Exhibit (h)(39)
ORDER PROCESSING AGREEMENT
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This Agreement is entered into as of February 1, 1998 among Northern Trust
Retirement Consulting, L.L.C. ("Service Provider"), Firstar Funds, Inc., an
open-end management company (the "Company"), and Firstar Trust Company, transfer
agent and co-administrator for the Company ("Transfer Agent/Co-Administrator").
Service Provider provides certain administrative services comprised of, but
not limited to, recordkeeping, reporting, and processing services (the
"Administrative Services") to qualified employee benefit plans. Administrative
Services for the Plan(s) include processing and transfer arrangements for the
investment and reinvestment of Plan assets generally upon the direction of Plan
beneficiaries (the "Participants") or in investments specified by an investment
adviser, sponsor, or administrative committee of the Plan(s) (a "Plan
Representative"). The Administrative Services are provided by Service Provider
under service agreements with the Plan(s).
The Company includes the portfolios identified on Schedule A attached
hereto (collectively, the "Funds" and, individually, a "Fund"). The Company is
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940, as amended (the "Company Act"),
The Transfer Agent/Co-Administrator serves as transfer agent and co-
administrator to each of the Funds.
Accordingly, the Parties hereto agree as follows:
1. Agency. The Company hereby appoints the Service Provider as its agent
for the limited purposes of accepting orders for the purchase and redemption of
shares of the Funds by the Service Provider on behalf of each Plan.
(a) Procedures. The operating procedures (the "Procedures")
governing the responsibilities of the Parties under this Agreement are set forth
in Schedule B which is attached hereto and specifically made a part of this
Agreement. The Procedures shall be consistent with the terms of each Fund's
prospectus, the requirements of the Company Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and all other applicable laws and
regulations.
2. Maintenance of Records.
(a) Each Party shall maintain and preserve all records it is required
by law to maintain and preserve in connection with the matters contemplated by
this Agreement.
(b) Subject to any applicable confidentiality obligations, each Party
hereby agrees to make available copies of all records such Party is required to
maintain hereunder that are reasonably requested by any other Party to ensure
compliance with applicable law. Such copies shall be furnished at the expense
of the requesting Party.
(c) Recordkeeping and other administrative services to Plan
participants shall be the responsibility of the Service Provider and shall not
be the responsibility of the Company or the Transfer Agent/Co-Administrator.
The Company and the Transfer Agent/Co-Administrator will recognize each Plan as
a single shareholder and as an unallocated account in each of the Funds, and
will not maintain separate accounts for Plan participants. Upon the reasonable
request of the Company or the Transfer Agent/Co-Administrator, the Service
Provider shall provide copies of all records relating to the Funds necessary for
the Company, the Transfer Agent/Co-Administrator or their representatives to
comply with applicable legal requirements.
3. Compliance with Laws. At all times during the term of this Agreement,
each party shall comply with all applicable laws, rules, and regulations.
4. Representations with Respect to the Funds. Service Provider and its
agents shall not make representations concerning the Company or its shares
except in strict accordance with the information contained in: (a) a Fund's then
current prospectus, and (b) current sales literature respecting a Fund furnished
by the Company or the Transfer Agent/Co-Administrator. Subject to the previous
sentence, the Service Provider may include the selected Funds in its marketing
efforts.
5. Expenses.
(a) Except as otherwise provided in this Agreement, each Party shall
bear all expenses incidental to the performance of its obligations under this
Agreement.
(b) Transfer Agent/Co-Administrator shall distribute, or cause to be
distributed, to Service Provider Fund prospectuses, any Fund proxy solicitation
materials, periodic reports to Fund shareholders, and other materials that the
Company may be required by law to distribute to Plan(s) as shareholders of the
Funds. Service Provider agrees to use reasonable efforts to arrange for
delivery of such materials to participants through Plan Sponsors or Plan
Representatives.
