Exhibit h(xii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
MUTUAL FUNDS
SALES AND SERVICE
AGREEMENT
This Agreement is entered into between the financial institution executing
this Agreement ("Financial Institution") and Edgewood Services, Inc. ("ESI")
with respect to those investment companies listed in Exhibit A hereto (referred
to individually as the "Fund" and collectively as the "Funds") for whose shares
of beneficial interest or capital stock ("Shares") ESI serves as Distributor.
A. Financial Institution.
1. Status of Financial Institution as "Bank" or Registered
Broker-Dealer.
Financial Institution represents and warrants to ESI:
(a)(i) that it is a broker or dealer as defined in
Section 3(a)(4) or 3(a)(5) of the Securities Exchange
Act of 1934 ("Exchange Act"); that it is registered with
the Securities and Exchange Commission pursuant to
Section 15 of the Exchange Act; that it is a member of
the National Association of Securities Dealers, Inc.;
that its customers' accounts are insured by the
Securities Investors Protection Corporation ("SIPC");
and that, during the term of this Agreement, it will
abide by all of the rules and regulations of the NASD
including, without limitation, the NASD Rules of Fair
Practice. Financial Institution agrees to notify ESI
immediately in the event of (1) the termination of its
coverage by the SIPC; (2) its expulsion or suspension
from the NASD, or (3) its being found to have violated
any applicable federal or state law, rule or regulation
arising out of its activities as a broker-dealer or in
connection with this Agreement, or which may otherwise
affect in any material way its ability to act in
accordance with the terms of this Agreement. Financial
Institution's expulsion from the NASD will automatically
terminate this Agreement immediately without notice.
Suspension of Financial Institution from the NASD for
violation of any applicable federal or state law, rule
or regulation will terminate this Agreement effective
immediately upon ESI's written notice of termination to
Financial Institution; or
(a)(ii) that it is a "bank," as that term is defined in
Section 3(a)(6) of the Exchange Act and that, during the
term of this Agreement, it will abide by the rules and
regulations of those state and federal banking
authorities with appropriate jurisdiction over the
Financial Institution, especially those regulations
dealing with the activities of the Institution as
described under this Agreement. Financial Institution
agrees to notify ESI immediately of any action by or
communication from state or federal banking authorities,
state securities authorities, the Securities and
Exchange Commission, or any other party which may affect
its status as a bank, or which may otherwise affect in
any material way its ability to act in accordance with
the terms of this Agreement. Any action or decision of
any of the foregoing regulatory authorities or any court
of appropriate jurisdiction which affects Financial
Institution's ability to act in accordance with the
terms of this agreement, including the loss of its
exemption from registration as a broker or dealer, will
terminate this Agreement effective upon ESI's written
notice of termination to Financial Institution; and
(b) that Financial Institution is registered with the
appropriate securities authorities in all states in
which its activities make such registration necessary.
2. Financial Institution as Agent.
(a) The parties agree that in each transaction in the Shares of any Fund
and with regard to any services rendered pursuant to this
Agreement: (i) Financial Institution is acting as agent for
the customer; (ii) each transaction is initiated solely upon
the order of the customer; (iii) as between Financial
Institution and its customer, the customer will have full
beneficial ownership of all Shares of the Funds; (iv) each
transaction shall be for the account of the customer and not
for Financial Institution's account; and (v) each transaction
shall be without recourse to Financial Institution provided
that Financial Institution acts in accordance with the terms
of this Agreement. Except as set forth in subsection (b)
below, Financial Institution shall not have any authority in
any transaction to act as ESI's agent or as agent for the
Funds.
