EXHIBIT 9A
FORM OF SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT, dated as of August ___, 1997 by and between The
Diversified Investors Funds Group (the "Trust"), a Massachusetts business trust
having its principal place of business at 0 Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000, and Xxxxxxxx Inc. ("Xxxxxxxx"), a corporation organized under the
laws of ________________, as a shareholder services agent hereunder (the
"Agent");
W I T N E S S E T H:
WHEREAS, certain transactions in Shares of Beneficial Interest (par value
$0.00001 per share) ("Shares"), which may be divided into separate series
(each, a "Fund", and collectively, the "Funds") of the Trust, and further
divided into separate classes of Shares of a Fund, may be made by investors who
are customers of, and using the services of, a Service Agent (as defined in the
then-current Prospectus of each series of the Trust and class thereof) which
has entered into a shareholder services agreement with the Trust; and
WHEREAS, Xxxxxxxx wishes to make it possible for its customers (the
"Customers") to purchase Shares of the Xxxxxxxx Premium Class and Xxxxxxxx
Institutional Class of any of the Funds which may from time to time designate
such classes of Shares, and wishes to act as the Customers' agent in performing
certain administrative functions in connection with purchases and redemptions
of such Shares from time to time upon the order and for the account of
Customers and to provide related services to its Customers in connection with
their investments in the Trust; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Trust;
NOW, THEREFORE, the Trust and Xxxxxxxx hereby agree as follows:
1. APPOINTMENT. Xxxxxxxx, as Agent, hereby agrees to perform certain
services for Customers as hereinafter set forth.
2. SERVICES TO BE PERFORMED.
2.1. TYPES OF SERVICES. The Agent shall be responsible for performing
shareholder account administrative and servicing functions, which shall include
without limitation: (a) answering Customer inquiries regarding account status
and history, the manner in which purchases, exchanges and redemptions of the
Shares may be effected, and certain other matters pertaining to the Trust; (b)
assisting Customers in designating and changing dividend options, account
designations and addresses; (c) providing necessary personnel and facilities to
establish and maintain certain shareholder accounts and records, as may
reasonably be requested from time to time by the Trust; (d) assisting in
processing purchase, exchange and redemption transactions; (e) arranging for
the wiring of funds; (f) transmitting and receiving funds in connection with
Customer orders to purchase, exchange or redeem Shares; (g) verifying and
guaranteeing Customer signatures in connection with redemption orders,
transfers among and changes in Customer designated accounts; (h) providing
periodic statements showing a Customer's account balances and, to the extent
practicable, integration of such information with information concerning other
client transactions otherwise effected with or through Xxxxxxxx; (i) furnishing
on behalf of the Trust's distributor (either separately or on an integrated
basis with other reports sent to a Customer by the Agent) periodic statements
and confirmations of all purchases, exchanges and redemptions of Shares in a
Customer's account required by applicable federal or state law, all such
confirmations and statements to conform to Rule 10b-10 under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and other applicable federal
or state law; (j) transmitting proxy statements, annual and semi-annual
reports, updating Prospectuses and supplements thereto and other communications
from the Trust to Customers; (k) receiving, tabulating and transmitting to the
Trust proxies executed by Customers with respect to annual and special meetings
of shareholders of the Trust; (l) providing reports (at least monthly, but more
frequently if so requested by the Trust's distributor) containing
state-by-state listings of the principal residences of the beneficial owners of
the Shares; and (m) providing such other related services as the Trust or a
Customer may reasonably request. The Agent shall provide all personnel and
facilities to perform the functions described in this paragraph with respect to
its Customers and shall bear all of its own expenses in connection therewith.
2.2. STANDARD OF SERVICES. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely manner.
The details of the operating standards and procedures to be followed by the
Agent in performance of the services described above shall be determined from
time to time by agreement between the Agent and the Trust. The Trust
acknowledges that the Agent's ability to perform on a timely basis certain of
its obligations under this Agreement depends upon the Trust's timely delivery
of certain materials and/or information to the Agent. The Trust agrees to use
its best efforts to provide such materials to the Agent in a timely manner.
