Exhibit 23(e)(2)
XXXXXXXXXXX.XXX FUNDS
DISTRIBUTION AND SERVICING PLAN AGREEMENT
BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
We wish to enter into this Agreement with you for distribution
and certain other services with respect to each series set forth on Schedule 1
hereto, as such Schedule may be revised from time to time (each, a "Series"), of
XxxxXxxxxxx.xxx Funds (the "Fund") of which you are the principal underwriter as
defined in the Investment Company Act of 1940, as amended (the "Act"), and the
exclusive agent for the continuous distribution of its shares.
The terms and conditions of this Agreement are as follows:
1. We agree to provide reasonable assistance in connection with
the sale of the Series' shares, which assistance may include distributing sales
literature, marketing and advertising. If we are restricted or unable to provide
the services contemplated above, we agree not to perform such services and not
to accept fees thereafter. Our acceptance of any fees hereunder shall constitute
our representation (which shall survive any payment of such fees and any
termination of this Agreement and shall be reaffirmed each time we accept a fee
hereunder) that our receipt of such fee is lawful.
2. We agree to provide shareholder and administrative services
for our clients who own shares of any Series ("clients"), which services may
include, without limitation, answering client inquiries about the Fund or any
Series; assisting clients in changing dividend options, account designations and
addresses; performing sub-accounting; establishing and maintaining shareholder
accounts and records; processing purchase and redemption transactions; investing
client account cash balances automatically in Series' shares; providing periodic
statements showing a client's account balance and integrating such statements
with those of other transactions and balances in the client's other accounts
serviced by us; arranging for bank wires; and providing such other information
and services as the Fund reasonably may request, to the extent we are permitted
by applicable statute, rule or regulation. In this regard, you recognize that to
the extent we are subject to the provisions of the Xxxxx-Xxxxxxxx Act and other
laws governing, among other things, the conduct of activities we may undertake
and for which we may be paid, we intend to perform only those activities as are
consistent with our statutory and regulatory obligations. We shall provide to
clients a schedule of the services and of any fees that we may charge directly
to them for such services.
3. We shall provide such office space and equipment, telephone
facilities and personnel (which may be all or any part of the space, equipment
and facilities currently used in our business, or all or any personnel employed
by us) as is necessary or beneficial in order to provide such services
contemplated hereunder.
4. We agree that neither we nor any of our employees or agents
are authorized to make any representation concerning the Series' shares, except
those contained in the Fund's then-current Prospectus and Statement of
Additional Information, copies of which will be supplied by you to us, or in
such supplemental literature or advertising materials as may be authorized by
you in writing.
5. For all purposes of this Agreement, we will be deemed to be
an independent contractor, and will have no authority to act as agent for you or
the Fund in any matter or in any respect. We and our employees will, upon
request, be available during normal business hours to consult with you or your
designees concerning the performance of our responsibilities under this
Agreement.
6. In consideration of the services and facilities described
herein, we shall be entitled to receive from you, and you agree to pay to us
with respect to each Series, the fees set forth opposite such Series' name on
Schedule 1 hereto. We understand that the payment of these fees has been
authorized and will be paid pursuant to a Distribution and Servicing Plan
approved by the Fund's Board, and any payments pursuant to this Agreement shall
be paid only so long as this Agreement and the Distribution and Servicing Plan
adopted by the Fund is in effect.
7. You reserve the right, at your discretion and without
notice, to suspend or withdraw the sale of any Series' shares.
8. We acknowledge that this Agreement shall become effective,
as to a Series, only when approved by vote of a majority of (i) the Fund's Board
and (ii) the Board members who are not "interested persons" (as defined in the
Act) of the Fund and have no direct or indirect financial interest in this
Agreement, cast in person at a meeting called for the purpose of voting on such
approval.
9. As to each Series, this Agreement shall continue until the
last day of the calendar year next following the date of execution, and
thereafter shall continue automatically for successive annual periods ending on
the last day of each calendar year, provided such continuance is approved
specifically at least annually by a vote of a majority of (i) the Fund's Board
and (ii) the Board members who are not "interested persons" (as defined in the
Act) of the Fund and have no direct or indirect financial interest in this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. As to each Series, this Agreement is terminable without
penalty, at any time, by vote of a majority of the Board members who are not
"interested persons" (as defined in the Act) and have no direct or indirect
financial interest in this Agreement or, on not more than 60 days' written
notice, by vote of holders of a majority of a Series' outstanding shares, or,
upon 15 days' notice, by you. Notwithstanding anything contained herein, if the
Distribution and Servicing Plan adopted by the Fund is terminated by the Fund's
Board, or the Distribution and Servicing Plan, or any part thereof, is found
invalid or is ordered terminated by any regulatory or judicial authority, or we
fail to perform the distribution and servicing functions contemplated by the
Fund or by you, this Agreement shall be terminable effective upon receipt of
notice thereof by us. This Agreement also shall terminate automatically, as to
the relevant Series, in the event of its assignment (as defined in the Act).
10. We understand that the Fund's Board will review, at least
quarterly, a written report of the amounts expended pursuant to this Agreement
and the purposes for which such expenditures were made. In connection with such
reviews, we will furnish you or your designees with such information as you or
they may reasonably request and will otherwise cooperate with you and your
designees (including, without limitation, any auditors designated by you), in
connection with the preparation of reports to the Fund's Board concerning this
Agreement and the monies paid or payable by you pursuant hereto, as well as any
other reports or filings that may be required by law.
11. All communications to you shall be sent to you at the
address set forth above. Any notice to us shall be duly given if mailed or
telegraphed to us at the address set forth below.
12. This Agreement shall be construed in accordance with the
internal laws of the State of Ohio, without giving effect to principles of
conflict of laws.
Very truly yours,
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(Please Print or Type Name of Entity)
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Address
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City State Zip Code
Date____________________ By:___________________________________
Authorized Signature
NOTE: Please return both signed copies of this Agreement to
BISYS Fund Services Ohio, Inc. Upon acceptance one
countersigned copy will be returned for your files.
Accepted:
BISYS FUND SERVICES OHIO, INC.
Date ------------------- By:____________________________
SCHEDULE 1
Distribution and Servicing Plan Agreement
between
BISYS FUND SERVICES OHIO, INC.
and
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Name of Signatory
Fee at an Annual Rate as a
Percentage of Average Daily
Net Asset Value Of Shares
Name of Series* Owned by Clients**
----------------------- -------------------------
OpenFund
Communications Technology Fund
Media Technology Fund
OpenFund II
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* If the Fund at any time offers shares of one or more series not listed
on this Schedule 1 (each, a "New Series"), each New Series shall be
deemed to be subject to this Agreement and, unless notified to the
contrary by BISYS Fund Services Ohio, Inc., the undersigned may sell
shares of the New Series in accordance with the terms of this
Agreement and shall be entitled to receive with respect to such New
Series the fees set forth on this Schedule 1.
** For purposes of determining the fees payable hereunder, the average
daily net asset value of each series' shares shall be computed in the
manner specified in the Fund's charter documents and then-current
Prospectus and Statement of Additional Information.
