PROSPECT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of September,
2002, by and among Optimum Q(TM) Funds, a Delaware business trust (the "Trust"),
MDT Advisers, a division of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx, LLC, a Delaware
limited liability company(the "Adviser"), and U.S. Bancorp Fund Services, LLC, a
Wisconsin limited liability company ("USBFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers Act
of 1940, as amended, and any applicable state securities laws, as an investment
adviser;
WHEREAS, the Adviser serves as investment adviser to each series of the
Trust;
WHEREAS, USBFS is, among other things, in the business of providing
fulfillment services to mutual funds; and
WHEREAS, the Trust and the Adviser desire to retain USBFS to provide
fulfillment services for each series of the Trust listed on Exhibit A hereto (as
amended from time to time) (each a "Fund", collectively the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of USBFS to Provide Fulfillment Services
The Trust and the Adviser hereby appoint USBFS to provide fulfillment
services to the Trust on the terms and conditions set forth in this
Agreement, and USBFS hereby accepts such appointment and agrees to perform
the services and duties set forth in this Agreement.
2. Duties and Responsibilities of USBFS
USBFS shall provide the following fulfillment services for the Funds,
including but not limited to:
A. Answer all prospective shareholder calls concerning the Fund.
B. Send all available Fund material requested by a prospect within 24
hours from time of call.
C. Receive and update all Fund fulfillment literature so that the most
current information is sent and quoted.
D. Provide 24 hour answering service to record prospect calls made after
hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Trust as agreed upon between
the parties.
3. Duties and Responsibilities of the Trust
The Trust shall:
A. Provide Fund fulfillment literature updates to USBFS as necessary.
B. File with the National Association of Securities Dealers, Inc., the
Securities and Exchange Commission (the "SEC") and state regulatory
agencies, as appropriate, all fulfillment literature that the Fund
requests USBFS send to prospective shareholders.
C. Supply USBFS with sufficient inventory of fulfillment materials as
requested from time to time by USBFS.
D. Provide USBFS with any sundry information about the Fund in order to
answer prospect questions.
4. Compensation
USBFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit B hereto
(as amended from time to time). The Trust shall pay all fees and
reimbursable expenses within thirty (30) calendar days following receipt of
the billing notice, except for any fee or expense subject to a good faith
dispute. The Trust shall notify USBFS in writing within thirty (30)
calendar days following receipt of each invoice if the Trust is disputing
any amounts in good faith. The Trust shall settle such disputed amounts
within ten (10) calendar days of the day on which the parties agree to the
amount to be paid. With the exception of any fee or expense the Trust is
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of one and one-half percent (1 1/2%) per month, after the
due date. To the extent such fees are not payable by the Trust, the Adviser
shall be responsible for paying the remaining amount of fees to USBFS.
5. Indemnification; Limitation of Liability
The Trust agrees to indemnify USBFS from any liability arising out of the
distribution of fulfillment literature that has not been filed with the
appropriate federal and state regulatory agencies. USBFS agrees to
indemnify the Trust from any liability arising from the improper use of
fulfillment literature during the performance of its duties and
responsibilities identified in this Agreement. USBFS will be liable for bad
faith, negligence or willful misconduct on its part in its duties under
this Agreement.
6. Proprietary and Confidential Information
USBFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Trust all
records and other information relative to the Trust and prior, present, or
potential shareholders of the Trust (and clients of said shareholders), and
not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where USBFS may
be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities,
or when so requested by the Trust.
Further, USBFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time (the "Act"). Notwithstanding the foregoing, USBFS will not
share any nonpublic personal information concerning any of the Trust's
shareholders to any third party unless specifically directed by the Trust
or allowed under one of the exceptions noted under the Act.
7. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of three years. Subsequent to the
initial three-year term, this Agreement may be terminated by any party upon
giving ninety (90) days prior written notice to the other parties or such
shorter period as is mutually agreed upon by the parties. However, this
Agreement may be amended by mutual written consent of the parties.
8. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder.
9. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
USBFS's duties or responsibilities hereunder is designated by the Trust by
written notice to USBFS, USBFS will promptly, upon such termination and at
the expense of the Trust, transfer to such successor all relevant books,
records, correspondence and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the Trust (if such
form differs from the form in which USBFS has maintained the same, the
Trust shall pay any expenses associated with transferring the same to such
form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from USBFS's personnel
in the establishment of books, records and other data by such successor.
10. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower USBFS to
act as agent for any other party to this Agreement, or to conduct business
in the name, or for the account, of any other party to this Agreement.
11. Data Necessary to Perform Services
The Trust or its agent shall furnish to USBFS the data necessary to perform
the services described herein at such times and in such form as mutually
agreed upon. If USBFS is also acting in another capacity for the Trust,
nothing herein shall be deemed to relieve USBFS of any of its obligations
in such capacity.
12. Assignment
This Agreement may not be assigned by any party without the prior written
consent of the other parties.
13. Notices
Any notice required or permitted to be given by any party to the others
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three (3) days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other parties' addresses set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
notice to the Trust shall be sent to:
Mr. Xxxx Xxxxxxx
Optimum Q(TM) Funds
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
and notice to the Adviser shall be sent to:
Mr. Xxxx Xxxxxxx
MDT Advisers
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
OPTIMUM Q(TM) FUNDS MDT ADVISERS
a division of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxx, LLC
By: /s/ X. Xxxxxx Xxxxxx By: /s/ X. Xxxxxx Xxxxxx
-------------------------- ---------------------
X. Xxxxxx Xxxxxx X. Xxxxxx Xxxxxx
Title: President
Title: President
U.S. Bancorp Fund Services, LLC
By: /s/ Xxx Xxxxxxx
------------------------
Xxx Xxxxxxx
Title: President