3. FEES.
3.1. FEES FROM THE TRUST. In consideration for the services described in
Section 2 hereof and the incurring of expenses in connection therewith, the
Agent shall receive a fee, accrued daily and paid monthly, equal on an annual
basis to a percentage, to be determined periodically by the parties, of the
average daily net assets attributable to the Xxxxxxxx Premium Class Shares and
Xxxxxxxx Institutional Class Shares of each Fund with such designated classes,
for that Fund's then-current fiscal year. For purposes of determining the fees
payable to the Agent hereunder, the value of each Fund's net assets shall be
computed in the manner specified in the Fund's then-current Prospectus for
computation of the net asset value of the Fund's Shares. The above fees
constitute all fees to be paid to the Agent by the Trust with respect to the
transactions contemplated hereby.
3.2. FEES FROM CUSTOMERS. It is agreed that Xxxxxxxx may impose certain
conditions on Customers, in addition to or different from those imposed by the
Trust, such as requiring a minimum initial investment or charging Customers
direct fees for the same or similar services as are provided hereunder by
Xxxxxxxx as Agent (which fees may either relate specifically to Xxxxxxxx'
services with respect to the Trust or generally cover services not limited to
those with respect to the Trust); provided, however, that Xxxxxxxx may not
charge customers any direct fee which would constitute a "sales load" within
the meaning of Section 2(a)(35) of the Investment Company Act of 1940, as
amended (the "1940 Act"). Xxxxxxxx shall xxxx Customers directly for such fees.
In the event Xxxxxxxx charges Customers such fees, it shall notify the Trust in
advance and make appropriate prior written disclosure (such disclosure to be in
accordance with all applicable laws) to Customers of any such fees charged to
the Customer. To the extent required by applicable rules and regulations of the
Securities and Exchange Commission, the Trust shall make written disclosure of
the fees paid or to be paid to the Agent pursuant to Section 3.1 of this
Agreement. It is understood, however, that in no event shall Xxxxxxxx have
recourse or access as Agent or otherwise to the account of any shareholder of
the Trust except to the extent expressly authorized by law or by such
shareholder, or to any assets of the Trust, for payment of any direct fees
referred to in this Section 3.2.
4. INFORMATION PERTAINING TO THE SHARES. The Agent and its officers,
employees and agents are not authorized to make any representations concerning
the Trust or the Shares to Customers or prospective Customers, except only
accurate communication of any information provided by or on behalf of any
administrator of the Trust or any distributor of the Shares or any factual
information contained in a then-current Prospectus, Statement of Additional
Information or Registration Statement. In furnishing such information regarding
the Trust or the Shares, the Agent shall act as agent for the Customer only and
shall have no authority to act as agent for the Trust. Advance copies or proofs
of all materials which are generally circulated or disseminated by the Agent to
Customers or prospective Customers which identify or describe the Trust shall
be provided to the Trust at least 10 days prior to such circulation or
dissemination (unless the Trust consents in writing to a shorter period), and
such materials shall not be circulated or disseminated or further circulated or
disseminated at any time after the Trust shall have given written notice to the
Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the Trust liable for
the use (as opposed to the accuracy) of any information about the Trust which
is disseminated by the Agent.
5. USE OF THE AGENT'S NAME. The Trust shall not use the name of the Agent
or any of its affiliates or subsidiaries in any Prospectus, sales literature or
other material relating to the Trust in a manner not approved by the Agent
prior thereto in writing; provided, however, that the approval of the Agent
shall not be required for any use of its name which merely refers in accurate
and factual terms to its appointment hereunder or which is required by the
Securities and Exchange Commission or any state securities authority or any
other appropriate regulatory, governmental or judicial authority; provided,
further, that in no event shall such approval be unreasonably withheld or
delayed.
