EXHIBIT (H)(22)
SERVICES AGREEMENT
This Agreement is made between (1) Fidelity Brokerage Services LLC,
Member NYSE, SIPC. ("FBSI") and National Financial Services Corporation LLC,
Member NYSE, SIPC ("NFSC") (together "Fidelity") and (2) the undersigned
("Fund/Agent").
RECITALS
A. Fund/Agent is either (i) an open-end investment company with one or
more series, or classes of shares (each such series or class of shares a
"Fund"), (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.
X.Xxxx/Agent wishes to have Fidelity provide to Fund/Agent or on its
behalf certain administrative services with respect to beneficial owners of
shares ("Shareholder(s)") of such Funds which Fidelity makes available to
Shareholders through securities brokerage accounts carried by NFSC on behalf of
FBSI or correspondents of NFSC ("Correspondents").
X.Xxxxxxxx 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 - Fidelity shall
maintain and provide to FBSI and Correspondents adequate facilities and
procedures to: (1) establish and maintain Fund investments on behalf of
Shareholders within a consolidated brokerage account(s) on the Fidelity
transaction processing and recordkeeping system, and (2) access Shareholders'
current Fund information including, but not limited to, share balances, dividend
information and transaction history.
B. Shareholder Assistance - Fidelity shall make available to
Correspondents any information maintained by Fidelity as may be necessary for
Correspondents to support and resolve Shareholder servicing inquiries. Fidelity
personnel will assist Correspondents in the investigation of Shareholder
inquiries when necessary. FBSI will support Shareholder service inquiries from
Shareholders who maintain brokerage accounts with FBSI.
C. Transaction Processing and Settlement - The Fidelity
transaction processing system shall enable Shareholders to purchase, redeem and
exchange shares of Funds available through Fidelity. NFSC shall facilitate
settlement with each Fund of Shareholder
transactions in such Fund insofar as such transactions are transmitted to NFSC
by FBSI or Correspondents on behalf of Shareholders.
Fund/Agent agrees that it shall either: (1) make arrangements for all
transactions processed pursuant to this Agreement to be processed through the
National Securities Clearing Corporation Fund/SERV system, or (2) obtain proper
authority for NFSC to transmit to the Fund or its Agent daily manual trades
until 5:00 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 , if
such trades were received in good order by Fidelity prior to 4:00 P.M. Eastern
standard time on such day.
D. Shareholder Account Statement Preparation and Distribution -
With respect to each Shareholder holding Fund investments through Fidelity,
Fidelity shall deliver or cause to be delivered to such Shareholder monthly
statements when there has been activity in such Shareholder's brokerage account
during such month, or quarterly statements during periods when there has been no
monthly account activity. 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 - Fidelity shall
generate a written confirmation for each purchase, redemption and exchange
transaction affecting each Shareholder's Fund investments held through Fidelity
to the extent such confirmation is required, and such confirmation shall be
distributed to Shareholders through or on behalf of FBSI or Correspondents.
F. Payment of Fund Distributions - NFSC shall distribute to
Shareholders all dividend, capital gain or other payments authorized by the Fund
and distributed to and received by NFSC, and such distributions shall be
credited to Shareholders in accordance with the instructions provided by each
Shareholder, including but not limited to dividend reinvestment into the Fund,
or cash payments of distributions.
G. Prospectus Fulfillment - Subsequent to any Shareholder's
acquisition of shares of a Fund by purchase or exchange, Fidelity shall provide
to such Shareholder a confirming prospectus for such Fund to the extent such
prospectus is required with respect to such acquisition and is provided by the
Fund to Fidelity or its designee.
Fund/Agent acknowledges and agrees that Fidelity 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, 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 Fund/Agent 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, Fund/Agent or affiliated person.
2
H. Account Level Tax Reporting - NFSC shall provide to
Shareholders through FBSI or Correspondent such reports and information as may
be required by the then-prevailing laws and regulations under the Internal
Revenue Code for non-retirement accounts and qualified and nonqualified
retirement plan accounts.
II. REPRESENTATIONS AND WARRANTIES
A. Fund/Agent represents and warrants that:
(1) it has the requisite authority to enter into this
Agreement on its own behalf and on behalf of the Fund(s), and
(2) that the payment to NFSC of any fees pursuant hereto:
(a) has been duly authorized by the Fund(s), the
Board of Trustees of the Fund(s), or any
other persons to the extent such
authorization is required to properly make
such payment;
(b) is properly disclosed in the relevant Fund
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
Fund or its agents are subject.
B. FBSI and NFSC each represent and warrant that:
(1) it is a corporation duly organized under the laws of the
Commonwealth of Massachusetts and is duly registered and/or qualified as a
broker/dealer with the SEC, NASD and in every state or territory of the United
States of America (including the District of Columbia) where such registration
or qualification is required and has the requisite authority to enter into this
Agreement and to carry out the services contemplated herein;
(2) the execution and delivery of this Agreement and the
performance of the services contemplated herein have been duly authorized by all
necessary corporate action in its part, and this Agreement constitutes the valid
and binding obligations of FBSI and NFSC; 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.
3
III. FEES
A. CUSIP Fee
Fund/Agent shall pay to NFSC a fee ("CUSIP Fee") to add any Fund to
Fidelity's computer system in order to make such Fund available to Fidelity's
customers. The amount of the CUSIP Fee is set forth on Exhibit A, and shall be
due and payable to NFSC upon the earlier of the addition of the Fund to Exhibit
B, or the availability of such Fund to Fidelity's customers.
B. Asset Based Fee
For the services provided by Fidelity hereunder, Fund/Agent shall pay
to NFSC 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 NFSC for the accounts of customers of FBSI and
Correspondents. Such fee shall be calculated and paid in accordance with Exhibit
A hereto.
C. Maintenance Fee
Fund/Agent shall pay to NFSC an annual maintenance fee ("Maintenance
Fee") with respect to certain Funds as set forth on Exhibit A.
In the event the parties agree to material changes to the scope of
services provided hereunder, the parties agree to negotiate in good faith as to
the appropriate amendment to the fees due NFSC.
IV. INDEMNIFICATION
Fund/Agent shall indemnify and hold harmless Fidelity and each officer,
employee and agent of Fidelity from and against any and all claims,. demands,
actions, losses, damages, liabilities, or costs, charges, 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 Fund/Agent or any advertising or promotional
material generated by any Fund or Fund/Agent, (ii) any breach by Fund/Agent of
any representation, warranty, covenant, or agreement contained in this Agreement
and (iii ) any action taken or omitted to be taken by Fidelity pursuant to this
Agreement, except to the extent such Losses result from Fidelity's breach of
this Agreement, willful misconduct, or gross 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 trade secrets of the owner, and is of great value and importance to
4
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 Fund or its 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 Fund or its Board of Trustees. This Agreement is
terminable as to any Fund by any party upon 90 days written notice thereof to
the other parties or upon default hereof provided that such default shall not
terminate this Agreement to the extent 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 any Fund, no fee will be due with
respect to any shares of such Fund that are first placed or purchased in
Fidelity or Correspondent customer accounts after the date of such termination.
However, notwithstanding any such termination, Fund/Agent will remain obligated
to pay NFSC the fee as to each share of such Fund that was considered in the
calculation of the fee as of the date of such termination, for so long as such
share is held in the Fidelity 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 a fee
continues to be due subsequent to such termination.
VII. MISCELLANEOUS
A. Custody - Fund/Agent acknowledges that Fund shares maintained
by the Fund for Shareholders hereunder are held in custody for the exclusive
benefit of customers of NFSC or its Correspondents and shall be held free of any
right, charge, security interest, lien or claim against NFSC in favor of the
Fund or its agents acting on behalf of the Fund.
B. Transaction Charges - During the term of this Agreement, FBSI
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. The parties acknowledge
and agree that FBSI reserves the right to
5
collect such transaction fees from certain customers (including "Short-Term
Traders," as FBSI may define that term) for certain special trading services and
from other customers upon such other customers' redemption of certain shares.
C. Use of Fidelity Investments Name - Fund/Agent will not, nor
will Fund/Agent cause or permit any Fund to, describe or refer to the name
"Fidelity Investments" or any derivation thereof, or to FMR Corp. or any
affiliate thereof, or to the services or relationship contemplated by this
Agreement in any advertisement or promotional materials or activities without
the prior written consent of an authorized officer of Fidelity.
D. Nonexclusivity - Fund/Agent acknowledges that Fidelity 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.
E. Force Majeure - Neither Fidelity nor its affiliates shall be
liable to Fund/Agent or any Fund for any damage, claim or other loss whatsoever
caused by circumstances or events beyond its reasonable control.
