(h)(72)
Shareholder Servicing Agreement dated as of August 1, 2002
between Xxxxx Brothers Xxxxxxxx & Co., One Group Mutual Funds
and Banc One Investment Advisors Corporation.
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, dated as of August 1, 2002, among ONE GROUP DEALER SERVICES,
INC., a corporation organized under the laws of the State of Delaware whose
principal office is located at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000 (the
Company), BANC ONE INVESTMENT ADVISORS CORPORATION, a corporation organized
under the laws of the State of Ohio whose principal office is located at 0000
Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000 (Banc One), and XXXXX BROTHERS XXXXXXXX &
CO., a private bank organized as a limited partnership under the laws of the
State of New York, having an office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(BBH&Co.)
W I T N E S S E T H:
WHEREAS, the Company serves as distributor for certain investment companies
(each a Fund and collectively, the Funds);
WHEREAS, Banc One serves as investment advisor for the Funds;
WHEREAS, BBH&Co. serves as custodian for certain of its institutional clients
who from time to time invest in Funds (each a Customer and collectively, the
Customers);
WHEREAS, the Company wishes to appoint and compensate BBH&Co. to act as
Instruction (as hereinafter defined in Section 21) processing and shareholder
servicing agent for Customers who may from time to time beneficially own Shares
(as hereinafter defined in Section 2) in Funds, and BBH&Co. is willing to accept
such employment, subject to the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Company and BBH&Co. hereby agree, as follows:
1. APPOINTMENT OF BBH&CO. The Company hereby appoints BBH&Co. as non-exclusive
Instruction processing and shareholder servicing agent in the United States of
America
on behalf of the Funds listed on Appendix A attached hereto as may be amended
from time to time. BBH&Co. hereby accepts such appointment subject to terms and
conditions set forth in this Agreement. The duties of BBH&Co. with respect to
such Instruction processing and shareholder services are generally comprised of
shareholder account maintenance and various administrative duties.
2. INSTRUCTION AND ORDER PROCESSING. BBH&Co. has been appointed custodian for
its Customers' investments. In accordance with the terms and conditions of said
appointment and for purposes of this Agreement, BBH&Co. shall act solely upon
Instructions from Customers and shall not maintain an inventory of Shares of a
Fund (each a Share and collectively, the Shares). Instructions received by
BBH&Co. shall be promptly processed by BBH&Co. and communicated to the Company
(each an Order and collectively, the Orders). The Company is authorized to
accept and rely on Orders and written instructions reasonably believed by it to
be genuine and which have been executed and authenticated by an authorized
person (each an Authorized Person and collectively, Authorized Persons) on
behalf of BBH&Co. as provided in Appendix B hereto. Orders shall be accepted by
the Company only at the offering price applicable to each Order as described in
the Fund's Prospectus or Offering Circular. All Orders placed by BBH&Co. are
subject to acceptance by the Company and the Company reserves the right in its
sole discretion to reject any Order. Purchases of Shares will be settled only if
payment in full has been delivered to the Company in accordance with the terms
of the Fund's Prospectus or Offering Circular. If payment has not been received
in a timely matter as described in the Fund's Prospectus or Offering Circular,
the Order may be cancelled by the Company. If an Order is cancelled or rejected
by the Company for any reason other than non-payment, the Company will promptly
notify BBH&Co.
3. ACCOUNTS. The Company will direct the transfer agent of each Fund (the
Transfer Agent) to establish accounts in the name of BBH&Co. or its nominee as
BBH&Co. and the Company shall agree from time to time (each a Share Account and
collectively, the Share Accounts).
4. NETTING OF PURCHASES, TRANSFERS AND REDEMPTIONS OF SHARES. All Orders
submitted by BBH&Co. and received by the Company on any Business Day shall be
netted by the Company and the Transfer Agent in accordance with Appendix C
hereto.
5. PAYMENT OF DIVIDENDS. On the first Business Day of each month, the Company
will instruct the Transfer Agent to credit Share Accounts in the form of
additional Shares or in the form of cash, each in the amount of dividends paid
in respect of Shares held in respective Share Accounts during the prior month.
6. REDEMPTION BY BBH&CO. The Company agrees to comply with any Order of BBH&Co.
to redeem some or all of the Shares in the Share Accounts on any Business Day.
Proceeds of any such redemption by BBH&Co. shall be paid to BBH&Co. in
immediately available funds to any bank account of BBH&Co. identified in such
redemption Order, and shall (to the extent practical) be paid promptly following
receipt of such redemption Order; provided, however, that if such redemption
order is received after 5 p.m. (Eastern Time) on any Business Day, payment shall
(to the extent practical) be made to BBH&Co.'s designated bank account promptly
upon the Funds' opening on the following Business Day.
