Exhibit (e)(11)
Agreement dated as of March 28, 2001 between American Express Financial Advisors
Inc. and The One Group Services Company.
AGREEMENT
This Agreement is made as of 28th day of March, 2001, between American
Express Financial Advisors Inc. ("Broker"), a Delaware corporation, and The One
Group Services Company ("Fund Party").
WHEREAS, Fund Party is the distributor of open-end investment companies
with one or more series or classes of shares (each being referred to as a
"Fund");
WHEREAS, Fund Party wishes Broker, a broker-dealer, to make Fund
shares, for Funds which advisor or distributor has now or in the future,
available to its customers;
WHEREAS, Broker would place purchase, redemption, and exchange orders
for Fund shares on its customers' behalf through an omnibus clearing
relationship with a broker/dealer having an account or accounts with each Fund
for such purposes and under a direct contractual relationship with the Funds to
which Broker is not a party; and
WHEREAS, Broker is only willing to place such orders for its customers
upon receiving certain assurances and indemnifications directly from Fund Party.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. Compliance Responsibilities
a. Fund Party is responsible for (i) the compliance of each
prospectus, registration statement, annual or other periodic report, proxy
statement and item of advertising or marketing material of or relating to each
Fund with all applicable laws, rules and regulations (except for advertising or
marketing material prepared by Broker that was not published or provided to
Broker by or on behalf of Fund Party or any Affiliate (defined below) or
accurately derived from information published or provided by or on behalf of
Fund Party or any Affiliate), (ii) the filing of any advertising or sales
literature provided Company with the NASD; (iii) the tabulation of returned
proxies, (iv) the registration or qualification of shares of each Fund under all
applicable laws, rules and regulations, and (v) the compliance by Fund, Fund
Party, and each Affiliate, as that term is defined below, with all applicable
laws, rules and regulations (including the Investment Company Act of 1940, as
amended (the "1940 Act"), and the Investment Advisers Act of 1940, as amended),
and the rules and regulations of each self-regulatory organization with
jurisdiction over Fund, Fund Party, or any Affiliate, except to the extent that
the failure to so comply by Fund, Fund Party, or any Affiliate is caused by
Broker's failure to comply with all applicable laws, rules and regulations
(including the 1940 Act, and the Investment Advisers Act of 1940, as amended),
and the rules and regulations of each self-regulatory organization with
jurisdiction over Broker. For purposes of this Agreement, an "Affiliate" of a
person means (i) any person directly or indirectly controlling, controlled by,
or under common control with, such person, (ii) any officer, director, partner,
corporation, or employee of such person, and (iii) if such
person is an investment company, any investment advisor thereof or any member of
the advisory board thereof.
b. Broker is responsible for Broker's compliance with all
applicable laws, rules and regulations governing Broker's purchase, redemption,
and exchange transactions on behalf of its customers, except to the extent that
Broker's failure to comply with any law, rule or regulation is caused by Fund
Party's breach of this Agreement, or its willful misconduct or negligence in the
performance or failure to perform its obligations under this Agreement.
c. Broker is authorized by Fund Party to distribute the
prospectus and Statement of Additional Information and sales material received
from Fund Party. Broker is not authorized to distribute any other sales material
relating to a Fund without prior written approval from the Fund Party.
d. Broker shall be responsible for the accuracy, timeliness
and completeness of any orders transmitted by Broker on behalf of its customers
for purchases, exchanges or redemptions, and shall indemnify Fund Party against
any claims by Broker's customers as a result of its failure to properly transmit
its customers instructions.