6. USE OF THE TRUST'S NAME. The Agent shall not use the name of the Trust
on any account statements or forms for other than internal use in a manner not
approved by the Trust prior thereto in writing; provided, however, that the
approval of the Trust shall not be required for the use of the Trust's name in
connection with communications permitted by Section 4 hereof or (subject to
Section 4, to the extent the same may be applicable) for any use of the Trust's
name which merely refers in accurate and factual terms to the Trust in
connection with the Agent's role hereunder or which is required by the
Securities and Exchange Commission or any state securities authority or any
other appropriate regulatory, governmental or judicial authority; provided,
further, that in no event shall such approval be unreasonably withheld or
delayed.
7. SECURITY. The Agent represents and warrants that to the best of its
knowledge, the various procedures and systems which it has implemented
(including provision for twenty-four hours a day restricted access) with regard
to safeguarding from loss or damage attributable to fire, theft or any other
cause the Trust's records and other data and the Agent's records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as in its judgment are required for the secure performance of
its obligations hereunder. The parties shall review such systems and procedures
on a periodic basis, and the Trust shall from time to time specify the types of
records and other data of the Trust to be safeguarded in accordance with this
Section 7.
8. COMPLIANCE WITH LAWS. The Agent shall comply with all applicable
federal and state laws and regulations, including, without limitation, any
securities laws. The Agent represents and warrants to the Trust that the
performance of all its obligations hereunder will comply with all applicable
laws and regulations, the provisions of its charter documents and by-laws and
all material contractual obligations binding upon the Agent. The Agent further
undertakes that it will promptly, after the Agent becomes so aware, inform the
Trust of any change in applicable laws or regulations (or interpretations
thereof) or in its charter or by-laws or material contracts which would prevent
or impair full performance of any of its obligations hereunder.
9. REPORTS. To the extent requested by the Trust from time to time, the
Agent agrees that it will provide the Treasurer of the Trust with a written
report of the amounts expended by the Agent pursuant to this Agreement and the
purposes for which such expenditures were made. Such written reports shall be
in a form satisfactory to the Trust and shall supply all information necessary
for the Trust to discharge its responsibilities under applicable laws and
regulations.
10. RECORD KEEPING. The Agent agrees to maintain certain records and
accounts as herein provided.
10.1. SECTION 31(A). The Agent shall maintain records in a form
reasonably acceptable to the Trust and in compliance with applicable laws and
the rules and regulations of the Securities and Exchange Commission, including
but not limited to the record-keeping requirements of Section 31(a) of the 1940
Act and the rules thereunder. Such records shall be deemed to be the property
of the Trust and will be made available, at the Trust's request, for inspection
and use by the Trust, representatives of the Trust and governmental
authorities.
10.2. RULES 17A-3 AND 17A-4. The Agent shall maintain accurate and
complete records with respect to services performed by the Agent in connection
with the purchase and redemption of Shares. Such records shall be maintained in
a form reasonably acceptable to the Trust and in compliance with the
requirements of Rules 17a-3 and 17a-4 under the 1934 Act pursuant to which any
dealer of the Shares must maintain certain records. All such records maintained
by the Agent shall be the property of such dealer and will be made available
for inspection and use by the Trust or such dealer upon the request of either.
The Agent shall file with the Securities and Exchange Commission and other
appropriate governmental authorities, and furnish to the Trust and any such
dealer copies of, all reports and undertakings as may be reasonably requested
by the Trust or such dealer in order to comply with the said rules. If so
requested by any such dealer, the Agent shall confirm to such dealer its
obligations under this Section 10.2 by a writing reasonably satisfactory to
such dealer.
10.3. IDENTIFICATION, ETC. OF RECORDS. The Trust shall from time to time
instruct the Agent in writing as to, and the Trust and the Agent shall
periodically review, the records to be maintained and the procedures to be
followed by the Agent in complying with the foregoing Sections 10.1 and 10.2
and Section 8 to the extent it relates to record-keeping required under federal
securities laws and regulations. Notwithstanding the provisions of Section 8,
the Agent shall be entitled to rely on such instructions.