(b) Pursuant to the authority granted to ESI by the Funds under that
certain Distributor's Contract, dated as of December 1, 2001,
amended as of October 1, 2003 and further amended as of
November 12, 2003, ESI hereby designates and authorizes
Financial Institution to receive purchase and redemption
orders in proper form from its customers on each Fund's behalf
for purposes of Rule 22c-1 under the 1940 Act. On each day
the Funds are open for trading, in order for Financial
Institution's customers to receive that day's NAV, Financial
Institution must receive its customers' orders prior to the
time the Funds calculate their NAV as disclosed in their
prospectuses (the "Cut-Off Time"), and must communicate to the
Funds' transfer agent a report of the trading activity of its
customers in the Funds for that day by 9:00 a.m. EST on the
next day the Funds are open for business. Financial
Institution represents and warrants to ESI that Financial
Institution has, and will maintain at all times during the
term of this Agreement, appropriate internal controls for the
segregation of purchase and redemption orders received prior
to the Cut-Off Time, from purchase and redemption orders
received after the Cut-Off Time on any day the Funds are open
for trading.
B. Sales of Fund Shares.
3. Execution of Orders for Purchase and Redemption of Shares.
(a) All orders for the purchase of any Shares received in proper
form by the Financial Institution shall be executed at the
next calculated public offering price per share (i.e., the net
asset value per share plus the applicable initial sales load,
if any) and all orders for the redemption of any Shares
received in proper form by the Financial Institution shall be
executed at the next calculated net asset value per share, in
each case as described in the prospectus of the Fund. Any
applicable redemption fee or deferred sales charge will be
deducted by the Fund prior to the transmission of the
redemption proceeds to Financial Institution or its customer.
ESI and the Funds reserve the right to reject any purchase
request in their sole discretion. If required by law, each
transaction shall be confirmed in writing on a fully disclosed
basis and, if confirmed by ESI, a copy of each confirmation
shall be sent simultaneously to Financial Institution if
Financial Institution so requests.
(b) The procedures relating to all orders will be subject to the
terms of this Agreement, the prospectus of each Fund and ESI's
written instructions to Financial Institution from time to
time.
(c) Payments for Shares shall be made as specified in the
applicable Fund prospectus. If payment for any purchase order
is not received in accordance with the terms of the applicable
Fund prospectus, ESI reserves the right, without notice, to
cancel the sale and to hold Financial Institution responsible
for any loss sustained as a result thereof.
4. Sales Charges Payable to Financial Institution.
(a) On each purchase order accepted by ESI, in exchange for the
performance of sales and/or distribution services, Financial
Institution will be entitled to receive the applicable
percentage of the initial sales load, if any, as established
by ESI from the amount paid by Financial Institution's
customer. The initial sales loads for any Fund shall be those
set forth in its prospectus. The portion of the initial sales
load payable to Financial Institution may be changed at any
time at ESI's sole discretion upon written notice to Financial
Institution.
(b) Transactions may be settled by Financial Institution: (1) by payment
of the full purchase price less an amount equal to Financial
Institution's applicable percentage of the initial sales load,
or (2) by payment of the full purchase price, in which case
Financial Institution shall receive, not less frequently than
monthly, the aggregate fees due it on orders received and
settled.
(c) In exchange for the performance of sales and/or distribution
services, Financial Institution will be entitled to receive
any applicable contingent deferred sales charge ("CDSC") paid
or withheld from proceeds in connection with the redemption of
any Share (a "Financial Institution Share") purchased, or
acquired as a result of an exchange of or the reinvestment of
a distribution on a Share purchased, by a Fund shareholder who
was a customer of Financial Institution at the time the
originally purchased Share was purchased. The CDSC for any
Fund shall be those set forth in its prospectus.
5. Determining the Amount of any Sales Charge.
It shall be the obligation of the Financial Institution to provide ESI
with all necessary information regarding the application of the
appropriate sales charge with respect to each purchase of a Financial
Institution Share and with respect to each redemption of any Share
that is redeemed by a shareholder who is then a customer of the
Financial Institution. With respect to initial sales charges, in lieu
of the foregoing, Financial Institution may assess the appropriate
initial sales charge for each transaction and to forward the public
offering price, net of the amount of the initial sales charge to be
reallocated to the Financial Institution, to the appropriate Fund.