7. SHAREHOLDER SERVICES. At all times during the term of this Agreement, BBH&Co.
shall act through a nominee as record holder of Shares for its Customers, who
are or may become beneficial owners of such Shares. BBH&Co. agrees to provide
the following support services as appropriate to Customers who may from time to
time beneficially own Shares in the Funds: (a) establish and maintain one or
more segregated accounts or an omnibus account on behalf of its Customers on the
books of a Fund; (b) pursuant to an Instruction from a Customer, establish and
maintain on BBH&Co.'s books and records Safekeeping Account(s) (as hereinafter
defined) relating to Customers who invest in Shares of Funds; (c) pursuant to an
Instruction from a Customer, process purchase, exchange and redemption orders
with respect to Shares; (d) process dividend and distribution payments declared
on Shares of the Funds by crediting customer cash accounts maintained by BBH&Co.
in accordance with the terms and conditions of the Custodian Agreement and issue
related bank statements to Customers reflecting such credits; (e) provide
periodic custody and transaction statements to each Customer showing beneficial
ownership and transactions during the relevant period; (f) respond to Customer
inquiries relating to the services performed by BBH&Co.; (g) provide
subaccounting services with respect to Shares beneficially owned by Customers;
(h) promptly process, in accordance with its duties as custodian, such reports
and proxy statements issued by the Funds or the Company; and (i) reconcile
BBH&Co.'s books and records with those of a Fund.
8. NO PUBLIC OFFERS OR SOLICITATIONS. BBH&Co. shall only offer to sell Shares in
any Fund by means of solicitation or advertising to current and prospective
accredited
institutional investors. BBH&Co. will not engage in any directed selling efforts
to the general public. All Orders placed with the Company shall be in accordance
with Customer Instructions.
9. SUPPORT OF BBH&CO. ACTIVITIES. The Company agrees on an ongoing basis, to
provide requested aid and support to BBH&Co., in furtherance of its activities
under this Agreement including without limitation:
9.1 The Company shall provide BBH&Co. with all current, approved
sales and marketing materials relating to the Funds including
without limitation "Fund Fact Information"; and
9.2 The Company shall provide BBH&Co. with current versions of the
Funds' Prospectus or Offering Circular and all amendments thereto
in hard copy and electronic form to enable BBH&Co. to post the
same on its website, "Fund WorldView" or any other successor or
BBH owned website. The Company hereby grants full and complete
license to BBH&Co. to reproduce duplicate or otherwise copy all
materials furnished by the Company relating to the Funds on Fund
WorldView.
10. RESPONSIBILITY OF BBH&CO. AND THE COMPANY. In performing its duties and
obligations hereunder, each party shall each exercise reasonable care. Subject
to the specific provisions of this Section, neither party shall be liable to the
other party for any direct damages incurred by such other party in consequence
of the other party's negligence, bad faith or willful misconduct. In no event
shall either party be liable to the other party hereunder for any special,
indirect, punitive or consequential damages arising out of, pursuant to or in
connection with this Agreement, even if such party has been advised of the
possibility of such damages.
11. COMPLIANCE WITH PROSPECTUS, OFFERING CIRCULAR AND LOCAL LAW. BBH&Co. shall
conduct its activities in compliance with the procedures described in the Fund's
Prospectus or Offering Circular and in accordance with applicable local law.
12. LIMITATIONS OF PERFORMANCE. BBH&Co. and the Company shall not be responsible
under this Agreement for any failure to perform its duties, and shall not be
liable hereunder for any loss or damage in association with such failure to
perform, for or in consequence of the following causes:
12.1 Force Majeure. Force Majeure shall mean any circumstance or event
which is beyond the reasonable control of BBH&Co. or the Company
and which adversely affects the performance by BBH&Co. or the
Company of its obligations hereunder, including any event caused
by, arising out of or involving (a) an act of God, (b) accident,
fire, water damage or explosion, (c) any computer, system or
other equipment failure or malfunction caused by any computer
virus or the malfunction or failure of any communications medium,
(d) any interruption of the power supply or other utility
service, (e) any strike or other work stoppage, whether partial
or total, (f) any delay or disruption resulting from or
reflecting the occurrence of any Sovereign Risk, (g) any
disruption of, or suspension of trading in, the securities,
commodities or foreign exchange markets, whether or not resulting
from or reflecting the occurrence of any Sovereign Risk, (h) any
other cause similarly beyond the reasonable control of BBH&Co. or
the Company; and
12.2 Sovereign Risk. Sovereign Risk shall mean, in respect of any
jurisdiction where Fund Shares are acquired or held hereunder,
(a) any act of war, terrorism, riot, insurrection or civil
commotion, (b) the imposition of any investment, repatriation or
exchange control restrictions by any governmental authority, (c)
the confiscation, expropriation or nationalization of any
property by any governmental authority, whether de facto or de
jure, (d) any devaluation or revaluation of the currency, (e) the
imposition of taxes, levies or other charges affecting Shares,
(f) any change in the applicable law, or (g) any other economic
or political risk incurred or experienced.
