Exhibit (m)(13)
Fund Alliance Agreement dated as of April 1, 2002 by and between One Group
Mutual Funds, One Group Dealer Services, Inc. and Xxxxxx Fiduciary Trust
Company.
ONE GROUP FUND ALLIANCE AGREEMENT
FUND ALLIANCE AGREEMENT made as of the 1st day of April, 2002 by and
between One Group Mutual Funds, (the "Fund Company") and One Group Dealer
Services, Inc. ("OGDS") with principal offices at 0000 Xxxxxxx Xxxxxxx,
Xxxxxxxx, XX 00000-0000, and Xxxxxx Fiduciary Trust Company, a Massachusetts
trust company with its principal office at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Plan Agent").
WHEREAS OGDS serves as administrator and distributor in connection with
certain other matters for each investment company listed on Schedule A hereto,
as such Schedule A may be amended from time to time with the mutual consent of
the parties hereto (each such investment company a "Fund" and, collectively, the
"Funds"), each of which is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"). With
respect to any Fund, this Agreement shall become effective upon the date such
Fund is identified on Schedule A and this Agreement is approved by the Fund or
its Board of Trustees if such approval is required;
WHEREAS Plan Agent provides certain administrative and recordkeeping
services as agent for certain employee benefit plans, (each such plan a "Plan"
and, collectively, the "Plans"), and is a transfer agent registered under the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
WHEREAS OGDS desires to appoint Plan Agent as agent for the Funds
solely with respect to the Plans, Plan Agent desires to accept such appointment;
and
WHEREAS, the Plans have authorized and requested the parties hereto to
carry out the obligations described herein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Terms of Appointment; Duties of the Parties.
1.01. OGDS and Plan Agent agree to facilitate the purchase and
redemption of shares of the Funds on behalf of the Plans and
their Participants through one or more accounts per Fund for
each Plan (the "Accounts"). Accounts for a Plan will be opened
upon completion of the application form for the appropriate
Fund. Plan Agent represents and warrants that it is authorized
to act on behalf of each Plan effecting transactions in the
Accounts.
1.02. OGDS agrees to waive any and all loads or fees associated with
purchase, exchange and redemption transactions. Any trading
restrictions, including those related to the size and
frequency of transactions, are also waived. OGDS agrees to
cause the Accounts to be kept open on each Fund's books
regardless of a lack of
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activity or small position size except to the extent Plan
Agent takes specific action to close an Account.
1.03. Subject to the terms and conditions set forth in this
Agreement, OGDS hereby appoints Plan Agent to act as, and Plan
Agent agrees to act as, agent for the sole purpose of
accepting orders for the purchase, and requests for the
redemption, of the authorized and issued shares of beneficial
interest or common stock of any Fund (the "Shares") purchased,
held or redeemed by a Plan (collectively referred to as
"Instructions"). If a Fund offers two or more series of
Shares, at any time, each such series shall be deemed at such
time to be a Fund, unless otherwise indicated herein.
1.04. Plan Agent shall perform the following services in accordance
with procedures established from time to time by agreement of
the parties hereto:
a) Receive from the Plans orders for the purchase of
Shares by the close of regular trading on the New
York Stock Exchange (the "Close of Trading") each
business day that the New York Stock Exchange is open
for business ("Business Day"), transmit such orders
to the Fund Company or its designee for acceptance on
such Business Day and promptly deliver or instruct
the Plans (or the Plans' Trustee(s) as the case may
be) to deliver payment and appropriate documentation
therefor to the Fund Company or its designee for
acceptance. On occasions when the New York Stock
Exchange closes earlier than its regular trading time
(4:00 p.m. Eastern Time), the earlier close time will
apply;
b) Receive from the Plans by the Close of Trading each
Business Day redemption requests and redemption
directions, transmit such requests and directions to
the Fund Company or its designee and deliver
appropriate documentation therefor to the Fund
Company or its designee, in each case for acceptance
on such Business Day; and
c) As instructed, maintain adequate records related to,
and advise the Fund Company or its designee as to,
the foregoing. To the extent required under the 1940
Act and rules thereunder, Plan Agent and the Fund
Company or its designee agree that such records
maintained by it will be preserved, maintained and
made available in accordance with the provisions of
the 1940 Act and rules thereunder, and copies or, if
required, originals, will be surrendered promptly to
the Fund Company or its designee on and in accordance
with its request. Records surrendered hereunder shall
be in machine readable or optical disk form. This
provision shall survive the termination of this
Agreement.
