Exhibit (m)(19)
Agency Agreement dated as of April 1, 2002 between Expert Xxxx.Xxx, One Group
Dealer Services, Inc. and One Group Mutual Funds.
AGENCY AGREEMENT
This Agreement is made as of the 1st day of April, 2002 between:
(1) XxxxxxXxxx.xxx("Company") and (2) One Group Mutual Funds (the "Trust"), One
Group Dealer Services, Inc. (collectively, "OGDS").
RECITALS
A. The Trust is (I) an open-end investment company with one or more series
of classes of shares (each such series or class of share a "Fund");
OGDS is either (II) an investment adviser to or administrator for the
Funds, (III) the principal underwriter or distributor for the Funds, or
(IV) the transfer agent for the Funds.
B. The Trust wishes to have Company provide to the Trust or on its behalf
certain administrative services with respect to qualified employee
benefit plans (the "Plans") which own shares of such Funds.
C. Company agrees to provide such services on the terms and conditions set
forth herein.
AGREEMENT
THEREFORE, in consideration of the mutual promises set forth herein,
the parties agree as follows:
I. Shareholder Services
A. Shareholder Account Set-Up and Maintenance - Company shall maintain and
provide adequate facilities and procedures to: (1) establish and
maintain Fund investments on behalf of Plans on the Company transaction
processing and recordkeeping system, and (2) access the Plans current
Fund information including, but not limited to, share balances,
dividend information and transaction history.
B. Shareholder Assistance - Company shall make available to the Plans any
information maintained by Company as may be necessary for the Plans to
support and resolve shareholder servicing inquires. Company personnel
will assist the Plans in the investigation of shareholder inquiries
when necessary. Company will support shareholder service inquiries from
the Plans serviced by Company. Company shall not make any statement or
representation concerning a Fund that is not contained in the Trust's
registration statement, annual report or proxy statement or any
advertising or promotional material generated by or on behalf of any
Fund.
C. Transaction Processing and Settlement - The Company transaction
processing system shall enable the Plans to purchase, redeem and
exchange shares of Funds available through Company. Company shall
facilitate settlement with each Fund of Plan transactions in such Fund
insofar as such transactions are transmitted by Company on behalf of
the Plans.
The Trust agrees that it shall either: (1) make arrangements for all
transactions processed pursuant to this Agreement to be process through
the National Securities Clearing Corporation Fund/SERV system, or (2)
obtain proper authority for Company to transmit to the Fund or its
Agent daily manual trades until 4:00 p.m. Eastern Time, or such other
times as set forth on Exhibit B, which trades shall remain eligible for
that day's public offering price provided Company received the order by
close of trading that day.
D. Shareholder Account Statement and Distribution - With respect to each
Plan holding Fund investments through Company, Company shall deliver or
cause to be delivered to such Plan periodic statements. Statements will
include transaction detail for the statement period for each Fund in
which shares were purchased, redeemed or exchanged, and a summary of
the number of Fund shares owned and share value thereof as of the
statement date to the extent such value is provided by the Fund.
E. Confirmation preparation and Distribution - Company shall generate a
written confirmation for each purchase, redemption and exchange
transaction affecting each Shareholder's Fund investments held through
Company to the extend such confirmation is required, and such
confirmation shall be distributed to Shareholders through or on behalf
of Company or Correspondents.
F. Payment of Fund Distributions - Company shall distribute to
Shareholders all dividend, capital gain or other payments authorized by
the trust and distributed and received by Company, and such
distributions shall be credited to the Plans in accordance with the
instructions provided by each Plan, including but not limited to
dividend reinvestment into a Fund, or cash payments of distributions.
G. Prospectus Fulfillment - Company will provide a prospectus to
prospective shareholders or their agent upon request, provided the
Trust or its agent has provided adequate copies thereof to Company or
its designee.
The Trust acknowledges and agrees that Company is not responsible for
(I) the compliance of any prospectus or supplement thereto, annual
report, proxy statement or item of advertising or marketing material of
or relating to any Fund, which is prepared by the Trust or its agent,
with any applicable laws, rules or regulations, (ii) the registration
or qualification of any shares of any Fund under any federal or
applicable state laws or (iii) the compliance by any Fund or the Trust
or any "affiliated person" (as that term is defined in the rules under
the Investment Company Act of 1940, as amended), with any applicable
federal or state law, rule or regulation or the rules and regulations
of any self regulatory organization with jurisdiction over such Fund,
the Trust or affiliated person.
