole
to the same extent as though said error had not occurred.
(c) In the event that Plan participant accounts gain from an
incorrect price, NBA shall adjust such accounts upon notification to the Plan
Sponsor(s). If Plan participants received distributions during the time
period affected by an overstated price, NBA shall make a reasonable effort to
recover overpayments from such participants upon notification to the Plan
Sponsor(s) and provided that Distributor assumes responsibility for all
reasonable and demonstrable expenses incurred by NBA in attempting to recover
the overpayments. If exchange transactions are involved, NBA shall sell the
excess shares in the affected Plan participant accounts on a current basis
and remit the resulting proceeds to Distributor.
(d) Distributor shall not net the impact of individual Plan
participant gains and losses in calculating any compensation due Plan
participants and/or NBA as the result of an incorrect price.
(e) NBA shall indemnify and hold harmless Distributor from any and
all loss, damage, penalty,
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liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against Distributor, its affiliates, employees or agents by reason
of any claim, regulatory proceeding, or litigation arising from any act done
or omitted to be done by any individual or person with respect to this
agreement, excepting only any and all loss, etc. arising solely from
Distributor's negligence or bad faith.
In providing services pursuant to this Agreement, NBA and
Distributor shall comply with all applicable federal and state laws and
regulations and each party hereto shall indemnify and hold harmless the other
party, its affiliates, employees and agents from any and all loss, damage,
penalty, liability, cost and expense, including without limitation,
reasonable attorneys fees and disbursements, that may be incurred by, imposed
upon or asserted against such party, its affiliates, employees, or agents, by
reason of any claim, regulatory proceeding or litigation arising from
non-compliance by such party with any such laws or regulations.
In providing the indemnifications set forth in the immediately
preceding paragraph, each party hereto agrees to maintain such insurance
coverage as shall be reasonably necessary under the circumstances.
16. NON-EXCLUSIVITY. Distributor acknowledges and agrees that NBA may
enter into agreements similar to this Agreement with organizations other than
Distributor which also serve as Transfer Agent for mutual funds, or
otherwise. NBA acknowledges and agrees that, subject to Section 19, below,
nothing contained herein shall prohibit Distributor or any affiliate of
Distributor from providing administrative, subaccounting or record keeping
services to any defined contribution plan or from soliciting any such plan or
sponsor thereof to enter into any arrangement with Distributor or any
affiliate of Distributor for such services.
17. CONFIDENTIALITY. As to NBA and Distributor, each party acknowledges
that the identities of the other party's customers, information maintained by
such other party regarding those customers, and all computer programs and
procedures developed by such other party or such other party's affiliates or
agents in connection with such other party's performance of its duties
hereunder constitute the valuable proprietary information and property of
such other party. Each of the parties agrees to use its best efforts to hold
all such proprietary information and property in confidence and refrain from:
(a) disclosing or distributing any of such proprietary information or
property, except (i) with the other party's prior written consent, or (ii) as
required by law or judicial process or (b) using any such proprietary
information in any competition, solicitation or marketing efforts concerning
the other party's customers. Each of the parties acknowledges that any breach
of the provisions of this subparagraph would result in immediate and
irreparable harm to the non-breaching party for which there would be no
adequate remedy at law and agrees that, in the event of such a breach, the
non-breaching party will be entitled to equitable relief by way of temporary
and permanent injunctions, as well as such other relief as any court of
competent jurisdiction deems appropriate.
18. TERMINATION OF AGREEMENT. This Agreement may be terminated at any
time by either party upon ninety (90) days written notice to the other party.
Notwithstanding the foregoing, this Agreement may be terminated immediately
upon either (i) a material breach by either party not cured within thirty
(30) days after notice from the other, or (ii) upon termination of services
from either party to the Plan. The provisions of Sections 15 and 17 and the
second paragraph of this Section 18 shall survive any termination of this
Agreement.