1.05. Plan Agent shall maintain adequate offices, personnel and
computer and other equipment to perform the services
contemplated by this Agreement. Plan Agent
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shall notify OGDS and the Fund Company or its designee
promptly in the event that it becomes unable for any reason to
perform the services contemplated by, or any other of its
obligations under, this Agreement.
1.06. Plan Agent shall maintain insurance coverage at all times that
is reasonable and customary in light of its duties hereunder.
1.07. In accordance with procedures established from time to time by
agreement of the parties hereto, OGDS and the Fund Company or
its designee shall furnish to Plan Agent, for each Fund, no
later than 6:30 p.m. Eastern Time on each Business Day as
appropriate:
a) Net asset value information as of the Close of
Trading each Business Day when such information is
used for crediting accounts;
b) Dividend and capital gains distribution information,
as it arises, when such information is used for
crediting accounts;
c) Daily accrual for interest rate factor (mil rate)
information with respect to Funds which declare
dividends daily, when such information is used for
crediting accounts; and
d) In addition, the OGDS, the Fund Company or its
designee will transmit daily net asset value
information and daily accrual for interest rate
factor (mil rate) information as of the Close of
Trading each Business Day to Plan Agent via the
NSCC's Mutual Fund Profile system ("MFPS") no later
than 7:00 p.m. Eastern Time on each Business Day.
1.08. a) Orders derived from, and in amounts equal to,
Instructions received by Plan Agent prior to the
Close of Trading on any Business Day ("Day 1") shall
be transmitted by Plan Agent via the Fund/SERV system
to the Fund Company or its designee no later than
5:00 a.m. Eastern Time on the next Business Day ("Day
2"). Such trades will be effected at the net asset
value of each Fund's shares calculated as of the
Close of Trading on Day 1 subject to the terms of
such Fund's prospectus.
b) To the extent that such orders are not transmitted to
the Fund Company or its designee via the Fund/SERV
system, such orders shall be transmitted via
facsimile to the Fund Company or its designee by
9:00 am. Eastern Time on the next Business Day. Such
trades will be effected at the net asset value of
each Fund's shares calculated as of the Close of
Trading on Day I subject to the terms of such Fund's
prospectus.
1.09. Plan Agent, OGDS and the Fund Company or its designee agree
that all books, records, information and data pertaining to
the business of the other party which
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are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential and
shall not be voluntarily disclosed to any other person, except
as may be required by law.
1.10. Plan Agent and the Fund Company or its designee shall maintain
or provide for redundant facilities and shall maintain or
provide for backup files of its records maintained hereunder
and shall store such back-up files in a secure off-premises
location, so that in the event of a power failure or other
interruption of whatever cause at the location of its records
such records are maintained intact and transactions can be
processed at another location.
1.11. Plan Agent, OGDS and the Fund Company or its designee shall
comply with federal and state securities laws and regulations
thereunder in connection with its responsibilities under this
Agreement.
1.12. In accordance with the procedures established from time to
time by agreement of the parties hereto, the Fund Company or
its designee shall promptly furnish to the Plan Agent in the
frequency requested, for each Fund:
a) Copies of prospectuses, financial statements, reports
or other materials relating to each Fund, and updates
of such materials, in the quantity requested by Plan
Agent, as such updates become available and as
required by law; and
b) Performance data for each Fund, including without
limitation, standardized performance information,
total return and current yield information computed
in accordance with SEC rules and other performance
information as the Plan Agent may reasonably request;
c) Such copies and performance data as described in
subsections 1.12. (a) and (b) above (collectively
"Fund Information") may be received by the Plan Agent
through electronic means or in disk format. Plan
Agent is authorized to distribute such Information to
the Plan and plan participants via Internet, other
electronic means or hard copy;
d) With respect to the Fund Information received
electronically or in disk format, Plan Agent
represents, warrants and covenants that it shall not
alter in any way such Fund Information provided by
the Fund Company or its designee and shall promptly
make available updated Fund Information after Plan
Agent receives such Fund Information from the Fund
Company or its designee in the format specified in
subsection (c) above. The Fund Company or its
designee represents, warrants and covenants that Fund
information shall be promptly delivered
electronically or in disk format to the Plan Agent.
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1.13. Purchases and sales of the Funds are subject to the terms of
the Funds' prospectuses.
1.14. OGDS and the Fund Company hereby authorizes Plan Agent, for
purposes of Section 1.12 (b) and (c), concerning the
transmission of performance data, to utilize Lipper Analytical
Services ("Lipper") in reporting the performance of the
Fund(s). OGDS and the Fund Company shall not be responsible
for such information obtained from Lipper except to the extent
OGDS and/or the Fund Company provide erroneous information to
Lipper.