F. 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 Fidelity, to: Fidelity Investments
00 Xxxxxxxxxx Xxxxxx, X0X
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
if to Fund/Agent, to: ____________________________________
____________________________________
____________________________________
____________________________________
G. This Agreement and any Exhibits hereto may be amended only
upon the written agreement of the parties.
H. This Agreement may not be transferred or assigned by either
Fund/Agent or Fidelity, and shall be construed in accordance with the laws of
the Commonwealth of Massachusetts.
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written below.
FUND/AGENT FIDELITY BROKERAGE SERVICES LLC
By: /s/ Xxxxxxx X. XxXxx By: /s/ Xxxxx X. Xxxx
-------------------------- -------------------------
Name: Xxxxxxx X. XxXxx Name: Xxxxx X. Xxxx
-------------------------- -------------------------
Title: Senior Vice President Title: Director
-------------------------- -------------------------
Fund or
Company: U.S. Bancorp Fund Services LLP
-------------------------------
Date: 10-17-02 Date: 11-07-02
-------------------------- -------------------------
DISTRIBUTOR NATIONAL FINANCIAL SERVICES, LLC
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------- -------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxx
-------------------------- -------------------------
Title: President Title: Vice President
-------------------------- -------------------------
Fund or
Company: Quasar Distributors LLC
-------------------------
Date: 10-17-02 Date: 11-11-02
-------------------------- -------------------------
7
EXHIBIT A
---------
FEE SCHEDULE
1. CUSIP Fee = $ 1,000.00/cusip (for new funds added to the system)
2. Asset Based Fee
(a). For the services provided by Fidelity hereunder, Fund/Agent shall pay to
NFSC a fee with respect to each Fund, calculated daily and paid monthly in
arrears, equal to .35 percent per annum of the daily market value of the total
number of shares of such Fund held in accounts at NFSC (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 Agreement as 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
Fund/Agent issuing such shares. The total number of shares of all Funds with
respect to which a fee will be due to Fidelity hereunder shall be referred to in
this Exhibit A as "Participating Assets".
(b). Subsequent to each month-end, NFSC shall send to Fund/Agent 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. In the
calculation of such fee, NFSC records shall govern unless Fund/Agent can
demonstrate that the number of shares or Fund price(s) used in such calculation
is inaccurate.
(c). Fund/Agent shall pay to NFSC such fee within 30 days after Fund/Agent's
receipt of such statement. Such payment shall be by wire transfer or other form
acceptable to NFSC and shall be separate from payments related to redemption
proceeds and distributions.
3. Maintenance Fee
Each Fund will be subject to a per Fund annual maintenance fee based on
December brokerage month-end assets in accordance with the following
schedule:
Fund Assets Annual Maintenance Fee
less than $2.5 million $4,500.00
$2.5 million - $5:0 million $3,000.00
greater than $5.0 million -0-
The annual Maintenance Fee for a Fund shall be waived if such Fund has
been included on Exhibit B and subject to the terms of this Agreement for less
than 12 months prior to the fee calculation date. NFSC will not charge
Fund/Agent an annual Maintenance Fee for any Fund if the average assets per Fund
exceeds $5 million (as measured by dividing the total market value of all Fund
shares subject to this Agreement as of December month-end by the total number of
Funds subject to this Agreement).
8
Upon written notice to Fund/Agent, Fidelity may change, amend or waive
any fee or the method of payment thereof under this Agreement. Fidelity may
issue to Fund/Agent a new or replacement Agreement or Exhibit A. Such change,
amendment or waiver shall be effective on the date stated in such notice. The
acceptance by Fund/Agent of any order after the date stated in such notice shall
represent Fund/Agent's agreement to pay such fees to Fidelity.
9
EXHIBIT B
FUNDS PARTICIPATING IN SERVICES AGREEMENT
ORDER
-----
FUND NAME CUSIP TRADING SYMBOL DEADLINE
--------- ----- -------------- --------
Xxxxxxxx Plumb
Balanced fund 884891102 THPBX
Xxxxxxxx Xxxxx
Growth Fund 884891300 THPGX
Xxxxxxxx Plumb
Select Fund 884891409 THPSX
Xxxxxxxx Xxxxx
Blue Chip 884891508 THDCX