6. Relationship of Parties. Except to the limited extent provided in
Paragraph 2(c) of the Procedures, it is understood and agreed that all services
performed hereunder by Service Provider shall be as an independent contractor
and not as an employee or agent of the Company.
7. Termination. This Agreement may be terminated by any Party at any
time upon at least sixty (60) days' prior written notice to the other Parties.
Notwithstanding the foregoing, any party may terminate this Agreement
immediately upon written notice to such Party of the institution of formal
proceedings against any other Party with respect to the arrangements documented
herein by the Securities and Exchange Commission or any other regulatory body.
8. Registration of the Funds. During the term of this Agreement, the
Company shall remain an open-end investment company registered pursuant to the
Company Act and the Securities Act of 1933 (the "Securities Act").
9. Indemnification.
(a) Service Provider agrees to indemnify and hold harmless Transfer
Agent/Co-Administrator, the Company, the Company's administrators, and each of
their respective affiliates, directors, trustees, officers, employees, agents,
and each person, if any, who controls them within the meaning of the Securities
Act against any losses, claims, damages, settlements, liabilities or expenses
(including, without limitation, reasonable attorneys' fees and expense whether
or not involving a third party) (collectively, "Claims") to the extent any such
Claim arises out of or is based upon (i) Service Provider's negligence, bad
faith, or willful misconduct in perforating its obligations hereunder, (ii) any
breach by Service Provider of any material provision of this Agreement, or (iii)
any breach by Service Provider of a representation, warranty, or covenant made
in this Agreement; and Service Provider shall reimburse the persons indemnified
hereunder for any legal or other expenses reasonably incurred, as incurred, by
them in connection with investigating or defending such Claim. For the
avoidance of doubt, Service Provider's indemnity obligation shall include any
loss or expense to the Company caused by a cancellation or correction of a
purchase or redemption order subsequent to the order of instruction to the
Transfer Agent/Co-Administrator by the Service Provider. This indemnification
shall be in addition to any liability which Service Provider may otherwise
incur. This indemnity shall continue in full force and effect, notwithstanding
the termination of this Agreement.
(b) The Transfer Agent/Co-Administrator agrees to indemnify Service
Provider and each of its respective affiliates, directors, officers, employees,
agents, and each person, if any, who controls them within the meaning of the
Securities Act against any Claims to the extent any such Claim arises out of or
is based upon (i) any breach by transfer Agent/Co-Administrator of any material
provision of this Agreement, (ii) Transfer Agent/Co-Administrator's negligence,
bad faith, or willful misconduct in carrying out its duties and responsibilities
under this Agreement, or (iii) any breach by Transfer Agent/Co-Administrator of
a representation, warranty, or covenant made in this Agreement; and Transfer
Agent/Co-Administrator shall reimburse the persons indemnified hereunder for any
legal or other expenses reasonably incurred, as incurred, by them in connection
with investigating or defending such Claim. For the avoidance of doubt,
Transfer Agent/Co-Administrators indemnity obligation shall include any loss or
expense to Service Provider for corrections to the individual participant
accounts due to pricing data which is incorrectly reported by Transfer Agent/Co-
Administrator. This indemnity shall continue in full force and effect,
notwithstanding the termination of this Agreement.
(c) The Company agrees to indemnify Service Provider and each of its
respective affiliates, directors, officers, employees, agents, and each person,
if any, who controls them within the meaning of the Securities Act against any
Claims to the extent any such Claim arises out of or is based upon (i) any
breach by Company of any material provision of this Agreement, (ii) Company's
negligence, bad faith, or willful misconduct in carrying out its duties and
responsibilities under this Agreement, or (iii) any breach by Company of a
representation, warranty, or covenant made in this Agreement; and Company shall
reimburse the persons indemnified hereunder for any legal or other expenses
reasonably incurred, as incurred, by them in connection with investigation or
defending such Claim. This indemnity shall continue in full force and effect,
notwithstanding the termination of this Agreement.