13. NO AGENCY. BBH&Co. acts as an independent contractor with respect to the
services provided under this Agreement. The terms and conditions of this
Agreement do not create an agency or partnership relationship between BBH&Co.
and the Company, Banc One or a Fund. The Company acknowledges that BBH&Co. may
enter into similar agreements with others without the consent of the Company.
BBH&Co. agrees that it will not make or purport to make any representation not
contained in approved marketing or sales material or a Funds' Prospectus or
Offering Circular provided by the Company. Unless otherwise agreed in writing,
offers of Shares will be made only through a Fund's Prospectus or Offering
Circular, and their periodic reports.
14. NO OFFSHORE TRANSACTIONS. BBH&Co. will not knowingly accept and act upon any
Instruction to purchase Shares from a Customer located outside of the United
States of America, or for the account of any non-U.S. person.
15. APPOINTMENT OF AGENTS. BBH&Co. may appoint and utilize the services of its
subsidiaries (Agents) in furtherance of its duties under this Agreement. The
appointment and use by BBH&Co. of Agents shall not relieve BBH&Co. of its duties
under this Agreement.
16. KNOW YOUR CUSTOMER AND ANTI MONEY LAUNDERING. As a commercial bank
established under the laws of the State of New York, BBH&Co. has adopted a "Know
Your Customer" policy in accordance with the guidelines contained in the Federal
Reserve's Bank Secrecy Act Manual Section 601.0 - "Know Your Customer" 1997.
Accordingly, BBH&Co. confirms that in respect of any Orders placed with the
Company, evidence of the identity of our Customers has been obtained and
recorded under our procedures. BBH&Co. will also comply with all other
applicable laws and regulations of the United States of America aimed at
preventing, detecting and reporting money laundering and suspicious transactions
and will take all reasonably necessary steps consistent with such applicable
laws and regulations. BBH&Co. will (but only to the extent consistent with
applicable law) provide to the Company any requested information about a
Customer or Customers and the Accounts in the event that the Company shall
request such information due to an inquiry or investigation by any law
enforcement, regulatory or administrative authority; provided, however, that, if
legally permitted, the Company shall first have given notice to BBH&Co. and
allow BBH&Co. to make a reasonable effort to obtain a protective order or other
confidential treatment of the information.
17. REPRESENTATIONS AND WARRANTIES. Each party severally represents and warrants
to the other parties, and severally agrees with the other parties, that:
17.1 Such party is, and will conduct its activities under this
Agreement in material conformity with all federal and state laws
or regulations to which it is subject;
17.2 Such party has the requisite authority to enter into this
Agreement and perform the services and obligations contemplated
to be performed by it hereunder;
17.3 The execution and delivery of this Agreement by such party and
the performance by such party of the services and obligations
contemplated to be performed by it hereunder have been duly
authorized by all necessary action on the part of such party;
17.4 This Agreement has been duly executed and delivered by or on
behalf of such party and constitutes the legal, valid and binding
obligation of such party, enforceable against such party in
accordance with its terms; and
17.5 Such party will provide to each other party such information or
documentation as such other party may reasonably request to
perform the services and obligations contemplated to be performed
by such other party under this Agreement.
18. CONFIDENTIALITY. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering or obtaining services pursuant
to this Agreement and, except as may be required in carrying out this Agreement,
shall not be disclosed to any third party without the prior consent of such
providing party. The foregoing shall not be applicable to information in
connection to the compensation payable by the Company to BBH&Co. under this
Agreement, any information that is publicly available when provided or
thereafter becomes publicly available other than through a breach of this
Agreement, or that is required to be disclosed by or to any bank examiner of
BBH&Co., any
regulatory authority, any auditor of the parties hereto, or by judicial or
administrative process or otherwise by applicable law.