2. Indemnification
a. Fund Party shall indemnify and hold harmless Broker and
each director, officer, employee and agent of Broker from and against any and
all claims, demands, actions, losses, damages, liabilities, costs, charges,
reasonable counsel fees, and expenses of any nature it or they may incur
("Losses") arising out of (i) any inaccuracy or omission in any prospectus,
registration statement, annual or other periodic report or proxy statement of
any Fund or in any advertising or promotional material generated by any Fund or
Fund Party or Affiliate or accurately based on any information published or
provided by Fund Party or any Fund or Affiliate, or (ii) any breach by Fund
Company of any representation, warranty or agreement contained in this
Agreement, except to the extent such Losses are caused by Broker's breach of
this Agreement or its willful misconduct or negligence in the performance, or
failure to perform, its obligations under this Agreement.
b. Broker shall indemnify and hold harmless Fund Party, each
trust or corporation of which a Fund is a series and each director, officer,
employee and agent of Fund Party or any such trust or corporation, from and
against any and all Losses arising out of (i) any inaccuracy or omission in any
advertising or promotional material generated by Broker, or (ii) any breach by
Broker of any representation, warranty or agreement contained in this Agreement,
except to the extent such Losses are caused by Fund Party's breach of this
Agreement or its willful misconduct or negligence in the performance, or failure
to perform, its obligations under this Agreement.
3. Representation and Warranties
a. Fund Party and each Fund represent and warrant to Broker
that Fund
Party, each Fund and the persons executing this Agreement on its behalf, are
duly authorized and empowered to execute and deliver this Agreement.
b. Broker represents and warrants that: (i) it and the persons
executing this Agreement on its behalf are duly authorized and empowered to
enter into this Agreement; (ii) it is, and shall remain for the terms of this
Agreement, duly registered as a broker-dealer under the Securities Exchange Act
of 1934, as amended; (iii) it is, and shall remain for the term of this
Agreement, duly registered as a broker-dealer under the laws of each state or
territory of the United States in which Broker Dealer makes shares of any Fund
available to its customers; (iv) it is a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD"); (v) all of its personnel
requiring registration under federal or state securities laws or under the rules
of the NASD are and will remain so registered as required by such laws or rules;
(vi) it is a member in good standing of the Securities Investor Protection
Corporation ("SIPC"); (vii) it agrees to abide by the Rules of Fair Practice of
the NASD and all applicable laws, rules and regulations, including applicable
federal and state securities laws, rules and regulations that are now or may
become applicable to transactions hereunder; (viii) it agrees that it is the
responsibility of Broker to determine the suitability of any Fund Shares as
investments for its customers, and that Fund Party has no responsibility for
such determination; (ix) it will maintain all records required by applicable law
or otherwise reasonably requested by Fund Party relating to Fund transactions
that it has executed; and (x) it will notify Fund Party immediately in the event
its status as a SIPC member changes.
4. Entire Agreement; Amendment
This Agreement constitutes the entire agreement between the
parties as to the subject matter hereof and supersedes any and all agreements,
representations and warranties, written or oral, between the parties regarding
such subject matter made prior to the date on which this Agreement has been
executed and delivered by Broker and Fund Party.
5. Effectiveness of Agreement; Term
This Agreement may be terminated by either party as to any
Fund upon 90 days' written notice, or upon such shorter notice as is required by
law, order, or instruction by a court of competent jurisdiction or a regulatory
body or self-regulatory organization with jurisdiction over the terminating
party.
6. Assignability
This Agreement is not assignable by either party without the
other party's prior written consent; provided that either party may assign its
rights and obligations under this Agreement to any corporation that controls, is
controlled by, or is under common control with the party.
7. Applicable Law and Arbitration
a. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
8. Notices
a. Notices. All notices required by this Agreement shall be in
writing and delivered personally or sent by first class mail. All notices and
other communications concerning this Agreement will be deemed to have been
received as of the earlier of actual physical receipt or three days after
deposit, first class postage prepaid, in the United States Mail. All such
notices and other communications shall be made:
If to Broker, to:
American Express Financial Advisors Inc.
50603 AXP Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Legal Department
If to Fund Party, to:
The One Group Services Company
0000 Xxxxxxx Xx., Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: President
9. Counterparts
This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized representative of the parties hereto.
American Express Financial Advisors Inc. The One Group Services Company
By: /s/ Xxxxx XxXxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxx XxXxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
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Title: Vice President Title: Vice President
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Date: March 28, 2001 Date: March 6, 2001
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