Company will not make any offer or sale of Fund shares (a) in any state
or jurisdiction in which such shares are not qualified for sale or
exempt from the requirements of the relevant securities laws at any
time after it has been provided with written notice from the Trust that
such Fund is not so qualified or exempt in such state or jurisdiction,
(b) in any state or jurisdiction in which it is not properly licensed
or authorized to make offers or sales, or (c) at any time after it has
been provided with written notice from the Trust that such Fund is not
then currently offering shares to the public.
H. Account Level Tax Reporting - Company shall provide to Shareholders
through Company or Correspondent such reports and information as may be
required by the then-prevailing laws and regulations under the Internal
Revenue Code.
II. Representations and Warranties
A. The Trust and OGDS each represent and warrant that:
(1) it has the requisite authority to enter into this agreement on
its own behalf and, in the case of the Trust, on behalf of the
Fund(s), and
(2) the payment to Company of any fees pursuant hereto:
(a) has been duly authorized by the Board of Trustees of the
Trust, or any other persons to the extent such authorization
is required to properly make such payment;
(b) is properly disclosed in the relevant prospectus to the
extent such disclosure may be required, and
(c) is in conformity with all federal, state and industry laws
or regulations to which the Trust or its agents are subject.
B. Company represents and warrants that:
(1) it is a corporation duly organized under the state laws of
Delaware. -
(2) the execution and delivery of this Agreement and the performance
of the services contemplated herein have been duly authorized by
all necessary corporation action in its part, and this Agreement
constitutes the valid and binding obligations of Company; and
(3) it is in material conformity with all federal, state and industry
laws or regulations to which it is subject.
C. Each party hereto represents and warrants that it shall provide to the
others such information or documentation necessary for such party to
fulfill its obligations hereunder, such other information or
documentation as any party may reasonably request and that it shall
comply with such operating policies and procedures as the parties may
adopt from time to time.
D. Each party is responsible for its compliance with all applicable laws,
rules and regulations governing its performance under this Agreement,
except to the extent its failure to comply with any law, rule or
regulation is caused by another party's breach of this Agreement.
III. Fees
A. Asset Based Fee
For the services provided by Company hereunder, the Trust or OGDS shall
pay to Company a fee with respect to each Fund, which fee shall be
based upon a percentage per annum of the average daily value of the
aggregate number of shares of the Fund held by Company for the accounts
of customers of Company and Correspondents. Such fee shall be
calculated and paid in accordance with Exhibit A hereto.
IV. Indemnification
The Trust and OGDS shall indemnify and hold harmless Company and each
officer, employee and agent of Company from and against any and all
claims, demands, actions, losses, damages, liabilities, or costs,
charges, reasonable counsel fees, and expenses of any nature ("Losses")
arising out of (I) any inaccuracy or omission in any prospectus or
supplement thereto, registration statement, annual report or proxy
statement of any Fund or the Trust or any advertising or promotional
materials generated by any Fund or the Trust, (ii) any breach by the
Trust or OGDS of any representation, warranty, covenant, or agreement
contained in this Agreement and (iii) any action taken or omitted to be
taken by Company pursuant to this Agreement, except to the extent such
Losses result from Company's breach of this Agreement, willful
misconduct, or negligence.
Company shall indemnify, defend and hold the Trust and OGDS (including
their officers, directors, employees and agents and any person who
controls either of them) free and harmless from and against any and all
Losses which such persons may incur under the Securities Act of 1933,
as amended, or under common law or otherwise, arising out of or based
upon (I) any breach of any representation, warrant, or covenant made by
Company herein, (ii) any failure by Company to perform its obligations
as set forth herein or, (iii) any action taken or omitted by Company to
the extent that any Losses associated therewith are a result of
Company's breach of this Agreement, willful misconduct or negligence.