Upon termination of this Agreement for any reason, purchases of the
Fund pursuant to this Agreement shall no longer be permitted through NBA.
However, shares of the Funds may continue to be redeemed through NBA pursuant to
the terms of this Agreement, NBA shall continue to serve as an agent
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of Distributor for the limited purpose of accepting such redemption orders,
and NBA shall continue to receive compensation from Distributor on existing
account balances in accordance with Section 10 of this Agreement but for only
as long as the Funds have in place a shareholder service or other
distribution type plan.
19. NOTICES. Unless otherwise specified, all notices and other
communications hereunder shall be in writing and shall be hand delivered or
mailed by certified mail to the other party at the following address as each
party may give notice to the other:
If to Distributor:
Xxxxxxxx-Xxxxxxxxx Securities
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
If to NBA:
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20) AMENDMENT, ASSIGNMENT AND OTHER MATTERS. This Agreement may not be
amended except by a writing signed by each of the parties hereto. This
Agreement shall not be assigned, except to affiliates, by either party
without the written consent of the other party, provided, however, that this
Agreement may be assigned without prior consent of the other party to any
entity that acquires all or substantially all of one party's assets or any
company or entity into which such party is merged or otherwise reorganized.
This Agreement may be executed in several counterparts, each of which shall
be an original but all of which together shall constitute one and the same
instrument. The headings in this Agreement are for reference only and shall
not affect the interpretation or construction of this Agreement. If any
provision or portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, the remaining provisions and portions of this
Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law. This Agreement, including the
Exhibits attached hereto, contains the entire agreement of the parties as to
the subject mater hereof and supersedes any prior agreements, written or
oral. To the extent not preempted by Federal law, this Agreement shall be
governed by and construed in accordance with the laws of the State of Ohio,
without giving effect to the principles of conflicts of law thereof. Each
party hereto: (i) consents to the subject matter and in personam jurisdiction
and venue in the United States District Court for the Northern District of
Ohio, Eastern Division; (ii) waives the right to contest the subject matter
and in personam jurisdiction and venue in the United States District Court
for the Northern District of Ohio, Eastern Division on any ground; and (iii)
agrees that service of process upon it can be made by certified or registered
mail, return receipt requested, to his or its address referred to in Section
18 hereof and agrees promptly to notify the other party hereto of any change
of such address and agrees that service to such address shall be deemed to
constitute sufficient service of process under both the federal and state
rules of civil procedure wherever the case is filed.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXXXX-XXXXXXXXX SECURITIES NATIONAL BANKING ASSOCIATION
By: By:
Name: Name:
Title: Title:
Date: Date:
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EXHIBIT A
FUNDS
FUNDS TICKER SYMBOL CUSIP
(Please enter Funds)
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EXHIBIT B
PLANS
All Plans offered through NBA's Daily Retirement Product.
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EXHIBIT C
ADMINISTRATIVE AND RECORDKEEPING SERVICES
In accordance with procedures established from time to time by agreement
between Xxxxxxxx-Xxxxxxxxx Securities and NBA, NBA shall provide the
following services:
(1) ACCOUNT INFORMATION. The purchase and redemption of shares will
be facilitated through one or more master accounts (the "Accounts") with each
Fund. NBA shall maintain a record of the number of Shares held by the
Accounts on behalf of each Plan. Omnibus at the plan level.
(2) PARTICIPANT SERVICES. NBA shall investigate all inquiries from
Plan Participants and Plan representatives relating to their interests in the
Accounts and shall respond to all communications from Plan Participants and
Plan representatives and others relating to NBA's duties hereunder and such
other correspondence as may from time to time be mutually agreed upon between
NBA and the Xxxxxxxx-Xxxxxxxxx Securities.
(3) MAILING COMMUNICATIONS; PROXY MATERIALS. NBA or a third party
provider, at the request of NBA, shall address and mail to Plan
representatives, as applicable, proxy material for each of the Fund's
meetings of shareholders. In connection with meetings of shareholders NBA
shall vote the final proxies following the tabulation of the returned proxy
cards.