1.15. On each Business Day for which Plan Agent has transmitted
orders for purchases, exchanges or redemptions for a Plan, the
Fund Company or its designee shall send to Plan Agent via the
Fund/SERV system, verification of such purchases, exchanges or
redemptions or notification of the rejection of such orders
("Confirmations") Such Confirmations shall include the total
number of Shares of each Fund held by a Plan following such
purchases, exchanges or redemptions. The Fund Company or- its
designee shall submit, in a timely manner, such Confirmations
to the Fund/SERV system in order for Plan Agent to receive no
later than 11:00 a.m. Eastern Time the next Business Day.
1.16. a) In the event there are purchase and redemption
orders received by the transfer agent of a Fund
within the time limits set forth above on any
Business Day for any Fund, settlement shall occur
consistent with the requirements of the Fund/SERV
system.
b) For those purchase orders not transmitted via the
Fund/SERV system, Plan Agent shall initiate payment
to the Fund Company or its designated agent in
federal funds no later than 1:00 p.m. on the Business
Day following the day on which the Instructions are
treated as having been received by the Fund Company
or its designee pursuant to this Agreement.
c) For those redemption orders not transmitted via the
Fund/SERV system, the Fund Company or its designee
shall initiate payment in federal funds no later than
1:00 p.m. on the Business Day following the day on
which the Instructions are treated as having been
received by the Fund Company or its designee pursuant
to this Agreement.
1.17. The Fund Company or its designee will transmit to Plan Agent
by dedicated facsimile and via the NETWORKING system those
Networking activity files reflecting all account activity
including but not limited to closing account balance,
purchases, redemptions, capital gains, dividends, price and
share adjustments. Such files must be received by Plan Agent
on the Business Day following Day 2. Information transmitted
by dedicated facsimile shall be sent to Plan Agent no later
than 11:00 a.m. on the next Business Day.
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2. Compensation. For the services which Plan Agent will render to OGDS and
the Fund Company under this Agreement, OGDS and the Fund Company will
pay to Plan Agent an annual fee calculated on a quarterly basis, at the
rate or rates as set forth in Schedule B.
3. Representations and Warranties.
3.01. Each party represents and warrants to the other party that:
a) It is duly organized, validly existing and in good
standing under the laws of its state of organization
or incorporation:
b) It has legal power and authority to carry on its
business, and is registered or licensed as required,
in each jurisdiction where it conducts its business.
c) It is empowered by its charter and bylaws and under
applicable law to enter into and to perform this
Agreement.
d) All requisite actions have been taken to authorize it
to enter into and to perform this Agreement.
e) OGDS is duly registered as a registered broker
dealer, the Fund Company is duly registered as a
registered investment company under the 1940 Act and
Plan Agent is duly registered as registered transfer
agent under section 17A of the 1934 Act;
f) It maintains and knows of no reason why it cannot or
will not during the term hereof maintain adequate
offices, personnel and computer and other equipment
to perform the services contemplated by this
Agreement; and
g) Each party hereby represents that all of its core
systems directly affecting client operations will be
fully tested and operational prior to December 31,
1999 to ensure that they will function without
material disruption of each party's ability to
provide services as provided herein in the Year 2000
and beyond.
4. Indemnification.
4.01. Each party (an "Indemnitor") shall indemnify and hold harmless
the other party, each of such other party's affiliated
companies, and all of the divisions, subsidiaries, directors,
officers, agents, employees and assigns of each of the
foregoing (collectively, "Indemnified Parties"), against and
from any and all demands, damages, liabilities, and losses, or
any pending or completed actions, claims, suits, complaints,
proceedings, or investigations (including all expenses of
litigation or arbitration, judgments, fines or amounts paid in
any settlement consented to by the Indemnitor) to which any of
them may be or become subject
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as a result or arising out of (a) any negligent act or
omission by the Indemnitor or its agents relating to the
performance of its obligations under this Agreement; (b) any
breach of the Indemnitor's representations or warranties
contained in this Agreement; (c) the Indemnitor's failure to
comply with any of the terms of this Agreement; or (d) the
acceptance by any Indemnified Party of any transaction or
account maintenance information from the Indemnitor with
respect to the Plans or their assets. Each party represents
and warrants that at all times it has sufficient financial
resources, whether through a fidelity bond or otherwise, to
meet all of its indemnification obligations arising under this
Agreement.