Neither the Fund nor ESI shall have any responsibility to correct the
payment or assessment of an incorrect sales charge due to the failure
of the Financial Institution to fulfill the foregoing obligation.
C. Distribution Services.
6. Agreement to Provide Distribution Services.
(a) With regard to purchases of Financial Institution Shares of
those Funds that pay asset-based sales charges (pursuant to a
Distribution Plan adopted under Investment Company Act Rule
12b-1), as noted on Exhibit A hereto (or, if more recently
published, the Fund's current prospectus), ESI hereby appoints
Financial Institution to render or cause to be rendered
distribution and sales services to the Funds and their
shareholders.
(b) The services to be provided under this Paragraph (a) may
include, but are not limited to, the following:
(i) reviewing the activity in Fund accounts;
(ii) providing training and supervision of its personnel;
(iii) maintaining and distributing current copies of
prospectuses and shareholder reports;
(iv) advertising the availability of its services and
products;
(v) providing assistance and review in designing materials
to send to customers and potential customers and
developing methods of making such materials accessible
to customers and potential customers; and
(vi) responding to customers' and potential customers'
questions about the Funds.
7. Asset-Based Sales Loads Payable to Financial Institution.
During the term of this Agreement, ESI will pay Financial Institution
asset-based sales charges (also known as "Rule 12b-1 Fees") for purchases
of Financial Institution Shares as set forth in Exhibit A to this
Agreement (or, if more recently published, the Fund's current
prospectus). For the payment period in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of the
fee on the basis of the number of days that this Agreement is in effect
during the quarter.
D. Shareholder Services.
8. Agreement to Provide Shareholder and Account Maintenance Services.
With regard to purchases of Financial Institution Shares of those
Funds that pay a Shareholder Services Fee to Financial Institutions, as
noted on Exhibit A hereto (or, if more recently published, the Fund's
current prospectus), Financial Institution agrees to render or cause to be
rendered personal services to shareholders of the Funds and/or the
maintenance of accounts of shareholders of the Funds ("Shareholder
Services"). Financial Institution agrees to provide Shareholder Services
that, in its best judgment, are necessary or desirable for its customers
who are investors in the Funds. Financial Institution further agrees to
provide the Funds or ESI, upon request, a written description of the
Shareholder Services which Financial Institution is providing hereunder.
9. Shareholder Service Fees Payable to Financial Institution.
During the term of this Agreement, the Funds will pay Financial
Institution Shareholder Service Fees on Financial Institution Shares as
set forth in Exhibit A to this Agreement (or, if more recently published,
the Fund's current prospectus). For the payment period in which this
Agreement becomes effective or terminates, there shall be an appropriate
proration of the fee on the basis of the number of days that this
Agreement is in effect during the quarter.
E. Supplemental Payments.
10. Supplemental Payments to Financial Institution.
During the term of this Agreement, ESI or its affiliates will make
Supplemental Payments to Financial Institution as set forth in Exhibit A
to this Agreement (or, if more recently published, the Fund's current
prospectus) as additional compensation for services described in
Paragraphs 6 or 8, above; such payments will be made from the assets of
ESI or its affiliates, and not from assets of the Funds nor from fees
payable under applicable Distribution (Rule 12b-1) Plans. For the payment
period in which this Agreement becomes effective or terminates, there
shall be an appropriate proration of the payments on the basis of the
number of days that this Agreement is in effect during the quarter.
F. Miscellaneous.
11. Delivery of Prospectuses to Customers.
Financial Institution will deliver or cause to be delivered to each
customer, at or prior to the time of any purchase of Financial Institution
Shares, a copy of the current prospectus of the Fund and, upon request by
a customer or shareholder, a copy of the Fund's current Statement of
Additional Information. Financial Institution shall not make any
representations concerning any Shares other than those contained in the
prospectus or Statement of Additional Information of the Fund or in any
promotional materials or sales literature furnished to Financial
Institution by ESI or the Fund.