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EXHIBIT D
REMOTE PRICING PROCEDURES
The Price Information as described in Section 3 shall be provided by
Xxxxxxxx-Xxxxxxxxx Securities to NBA as follows:
(1) Xxxxxxxx-Xxxxxxxxx Securities shall send the Price Information to NBA
via facsimile transmission by no later than 7:00 p.m. ET.
(2) In the event that Xxxxxxxx-Xxxxxxxxx Securities cannot fax the Price
Information prior to 7:00 p.m. ET, Xxxxxxxx-Xxxxxxxxx Securities will
notify NBA via telephone and shall then send the Price Information via
fax to 000-000-0000 (primary fax machine) or 000-000-0000 (back-up fax
machine), or other numbers as NBA may designate in writing from time to
time, by no later than 8:00 p.m. ET.
(3) In the event that a fax machine is unavailable to either
Xxxxxxxx-Xxxxxxxxx Securities or NBA prior to 7:00 p.m. ET,
Xxxxxxxx-Xxxxxxxxx Securities shall provide NBA with the Price
Information via a telephone call, and shall confirm such information via
fax as soon as practicable. NBA shall document the Price Information
received by telephone, referencing the Xxxxxxxx-Xxxxxxxxx Securities
employee name, date and time.
In the event that Xxxxxxxx-Xxxxxxxxx Securities does not provide Price
Information to NBA in accordance with Steps 1 through 3 above, transactions
involving the Fund (which may include other Plan investment options for
purposes of participant distributions and exchanges, as described in section
15(a) of this Agreement) shall be processed using the most recent Price
Information available from Xxxxxxxx-Xxxxxxxxx Securities.
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EXHIBIT E
ACTIVITY REPORTING PROCEDURES
The final net purchase or net redemption activity as described in Section 4
shall be provided by NBA to NSCC as follows:
(1) NBA shall submit via Fund/SERV the final net activity information for each
Fund on each Trade Date to NSCC by no later than 8:00 a.m. ET each Trade
Date + 1, regardless of whether or not activity occurred. In the unlikely
event the 8:00 a.m. ET Fund/SERV transmission is not final, NBA Trust
Company shall provide trade adjustments via facsimile to
Xxxxxxxx-Xxxxxxxxx Securities by 10:00 a.m. ET on Trade Date + 1. NBA
shall receive the Trade Date net asset value from Xxxxxxxx-Xxxxxxxxx
Securities.
(2) In the event that Fund/SERV is unavailable NBA shall provide
Xxxxxxxx-Xxxxxxxxx Securities with the activity information via a
telephone call or fax. If by phone NBA shall document the activity
information reported, referencing the Xxxxxxxx-Xxxxxxxxx Securities
employee name, date and time.
(3) Upon receipt of the fax, Xxxxxxxx-Xxxxxxxxx Securities hall notify NBA
via telephone in order to confirm receipt of the fax and the legibility
of the information.
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EXHIBIT F
COMPENSATION
In consideration of the services provided by NBA under this
Agreement, Xxxxxxxx-Xxxxxxxxx Securities shall pay to NBA an amount equal to
25 basis points per annum of the average aggregate amount invested in the
Funds through the Plans each calendar month. The average aggregate amount
invested through the Plans over a calendar month shall be computed by
totaling daily balances during the month and dividing such total by the
actual number of days in the month. The calculation of the fee shall be based
upon the Fund's records held by the Fund.
Xxxxxxxx-Xxxxxxxxx Securities agrees to provide an invoice
and pay NBA all fees within thirty (30) business days after the last day of
each quarter. NBA shall advise Xxxxxxxx-Xxxxxxxxx Securities in writing
within 30 days of receipt of the invoice if NBA disagrees with any
information set forth on the invoice. All payments and invoices to NBA shall
be sent to: ___________________________________________________________.