4.02. In order that the indemnification provisions contained herein
shall apply, upon the assertion of a claim or loss for which
either party may be required to indemnify the other, the party
seeking indemnification shall promptly notify the other party
of such assertion or loss, and shall keep the other advised
with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option
to participate at its expense with the party seeking
indemnification in the defense of such claim. The party
seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may
be required to indemnify it except with the other party's
prior written consent. The obligations of the parties hereto
under this Section 4 shall survive the termination of the
Agreement.
5. Acknowledgments. Plan Agent acknowledges that each Fund, as a
registered investment company under the 1940 Act, is subject to the
provisions of the 1940 Act and regulations thereunder, and that the
offer and sale of its shares are subject to the provisions of federal
and state laws and regulations applicable to the offer and sale of
securities. The Fund Company and OGDS acknowledges that Plan Agent is
not responsible for such Fund's compliance with such laws and
regulations.
6. Statements Regarding the Funds. It is understood by the parties that
the Plan Agent's representatives will discuss with Participants the
investment objectives and policies of the Funds: provided, however,
that Plan Agent is not authorized to make any representations
concerning the Distributor, any Fund, or a Fund's Shares except those
representations contained in the Fund's then-current Prospectus and the
Company's Statement of Additional Information and in such printed
information as the Distributor or the Company may subsequently prepare.
7. Review of Participant Communications Materials. It is understood by the
parties that, based on the Fund's current Prospectus and the
information supplied by the Fund Company or its designee under Section
1.12. above, the Plan Agent may prepare communications or disclosure
materials for the Plans and their Participants which describe the
Funds. Except for those materials described above, the Plan Agent shall
supply the Fund, or its designated representative, with copies of all
other materials concerning the Funds within a reasonable time period in
advance of their intended distribution to the Plans or their
Participants. The Plan Agent and the Fund Company
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shall establish a mutually agreeable time frame in which such materials
shall be reviewed and approved for use by the Fund Company or its
designated representative. The Plan Agent agrees not to use any such
materials without the prior approval of the Fund Company or its
designated representative. The Fund Company shall provide to Plan Agent
updated prospectuses and sales literature. The Fund Company represents
and warrants that such sales literature has been filed with the NASD
and reflects resolution of any NASD comments thereon. Plan Agent agrees
its use of such materials in literature prepared by Plan Agent will
conform to applicable law and NASD Conduct Rules, including any filing
requirements with respect to such literature.
8. Other Fund Information. The Fund Company agrees to supply the Plan
Agent with any information which it may have that could have an adverse
impact on the performance of the Funds in the same manner and time
frame in which such information is made available to the Fund's
shareholders.
9. Reasonable Access. The Fund Company will provide Plan Agent or its
designated affiliate with reasonable access to its offices,
representatives, sales support personnel and Fund investment management
professionals for meetings and day-to-day investment questions. The
Fund Company or its designee will provide to the Plan Agent written
quarterly performance reports with respect to the Funds, including but
not limited to (i) a comparison of performance against one or more
appropriate benchmarks or indices; (ii) quarterly, year-to-date and
annualized one, three and five year performance date (or data for such
lesser period of the Fund's existence), and (iii) the Fund earnings on
a net-of-fees basis. In addition, the Fund Company or its designee
shall provide such materials as reasonably requested by the Plan Agent,
including but not limited to, fund fact sheets, descriptions of current
Fund structure and attribution rates related to fund strategy.
10. Notification of Material Changes. OGDS shall promptly notify the Plan
Agent in the event of any material change in the management, ownership
or control of the Fund. In addition, OGDS shall notify the Plan Agent
of any change in the "fundamental policies" or other policy limitations
described in the Prospectus or Statement of Additional Information.
11. Termination of Agreement.
11.01. This Agreement may be terminated by either party (i) upon
sixty (60) days written notice to the other party or (ii)
immediately upon written notice to the other party in the
event that:
a) Plan Agent becomes unable for any reason to perform
the services contemplated by this Agreement,
b) OGDS ceases to be the distributor for the Funds, or
c) the Funds cease to be investment alternatives under
the Plans.
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11.02. Upon termination of this Agreement, each party shall return to
the other party all copies of confidential or proprietary
materials or information received from such other party
hereunder other than materials or information required to be
retained by such party under applicable laws or regulations.
The obligations of the parties under this subsection 11.02.
and the provisions of Sections 1, 2, 4, and 6 through 10;
provided, however, that, in the event OGDS is terminated as
distributor for the Fund or otherwise ceases to act as
distributor for the Fund, such payment obligation shall
immediately cease. In such event, Plan Agent may seek to
receive such payments from the Fund or any successor
distributor that is appointed by the Fund.
12. Assignment.
12.01. Neither this Agreement nor any rights or obligations hereunder
may be assigned or delegated by either party without the
written consent of the other party.