V. Confidentiality
Each party acknowledges and understands that any and all technical,
trade secret, or business information, including, without limitation,
financial information, business or marketing strategies or plans,
product development or customer information, which is disclosed to the
other or is otherwise obtained by the other, its affiliates, agent or
representatives during the term of this Agreement (the "Proprietary
Information"_ is confidential and proprietary, constitutes trades
secrets of the owner, and is of great value and importance to the
success of the owner's business. Each party agrees to use its best
efforts (the same being not less than that employed to protect his own
proprietary information) to safeguard the Proprietary Information and
to prevent the unauthorized, negligent or inadvertent use or disclosure
thereof. Neither party shall without the prior written approval of any
officer of the other, directly or indirectly, disclose the proprietary
Information to any person or business entity except for a limited
number of employees, attorneys, accountants and other advisors of the
other on a need-to-know basis or as may be required by law or
regulation. Each party shall promptly notify the other in writing of
any unauthorized, negligent or inadvertent use or disclosure of
proprietary Information. Each party shall be liable under this
Agreement to the other for any use or disclosure in violation of this
Agreement by its employees, attorneys, accountants or other advisors or
agents. This Section V shall continue in full force and effect
notwithstanding the termination of this Agreement.
VI. Duration and Termination of Agreement
With respect to any Fund, this Agreement shall become effective upon
the date such Fund is identified on Exhibit B, and this Agreement is
approved by the Trust's Board of Trustees if such approval is required,
and shall continue in force for one year, and shall thereafter continue
automatically for successive annual periods unless earlier terminated
and subject to any periodic approval required by the Trust's Board of
Trustees. This Agreement is terminable as to any Fund by any party upon
60 days written notice thereof to the other parities or upon default
hereof provided that such default shall not terminate this Agreement to
the extent that the defaulting party has been notified of such default
by the non-defaulting party and the defaulting party cures such default
within 10 business days of notice of such default.
After the date of termination as to a Fund, no fee will be due with
respect to any shares of such Fund that are first placed or purchased
in Company or Correspondent customer accounts after the date of such
termination. However, notwithstanding any such termination, the Trust
and OGDS will remain obligated to pay Company the Asset Based Fee as to
each share of such Fund that was considered in the calculation of such
fee as of the date of such termination, for so long as such share is
held in the Company or Correspondent account. This Agreement, or any
provision hereof, shall survive termination to the extent necessary for
each party to perform its obligations with respect to shares for which
the Asset Based Fee continues to be due subsequent to such termination.
Notwithstanding anything to the contrary contained in this Section VI,
this Agreement will terminate automatically with respect to OGDS in the
event that OGDS ceases to serve as principal underwriter or distributor
for the Funds pursuant to a termination of its Distribution Agreement
with the Fund; or, with respect to the Trust in the event that the
Fund's plan of distribution, adopted pursuant to Rule 12b-1 under the
1940 Act, or any other plan for the financing of shareholder servicing
activities (the "Plan") which finances such payment obligation is
terminated for whatever reason by the Trust's Board of Directors. In
that connection the Trust's and OGDS's payment obligations with respect
to fees will cease as of the effective date of (I) the termination of
OGDS's Distribution Agreement with the Fund or (ii) the termination of
the plan, as the case may be. This paragraph does not relieve the Trust
or OGDS of the obligation for payment of past fees due under this
Agreement. In the event such payment obligation shall cease in
accordance with clause (i) above, Company may seek to receive such
payments from any successor distributor that is appointed by the Funds.
In the event such payment obligation shall cease in accordance with
clause (ii) above, the Trust and Company agree to negotiate in good
faith with respect to whether and to what extent the Trust will
continue to make such payments either from a related party's resources
or in reliance upon financing that is provided by a successor plan.
VII. Miscellaneous
A. Custody - The Trust acknowledges that Fund shares maintained by Company
for Shareholders hereunder are held in custody for the exclusive
benefit of customers of Company or its Correspondents and shall be held
free of any right, charge, security interest, lien or claim against
Company in favor of the Trust or its agents acting on behalf of the
Trust.
B. Transaction Charges - During the term of this Agreement, Company shall
not assess against or collect from its brokerage customers any
transaction fee upon the purchase or redemption of any Fund's shares
that are considered in calculating the fee due pursuant to Section III
hereof.
C. Nonexclusively - The Trust acknowledges that Company may perform
services similar to those to be provided under this Agreement to other
investment companies, investment company sponsors, or service providers
to investment companies.
D. Force Majeure - No party or its affiliates shall be liable to any other
party for any damage, claim or other loss whatsoever caused by
circumstances or events beyond its reasonable control.
E. Notices - All notices and communications required or permitted by this
Agreement shall be in writing and delivered personally or sent by first
class mail unless otherwise agreed. All such notices and other
communications shall be made:
If to the Trust and OGDS, to:
One Group Dealer Services, Inc.