12. Indemnification.
(a) Financial Institution shall indemnify and hold harmless ESI,
each Fund, the transfer agents of the Funds, and their
respective subsidiaries, affiliates, officers, directors,
agents and employees from all direct or indirect liabilities,
losses or costs (including attorneys fees) arising from,
related to or otherwise connected with: (1) any breach by
Financial Institution of any provision of this Agreement; or
(2) any actions or omissions of ESI, any Fund, the transfer
agents of the Funds, and their subsidiaries, affiliates,
officers, directors, agents and employees in reliance upon any
oral, written or computer or electronically transmitted
instructions reasonably believed to be genuine and to have
been given by or on behalf of Financial Institution.
(b) ESI shall indemnify and hold harmless Financial Institution
and its subsidiaries, affiliates, officers, directors, agents
and employees from and against any and all direct or indirect
liabilities, losses or costs (including attorneys fees)
arising from, related to or otherwise connected with: (1) any
breach by ESI of any provision of this Agreement; or (2) any
alleged untrue statement of a material fact contained in any
Fund's Registration Statement or Prospectus, or as a result of
or based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the
statements contained therein not misleading.
(c) The agreement of the parties in this Paragraph to indemnify
each other is conditioned upon the party entitled to
indemnification (Indemnified Party) giving notice to the party
required to provide indemnification (Indemnifying Party)
promptly after the summons or other first legal process for
any claim as to which indemnity may be sought is served on the
Indemnified Party. The Indemnified Party shall permit the
Indemnifying Party to assume the defense of any such claim or
any litigation resulting from it, provided that counsel for
the Indemnifying Party who shall conduct the defense of such
claim or litigation shall be approved by the Indemnified Party
(which approval shall not unreasonably be withheld), and that
the Indemnified Party may participate in such defense at its
expense. The failure of the Indemnified Party to give notice
as provided in this subparagraph shall not relieve the
Indemnifying Party from any liability other than its indemnity
obligation under this Paragraph. No Indemnifying Party, in
the defense of any such claim or litigation, shall, without
the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not include as
an unconditional term the giving by the claimant or plaintiff
to the Indemnified Party of a release from all liability in
respect to such claim or litigation.
(d) The provisions of this Paragraph 12 shall survive the
termination of this Agreement.
13. Customer Names Proprietary to Financial Institution.
(a) The names of Financial Institution's customers are and shall
remain Financial Institution's sole property and shall not be
used by ESI or its affiliates for any purpose except the
performance of their respective duties and responsibilities
under this Agreement and except for servicing and
informational mailings relating to the Funds. Notwithstanding
the foregoing, this Paragraph 13 shall not prohibit ESI or any
of its affiliates from utilizing the names of Financial
Institution's customers for any purpose if the names are
obtained in any manner other than from Financial Institution
pursuant to this Agreement. Both parties agree to maintain
the security and confidentiality of nonpublic personal
information ("NPI") of Fund customers and consumers, as those
terms are defined in Xxxxxxxxxx X-X, 00 XXX Part 248. Both
parties agree to use and redisclose such NPI for the limited
purposes of processing and servicing transactions; for
specified law enforcement and miscellaneous purposes; and to
service providers or in connection with joint marketing
arrangements directed by the Funds, in each instance in
furtherance of fulfilling both parties obligations under this
Agreement and consistent with the exceptions provided in 17
CFR Sections 248.14, 248.15 and 248.13, respectively.
(b) Neither party shall use the name of the other party in any
manner without the other party's written consent, except as
required by any applicable federal or state law, rule or
regulation, and except pursuant to any mutually agreed upon
promotional programs.
(c) The provisions of this Paragraph 13 shall survive the
termination of this Agreement.