19. USE OF NAMES. Except as otherwise expressly provided for in this Agreement,
BBH&Co. will not use, nor allow its employees or agents to use, the name (or any
trademark, trade name, service xxxx or logo) of a Fund or the Company or any
affiliated entity for advertising, trade, or other commercial or noncommercial
purposes without the express prior written consent of the Company. Except as
otherwise expressly provided for in this Agreement, the Company and Banc One
will not use or permit the Fund or its employees or agents to use, the name (or
any trademark, trade name, service xxxx or logo) of BBH&Co. or any affiliate for
advertising, trade, or other commercial or noncommercial purposes without the
express prior written consent of BBH&Co.
20. NOTICES. Notices and other writings contemplated by this Agreement, other
than Orders, shall be delivered (a) by hand, (b) by first class registered or
certified mail, postage prepaid, return receipt requested, (c) by a nationally
recognized overnight courier or (d) by facsimile transmission, provided that any
notice or other writing sent by facsimile transmission shall also be mailed,
postage prepaid, to the party to whom such notice is addressed. All such notices
shall be addressed, as follows:
If to the Company:
One Group Dealer Services, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
If to Banc One:
Banc One Investment Advisors Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Xxxx X. Xxxxxx
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
If to BBH&Co:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx
With a copy to:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Att: Xxxxxx X. Push
or such other address as the Company or BBH&Co. may have designated in writing
to the other.
21. DEFINITIONS. The following defined terms will have the respective meanings
set forth below.
21.1 Agents shall have the meaning set forth in Section 12 of this
Agreement.
21.2 Authorized Person or Authorized Persons shall mean each person
identified on Appendix B of this Agreement, as such Appendix may
be amended from time to time by written notice from BBH&Co. to
the Company.
21.3 Banc One shall have the meaning set forth in the preamble to
this Agreement.
21.4 BBH&Co. shall have the meaning set forth in the preamble to this
Agreement.
21.5 Business Day shall mean the period of time during which BBH&Co.
and the Fund or Funds are each open for business on a calendar
day. Neither party shall be excused from performing any of its
obligations hereunder which can be performed without regard to
whether the other party hereto is open for business.
21.6 Company shall have the meaning set forth in the preamble to this
Agreement.
21.7 Customer shall have the meaning set forth in the second recital
clause of this Agreement
21.8 Fund or Funds shall have the meaning set forth in the first
recital clause of this Agreement.
21.9 Instruction(s) shall mean an unsolicited authorization and
instruction made by an authorized person or persons in
accordance with the terms and conditions of a Custodian
Agreement between the Custodian and a Customer.
21.10 Order or Orders shall have the meaning set forth in Section 3 of
this Agreement.
21.11 Safekeeping Account shall mean an account established on the
books of BBH&Co. for purposes of segregating the interests of
the Customer (or clients of the Customer) from
the assets of BBH&Co.
21.12 Share or Shares shall have the meaning set forth in Section 2 of
this Agreement.
21.13 Share Account or Share Accounts shall have the meaning set forth
in Section 3 of this Agreement.
21.14 Transfer Agent shall have the meaning set forth in Section 3 of
this Agreement.
22. COMPENSATION. Banc One agrees to pay to BBH&Co. a fee in an amount set forth
in the fee schedule attached to this Agreement as Appendix D executed
concurrently with this Agreement or as amended from time to time thereafter.
23. TERMINATION. This Agreement may be terminated by any party by written notice
effective no sooner than ninety (90) days following the date that notice to such
effect shall be delivered to other party at its address set forth hereof in
Section 20 of this Agreement. Notwithstanding the foregoing provision, either
party hereto may terminate this Agreement at any time by notice to the other
effective immediately if:
23.1 The other party hereto shall fail in any material respect to
perform its obligations under this Agreement; or
23.2 The other party hereto shall be adjudged bankrupt or insolvent,
or there shall be commenced against the other party hereto a
case under any applicable bankruptcy, insolvency, or other
similar law now or hereafter in effect; or
23.3 Any change in any applicable law, rule or regulation or in the
interpretation or administration thereof that may reasonably be
expected to have a material adverse effect on the other party
hereto with respect to any
of its obligations under this Agreement.
The provisions of this Agreement and any other rights or obligations incurred or
accrued by any party hereto prior to termination of this Agreement shall survive
any termination of this Agreement. Notwithstanding the termination of this
Agreement, Banc One agrees to continue its obligation to pay the BBH&Co.
shareholder servicing fees in respect of Customers who beneficially own Shares
of Funds held in custody by the BBH&Co. as of the date of termination.
24. HEADINGS; COUNTERPARTS. Paragraph headings included herein are for
convenience of reference only and shall not modify, define, expand or limit any
of the terms or provisions hereof. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
the Company and BBH&Co.
25. ENTIRE AGREEMENT; SEVERABILITY; BINDING EFFECT. This Agreement is the entire
Agreement, and supersedes any prior agreements and contemporaneous oral
agreements, of the parties concerning its subject matter. To the extent a
provision of this Agreement is unenforceable, this Agreement will be construed
as if the unenforceable provision were omitted. This Agreement shall bind the
successors and any permitted assigns of the parties hereto.
26. WAIVER AND AMENDMENT. No provision of this Agreement may be waived, amended
or modified, and no addendum to this Agreement shall be or become effective, or
be waived, amended or modified, except by an instrument in writing executed by
the party against which enforcement of such waiver, amendment or modification is
sought.
27. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE PARTIES HERETO
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH OF
MANHATTAN. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH
ACTION.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
ONE GROUP DEALER SERVICES, INC. XXXXX BROTHERS XXXXXXXX & Co.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Treasurer Title: Partner 8/12/02
Banc One Investment Advisors Corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
APPENDIX A
LIST OF FUNDS
One Group Institutional Prime Money Market - Class I
APPENDIX B
AUTHORIZED PERSONS
APPENDIX C
NETTING OF PURCHASES, TRANSFERS AND REDEMPTIONS OF SHARES
With respect to Orders received by the Company, the Company and the Transfer
Agent shall determine the net number of Shares to be issued or transferred to,
or redeemed or transferred from, each Share Account and a net number of Shares
to be issued or transferred to, or redeemed or transferred from, each Share
Account on such day. The Company and/or the Fund shall also determine the net
purchase price due to or from the Fund in respect of net purchases or
redemptions in each Share Account resulting from such Orders. Share balances in
each of the Share Accounts shall be adjusted by the Company and the Fund, and
any net dollar payments due between the Fund and BBH&Co. shall (to the extent
practical) be completed and paid to BBH&Co. within two and one/half (2 1/2)
hours after the Company's receipt of an Order. Notwithstanding the foregoing
provision, the Company agrees at the request of BBH&Co. and on an exception
basis only, to net dollar payments due between the Fund and BBH&Co. more
frequently than as provided herein. Payments due to BBH&Co. shall be made in
immediately available funds to one or more bank accounts of BBH&Co. identified
from time to time in writing by BBH&Co.
Xxxxxxxx X # 0 xx 0
XXXXXXXX X
FEE SCHEDULE
Pursuant to the Shareholder Servicing Agreement dated as of June 12, 2002 (the
Agreement), among Xxxxx Brothers Xxxxxxxx & Co. (BBH&Co.), One Group Dealer
Services, Inc. (the Company), and Banc One Investment Advisors Corporation (Banc
One) the Company, Banc One and BBH&Co. have agreed to the following terms:
Fund: One Group Institutional Prime Market
Class: I
1. For the services provided by BBH&Co. hereunder, Banc One will compensate
BBH&Co. a fee set forth below, with respect to the above-captioned Fund,
calculated daily and paid monthly in arrears, at an annual rate based on the
average daily net asset value of the total number of Shares held in Share
Accounts of the Fund and/or the Transfer Agent in the name of BBH&Co.
2. Such compensation will be calculated by (i) determining the Net Daily Amount
on Deposit (defined below) in the Fund for each day during such month, (ii)
determining the average amount of the Net Daily Amounts on Deposit in the Fund
during such month, (iii) multiplying such average amount by (a) .05% (5 basis
points) for Share Accounts, (iv) multiplying the resulting amount by the number
of days in such month, and (v) multiplying the resulting amount by a fraction,
the numerator of which is the number one and the denominator of which is
365(366).
3. Within ten (10) days following each month end, Banc One shall pay to BBH&Co.
such fee. Such payment shall be by wire transfer or other form acceptable to
BBH&Co. and shall be separate from payments related to redemption proceeds and
distributions.
4. The "Net Daily Amount on Deposit" in a Fund will equal the aggregate dollar
amount in the Fund on such day for credit to the Share Accounts less the
aggregate amount redeemed from the Fund on such day for the Share Accounts (to
the extent the amount redeemed was originally deposited for BBH&Co. margin
purposes).
Terms not otherwise defined in this Appendix D shall have the meanings provided
in the Agreement.