(d) Upon the assertion of a Claim for which a Party may be required
to indemnify another Party, the Party seeking indemnification ("Indemnitee")
shall promptly notify the indemnifying Party ("Indemnitor") in writing of such
assertion and of any relevant facts or background known by Indemnitee in the
defense of such Claim or to defend against such Claim in the name of Indemnitees
or in the name of Indemnitors. If Indemnitor elects to defend and control the
course of any defense, Indemnitee shall cooperate with Indemnitor in connection
with such defense. If Indemnitor elects not to control the defense, Indemnitee
shall have the right to select counsel of its choice and participate in such
defense. In any event, Indemnitor shall not be responsible for any Claim
settled or compromised, or for any confessions of judgment, without its prior
written consent.
(e) Notwithstanding any other provision of this Agreement, no Party
shall have any liability or owe any indemnity obligation to the other for any
incidental or consequential losses, claims, actions, expenses, or liabilities.
10. Additional Representations, Warranties, and Covenants. Each Party
represents, warrants, and covenants that it has full power and authority under
applicable law, and has taken all action necessary, to enter into and perform
this Agreement, and that it is free to enter into this Agreement, and that by
doing so it will not breach or otherwise impair any other agreement or
understanding with any person, corporation, or other entity.
11. Notice. Each notice required by this Agreement shall be given in
writing and delivered personally or mailed by certified mail or overnight
courier service to the other Party at the following address or such other
address as each Party may give notice to the other:
If to Service Provider, to:
Northern Trust Retirement Consulting, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Northern Trust Alliance Management
If to the Company, to:
Firstar Funds, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Investor Services Manager
If to the Transfer Agent/Co-Administrator, to:
Firstar Trust Company
Mutual Fund Services
Xxxxxxxxx, XX 00000
Attn: Xxxxxx XxXxx
A notice given pursuant to this Section 11 shall be deemed given immediately
when delivered personally, three (3) business days after the date of certified
mailing, and one (1) business day after delivery by overnight courier service.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin applicable to
agreements fully executed and to be performed therein.
13. Complete Agreement. This Agreement contains the full and complete
understanding of the Parties and supersedes all prior representations, promises,
statements, arrangements, agreements, warranties, and understandings between the
Parties with respect to the subject matter hereto whether oral or written,
express or implied.
14. Modification. This Agreement may be modified or amended, and the
terms of this Agreement may be waived, only by a writing signed by each of the
Parties.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
16. Assignment. This Agreement shall not be assigned by a Party, without
the prior written consent of the other Parties, except that a party may assign
this Agreement to an affiliate having the same ultimate ownership and regulatory
licenses or qualifications as the assigning Party without such prior consent,
and the assigning Party shall, subsequent to any such assignment, promptly
notify the other Parties in writing.
17. Non-Exclusivity. Each of the Parties acknowledges and agrees that
this Agreement and the arrangement described herein are intended to be non-
exclusive and that each of the Parties is free to enter into similar agreements
and arrangements with other entities.
18. Confidentiality. The Transfer Agent/Co-Administrator and Service
Provider agree to keep confidential all proprietary data, software, processes,
information, and documentation related to this Agreement, except as may be
necessary or useful to perform obligations under this Agreement or otherwise as
may be agreed to, from time to time, by the Parties or otherwise as may be
required by applicable law or regulations or at the request of a regulatory
agency with jurisdiction over the Party from which information is being
requested.
NORTHERN TRUST RETIREMENT
CONSULTING, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Secretary
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FIRSTAR FUNDS, INC.