14. Security Against Unauthorized Use of Funds' Recordkeeping Systems.
Financial Institution agrees to provide such security as is necessary
to prevent any unauthorized use of the Funds' recordkeeping system,
accessed via any computer hardware or software provided to Financial
Institution by ESI.
15. Solicitation of Proxies.
Financial Institution agrees not to solicit or cause to be solicited
directly, or indirectly, at any time in the future, any proxies from the
shareholders of any or all of the Funds in opposition to proxies solicited
by management of the Fund or Funds, unless a court of competent
jurisdiction shall have determined that the conduct of a majority of the
Board of Directors or Trustees of the Fund or Funds constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard of their
duties. This Paragraph 15 will survive the termination of this Agreement.
16. Certification of Customers' Taxpayer Identification Numbers.
Financial Institution agrees to obtain any taxpayer identification
number certification from its customers required under Section 3406 of the
Internal Revenue Code, and any applicable Treasury regulations, and to
provide ESI, the Funds, or their respective designee with timely written
notice of any failure to obtain such taxpayer identification number
certification in order to enable the implementation of any required backup
withholding.
17. Notices.
Except as otherwise specifically provided in this Agreement, all
notices required or permitted to be given pursuant to this Agreement shall
be given in writing and delivered by personal delivery or by postage
prepaid, registered or certified United States first class mail, return
receipt requested, overnight courier services, or by facsimile or similar
electronic means of delivery (with a confirming copy by mail as provided
herein). Unless otherwise notified in writing, all notices to ESI shall
be given or sent to ESI at its offices located at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, and all notices to Financial
Institution shall be given or sent to it at its address shown below.
18. Termination and Amendment.
(a) This Agreement shall become effective in this form as of the
date set forth below or as of the first date thereafter upon
which Financial Institution executes any transaction, performs
any service, or receives any payment pursuant hereto. This
Agreement supersedes any prior sales, distribution,
shareholder service, or administrative service agreements
between the parties.
(b) With respect to each Fund, this Agreement shall continue in
effect for one year from the date of its execution, and
thereafter for successive periods of one year if the form of
this Agreement is approved at least annually by the Directors
or Trustees of the Fund, including a majority of the members
of the Board of Directors or Trustees of the Fund who are not
interested persons of the Fund and have no direct or indirect
financial interest in the operation of the Fund's Distribution
Plan or in any related documents to such Plan ("Independent
Directors or Trustees") cast in person at a meeting called for
that purpose.
(c) This Agreement, including Exhibit A hereto, may be amended by
ESI from time to time by the following procedure. ESI will
mail a copy of the amendment to Financial Institution's
address, as shown below. If Financial Institution does not
object to the amendment within thirty (30) days after its
receipt, the amendment will become part of the Agreement.
Financial Institution's objection must be in writing and be
received by ESI within such thirty days.
(d) Notwithstanding subparagraph 18(b) and in addition to
subparagraph 1(a), this Agreement may be terminated as follows:
(i) at any time, without the payment of any penalty, by the
vote of a majority of the Independent Directors or
Trustees of the Fund or by a vote of a majority of the
outstanding voting securities of the Fund as defined in
the Investment Company Act of 1940 on not more than
sixty (60) days' written notice to the parties to this
Agreement;
(ii) automatically in the event of the Agreement's assignment
as defined in the Investment Company Act of 1940, upon
the termination of the "Distributor's Contract" between
the Fund and ESI or upon the termination of the
Distribution Plan to which this Agreement is related; and
(iii) by any party to the Agreement without cause by giving
the other party at least sixty (60) days' written notice
of its intention to terminate.
(e) The termination of this Agreement with respect to any one Fund
will not cause the Agreement's termination with respect to any
other Fund.