10.4. TRANSFER OF CUSTOMER DATA. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall, at the
expense of the Trust, transfer to such designee as the Trust may direct a
certified list of the shareholders of the Trust serviced by the Agent (with
name, address and tax identification or Social Security number), a complete
record of the account of each such shareholder with respect to shares of the
Trust and the status thereof, and all other relevant books, records,
correspondence, and other data established or maintained by the Agent under
this Agreement. In the event this Agreement is terminated, the Agent will use
reasonable efforts to cooperate in the orderly transfer of such duties and
responsibilities, including assistance in the establishment of books, records
and other data by the successor.
10.5. SURVIVAL OF RECORD-KEEPING OBLIGATIONS. The Agent shall retain any
records deemed the property of the Trust pursuant to Section 10 for a period of
six years after the end of the fiscal year in which the transaction to which
such records relate occurred and shall, at the written request of the Trust
before the expiration of such period with respect to any records, deliver such
records to the Trust or its designated agent.
10.6. OBLIGATIONS PURSUANT TO AGREEMENT ONLY. Nothing in this Section 10
shall be construed to mean that the Agent would, by virtue of its role
hereunder, be required under applicable law to maintain the records required to
be maintained by it under this Section 10, but it is understood that the Agent
has agreed to do so in order to enable the Trust to comply with applicable laws
and regulations.
10.7. AGENT'S RIGHTS TO COPY RECORDS. Anything in this Section 10 to the
contrary notwithstanding, except to the extent otherwise prohibited by law, the
Agent shall have the right to copy, maintain and use any records maintained by
the Agent pursuant to this Section 10, except as otherwise prohibited by
Sections 4 and 6 hereof.
11. FORCE MAJEURE. The Agent shall not be liable or responsible for
delays or errors by reason of circumstances beyond its reasonable control,
including, but not limited to, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdown, flood or
catastrophe, Acts of God, insurrection, war, riots or failure of communication
or power supply.
12. INDEMNIFICATION.
12.1. INDEMNIFICATION OF THE AGENT. Without limiting the rights of the
Agent Indemnified Parties (as hereinafter defined) under applicable law, the
Trust will indemnify and hold harmless the Agent, any person that directly or
indirectly controls the Agent (within the meaning of the Securities Act of
1933, as amended, and the 0000 Xxx) and the Agent's and their respective
directors, officers and employees (collectively, the "Agent Indemnified
Parties") from all losses, claims, damages, liabilities or expenses, joint or
several, to which they or any of them become subject insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) arise
out of or are based upon (a) any untrue statement or alleged untrue statement
contained in any then-current Prospectus, Statement of Additional Information
or Registration Statement, or any omission or alleged omission therefrom, or
(b) any claim, demand, action or suit, both (x) arising in connection with
actions or inactions by the Trust or any of its agents or contractors or the
performance of the Agent's obligations hereunder and (y) not resulting from (i)
the bad faith or gross negligence of the Agent, its officers, employees or
agents, (ii) any breach of applicable law by the Agent, its officers, employees
or agents, (iii) any action of the Agent, its officers, employees or agents
which exceeds the legal authority of the Agent or its authority hereunder, or
(iv) any material error or omission of the Agent, its officers, employees or
agents with respect to the purchase, redemption and transfer of Customers'
Shares or the Agent's verification or guarantee of any Customer signature.
Notwithstanding anything herein to the contrary, the Trust will indemnify and
hold the Agent harmless from any and all losses, claims, damages, liabilities
or expenses (including reasonable counsel fees and expenses) resulting from any
claim as a result of its acting in accordance with any written instructions
reasonably believed by the Agent to have been executed by any person duly
authorized by the Trust, or as a result of acting in reliance upon any
instrument or stock certificate reasonably believed by the Agent to have been
genuine and signed, countersigned or executed by a person duly authorized by
the Trust, excepting only the gross negligence or bad faith of the Agent.