By: /s/ Xxxx Xxxxx Xxxxxx
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Title: Vice President
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FIRSTAR TRUST COMPANY
By: /S/ Xxxxxx XxXxx
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Title: Asst. Vice President
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SCHEDULE A
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FIRSTAR FUNDS
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Ticker Media
Cusips Fund Name Symbol Symbol
------ --------- ------ ------
337,938,724 Short -Term Bond Market FISTX ST Bond
337,938,740 Intermediate Bond Market FIIBX IntBdM
337,938,765 Bond IMMDEX FIBMX Bdldx
337,938,880 Balanced Income FIBIX Ballnc
337,938,773 Balanced Growth FIBAX BalGro
337,938,781 Growth & Income FIGCX Grlnc
337,938,831 Equity Index FIENX Eqldx
337,938,799 Growth FIGWX Grow
337,938,815 Special Growth FISGX SpGr
337,938,807 Emerging Growth FIEMX EmgGr
337,938,823 International Equity FIIEX IntlEq
SCHEDULE B
1. Pricing Information. Transfer Agent/Co-Administrator or its designee
will furnish Service Provider or its designee (via electronic data transmission
or hard copy), on each business day that the New York Stock Exchange or the
Funds are open for business ("Business Day"), with (a) per share net asset value
information as of the close of trading (currently 4:00 p.m. Eastern Time) on the
New York Stock Exchange, or as of such earlier times at which the Funds' net
asset values are calculated as specified in the Funds' then current prospectuses
("Close of Trading"), (b) per share dividend and capital gains information
respecting the Funds as it becomes available, and (c) if a Fund is an income
fund, the daily accrual for interest rate factor (mil rate) of such Fund.
Transfer Agent/Co-Administrator shall provide such information to Service
Provider or designee by 7:00 p.m. Eastern Time on the same Business Day.
2. Orders and Settlement.
(a) Upon the receipt of instructions from Participants or Plan
Representatives, Service Provider will calculate order allocations among
designated investment media and transmit to Transfer Agent/Co-Administrator
orders for net purchase, or redemptions for specified accounts on the basis of
those instructions, as set forth below. Service Provider agrees that orders for
net purchases or net redemptions of shares derived from instructions received in
proper form by Service Provider from Participants or Plan Representatives prior
to the Close of Trading on any given Business Day will be processed that same
evening and transmitted to Transfer Agent/Co-Administrator by 8:00 a.m. Eastern
Time on the next Business Day. Service Provider agrees that payment for net
purchases attributable to all orders executed for the Accounts on a given
Business Day will be wired by Service Provider or its designee on the same
Business Day such purchase orders are transmitted to Transfer Agent/Co-
Administrator no later than 12:00 p.m. Eastern Time to a custodial account
designated by Transfer Agent/Co-Administrator.
(b) Transfer Agent/Co-Administrator agrees that payments for net
redemptions attributable to all orders executed for the Accounts on a given
Business Day will be wired by Transfer Agent/Co-Administrator on the same
business day such redemption orders are transmitted to Transfer Agent/Co-
Administrator no later than 12:00 p.m. Eastern Time to a custodial account
designated by Service Provider.
(c) Subject to Service Provider's compliance with the foregoing, the
Business Day on which such share instructions are received in proper form by
Service Provider from Participants or Plan Representatives by the Close of
trading shall be the date as of which shares will be purchased and redeemed as a
result of such instructions at the net asset value per share next determined
after such receipt by Service Provider.
(d) Instructions received in proper form by Service Provider from
Participants or Plan Representatives after the Close of Trading on any given
Business Day shall be treated as if received on the next following Business Day,
and shall be effected at the net asset value per share next determined after
such receipt. Transfer Agent/Co-Administrator agrees that payment for net
distributions, if a Fund is a fixed-income fund, will include (when applicable)
income accrued during the current accrual period of such Fund.
(e) Dividends and capital gains distributions will be automatically
reinvested at net asset value in accordance with the Funds' then current
prospectuses.
3. Account Information. Transfer Agent/Co-Administrator agrees to
provide Service Provider or the Plan Trustee daily confirmation of Account
activity and statements detailing activity in each Service Provider Account
consistent with each Fund's prospectus requirements.