12.02. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns.
13. Notices. Notices hereunder shall be in writing, shall be delivered
personally, sent by certified mail, return receipt requested, or sent
by facsimile machine in accordance with procedures established by
agreement of the parties hereto, and shall be addressed to a party
neither at his address below or at a changed address specified by it in
a notice to the other party hereto:
The Fund Company:
One Group Mutual Funds
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
ATTN: Xxxx X. Xxxxxx
OGDS:
One Group Dealer Services, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
ATTN: Xxxx X. Xxxxxx
Plan Agent:
DCPA
Xxxxx 0
Xxxxxxxx 00
X.X. Xxx 0000
9
Providence, RI 02940-9740
ATTN: Xxxxxxx Xxxxxxxx, Managing Director
14. Amendment. This Agreement may be amended or modified only by a written
agreement executed by both parties.
15. Non-Solicitation. The Fund Company and OGDS hereby agree that, so long
as this Agreement is in effect and for a period of two years from the
date of its termination, it will not solicit defined contribution plan
business from any sponsor of any plan for which Plan Agent provides
defined contribution plan services (including without limitation
trustee or recordkeeping services) or any affiliate of such a sponsor.
16. Relationship of the Parties; No Joint Venture. Except for the limited
purpose provided for in Section 1, it is understood and agreed that all
services performed under this Agreement by Plan Agent shall not be as
an employee or agent of the Fund Company, OGDS or Funds and none of the
parties shall hold itself out as an agent of any other party with the
authority to bind such party. Neither the execution nor performance of
this Agreement shall be deemed to create a partnership or joint venture
by and among any of the parties.
17. Use of Names. Except as expressly agreed to in writing by the parties,
neither the Fund Company nor OGDS shall use, nor shall it allow its
employees or agents to use, the name or logo of Plan Agent or any of
its affiliates, or any of the products or services sponsored, by the
Plan Agent or any of its affiliates for advertising, trade or other
commercial or non-commercial purposes.
18. Governing law. This Agreement shall be constructed and the provisions
thereof interpreted under and in accordance with the laws of The
Commonwealth of Massachusetts.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written. This
Agreement is intended to set forth the rights, duties and
responsibilities between the Fund Company, OGDS and Plan Agent with
respect to the matters covered herein. Nothing contained in the
Agreement is intended to convey rights to any third parties such as
Plans, Plan participants, the Fund Company or OGDS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXXX FIDUCIARY TRUST COMPANY ONE GROUP DEALER SERVICES, INC. COMPANY
By: /s/ Xxxx Xxxxx By: /s/ Xxxx X. Xxxxxx
--------------------------- ------------------------------------
Name: Xxxx Xxxxx Name: Xxxx X. Xxxxxx
------------------------- -----------------------------------
Title: Senior Vice President Title: President & CES
------------------------- --------------------------------
ONE GROUP MUTUAL FUNDS
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: VP
---------------------------------
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SCHEDULE A
The following funds shall be offered as part of the Fund Alliance Program:
Funds
-----
The One Group Growth Opportunities Fund - Class A Shares
The One Group Bond Fund - Class A Shares
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SCHEDULE B - FUNDS AND FEES
The Fund Company and OGDS shall automatically pay to Plan Agent a fee with
respect to each Fund, calculated and paid quarterly in arrears, equal to the
product of: (i) (a) the number of calendar days in the applicable quarter
divided by the number of calendar days in that year and (b) the percentage
specified below and (ii) the average daily net asset value of the investments
held in such Fund pursuant to this Agreement computed by totaling the aggregate
investment (share net asset value multiplied by the total number of shares held)
on each day during the calendar quarter and dividing by the total number of days
during such quarter. Fee will be paid by wire transfer or by check, at the Plan
Agent's election.
The Fund Company and OGDS shall keep adequate and accurate records with respect
to the calculation and payment of these fees. Such records shall be provided to
Plan Agent upon request for purposes of auditing and reconciliation of payment
amounts.
The fees for the funds as listed in Part I of Revised Schedule A - List of Funds
shall be as follows:
Fund Annual Fee
---- ----------
The One Group Growth Opportunities Fund - 0.35% (35 basis points)
(Class A Shares)
The One Group Bond Fund (Class A Shares) 0.25% (25 basis points)
The above stated fees shall continue throughout the duration of this Agreement.
The foregoing, notwithstanding, if either the Fund Company or OGDS extends a
higher rate of fees to any other plan service provider, the Fund Company and
OGDS shall offer such higher rate of fees to the Plan Agent.
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