In any case in which the Trust may be asked to indemnify or hold an Agent
Indemnified Party harmless, the Trust shall be advised of all pertinent facts
concerning the situation in question and the Agent Indemnified Party shall use
reasonable care to identify and notify the Trust promptly concerning any
situation which presents or appears likely to present a claim for
indemnification against the Trust. The Trust shall have the option to defend
the Agent Indemnified Party against any claim which may be the subject of
indemnification hereunder. In the event that the Trust elects to defend against
such claim, the defense shall be conducted by counsel chosen by the Trust and
reasonably satisfactory to the Agent Indemnified Party. The Agent Indemnified
Party may retain additional counsel at its expense. Except with the prior
written consent of the Trust, the Agent Indemnified Party shall not confess any
claim or make any compromise in any case in which the Trust will be asked to
indemnify the Agent Indemnified Party.
12.2. INDEMNIFICATION OF THE TRUST. Without limiting the rights of the
Trust under applicable law, the Agent will indemnify and hold the Trust, its
officers, Trustees, employees and controlling persons harmless from all losses,
claims, damages, liabilities or expenses (including reasonable counsel fees and
expenses) both (a) resulting from (i) the bad faith or gross negligence of the
Agent, its officers, employees or agents, (ii) any breach of applicable law by
the Agent, its officers, employees or agents, (iii) any action of the Agent,
its officers, employees or agents which exceeds the legal authority of the
Agent or its authority hereunder, or (iv) any material error or omission of the
Agent, its officers, employees or agents with respect to the purchase,
redemption and transfer of Customers' Shares or the Agent's verification or
guarantee of any Customer signature, and (b) not resulting from the Agent's
actions in accordance with written instructions reasonably believed by the
Agent to have been executed by any person duly authorized by the Trust, or in
reliance upon any then-current Prospectus, Statement of Additional Information
or Registration Statement, or any instrument or stock certificate reasonably
believed by the Agent to have been genuine and signed, countersigned or
executed by a person duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or hold the
Trust or another party harmless, the Agent shall be advised of all pertinent
facts by the Trust or other party concerning the situation in question and the
Trust or other party shall use reasonable care to identify and notify the Agent
promptly concerning any situation which presents or appears likely to present a
claim for indemnification against the Agent. The Agent shall have the option to
defend the Trust or other party against any claim which may be the subject of
indemnification hereunder. In the event that the Agent elects to defend against
such claim, the defense shall be conducted by counsel chosen by the Agent and
reasonably satisfactory to the Trust or other party. The Trust or other party
may retain additional counsel at its expense. Except with the prior written
consent of the Agent, the Trust or other party shall not confess any claim or
make any compromise in any case in which the Agent will be asked to indemnify
the Trust or other party.
12.3. SURVIVAL OF INDEMNITIES. The indemnities granted by the parties in
this Section 12 shall survive the termination of this Agreement.
13. INSURANCE. The Agent shall maintain reasonable insurance coverage
against any and all liabilities which may arise in connection with the
performance of its duties hereunder.
14. NOTICES. All communications and notices to either party hereto shall
be sent to the address or facsimile number of such party set forth by its name
on the signature pages hereto (in the case of the Agent, to the attention of
its President) or such other address or number as shall be provided to the
other party hereto in writing, and shall be duly given if mailed or
telegraphed, sent by facsimile, or delivered by hand or other courier delivery
service that requires written acknowledgment of receipt, to such party at such
address.
15. FURTHER ASSURANCES. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
16. TERMINATION. This Agreement may be terminated by each of Xxxxxxxx or
the Trust, without the payment of any penalty, at any time upon not more than
60 days' nor less than 30 days' notice. Upon termination hereof, the Trust
shall pay such compensation as may be due the Agent as of the date of such
termination.
17. CHANGES; AMENDMENTS. This Agreement may be changed or amended only by
written instrument signed by both parties.
18. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY. The Agent hereby
agrees that obligations assumed by the Trust pursuant to this Agreement shall
be limited in all cases to the Trust and its assets and that neither the Agent
nor any other person shall seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust. The obligations of this Agreement
pertaining to a particular Fund or class thereof shall apply only to that
particular Fund or class and to no other class of the Fund or series of the
Trust. It is further agreed that neither the Agent nor any other person shall
seek satisfaction of any such obligations from the Board of Trustees or any
individual Trustee or officer of the Trust.
19. DIVIDEND PAYMENT DATES. The Trust hereby agrees, with respect to any
series of the Trust that is a money market fund, that dividends otherwise
payable to any Customer on the last business day of each month shall, to the
extent required by the Agent, be distributed on such other date in each month
as the Agent may designate as the dividend distribution date with respect to
such Customer.
20. SUBCONTRACTING BY AGENT. The Agent may, with the written approval of
the Trust (such approval not to be unreasonably withheld or delayed),
subcontract for the performance of the Agent's obligations hereunder with any
one or more persons, including but not limited to any one or more persons which
is an affiliate of the Agent; provided, however, that the Agent shall be as
fully responsible to the Trust for the acts and omissions of any subcontractor
as it would be for its own acts or omissions.
21. AUTHORITY TO VOTE. The Trust hereby confirms that, pursuant to the
Declaration of Trust of the Trust, at any meeting of shareholders of the Trust
or of any series of the Trust, the Agent is authorized to vote any Shares held
in accounts serviced by the Agent and which are otherwise not represented in
person or by proxy at the meeting, proportionately in accordance with the votes
cast by holders of all Shares otherwise represented at the meeting in person or
by proxy and held in accounts serviced by the Agent.
22. COMPLIANCE WITH LAWS AND POLICIES; COOPERATION. The Trust hereby
agrees that it will comply with all laws and regulations applicable to its
operations and the Agent agrees that it will comply with all laws and
regulations applicable to its operations hereunder. Each party agrees from time
to time to provide such certificates, information and access to its books,
records and personnel as the other may reasonably request to confirm the
foregoing. Each party understands that the other may from time to time adopt or
modify policies relating to the subject matter of this Agreement, in which case
the party adopting or modifying such a policy shall notify the other thereof
and the parties shall consider the applicability thereof and endeavor to comply
therewith to the extent not impracticable or unreasonably burdensome. Each of
the parties agrees to cooperate with the other in connection with the
performance of this Agreement and the resolution of any problems, questions or
disagreements in connection herewith.
23. AUDIT. The Trust shall maintain or arrange to be maintained complete
and accurate accounting records, in accordance with generally accepted
accounting principles. The Trust shall retain or arrange to be retained such
records for a period of three years from the termination of this Agreement. The
Agent and its designated certified public accountants shall have access to such
records based on reasonable cause and professional judgment during normal
business hours upon reasonable notice to the Trust.
24. MISCELLANEOUS. This Agreement embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements
and understandings relating to the subject matter hereof. This Agreement shall
be construed and the provisions thereof interpreted under and in accordance
with the laws of the Commonwealth of Massachusetts. The captions in this
Agreement are included for convenience of reference only and in no way define
or limit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. This Agreement has been
executed on behalf of the Trust by the undersigned not individually, but in the
capacity indicated. The obligations under this Agreement are not binding upon
any of the officers, Trustees or shareholders of the Trust individually, but
bind only the trust estate.
Notice Address: THE DIVERSIFIED INVESTORS
FUNDS GROUP
The Diversified Investors Funds
Group
0 Xxxxxxxxxxxxxx Xxxx Xx:____________________________
Xxxxxxxx, Xxx Xxxx 00000 Xxxxxx X. Xxxxx
Attention: Xxxxxx X. Xxxxx Secretary
Telephone number: (000) 000-0000 As officer and not individually
Facsimile number: (000) 000-0000
Notice Address: XXXXXXXX INC.
Xxxxxxxx Inc. By:____________________________
000 Xxxxxx Xxxxxx Name:
Xxxxxx Xxxx, Xxxxxxxx 00000 Title:
Attention: President
Telephone number:[___________]
Facsimile number:[___________]