Attn: Xx. Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
If to the Company, to:
ExpertPlan
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Attn: Xxxxxxxx Xxxx
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00 Xxxxxxxx Xx., Xxxx. 0X
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Xxxx Xxxxxxx, XX 00000
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F. This Agreement and any Exhibits hereto may be amended only upon the
written agreement of the parties.
G. This Agreement may not be transferred or assigned by either the Trust,
OGDS or Company and shall be construed in accordance with the laws of
the State of Ohio.
H. The names "One Group Mutual Funds" and "Trustees of the One Group"
refer respectively to the business trust created and the Trustees, as
trustees and not individually or personally, acting from time to time
under a Declaration of Trust amended, restated and dated as of
February 11, 1993 to which reference is hereby made and copy of which
is on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all
amendments thereto so filed or hereafter filed. The obligations of
"One Group" entered into in the name of on behalf thereof by any of
the Trustees, representatives or agents are made not individually, but
in such capacities, and are not binding upon any of the Trustees,
shareholders or representatives of the Trust personally, but bind only
the assets of the Trust, and all persons dealing with any Fund must
look solely to the assets of the Trust belonging to such Fund for the
enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
One Group Mutual Funds
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: VP
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One Group Dealer Services, Inc.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President and CEO
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Expert Xxxx.xxx
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
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Title: President
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EXHIBIT A
FEE SCHEDULE
1. Asset Based Fee
(a). For the services provided by Company hereunder, the Trust or OGDS
shall pay to Company a fee with respect to each Fund, calculated
daily and paid monthly in arrears, up to .25 percent per annum
of the daily market value of the total number of Class A shares
of such Fund held in accounts at Company (determined by
multiplying the number of such shares times the publicly-reported
net asset value of each share), excluding the value of (i) shares
held in a brokerage account prior to the effective date of the
Agreements to the Fund issuing such shares ("Pre-Participating
Assets"), and (ii) shares first placed or purchased in a
brokerage account after the termination of the Agreement as to
the trust issuing such shares. The total number of shares of all
Funds with respect to which a fee will be due to Company
hereunder shall be referred to in this Exhibit A as
"Participating Assets".
(b). Subsequent to each month-end, Company shall send to OGDS a
statement of the market value of shares of the Fund for which the
fee is calculated for the preceding month, together with a
statement of the amount of such fee.
(c). The Trust or OGDS shall pay to Company such fee within 30 days
after their receipt of such statement. Such payment shall be by
wire transfer or other form acceptable to Company and shall be
separate from payments related to redemption proceeds and
distributions.
Exhibit B (as amended 6/___/2001)
Funds
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FUND NAME CLASS TYPE CUSIP QUOTRON
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One Group Balanced Fund A 681937470 OGASX
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One Group Large Cap Growth A 681937249 OLGAX
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One Group Large Cap Value A 681937876 OLVAX
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One Group Mid Cap Growth A 681937728 OSGIX
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One Group International Equity Index A 681937561 OEIAX
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One Group Mid Cap Value A 681937751 OGDIX
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One Group Equity Index A 681937827 OGEAX
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One Group Equity Income A 681937785 OIEIX
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One Group Diversified Equity A 681939815 PAVGX
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One Group Small Cap Growth A 681939849 PGSGX
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One Group Small Cap Value A 00000X000 PSOAX
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One Group Diversified Mid Cap A 00000X000 PECAX
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One Group Diversified International A 00000X000 PGIEX
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One Group Market Expansion Index A 00000X000 N/A
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One Group Investor Growth A 681939674 ONGAX
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One Group Investor Growth & Income A 681939617 ONGIX
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One Group Investor Conservative Growth A 681939641 OICAX
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One Group Investor Balanced A 681939575 OGIAX
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One Group Intermediate Bond A 681937264 OGBAX
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One Group Government Bond A 681937330 OGGAX
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One Group Short-Term Bond A 681937629 OGLVX
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One Group Income Bond A 681937652 ONIAX
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One Group Ultra Short-Term Bond A 681937314 ONUAX
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One Group High Yield Bond A 00000X000 OHYAX
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One Group Treasury & Agency A 681939526 OTABX
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One Group Bond Fund A 00000X000 PGBOX
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One Group Bond Fund I 00000X000 WOBDX
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