19. Governing Law.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
EDGEWOOD SERVICES, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
By: Date:
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
FINANCIAL INSTITUTION
[address]
By:
Name:
Title:
Date:
EXHIBIT A
COMPENSATION
(as a percentage of average
daily net asset value of
shares
NAME of the applicable Class)
Huntington Dividend Capture Fund
Investment A Shares 0.25*
Huntington Fixed Income Securities Fund
Investment A Shares 0.25*
Huntington Florida Tax-Free Money Fund
Investment A Shares 0.25*
Huntington Growth Fund
Investment A Shares 0.25*
Huntington Income Equity Fund
Investment A Shares 0.25*
Huntington Intermediate Government Income Fund
Investment A Shares 0.25*
Huntington International Equity Fund
Investment A Shares 0.25*
Huntington Michigan Tax-Free Fund
Investment A Shares 0.25*
Huntington Mid Corp America Fund
Investment A Shares 0.25*
Huntington Money Market Fund
Investment A Shares 0.25*
Huntington Mortgage Securities Fund
Investment A Shares 0.25*
Huntington New Economy Fund
Investment A Shares 0.25*
Huntington Ohio Municipal Money Market Fund
Investment A Shares 0.25*
Huntington Ohio Tax-Free Fund
Investment A Shares 0.25*
COMPENSATION
(as a percentage of average
daily net asset value of
shares
NAME of the applicable Class)
Huntington Rotating Markets Fund
Investment A Shares 0.25*
Huntington Short/Intermediate Fixed Income Securities Fund
Investment A Shares 0.25*
Huntington Situs Small Cap Fund
Investment A Shares 0.25*
Huntington U.S. Treasury Money Market Fund
Investment A Shares 0.25*
ESI shall pay Financial Institution a fee with respect to Investment A
Shares, computed at the annual rate specified above, in accounts for which
such Financial Institution provides services described herein. Such fee
shall be accrued daily and paid quarterly.
*Represents a distribution and servicing fee
Amendment to
Mutual Fund Sales and Service Agreement
between
(financial institution)
and
Edgewood Services, Inc.
This Amendment to the Mutual Fund Sales and Service Agreement
("Agreement") between (financial institution) ("Financial Institution")
and Edgewood Services, Inc. ("Distributor") is made and entered into as of
the day of , 20 .
WHEREAS, the Distributor is the principal underwriter of certain
registered open-end management investment companies (the "Funds"); and
WHEREAS, Distributor and Financial Institution are parties to the
Agreement;
WHEREAS, the Securities and Exchange Commission and the United States
Treasury Department ("Treasury Department") have adopted a series of rules
and regulations arising out of the USA PATRIOT Act (together with such
rules and regulations, the "Applicable Law"), specifically requiring
certain financial institutions, including Distributor and Financial
Institution, to establish a written anti-money laundering and customer
identification program ("Program");
WHEREAS, each of the Distributor and Financial Institution have
established a Program and wish to amend the Agreement to reflect the
existence of such Programs and confirm the allocation of responsibility
for the performance of certain required functions;
NOW, THEREFORE, the parties intending to be legally bound agree as
follows:
1. Distributor and Financial Institution each represent, warrant and
certify that they have established, and covenant that at all times
during the existence of the Agreement they will maintain, a Program
in compliance with Applicable Law.
2. Financial Institution hereby covenants that it will perform all
activities, including the establishment and verification of customer
identities as required by Applicable Law or its Program, with
respect to all customers on whose behalf Financial Institution
maintains an account with Distributor or the Funds ("Financial
Institution Customers").
3. Distributor and Financial Institution hereby agree that: (i)
accounts in the Funds in the name of, or beneficially owned by,
Financial Institution Customers shall be accounts of the Financial
Institution for purposes of the Financial Institution's Program; and
(ii) Financial Institution Customers will be customers of Financial
Institution for all purposes under the Program of Financial
Institution.
This Amendment supersedes any prior amendment to the Agreement between the
parties with regard to Anti-Money Laundering.
In all other respects, the Agreement first referenced above shall remain
in full force and effect.
WITNESS the due execution hereof this day of
, 20 .
EDGEWOOD SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
The Huntington Bank
By:
Name:
Title:
