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ITEM 23(m)(2)
FORM OF RELATED AGREEMENT
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OneAmerica Funds, Inc.
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000
DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
Name: __________________________
Address: __________________________
__________________________
__________________________
Ladies and Gentlemen:
OneAmerica Funds, Inc. (the "Fund") is an open-end management investment
company organized as a Maryland corporation and registered with the Securities
and Exchange Commission (the "SEC") under the Investment Company Act of 1940, as
amended (the "1940 Act"). On behalf of each of the portfolios of the Fund
identified in Schedule A, as amended from time to time ("Portfolios"), the board
of directors of the OneAmerica Funds, Inc. ("Directors") have adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the 1940 Act (the
"Plan") that, among other things, authorizes the Fund to enter into this
Agreement with you (the "Authorized Firm"), concerning the provision of
activities and services set forth in Section 2 (collectively, "Services") to
your contract owners or other permissible purchasers ("Customers") who may from
time to time be investors, or prospective investors, in the Advisor Class shares
(the "Shares") of a Portfolio. The terms and conditions of this Agreement are as
follows:
1. REFERENCE TO PROSPECTUS; DETERMINATION OF NET ASSET VALUE.
1.1. Reference is made to the "Advisor Class Prospectus" of the Fund as
from time to time is effective under the Securities Act of 1933 (the "1933
Act"). Terms defined therein and not otherwise defined herein are used herein
with the meaning so defined.
1.2. For purposes of determining the fees payable to you under Section 3,
the average daily net asset value of a Portfolio's Shares will be computed in
the manner specified in the Fund's Advisor Class registration statement (as the
same is in effect from time to time) in connection with the computation of the
net asset value of such Portfolio's Shares for purposes of purchases and
redemptions.
2. SERVICES OF AUTHORIZED FIRM.
2.1. The Authorized Firm is hereby authorized and may from time to time
undertake to perform, or arrange for the performance of, some or all of the
following non-exclusive list of Services:
- the provision of personal and continuing services to beneficial owners of
Fund Shares;
- receiving, aggregating and processing purchase, exchange and redemption
orders of beneficial owners;
- answering questions and handling correspondence from beneficial owners
about their accounts;
- maintaining account records and providing beneficial owners with account
statements;
- processing dividend payments for Shares held beneficially;
- providing sub-accounting services for Shares held beneficially;
- issuing reports and transaction confirmations to beneficial owners;
- forwarding shareholder communications to beneficial owners of Shares;
- receiving, tabulating and transmitting proxies executed by beneficial
owners of Shares;
- general account administration activities;
- advertising, preparation of sales literature and other promotional
materials, and related printing and distribution expenses with respect to a
Portfolio;
- paying employees or agents of the distributor of the Shares, other
securities broker-dealers and financial intermediaries, sales personnel, or
"associated persons" of the Fund who engage in or support the provision of
services to investors and/or distribution of the Shares, including salary,
commissions, telephone, travel and related overhead expenses;
- incurring expenses of training sales personnel regarding the Portfolios;
- preparing, printing and distributing the Fund's Advisor Class Prospectus,
statements of additional information, supplements thereto, and reports to
prospective investors;
- organizing and conducting sales seminars and meetings designed to promote
the sale of Fund Shares;
- paying fees to one or more Authorized Firms in respect of the average
daily value of Shares beneficially owned by investors for whom the Authorized
Firm is the dealer of record or holder of record, or beneficially owned by
shareholders with whom the Authorized Firm has a servicing relationship;
- incurring expenses in obtaining information and providing explanations to
variable contract owners and wholesale and retail distributors of contracts
regarding Fund investment objectives and policies and other information about
the Fund, including the performance of the Fund;
- incurring expenses in training sales personnel regarding the Fund;
- incurring expenses in personal services and/or maintenance of variable
contract accounts with respect to Shares attributable to such accounts;
- incurring costs and expenses in implementing and operating the Plan,
including capital or other expenses of associated equipment, rent, salaries,
bonuses, interest, and other overhead or financing charges; and
- such other similar activities and services as determined by the Board
from time to time.
2.2. The Authorized Firm may receive compensation pursuant to this
Agreement for making the Fund available to its Customers as funding vehicles for
their variable insurance contracts, and/or compensation for services performed
and expenses incurred by Authorized Firm or its affiliates in connection with
the sale of Fund Shares.
2.3. The Authorized Firm will provide such office space and equipment,
telephone facilities, and personnel (which may be any part of the space,
equipment, and facilities currently used in the Authorized Firm's business, or
any personnel employed by the Authorized Firm) as may be reasonably necessary or
beneficial in order to provide such Services.
2.4. The procedures relating to the handling of orders shall be subject to
instructions which the Fund shall forward from time to time to the Authorized
Firm. All purchase orders for a Portfolio's Shares are subject to acceptance or
rejection by the Fund in its sole discretion, and the Fund may, in its
discretion and without notice, suspend or withdraw the sale of a Portfolio's
Shares, including the sale of such Shares to the Authorized Firm for the account
of any Customer or Customers, unless otherwise agreed to by the parties to this
Agreement.
2.5. In no transaction shall the Authorized Firm act as dealer for its own
account; the Authorized Firm shall act solely for, upon the specific or
pre-authorized instructions of, and for the account of, its Customers. For all
purposes of this Agreement, the Authorized Firm will be deemed to be an
independent contractor, and will have no authority to act as agent for the Fund
or any dealer of the Shares in any matter or in any respect. No person is
authorized to make any representations concerning the Fund or Portfolio Shares
except those representations contained in the Fund's then-current Advisor Class
Prospectus and Statement of Additional Information and in such printed
information as the Fund may subsequently prepare, unless otherwise agreed to by
the parties to this Agreement.
2.6. The Authorized Firm and its employees will, upon request, be available
during normal business hours to consult with the Fund or its designees
concerning the performance of the Authorized Firm's responsibilities under this
Agreement. The Authorized Firm will provide to the Fund's Directors (or assist
in the provision of), and the Fund's Directors will review at least quarterly, a
written report of the amounts so expended and describe the purposes for which
the expenditures are made.
In addition, the Authorized Firm will furnish to the Fund or its designees
such information as the Fund or its designees may reasonably request (including,
without limitation, periodic certifications confirming the rendering of Services
as described herein), and will otherwise cooperate with the Fund and its
designees (including, without limitation, any auditors designated by the Fund),
in the preparation of reports to the Fund's Directors concerning this Agreement
and the monies paid, reimbursed, payable, or reimbursable pursuant hereto, the
Services provided hereunder and related expenses, and any other reports or
filings that may be required by law.
3. FEES.
3.1. In consideration of the costs and expenses of furnishing the Services
and facilities provided by the Authorized Firm hereunder, and subject to the
limitations of applicable law and regulations, the Authorized Firm will be
compensated and/or reimbursed (as applicable) at an annual rate of up to, but
not more than, 0.30% of the average daily net assets attributable to the Shares
of each Portfolio which are attributable to or held in the name of the
Authorized Firm for its Customers. The fee will not be paid to the Authorized
Firm with respect to Shares of a Portfolio that are redeemed or repurchased by
the Portfolio within seven business days of receipt of confirmation of such
sale.
3.2. The fee rate with respect to any Portfolio may be prospectively
increased or decreased by the Fund, in its sole discretion, at any time upon
notice to the Authorized Firm.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
4.1. By written acceptance of this Agreement, the Authorized Firm
represents, warrants, and agrees that, to the extent required by law: (i) the
Authorized Firm has all necessary qualifications, authorizations and/or
registrations relating to the Authorized Firm's participation in this Agreement
and the transactions contemplated hereby or relating to any activities of any
persons or entities affiliated with the Authorized Firm performed in connection
with the discharge of its responsibilities under this Agreement; (ii) the
Authorized Firm will provide to Customers a schedule of the services it will
perform pursuant to this Agreement and a schedule of any fees that the
Authorized Firm may charge directly to Customers for services it performs in
connection with investments in the Fund on the Customer's behalf; and (iii) any
and all compensation payable to the Authorized Firm by Customers in connection
with the investment of their assets in the Fund will be disclosed by the
Authorized Firm to Customers and will be authorized by Customers and will not
result in an excessive fee to the Authorized Firm.
4.2. The Authorized Firm agrees to comply with all requirements applicable
to it by reason of all applicable laws, including federal and state securities
laws, the rules and regulations of the SEC, including, without limitation, all
applicable requirements of the 1933 Act, the Securities Exchange Act of 1934,
and the Investment Advisers Act of 1940. The Fund has informed the Authorized
Firm of the states or other jurisdictions in which the Fund believes the Shares
of the Portfolios are qualified for sale. The Authorized Firm agrees that it
will not purchase a Portfolio's Shares on behalf of a Customer's account in any
jurisdiction in which such Shares are not qualified for sale. The Authorized
Firm further agrees that it will maintain all records required by applicable law
or otherwise reasonably requested by the Fund relating to services provided by
it pursuant to the terms of this Agreement.
4.3. The Authorized Firm agrees that under no circumstances shall the Fund
be liable to the Authorized Firm or any other person under this Agreement as a
result of any action by the SEC affecting the operation or continuation of the
Plan.
5. EXCULPATION; INDEMNIFICATION.
5.1. The Fund shall not be liable to the Authorized Firm and the Authorized
Firm shall not be liable to the Fund except for acts or failures to act which
constitute lack of good faith or negligence and for obligations expressly
assumed by either party hereunder. Nothing contained in this Agreement is
intended to operate as a waiver by the Fund or by the Authorized Firm of
compliance with any applicable law, rule, or regulation.
5.2. The Authorized Firm will indemnify the Fund and hold it harmless from
any claims or assertions relating to the lawfulness of the Authorized Firm's
participation in this Agreement and the transactions contemplated hereby or
relating to any activities of any persons or entities affiliated with the
Authorized Firm performed in connection with the discharge of its
responsibilities under this Agreement. If any such claims are asserted, the Fund
shall have the right to manage its own defense, including the selection and
engagement of legal counsel of its choosing, and all costs of such defense shall
be borne by the Authorized Firm.
6. EFFECTIVE DATE; TERMINATION.
6.1. This Agreement will become effective with respect to each Portfolio on
the date of its acceptance by the Authorized Firm. Unless sooner terminated with
respect to any Portfolio, this Agreement will continue with respect to a
Portfolio until terminated in accordance with its terms, provided that the
continuance of the Plan is specifically approved at least annually in accordance
with the terms of the Plan.
6.2. This Agreement will automatically terminate with respect to a
Portfolio in the event of its assignment (as such term is defined in the 0000
Xxx) or upon termination of the Plan. This Agreement may be terminated with
respect to any Portfolio by the Fund or by the Authorized Firm, without penalty,
upon sixty days' prior written notice to the other party. This Agreement may
also be terminated with respect to any Portfolio at any time without penalty by
the vote of a majority of the Independent Directors (as defined in the Plan) or
a majority of the outstanding Shares of a Portfolio on sixty days' written
notice.
7. GENERAL.
7.1. All notices and other communications to either the Authorized Firm or
the Fund will be duly given if mailed, telegraphed or telecopied to the
appropriate address set forth on page 1 hereof, or at such other address as
either party may provide in writing to the other party.
7.2. The Fund may enter into other similar agreements for the provision of
Services with any other person or persons without the Authorized Firm's consent.
7.3. Upon receiving the written consent of the Fund, the Authorized Firm
may, at its expense, subcontract with any entity or person concerning the
provision of the Services contemplated hereunder; provided, however, that the
Authorized Firm shall not be relieved of any of its obligations under this
Agreement by the appointment of such subcontractor and provided further, that
the Authorized Firm shall be responsible, to the extent provided in Article 5
hereof, for all acts of such subcontractor as if such acts were its own.
7.4. This Agreement supersedes any other agreement between the Fund and the
Authorized Firm relating to the Services described herein in connection with a
Portfolio's Shares and relating to any other matters discussed herein. All
covenants, agreements, representations, and warranties made herein shall be
deemed to have been material and relied on by each party, notwithstanding any
investigation made by either party or on behalf of either party, and shall
survive the execution and delivery of this Agreement. The invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not alter or otherwise
affect the meaning hereof. This Agreement may be executed in any number of
counterparts which together shall constitute one instrument and shall be
governed by and construed in accordance with the laws (other than the conflict
of laws rules) of the State of Indiana and shall bind and inure to the benefit
of the parties hereto and their respective successors.
7.5 It is expressly agreed that the obligations of the Fund hereunder shall
not be binding upon any of the Directors, shareholders, nominees, officers,
agents or employees of the Fund personally, but shall bind only the property of
the Fund. The execution and delivery of this Agreement have been authorized by
the Directors, and this Agreement has been signed and delivered by an authorized
officer of the Fund, acting as such, and neither such authorization by the
Directors nor such execution and delivery by such officer shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the property of the Fund.
(The remainder of this page is left intentionally blank. The signature page
follows.)
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below.
OneAmerica Funds, Inc.
By:_________________________________
Title:_______________________________
The foregoing Agreement is hereby accepted:
_____________________________________
Authorized Firm
By:__________________________________
Title: ________________________________
Date: ________________________________
SCHEDULE A
TO THE DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
[DATE]
OneAmerica Value portfolio
OneAmerica Investment Grade Bond portfolio
OneAmerica Money Market portfolio
OneAmerica Asset Director portfolio
